Federal Judge in Texas Suspends Biden Administration’s Cancellation of “Remain in Mexico” Border Policy

A federal judge in Texas suspended the Biden administration's termination Thursday of the former Trump administration's program requiring certain migrants to await their asylum hearing in Mexico. The recent ruling comes as the administration struggles to manage the ongoing migrant influx at the United States’ southern border with Mexico.

According to CBS News, U.S. District Judge Matthew Kacsmaryk halted an October 2021 memo by Department of Homeland Security (DHS) Secretary Alejandro Mayorkas that terminated the so-called "Remain in Mexico" policy. The measure, enacted by the Trump administration in early 2019, helped deter migration to the U.S. southern border.

In another ruling last year, Kacsmaryk ordered the Biden administration to reinstate the Remain in Mexico program, prompting border officials to revive the policy on a limited scale for several months before the U.S. Supreme Court cleared the way for the DHS to terminate the rule this summer.

In his ruling Thursday, Kacsmaryk argued that Republican officials in Texas and Missouri were likely to succeed in their arguments that Mayorkas' memo was "arbitrary and capricious" and contrary to federal administrative law, because he did not consider specific issues.

The judge noted that these issues included "key benefits" of the border policy, which the former administration called the "Migrant Protection Protocols," or MPP. Among some of the benefits included the protocols' role in deterring migrants with weak asylum claims from crossing the U.S. southern border unlawfully.

Kacsmaryk said the Biden administration also failed to consider how the cancellation of the policy would impose financial burdens on Texas and Missouri, which have argued that the program's termination led to increased numbers of migrants using their state' social services.

While the judge suspended Mayorkas' memo and the "corresponding decision to terminate MPP," the practical implications of the order were not clear, given that any U.S. effort to return migrants to Mexico must be approved by the Mexican government.

In June, the Supreme Court stated that federal law did not require the government to return migrants to Mexico, saying it was an optional legal measure that officials could invoke. The nation's highest court also concluded that requiring the government to enact a policy that depended on Mexico's approval interfered with the Executive Branch's broad powers to conduct foreign affairs.

Officials from the administration have said that Mayorkas was within his authority to terminate the MPP policy, noting their disagreement with the decision and plans to deal with the ruling.

Under the Trump administration, the MPP policy returned 70,000 migrants to Mexico, with many coming from Latin American countries like Ecuador, Venezuela, Nicaragua, Guatemala and other nations. The administration said MPP helped prevent migrants looking for better economic opportunities from using the asylum system to stay and work in the U.S. indefinitely.

The Biden administration called the policy "inhumane" and suspended it in early 2021. In the summer of last year, Mayorkas terminated the MPP protocols, saying the program was ineffective and led migrants to abandon their asylum claims because of a "lack of stable access to housing, income, and safety" in Mexico. Several months afterward, Judge Kacsmaryk found Mayorkas' termination memo legally insufficient.

The judge required the administration to implement the Remain in Mexico protocols "in good faith" until it terminated them properly and the government created enough holding facilities to detain all migrants subject to a 1996 detention law, which no administration has been unable to achieve. Following the judge's ruling, the DHS Secretary issued a comprehensive memo in the Fall of last year to end the MPP policy a second time.

The ruling by Kacsmaryk was later upheld by the 5th Circuit Court of Appeals, which did not consider Mayorkas' second termination memo. The recent Thursday ruling by Kacsmaryk comes as the Biden administration faces another court fight over the end of another Trump administration border policy, Title 42. The COVID-19 era measure was created by the administration, allowing DHS officials to prevent illegal migrants from coming to the U.S. under asylum during the pandemic.