A federal judge in Texas has issued a stay to prevent the Department of Homeland Security from ending the Trump-era “Remain in Mexico” program.
“This action has a complex procedural history, having gone from this Court to the Fifth Circuit, to the Supreme Court, and back to this Court on remand,” U.S. District Judge Matthew J. Kacsmaryk wrote in his decision.
The Trump-appointed judge likened the procedural wrangling over the policy to The Hobbit. “Or ‘there and back again,” he wrote. ” See J.R.R. Tolkien, The Hobbit, or There and Back Again (1937).”
Indeed, it’s a mess. Biden has been there and back again to the Supreme Court, and in between, appellate courts have gone back and forth on whether the program should be terminated.
Under the program, migrants not enrolled in MPP should be processed under other existing legal authorities, but Biden issued an executive order directing Mayorkas to review and determine whether to terminate the program or modify it.
The State of Texas filed litigation against the move, asserting the memorandum violated the Immigration and Nationality Act, or INA, under which an alien who arrives on land from a foreign territory can be returned to that territory after a court hearing.
A separate provision of the INA says if an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien should be detained until a hearing can be held.
DHS has been trying to end the program but each time they’ve tried, the courts have struck them down for various procedural reasons. For example, DHS Secretary Alejandro Mayorkas wrote a memo outlining reasons for terminating the program. Still, the Supreme Court sent the case back to Kacsmaryk for him to decide if the memo was arbitrary and capricious.
In his decision this week, Judge Kacsmaryk said the court stays, or suspends the Oct. 29 memoranda and previous decision on June 1, 2021, from DHS to terminate MPP “until the Court can resolve the merits of Plaintiffs’ claims.”
Then-candidate Biden pledged to end the program if elected, and soon after entering office the Biden administration shut it down and released those enrolled in the program into the U.S. Mayorkas claimed the policy was not only cruel but ineffective.
If the policy was “cruel and ineffective,” it was because Mexico failed to care for the immigrants who were sent back. The asylum seekers lived in squalor and were in danger from gangs because Mexico failed to live up to its promises when Trump made the deal to send them to stay in Mexico until their status was clarified.
Biden is probably secretly thanking Trump and Judge Kacsmaryk. He’s going to need all the help he can get to withstand the tsunami of human beings that will rush the border on December 21, when the pandemic-era immigration policy Title 42 will end.
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