Appeals Court Rejects Biden Administration's Push to Overturn 'Remain in Mexico' Order

The 5th Circuit Court of Appeals has denied a request by Democratic President Joe Biden's administration to overturn the "remain in Mexico" immigration policy put in place by former President Donald Trump.

The decision—written by the court's three Republican-appointed judges—said the Biden administration illegally tried to end the program, called the Migration Protection Protocols (MPP), without following the Administrative Procedure Act.

The 1946 law says that any new procedures issued by federal agencies must first be developed in a trial-like hearing "with witness testimony, a written record and a final decision" that can be reviewed by courts.

The appeals court also said that congressional law requires the federal government to evaluate undocumented migrants trying to enter the U.S. on a "case-by-case decision- making" process.

The Department of Homeland Security (DHS) had sought to repeal MPP in a June 1 memorandum. After a federal judge overturned Biden's attempt, the DHS issued a second memo in October, seeking to explain the DHS' decision more in-depth. However, Monday's appeals court ruling has essentially said that the second attempt is illegal.

"The Government's position in this case has far-reaching implications for the separation of powers and the rule of law," the appeals court wrote in its decision. "The Government says it has unreviewable and unilateral discretion to create and to eliminate entire components of the federal bureaucracy that affect countless people, tax dollars, and sovereign States."

Biden remain in mexico court ruling decision
The 5th Circuit Court of Appeals rebuffs the Biden Administration's efforts to repeal the Trump-era "remain in Mexico" immigration policy. Above, a woman who was apprehended crossing the U.S.-Mexican border speaks to a Border Patrol agent from the back of a transport van in Sunland Park, New Mexico, on July 22, 2021. Paul Ratje / AFP/Getty

"DHS claims the power to implement a massive policy reversal—affecting billions
of dollars and countless people—simply by typing out a new Word document
and posting it on the internet. No input from Congress, no ordinary
rulemaking procedures, and no judicial review," the ruling continued.

"If the Government were correct, it would supplant the rule of law with the rule of say-so. We hold the Government is wrong," the ruling said.

The MPP policy, instated by Trump on January 25, 2019, requires immigrants and asylum seekers to remain in Mexico while awaiting their immigration court proceedings in the United States. Its implementation delivered on the Trump administration's aim of reducing the number of immigrants in the United States.

Despite the court's ruling, the "remain in Mexico" policy doesn't affect every undocumented immigrant who arrives at the southern border, according to Justice for Immigrants, a U.S. Catholic immigration reform organization.

Unaccompanied children aren't subject to it, nor are violent offenders and other known criminals who should be in jail in the U.S. or Mexico. The policy also doesn't apply to migrants with known mental or medical health issues or those who are determined by the Department of Homeland Security as likely to face persecution or torture if left within Mexico.

Migrants awaiting their trials in Mexican border towns live in "inhumane" conditions and are "preyed upon by criminal organizations," a spokesman for Doctors Without Borders told Border Report on March 9.

Waiting migrants are often cut off from all hometown family, legal or social supports. They don't always have viable options for stable shelter, food, money, medical care or other social support. Drug cartel operatives can recruit or kidnap migrants, holding them for ransom and killing them if their families don't comply with their financial or criminal demands.

Soon after the White House announced its changes to the MPP in June, however, Homeland Security Secretary Alejandro Mayorkas said that migrants should not respond by flocking to the U.S. border.

"Individuals who are not eligible under this initial phase should wait for further instructions and not travel to the border," Mayorkas said in a statement. "Due to the current pandemic, restrictions at the border remain in place and will be enforced."

Mayorkas' statement showed the delicate balance the Biden administration must strike. The more humane his administration's immigration policies are, the more likely they are to attract further migration.