A federal judge ordered Homeland Security to restart President Trump’s “Remain in Mexico” policy, ruling Friday that the Biden administration cut too many corners when it scrapped the get-tough approach to illegal border crossers.
Judge Matthew J. Kacsmaryk said Homeland Security Secretary Alejandro Mayorkas rushed to scrap the policy, officially known as the Migrant Protection Protocols, without considering the benefits of pushing border jumpers back across the boundary to Mexico to await their immigration court dates.
Particularly at a time when the government is defying U.S. law by catching and releasing illegal immigrants that are supposed to be detained, the judge said the MPP was a viable alternative, and the Biden team needed to give more than a cursory explanation for ending it.
“Defendants are ordered to enforce and implement MPP in good faith until such time as it has been lawfully rescinded in compliance with the [Administrative Procedures Act] and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention,” the judge wrote.
The decision is a severe blow to the Biden team’s efforts to roll back Mr. Trump’s immigration policies.
MPP, which was announced in late 2018 but really kicked into gear in the summer of 2019, helped solve the 2019 border surge by discouraging people who’d been jumping the border and lodging bogus immigration claims. Forcing them to wait in Mexico denied them the foothold in the U.S. that they had previously enjoyed while waiting years for their court dates.
Indeed, nearly half of MPP migrants didn’t bother to show for their first court dates, which Homeland Security had previously argued was proof that their claims were bogus.
Mr. Mayorkas, in his June memo ending the policy, said he had “questions” about that conclusion.
Judge Kacsmaryk said that wasn’t a good enough basis for ending the program, and he said Mr. Mayorkas needed more certainty.
“But it is the secretary’s job to answer such questions,” the judge ruled.
He also linked the unprecedented surge in illegal immigration in the ensuing months to the end of MPP, and chided Mr. Mayorkas for ignoring that connection in his memo canceling MPP.
Immigrant-rights activists had argued MPP was cruel to the migrants, sending them back to rough conditions in Mexico, where some of them were kidnapped, raped or faced other hardships at the hands of smuggling cartels.
The Biden team was sympathetic to those complaints.
It not only suspended MPP, but has moved to readmit tens of thousands of people who’d been mired in Mexico under the policy.
Judge Kacsmaryk’s ruling comes at a critical time in border politics.
July saw unprecedented illegal activity, with Mr. Mayorkas now acknowledging the surge he’s facing is “unprecedented.” Previously the administration had insisted what they were seeing was normal, and happened every year.
MPP could give the Biden administration a new tool to solve the surge, just as it helped the Trump team that created it.
Friday’s ruling is the latest to cite the Administrative Procedures Act in striking down a major immigration policy. The law requires major policy decisions to undergo careful consideration, and outlaws arbitrary moves.
President Obama saw his 2014 attempt to expand DACA to millions more illegal immigrants shot down by courts over APA violations. Mr. Trump saw a series of his moves fall victim to the APA, ranging from his attempt to phase out DACA, to his move to shoehorn a citizenship question into the 2020 Census.
The Biden administration has already been tripped up by the APA on other occasions, including its original deportation pause.
And a judge in Texas ruled that the original 2012 DACA policy, implemented by Mr. Obama and defended by Mr. Biden, violated the APA.