The U.S. 5th Circuit Court vehemently rejected the Biden administration’s appeal to allow an end to the Trump-era “Remain in Mexico” border management policy, taking the fight one step closer to the Supreme Court.
A 5th Circuit panel on Monday upheld a lower court’s determination that the Department of Homeland Security (DHS) improperly terminated “Remain in Mexico,” also known by its formal name, Migrant Protection Protocols (MPP).
The ruling by three Republican-appointed judges is the latest in a fight in which GOP-controlled states have sued the Biden administration to continue a border control policy they say is a “common sense” approach to implementing asylum law.
DHS under Biden has sought to end the policy, which immigrant advocates say violates U.S. statute and the federal government’s international obligations to give asylum-seekers a safe place to wait while their applications are processed.
The 5th Circuit’s decision, written by Trump-appointed Judge Andrew Oldham, drew immediate criticism from immigration advocates over its unorthodox style and final conclusions.
“The decision was written by Judge Oldham, whose sheer contempt for the Biden administration oozes off of the page at nearly every juncture,” wrote American Immigration Council policy counsel Aaron Reichlin-Melnick in a tweet.
Oldham panned DHS’s request to terminate a lower court’s injunction that’s kept MPP in place, saying “DHS’s proposed approach is as unlawful as it is illogical.”
“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,” wrote Oldham.
“We address and reject each of the Government’s reviewability arguments and determine that DHS has come nowhere close to shouldering its heavy burden to show that it can make law in a vacuum,” he added.
The 5th Circuit’s decision means DHS must continue implementing MPP, a program that’s become a damned-if-you-do-damned-if-
MPP was one of former President Trump’s signature border management programs, for which he negotiated with Mexico while threatening unilateral tariffs.
The original deal had Mexico agree to receive Central American migrants who’d previously crossed the border or attempted to enter the United States between ports of entry to claim asylum. Those migrants were returned to Mexico, where they often camped in refugee camps that sprang up along the border, while U.S. immigration courts attended to their asylum claims.
Migrant advocates argued that process violated asylum-seekers’ rights by placing them in unnecessarily dangerous conditions; the Trump administration said it could not house all asylum-seekers, and claimed that migrants released into the United States with court dates would disappear.
Historically, asylum applicants have been allowed to wait out their cases within the U.S., a policy derided by immigration restrictionists as “catch and release.”
Oldham partly based his ruling on the possibility of asylum applicants waiting out their cases within the U.S., saying “DHS is not detaining the aliens that Congress required it to detain.”
And Oldham nixed DHS’s argument that the lower court case was moot, as it dealt with DHS’s original memo rescinding MPP from June 1, even though DHS Secretary Alejandro Mayorkas wrote a new memo on Oct. 29, rescinding the original memo and expanding the arguments to end MPP.
Oldham reprimanded DHS for arguing that its later memo could moot the case.
“Never mind that a case is moot only when the controversy between the parties is dead and gone, and the controversy between these parties is very much not dead and not gone. Never mind that the new memoranda simply reaffirmed the Termination Decision that the States had been challenging all along. And never mind that the Government’s theory of mootness would allow an administrative agency to permanently avoid judicial review by issuing an endless litany of new memos to ‘moot’ every adverse judicial ruling,” wrote Oldham.
Still, DHS has pledged to continue to implement MPP “in good faith” after new negotiations with Mexico, under which the Mexican government agreed to receive nationals of countries other than the original MPP countries, El Salvador, Guatemala and Honduras.
Under the new MPP, which the Biden administration has said it will still fight to rescind, asylum-seekers have been given expanded access to legal protections, although advocates say those protections are not enough.
Since the original injunction barring DHS from ending MPP, 86 migrants have been returned to Mexico under the program, according to a report by CNN.