Federal judge prevents Biden from ending Trump-era ‘Remain in Mexico’ policy

A federal judge has prevented the Biden administration from ending the “Remain in Mexico” immigration policy introduced by the Trump administration, ruling on Thursday that it should stay in place while legal challenges play out. 

Under the policy, which was enacted in 2019 and is formally known as the Migrant Protection Protocols, asylum-seekers — including those not from Mexico — have been sent to Mexico to await proceedings in their cases. President Biden moved to end the policy, under which more than 70,000 asylum-seekers were sent to Mexico from the United States, upon taking office. 

Texas and Missouri took legal action to prevent Biden from ending the policy, delaying its repeal. The U.S. Supreme Court ruled 5-4 in June that Biden could end the policy and did not violate federal immigration law in trying to rescind it. 

But the Supreme Court also returned the case to lower courts for additional proceedings, tasking U.S. District Judge Matthew Kacsmaryk with determining whether the administration’s action was “arbitrary and capricious” in violation of the Administrative Procedure Act, which governs how federal agencies develop and issue regulations. 

Kacsmaryk ruled that the plaintiff in this case, Texas, met all requirements for a preliminary injunction to be issued: a likelihood to succeed on the merits of its argument, a likelihood of irreparable harm, the balance of equities tipping in its favor and the public interest being in favor. 

Kacsmaryk, who was appointed by former President Trump, found that the memo that the Biden administration issued in October 2021 failed to adequately include several considerations, including “key benefits” of the policy like the reduction of asylum claims without merit. He said in his ruling that the government also did not consider states’ costs and reliance interests in federal immigration policy. 

The policy is separate from Title 42, another Trump-era immigration policy that has allowed the federal government to deny migrants asylum based on concerns of the coronavirus spreading throughout the U.S. The Biden administration has kept that policy in place, but a federal judge struck it down last month, and the policy is set to end next week.