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Court won’t allow the reversal of Trump’s ‘Remain in Mexico’ policy

President Biden
President Biden delivers closing remarks to the virtual Summit for Democracy on Friday in Washington.
(Evan Vucci / Associated Press)

A federal appeals court has dealt another blow to the Biden administration’s attempt to undo former President Trump’s policy requiring people seeking asylum in the United States to remain in Mexico while their asylum claims are processed.

In a Monday night ruling, the 5th U.S. Circuit Court of Appeals in New Orleans upheld a Texas-based federal judge’s decision maintaining Trump’s policy, formally known as the Migrant Protection Protocols.

President Biden’s administration had appealed the August decision, but also began working with Mexico to reimplement the policy while the legal battle continued. Earlier this month, U.S. authorities sent the first two migrants back to Mexico under the reinstated policy.

Monday’s ruling by three 5th Circuit judges said the administration’s move to end the policy was arbitrary and violated a federal immigration statute requiring detention of those in the country illegally pending removal proceedings. If there is no capacity to detain them, Judge Andrew Oldham wrote for the panel, the statute allows the Department of Homeland Security to return them to “contiguous territories” while proceedings are pending.

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Biden suspended the program on his first day in office in January and Homeland Security Secretary Alejandro Mayorkas formally ended it in June. But the state of Missouri and Texas sued to reinstate it. Texas-based U.S. District Judge Matthew Kacsmaryk issued an injunction keeping the policy in play, saying the administration failed to follow required procedures for ending it and did not have capacity to detain all asylum seekers.

Mayorkas issued a revised version of the policy Oct. 29, but Monday’s ruling said the revision “simply reaffirmed the Termination Decision that the States had been challenging all along.”

When he issued the Oct. 29 policy revision, Mayorkas said the “Remain in Mexico” policy likely contributed to a drop in illegal border crossings in 2019 but with “substantial and unjustifiable human costs” to asylum-seekers who were exposed to violence while waiting in Mexico.

The panel that issued Monday’s ruling included Oldham and Judge Kurt Engelhardt, both nominated to the court by Trump, and Judge Rhesa Barksdale, nominated by President George H.W. Bush.


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