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5th Circuit: Biden administration must continue 'Remain in Mexico' program

A Fifth Circuit Court of Appeals panel late Monday rejected the Biden administration’s efforts to end a Trump-era immigration policy that forces some asylum seekers to wait in Mexico for resolution of their cases, a week after the government restarted the program in compliance with an injunction.

Portrayed by former President Donald Trump and fellow Republicans as key to curtailing the “catch and release” of immigrants coming to the U.S. and making meritless asylum claims before being released into the country to await their court hearings, the Migrant Protection Protocols, launched by Trump in January 2019, was viewed as a humanitarian disaster by immigrant advocates.

The Mexican government agreed to provide people turned back to its country with appropriate humanitarian protections during the duration of their stays. But it failed miserably.

Many of the around 70,000 enrollees were forced to shelter in squalid makeshift tent camps near the border where they were preyed upon by criminal organizations and corrupt Mexican law enforcement, who kidnapped them and held them in lieu of ransom payments from their families and worse.

In the first two years of MPP, better known as “Remain in Mexico,” there were more than 1,500 publicly reported cases of murder, rape, torture, kidnapping and other violent assaults against asylum seekers returned under MPP, according to Human Rights First.

On the presidential campaign trail in 2020, Biden said Trump had shattered the United States’ long-standing tradition, in line with international treaties, of welcoming asylum seekers.

“This is the first president in the history of the United States of America that anybody seeking asylum has to do it in another country,” Biden said in October 2020 debate with Trump.

“You come to the United States and make your case. …They’re sitting in squalor on the other side of the river," Biden added.

He suspended “Remain in Mexico” on his first day in office, then terminated it via a June 1 memo from Department of Homeland Security Secretary Alejandro Mayorkas.

Between the suspension and termination of MPP, Texas and Missouri sued Biden and DHS officials in April, claiming without the program more undocumented immigrants would remain in their states, increasing their health care, education, social services and law enforcement costs.

U.S. District Judge Matthew Kacsmaryk, a Trump appointee, sided with the states in an Aug. 13 order after a one-day bench trial. He found DHS had violated the Administrative Procedure Act by offering an arbitrary reason for ending MPP.

The Biden administration appealed to the Fifth Circuit, but a panel of the New Orleans-based appellate court declined to stay the injunction, as did the U.S. Supreme Court in a 6-3 ruling.

The administration pressed for ending MPP before a different Fifth Circuit panel on Nov. 2.

A Justice Department attorney argued the injunction ordering reimplementation of MPP should be vacated and Texas and Louisiana’s lawsuit declared moot because Mayorkas had issued another MPP-termination memo Oct. 29 that addressed all the problems Kacsmaryk had with the June 1 memo.

On Dec. 2, DHS announced the United States had reached a deal with the Mexican government and agreed to make improvements to MPP demanded by Mexico, including guarantees that enrollees asylum claims will be processed within six months, will have access to legal counsel and DHS will provide them with Covid-19 vaccines.

Though DHS reiterated Secretary Mayorkas’ belief MPP is the wrong approach due to its “unjustifiable human costs” and failure to address the root causes of immigration, the agency said it will work closely with the Mexican government to ensure MPP enrollees are placed in safe shelters, have secure transportation to and from U.S. ports of entry and can apply for work permits and health care in Mexico.

The Fifth Circuit late Monday dashed the Biden administration’s hopes of receiving federal courts’ permission to end MPP once and for all.

Writing for a unanimous three-judge panel, U.S. Circuit Judge Andrew Oldham, a Trump appointee, found Biden’s decision to terminate MPP violated section 1225 of the Immigration and Nationality Act.

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“That statute (among other things) requires DHS to detain aliens, pending removal proceedings, who unlawfully enter the United States and seek permission to stay,” wrote Oldham, a former general counsel to Texas Governor Greg Abbott, a fierce critic of Biden’s immigration policies. (Parentheses in original.)

Oldham acknowledged DHS lacks the prison capacity to detain all asylum seekers, but said the statute also allows the agency to return them to contiguous countries while their cases are pending.

“That safety valve was the statutory basis for the protocols,” Oldham wrote in a 117-page order. “DHS’s termination decision was a refusal to use the statute’s safety valve. That refusal, combined with DHS’s lack of detention capacity, means DHS is not detaining the aliens that Congress required it to detain.”

The government argued DHS has authority to parole immigrants, allowing them to remain temporarily in the U.S., for humanitarian reasons or any other reason it deems to be a significant public benefit, after making the decisions on a case-by-case basis.

But Oldham did not buy that DHS would make those individualized assessments.

“The idea seems to be that DHS can simply parole every alien it lacks the capacity to detain. But that solves nothing: The statute allows only case-by-case parole. Deciding to parole aliens en masse is the opposite of case-by-case decisionmaking,” he wrote. (Emphasis in original.)

The panel also agreed with the district court that the administration’s decision to end MPP had violated the Administrative Procedure Act because it had not considered the financial burden it would place on U.S. states—as Texas, for example, subsidizes the cost of driver’s licenses for immigrants with lawful status, and both Texas and Missouri subsidize health care for immigrants, regardless of their status.

Oldham was joined on the panel by U.S. Circuit Judges Kurt Engelhardt, another Trump appointee, and Rhesa Barksdale, a George H.W. Bush appointee.

Despite the fact the judiciary forced Biden to restart MPP, he has been widely condemned for the move and changes DHS made to the program in its second iteration.

A group of U.S. Citizenship and Immigration Services asylum officers who belong to the American Federation of Government Employees wrote that they strongly object “to the resurrection of this irredeemably flawed program,” as it makes them complicit in violating international treaty obligations that bar countries from returning asylum seekers to countries where they will face persecution, cruel treatment or other serious human rights violations.

Critics say MPP in combination with another Trump-era program that Biden has kept in place called Title 42 – a pandemic-related policy under which most immigrants who illegally enter the country are immediately expelled to Mexico or their home countries – have effectively shut down the U.S. asylum system at the Southwest border.

They are also upset with DHS’s decision, absent any court order, to expand MPP from applying just to immigrants from Spanish-speaking countries and Brazil to all from the Western Hemisphere.

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A family at the Kino Border Initiative on July 28 in Nogales, Sonora.

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