Federal judge allows Biden administration to terminate Remain-in-Mexico border policy again


A federal judge in Texas on Monday gave the Biden administration the green light to terminate Trump-era border rules that require migrants to wait for their U.S. asylum court hearings in Mexico, putting an end, at least for now, to a yearlong legal back-and-forth over President Biden’s efforts to end the policy.

In a one-page order, U.S. District Court Judge Matthew Kacsmaryk set aside a ruling he issued last year that required the Biden administration to reinstate the Migrant Protection Protocols, a policy colloquially known as “Remain-in-Mexico” that was suspended on President Biden’s first day in office in January 2021.

Earlier in the day, Justice Department lawyers representing the Biden administration had asked Kacsmaryk to void his August 2021 ruling, citing the Supreme Court’s decision in June to reject the legal arguments by Republican officials in Texas and Missouri that Kacsmaryk upheld in his order last year.

While the Supreme Court issued its ruling on June 30, it did not become legally binding until August 1 and the Biden administration had to clear several legal hurdles before asking Kacsmaryk to annul his order, including a decision from the 5th Circuit Court of Appeals, which ruled against the administration last year.

Representatives for the Department of Homeland Security did not respond to questions about whether it had begun to take steps to terminate the Remain-in-Mexico protocols in light of Monday’s order and whether it would reinstate a process that allows those enrolled in the program to continue their cases in the U.S. 

In his second memo terminating the protocols, Homeland Security Secretary Alejandro Mayorkas said his department would terminate Remain-in-Mexico “as soon as practicable” after Kacsmaryk’s ruling was voided.

While Monday’s order is a legal victory for advocates for asylum-seekers who have called the Remain-in-Mexico policy inhumane and draconian, it will have a limited impact on current U.S. border policy, since the Biden administration had been enrolling a very small percentage of migrants in the program.

Since the Migrant Protection Protocols were reinstated in December 2021, 5,764 migrants have been returned to Mexico under the policy, according to government data. During the same time period, U.S. border officials have reported record levels of unlawful migration, processing migrants over 1.4 million times, DHS statistics show.

Migrants in Eagle Pass, Texas USA
Migrants are transported after waiting in high heat to be processed by U.S. Border Patrol after illegally crossing into Eagle Pass, Texas, from Mexico on July 26, 2022.

Allison Dinner/Anadolu Agency via Getty Images

The Trump administration started the MPP policy in early 2019, using it to return 70,000 migrants to Mexico, many of whom lived in squalid encampments near the U.S. border. Human rights workers recorded hundreds of reported attacks against migrants forced to wait in Mexico, including in areas U.S. officials warn Americans not to visit because of violent crime and kidnappings.

The Trump administration said MPP dissuaded migrants looking for better economic opportunities from using the asylum system to stay and work in the U.S. But Mr. Biden denounced the policy as inhumane on the 2020 campaign trail and on his first day in office, DHS stopped placing migrants in the program.

In June 2021, Mayorkas formally terminated the MPP policy, saying it was ineffective and placed asylum-seekers in harm’s way. But Republican attorneys general in Texas and Missouri filed suit, and Kacsmaryk ruled that the administration had improperly ended the protocols.

Kacsmaryk, an appointee of former President Trump, required the Biden administration to implement the Remain in Mexico protocols “in good faith” until it terminated them properly and until the government set up enough holding facilities to detain all migrants subject to the 1996 detention law.

In response, Mayorkas issued a more comprehensive memo in October to try to end the MPP policy a second time. But Kacsmaryk’s ruling was later upheld by the 5th Circuit, which refused to consider Mayorkas’ second termination memo.

The legal setbacks forced the Biden administration to resurrect Remain in Mexico in December, though it overhauled the program, requiring officials to ask migrants whether they feared persecution in Mexico before sending them there, offering enrollees coronavirus vaccines and exempting certain groups from the policy, including asylum-seekers with severe medical conditions, the elderly and members of the LGBT community.

Kacsmaryk’s now-defunct ruling also prompted the Biden administration to shut down a program that allowed 13,000 asylum-seekers previously enrolled in Remain-in-Mexico to enter the U.S. so they could continue their court cases inside the country.

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