Federal judge says Biden administration must reinstate ‘Remain in Mexico’ policy

One of former President Donald Trump’s most successful initiatives on the border is coming back.

President Joe Biden suspended his predecessor’s Migrant Protection Protocols (MPP), colloquially known as the “Remain in Mexico” policy, on his first day in office, and formally ended it six months later. But the states of Texas and Missouri were quick to file suit — and now, the Washington Examiner reports that a federal judge has ordered the Biden administration to reinstate the policy in full force.

Ordered reinstated

According to the Examiner, U.S. District Judge Matthew Kacsmaryk agreed with the two GOP states’ arguments that they had suffered financial harm in a number of ways due to the policy change, which they said came in violation of the Administrative Procedures Act (APA) and other existing immigration laws pertaining to asylum-seekers.

“Defendants are ordered to enforce and implement MPP in good faith until such time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention,” Kacsmaryk wrote at the conclusion of his 53-page ruling.

The judge also stipulated in his ruling that the Biden Department of Homeland Security (DHS) must keep the court informed in the coming months on several pertinent metrics, including apprehensions, detentions, and paroles at the U.S.–Mexico border.

That reporting is ostensibly meant to ensure the administration remains in full compliance with the judge’s order.

Judge Kacsmaryk also issued a nationwide injunction against the June 1 memo from DHS terminating the MPP program, remanding it back to the department for consideration. (In other words, he essentially told them to go back and try again, lawfully and in compliance with existing statutes this time.)

Laws violated

As for alleged violations of the APA, which sets the specific rules for how executive branch agencies must enact or undo policies, Breitbart reported that Judge Kacsmaryk — a Trump appointee — determined that the Biden administration had acted “arbitrarily and capriciously” in terminating the MPP policy.

To wit, Biden’s Department of Homeland Security had “failed to consider” the actual benefits of the program, the judge said, and ignored the clear warnings from career officials on the consequences of canceling it. The administration also overlooked costs that states would incur as a result of ending the policy, the judge ruled, and failed to consider whether other options were available besides total termination.

All of that is required by the APA.

With regard to existing immigration laws, Judge Kacsmaryk pointed to Section 1225 of the Immigration and Nationality Act (INA), which holds that migrants seeking asylum at the U.S.–Mexico border must either be detained or returned to a “contiguous territory” — in this case, Mexico — while their claims are processed.

Given the fact that, as DHS itself admitted, the government lacks the resources to detain all asylum-seekers pending adjudication, “terminating MPP necessarily leads to the systemic violation of Section 1225 as aliens are released into the United States because Defendants are unable to detain them,” the judge said. And that’s that.

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