Appeals court refuses to delay resumption of Trump-era ‘Remain in Mexico’ policy

Asylum seekers sitting and waiting in Tijuana
Asylum seekers sit and wait at the U.S.-Mexico border in Tijuana.
(Gregory Bull / Associated Press)

A federal appeals court late Thursday refused to delay a judge-ordered reinstatement of a Trump administration policy forcing thousands of people to wait in Mexico while seeking asylum in the U.S.

President Biden had suspended the controversial “Remain in Mexico” policy on his first day in office, and the Department of Homeland Security said it was permanently terminating the program in June, according to the court record. But U.S. District Judge Matthew J. Kacsmaryk last week ordered that the program be reinstated Saturday.

The Biden administration asked the 5th U.S. Circuit Court of Appeals in New Orleans for a delay in resuming the program, formally known as Migrant Protection Protocols, pending appeal. The administration argued in briefs that the president has “clear authority to determine immigration policy” and that the head of the Department of Homeland Security, Alejandro N. Mayorkas, had discretion in deciding whether to return asylum seekers to Mexico.


Lawyers for the states of Texas and Missouri, which challenged Biden’s suspension of the policy, opposed a stay of Kacsmaryk’s order. They said the Biden administration had not gone through proper procedures in ending the policy. And they argued that, after the policy was implemented, immigrants without legitimate claims for asylum had begun to return to their home countries voluntarily.

Officials have quietly deployed a mobile app relying on facial recognition technology to collect data on asylum seekers before they cross the border.

June 6, 2021

A three-judge 5th Circuit panel denied a stay of Kacsmaryk’s order late Thursday. “Even if the Government were correct that long-term compliance with the district court’s injunction would cause irreparable harm, it presents no reason to think that it cannot comply with the district court’s requirement of good faith while the appeal proceeds,” the ruling said.

The ruling affects thousands of asylum seekers with active cases who were subject to the Remain in Mexico program.

Kacsmaryk was nominated to the federal bench by Trump. The 5th Circuit panel that ruled Thursday night included two Trump nominees, Andrew Oldham and Cory Wilson, along with Jennifer Walker Elrod, nominated to the appeals court by President George W. Bush.