President Joe Biden has been clear in his desire to undo or reverse the tough border and immigration policies of his predecessor.
A federal judge, however, just issued the Department of Homeland Security (DHS) a stark reminder that it must fully abide by the rules currently in place, specifically those related to the so-called “Remain in Mexico” policy.
Details of the policy
The policy formally known as Migrant Protection Protocols (MPP) was lawfully implemented under then-President Donald Trump in 2019 and requires asylum-seekers arriving at the nation’s southern border to wait for the outcome of their application in Mexico.
Biden moved to suspend that policy on his first day in office and the DHS terminated it altogether in June.
But according to the Washington Examiner, U.S. District Judge Matthew Kacsmaryk issued a 53-page ruling this week determining that the Biden administration had violated the Administrative Procedures Act (APA) by improperly terminating the program.
Furthermore, the decision by DHS officials to end the policy essentially allowed newly arrived asylum-seekers to enter the U.S. in violation of the Immigration and Nationality Act, the judge determined.
As Kacsmaryk explained in his ruling, the statute provided three options available to federal officials in response to migrants seeking entry at the border. Such individuals can be expelled to their country of origin, detained in a federal facility, or sent to a “contiguous territory” to await a final determination.
“In good faith”
The Center for Immigration Studies found that the “Remain in Mexico” policy was a bolstered interpretation of the third option in that it provided the framework for migrants to wait on the Mexican side of the border for adjudication.
Trump’s policy has survived prior legal challenges, but supporters argue that it served to alleviate overcrowded government detention facilities and bring an end to the practice of paroling new arrivals and allow them to enter the country with little oversight.
In his ruling, Kacsmaryk issued a nationwide injunction against the Biden administration’s termination of the policy and ordered the DHS to “enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA.”
In order to ensure compliance by the administration, the judge established a requirement for the DHS to provide the court with monthly updates denoting a tally of encounters at the border, expulsions under any statute, detention capacity and usage, applicants for admission, paroles, and all other releases.
While it is still possible that the Biden administration will rescind the policy through the proper channels, this ruling shows that courts will be watching to make sure the current rules are being followed in the meantime.