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Biden administration ordered to restore Trump-era immigration policy

A federal judge has ordered the Biden administration to restore a Trump-era program that forced asylum seekers to wait in Mexico for resolution of their cases.

U.S. District Judge Matthew Kacsmaryk found President Joe Biden’s Department of Homeland Security had “failed to engage in reasoned decision making” when it ended the program that saw more than 60,000 immigrants returned to Mexico after they arrived at the southwest border and asked for asylum.

Kacsmaryk, a Donald Trump appointee, stayed his order until Aug. 20, however, to let the Biden administration appeal it.

In his final days in office, Trump, whose administration euphemistically named the program Migrant Protection Protocols and launched it in January 2019, hailed MPP as a key component of his efforts to end immigration chaos at the southwest border.

Trump claimed MPP had ended the "catch and release" of immigrants coming to the U.S., making meritless asylum claims, then being released in the U.S. to await their court hearings, sometimes for years due to a large backlog of asylum cases.

Many turned back and forced to wait in Mexico took shelter in makeshift tent camps near the border where immigrant advocates say they became targets of extortion, kidnapping, robberies and assaults by drug cartels and even Mexican law enforcement.

Biden suspended the program, better known as Remain in Mexico, on his first day in office.

Texas and Missouri sued the Biden administration in April, claiming without MPP more undocumented immigrants would remain in their states, increasing their health care, education, social services and law enforcement costs, emphasizing the latter.

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"As a direct result of the suspension of new enrollments into the MPP, and the corresponding increase in human-trafficking incidents involving vulnerable Central American migrants, both Texas and Missouri will be forced to spend significantly more resources in combating human trafficking,” the states claimed in their lawsuit.

Kacsmaryk sided with the states in a ruling issued late Friday after a one-day bench trial in July.

Kacsmaryk noted Remain in Mexico had achieved its goal of reducing the number of immigrants entering the country. He cited DHS data that found Border Patrol apprehensions at the Southwest Border fell from 144,000 in May 2019 to around 40,000 in September 2019.

The judge said Biden had failed to heed the warnings of career DHS staffers that suspending MPP would lead to a resurgence of immigrants illegally entering the country.

Immigration has been Biden’s biggest domestic challenge in his first year in the White House.

The number of Border Patrol encounters of immigrants at the southwest border rose to 101,098 in February and has increased every month since to 212,672 in July, though DHS Secretary Alejandro Mayorkas says the figures are inflated by people who repeatedly return to the country after being expelled.

Biden tapped Vice President Kamala Harris to lead efforts to try to reduce the number of people leaving the countries of Guatemala, Honduras and El Salvador for the United States. She had a stark message in a June 7 speech in Guatemala.

"I want to be clear to folks in this region who are thinking about making that dangerous trek to the United States-Mexico border: Do not come. Do not come,” Harris said.

"The United States will continue to enforce our laws and secure our border,” she added.

DHS expects the number of encounters at the southwest border this fiscal year (Oct. 1, 2020, to Sept. 30, 2021) to be the highest ever recorded, despite Biden continuing to immediately expel most people illegally entering the country, besides unaccompanied children and some families, under a pandemic-related policy known as Title 42 that Trump imposed in April 2020.

Judge Kacsmaryk found the Biden administration had violated the Administrative Procedure Act by offering an arbitrary reason for ending MPP: Mayorkas said he had concerns it was operating ineffectively because about 44% of the asylum cases of people enrolled in it were adjudicated with in absentia deportation orders, meaning the immigrants did not make it to their hearings.

But Kacsmaryk said Mayorkas was wrong to assume those abandoning their cases had legitimate asylum claims. He cited an October 2019 DHS report in which the agency concluded MPP was causing immigrants without meritorious claims to voluntarily return home.

Kacsmaryk also found by ending MPP and releasing those allowed to stay in the U.S. to pursue their asylum claims outside of prison, the Biden administration is violating a federal law that confines the government to two options in the handling of asylum seekers: mandatory detention or return to a contiguous territory.

“Failing to detain or return aliens pending their immigration proceedings violates Section 1225,” Kacsmaryk wrote in a 53-page order.

The judge did acknowledge the federal government has the right to grant immigrants “parole” to avoid detention while their asylum claims are pending. But he said Congress has dictated parole should be granted sparingly.

Kacsmaryk vacated the Biden administration’s June 1 memo terminating MPP and structured his order in a way that Biden will be unable to end the program, unless an appeals court overturns Kacsmaryk’s ruling.

The judge granted Texas and Missouri an injunction ordering DHS to keep MPP in place “until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under Section 1255 without releasing any aliens because of a lack of detention resources,” a benchmark that will be difficult for the Biden administration to meet given the record numbers of asylum seekers entering the country.

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Daniel Arauz/CC BY 2.0

Asylum seekers in Tijuana, Mexico. Many migrants turned back and forced to wait in Mexico took shelter in makeshift tent camps near the border where immigrant advocates say they became targets of violence by drug cartels and even Mexican law enforcement.