Last week, a federal judge in Texas ordered the Biden administration to halt its suspension of former President Trump’s “Remain in Mexico” policy, which requires immigrants seeking asylum at the southern border to wait in Mexico while their request is being processed.
The ruling is the latest development in the back-and-forth legal battle that began when Biden’s Department of Homeland Security stated its intent to end the policy in early 2021, prompting a lawsuit from Texas and Missouri to block DHS from doing so.
Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas granted a motion to reverse an October 29, 2021, memorandum from DHS Secretary Alejandro Mayorkas that suspended the Migrant Protection Program, the formal name of the “Remain in Mexico” policy. A Trump appointee, Kacsmaryk ruled that the Biden administration likely violated the Administrative Procedure Act by terminating the program without properly accounting for its potential effects, including how they would comply with the Immigration and Nationality Act requirement that immigrants seeking asylum be detained while they await adjudication of their request.
In his written opinion, Kacsmaryk compared the case’s “complex procedural history” to the adventures of Bilbo Baggins, the main character in J.R.R. Tolkien’s “The Hobbit: There and Back Again.”
Kacsmaryk issued a similar ruling in August of last year regarding a previous version of the DHS memorandum, and the Biden administration subsequently appealed to the 5th U.S. Circuit Court of Appeals and the U.S. Supreme Court. The U.S. Supreme Court invalidated the lower court injunction and ruled that the revised memorandum issued in October 2021 superseded the previous one from June. However, it did not state whether the suspension of “Remain in Mexico” violated the Administrative Procedure Act, sending the case back to the district court in Texas to decide that issue.
The latest ruling came days before another Trump policy—Title 42—was scheduled to expire. Implemented in response to the COVID-19 pandemic, the policy prevents the entry of any foreigner who has recently traveled through a country with a known outbreak of a communicable disease. Title 42 has been the U.S. Border Patrol’s most effective tool for stemming the tide of illegal immigration during the last two and a half years, and many border security advocates feared that its suspension would open the floodgates of illegal border crossings.
Yesterday, U.S. Supreme Court Chief Justice John Roberts temporarily paused the suspension, ruling in favor of several states, including Texas, seeking to block the Biden administration from lifting Title 42. The U.S. Department of Homeland Security has until 5 p.m. EST Tuesday to respond.
