Court Orders Immediate Restart to Trump’s Hard-Line ‘Remain in Mexico’ Policy for Migrants

Starting Saturday, the Biden administration must reinstate one of former President Donald Trump’s most hard-line immigration policies that forced asylum seekers to wait in Mexico for a decision in their cases, a federal appeals court ruled late Thursday night. 

The ruling revives the program Migrant Protection Policies, also known as “Remain in Mexico,” and is likely to have an immediate and sweeping effect on tens of thousands of migrants reaching the U.S. border every month. It throws into jeopardy President Joe Biden’s ability to craft his own immigration policy and was met with anger from immigrant-rights groups, who have for years denounced the program as a vehicle for human rights abuses. 

But the decision from the conservative U.S. Court of Appeals for the Fifth Circuit gave no leeway to the government, swatting away its arguments at every turn. The court decisively ruled in favor of Texas, which had sued to have the policy reimplemented a few months before southwestern border apprehensions reached record highs.

“Texas’s injuries are actual and imminent,” a three-judge panel unanimously wrote. “MPP’s termination has caused an increase in immigration into Texas.”

Trump-appointed judges Andy Oldham and Cory Wilson, and Jennifer Walker Elrod, appointed by former President George W. Bush, issued the ruling, which came down at around 11 p.m. E.T. 

The decision listed a series of injuries suffered by Texas as a result of the Biden administration eliminating MPP: migrants who would have been turned back under the program are now applying for driver’s licenses; school-children “are being released or paroled into the United States,” costing Texas an average of $9,216 per additional student; migrants “will use state-funded healthcare services or benefits in Texas;” and “[some] will commit crimes.”

“The Government does not challenge any of these findings. But even if it did, we would not find any of them clearly erroneous in the light of the record as a whole,” the panel wrote.

One of Trump’s hallmark immigration policies, “Remain in Mexico” was crafted to deter migrants from coming to the U.S. From 2019-2021, more than 70,000 asylum seekers were sent to some of Mexico’s most dangerous border cities under the policy to wait while their immigration cases were decided.

While the Trump administration hailed its effectiveness, human rights groups were appalled. Thousands of asylum seekers sent to Mexico were assaulted, raped, kidnapped, and extorted, including by Mexican law enforcement officers, according to investigations by Human Rights First and other groups. Many returned home before their cases were decided, a process that dragged on for more than a year. Of those that stayed, fewer than 2 percent won their cases. 

The panel ceded the Biden administration no ground, batting away its protestations with near disdain.

It took aim at a June memo written by Department of Homeland Security Alejandro Mayorkas formally terminating the policy. The program had produced “mixed results,” Mayorkas wrote, but it failed to relieve the enormous backlog of asylum cases and forced some migrants to abandon their cases because of the dangerous conditions they faced in Mexico. 

The appeals court ruled that the memo was “arbitrary and capricious,” upholding a lower court’s decision. The panel said Mayorkas failed to consider several “relevant factors” and “important aspects” of the issue, including states’ financial interests as well as the policy’s “benefits.” It also ruled that Mayorkas didn’t meaningfully consider modifying MPP instead of terminating it.

The court also scoffed at the Biden administration’s arguments that restarting MPP in a matter of days would be impossible and cause irreparable harm. Those claims are largely built on “strawmen,” the panel wrote. The administration doesn’t need to restore MPP’s infrastructure overnight, it ruled, but simply “enforce and implement MPP in good faith.”

And it dismissed the government’s argument that it cannot revive MPP without cooperation from Mexico. It said that the Department of Homeland Security under Trump implemented the policy in 2019 “unilaterally and without any previous agreement with Mexico,” and therefore the Biden administration could do the same now. 

Plus, it added, Mexico issued a statement in 2018 consenting to the policy. “Nothing in the record suggests that Mexico has since retraced that consent.”

The ruling comes at a delicate time for the Biden administration. Border apprehensions in July reached a 21-year high, surpassing 200,000 for the first time since March 2000. A small group of senior officials in the Biden administration had for weeks privately discussed reviving a gentler form of “Remain in Mexico” in order to manage the number of migrants arriving at the border, VICE World News reported. 

In a statement, the Department of Justice said it’s “reviewing the ruling and considering potential next steps.” The only legal recourse is to appeal the decision to the U.S. Supreme Court or request an emergency stay. The Biden administration could also move forward to reimplement the policy, likely with Mexico’s help.

On Tuesday, a White House spokesman told VICE World News that “the Trump administration’s Migrant Protection Protocols program was an ineffective policy that led to a humanitarian disaster at Mexico's northern border and to asylum seekers living in squalid, dangerous, and inhumane conditions.”