A Texas federal judge dealt a stinging defeat to the Biden administration, ruling that they cannot terminate the Migrant Protection Protocols (MPP), also referred to as the “Remain in Mexico” program, that former President Trump implemented during his tenure.
In June 2022, the Supreme Court ruled 5-4 that the Biden administration could end MPP, declaring that the Biden administration had not violated federal immigration law when it tried to end it. But the Supreme Court also returned the case to U.S. District Judge Matthew Kacsmaryk to decide if the Biden administration’s action was “arbitrary and capricious” and violated the Administrative Procedure Act.
Kacsmaryk stated in his ruling on Thursday that the assertion that Mayorkas considered the section revolving around the mandatory-detention obligation “does not adequately address the issue,” arguing that Mayorkas considered it “only to conclude he did not need to detain all inadmissible aliens as mandated by statute.”
“Before terminating MPP, Defendants had to thoroughly consider the effect of the termination on mandatory-detention duties. … Defendants failed to do so,” Kacsmaryk wrote, adding, “Defendants fail to consider MPP’s impact on human trafficking. … Plaintiffs, particularly the state of Texas, shoulder much of the burden of unlawful immigration.”
“By terminating MPP without adequately considering the reliance of States in the control of the flow of aliens (as assisted by MPP). Defendants do not appear to have tied their approach, ‘even if loosely, to the purposes of the immigration laws or the appropriate operation of the immigration system,’” Kacsmaryk contended.
In March 2020, the Heritage Foundation wrote of the “Remain in Mexico” policy: “Once word got out about this new policy, the number of illegal crossings plummeted. With the cooperation of the Mexican government, more than 60,000 illegal immigrants were returned to Mexico over a 13-month period. New immigration courts at key crossing points like Laredo, Texas, drastically reduced the time needed to process asylum claims, so that refugees with legitimate asylum claims had their cases heard much faster.”
The Biden administration put a temporary hold on MPP the day Biden was inaugurated. On June 1, 2021, Homeland Security Secretary Alejandro Mayorkas announced he was ending the policy, writing in a memo: “I have determined that MPP does not adequately or sustainably enhance border management in such a way as to justify the program’s extensive operational burdens and other shortfalls. Over the course of the program, border encounters increased during certain periods and decreased during others.”
Kacsmaryk ruled in August 2021 that the Biden administration had not given sufficient reason for the termination. The Biden administration then asked the Supreme Court to put Kacsmaryk’s decision on hold.
In August 2021, the Supreme Court gave the state of Texas a huge victory, ruling that the Biden administration had to reinstate the Migrant Protection Protocols policy.
The six conservative justices of the Court agreed with Kacsmaryk’s decision, writing: “The application for a stay presented to Justice Alito and by him referred to the Court is denied. The applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious. … Our order denying the Government’s request for a stay of the District Court injunction should not be read as affecting the construction of that injunction by the Court of Appeals.”