A federal appeals court denied President Joe Biden’s plea to block the reinstatement of former President Donald Trump’s “Remain in Mexico” policy that kept migrants in Mexico while awaiting their asylum hearings rather than releasing them into the interior of the United States.
Last week, Trump-appointed Judge Matthew J. Kacsmaryk ordered the Biden administration to reinstate the Migrant Protection Protocols (MPP), commonly known as Remain in Mexico, after it ended the program in June and started releasing thousands of MPP migrants into the U.S.
Biden’s DHS appealed the permanent injunction by Kacsmaryk, asking the U.S. Court of Appeals for the Fifth Circuit to issue a stay blocking the injunction. On Thursday, Judge Jennifer Elrod, appointed by former President George W. Bush, along with Judges Andy Oldham and Cory Wilson, both appointed by Trump, denied Biden’s request.
Elrod, Oldham, and Wilson write that DHS Secretary Alejandro Mayorkas failed to weigh the impact on border states that ending Remain in Mexico would have. Likewise, the court asserts that Texas, in particular, is harmed by the elimination of Remain in Mexico.
The three-judge panel writes:
DHS “failed to address whether there was ‘legitimate reliance’ on” MPP. In its seven-page June 1 Memorandum, DHS does not directly mention any reliance interests, especially those of the States. The closest the June 1 Memorandum gets is a reference to “the impact [terminating MPP] could have on border management and border communities.” But the Memorandum makes clear that “border communities” do not include border states. And the vague reference to “border management” is insufficient to show specific, meaningful consideration of the States’ reliance interests. [Emphasis added]
In response, the Government concedes that it failed to consider the States’ reliance interests. But it argues that is irrelevant because “the States have no cognizable reliance interest in a discretionary program.” We reject that argument for several reasons. [Emphasis added]
As the Supreme Court explained, “[w]hen an agency changes course, … it must be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.” Those reliance interests included states’ interests. So if the termination of DACA — a discretionary, immigration program — must consider states’ “potential reliance interests,” then so does termination of MPP. That is particularly true here because the district court found as a matter of fact — and the Government does not contest — that states like Texas face fiscal harm from the termination of MPP. [Emphasis added]
The court also found that Mayorkas’ ending of Remain in Mexico “failed to consider DHS’s prior factual findings on MPP’s benefits.”
“In its October 2019 Assessment of MPP, DHS found that ‘aliens without meritorious claims—which no longer constitute[d] a free ticket into the United States—[were] beginning to voluntarily return home,'” the New Orleans-based court writes:
DHS also found that MPP addressed the “perverse incentives” created by allowing “those with nonmeritorious claims … [to] remain in the country for lengthy periods of time.” These benefits, DHS emphasized, were a “core component” or “cornerstone” of the agency’s prior immigration policy.
Nonetheless, the June 1 Memorandum did not expressly mention, let alone meaningfully discuss, DHS’s prior factual findings. Instead, the Secretary changed policies based on his own findings that contradict DHS’s October 2019 findings. But an agency must provide “a more detailed justification” when a “new policy rests upon factual findings that contradict those which underlay its prior policy.” The Secretary did not provide the required “more detailed justification.” This further indicates that the termination of MPP was arbitrary and capricious. [Emphasis added]
The court states that DHS, in following federal statute, “can parole an alien” into the U.S. on a case-by-case basis, can release an alien on bail or conditional parole while they await deportation proceedings, or hold them in federal custody.
“What the Government cannot do, the district court held, is simply release every alien described in § 1225 en masse into the United States,” the appellate court writes:
The Government has not pointed to a single word anywhere in the [Immigration and Nationality Act] that suggests it can do that. And the Government cannot claim an irreparable injury from being enjoined against an action that it has no statutory authorization to take. [Emphasis added]
Texas Attorney General Ken Paxton and Missouri Attorney General Eric Schmitt first filed their lawsuit challenging Biden’s end to Remain in Mexico in April, arguing that the move spurred “a huge surge of Central American migrants, including thousands of unaccompanied minors, passing through Mexico in order to advance meritless asylum claims at the U.S. border.”
The case is Texas v. Biden, No. 21-10806 in the United States Court of Appeals for the Fifth Circuit.
John Binder is a reporter for Breitbart News. Email him at email@example.com. Follow him on Twitter here.