() The Biden administration has lost another court battle to Texas over immigration, this time over its decision to end the Remain in Mexico program, or the Migrant Protection Protocols.
In April 2021, Texas Attorney General Ken Paxton and Missouri Attorney General Eric Schmitt sued the Biden administration after it terminated the Trump-era policy that requires foreign nationals entering the U.S. illegally to wait in Mexico until the completion of their immigration application process.
On August 13, U.S. District Judge Matthew J. Kacsmaryk of the Northern District of Texas granted Texas’ and Missouri’s request for a permanent injunction, requiring the Administration to reimplement the MPP, ruling it had violated the Administrative Procedure Act.
The Biden administration had already lost to Texas in the first lawsuit Paxton filed against it, stopping an executive order attempting to halt deportations.
The administration next appealed to the Fifth Circuit and the U.S. Supreme Court, both of which denied its request to stay Kacsmaryk’s ruling, handing Texas two more wins.
The case continued forward in the Fifth Circuit, and oral arguments were heard before a different panel of judges on Nov. 2.
On Dec. 2, DHS announced that it had reached an agreement with the Mexican government, providing a range of guarantees in exchange for Mexico’s cooperation to implement the MPP.
But on Dec. 13, the three-judge Fifth Circuit Court panel didn’t accept the administration’s arguments and ruled against it for a final time, handing Texas yet another win.
Writing for all three judges in agreement, Judge Andrew Oldham ruled that the administration’s decision to end MPP violated section 1225 of the Immigration and Nationality Act.
“That statute (among other things) requires DHS to detain aliens, pending removal proceedings, who unlawfully enter the United States and seek permission to stay,” Oldham wrote in a 117-page ruling.
Those who enter the U.S. illegally must wait in Mexico through the completion of the immigration process, the Fifth Circuit panel ruled, once again upholding Kacsmaryk’s ruling.
Oldham acknowledged that DHS is required to hold those seeking entry until their cases are finalized and that it lacks the physical capacity to do so—which is the whole point of the MPP. The statute directs the government to return individuals to contiguous countries while their cases are pending, he explained.
“That safety valve was the statutory basis for the protocols,” Oldham wrote. “DHS’s termination decision was a refusal to use the statute’s safety valve. That refusal, combined with DHS’s lack of detention capacity, means DHS is not detaining the aliens that Congress required it to detain.”
The administration argued that DHS has the authority to parole illegal immigrants, allowing them to stay in the U.S. while their cases progress.
But Oldham didn’t accept that argument.
“The idea seems to be that DHS can simply parole every alien it lacks the capacity to detain. But that solves nothing: The statute allows only case-by-case parole. Deciding to parole aliens en masse is the opposite of case-by-case decision making,” he wrote.
The Biden administration also violated the Administrative Procedure Act, the Fifth Circuit ruled, because it hadn’t considered the financial burden it would place on states, also affirming Kacsmaryk’s ruling.
Oldham wrote in his closing remarks: “The Government’s position, in this case, has far-reaching implications for the separation of powers and the rule of law. The Government says it has unreviewable and unilateral discretion to create and to eliminate entire components of the federal bureaucracy that affect countless people, tax dollars, and sovereign States.
“The Government also says it has unreviewable and unilateral discretion to ignore statutory limits imposed by Congress and to remake entire titles of the United States Code to suit the preferences of the executive branch. And the Government says it can do all of this by typing up a new ‘memo’ and posting it on the internet. If the Government were correct, it would supplant the rule of law with the rule of say-so.
“We hold the Government is wrong.”
Over six months, Mayorkas had issued several official DHS memos terminating the MPP.
But Oldham said the memos “have no present legal effect” and were part of the administration’s “have-its-cake-and-eat-it-too” litigation strategy.
AG Paxton said the ruling was “a huge win for Texas.” Over the last year, he’s called on the administration to follow the law. Since it hasn’t, he says he will keep suing to uphold the rule of law and protect Texans.
The MPP is already being reinstated in El Paso, Texas, Customs and Immigration Enforcement has confirmed, with Brownsville and Laredo, Texas, and San Diego, California, next.
Paxton says once the MPP’s fully implemented, it will help “reduce the unprecedented rate of migrant border crossings that took place in 2021.”
AG Schmitt said the ruling is a “huge win for border security and national security.”
“The Biden Administration’s border policies have been nothing short of a disaster,” he added, saying they’ve “emboldened drug and human trafficking at the border and into the interior, including here in Missouri. Amid a worsening border crisis and record-high border crossings, the Biden Administration terminated a successful tool to help quell that crisis.”
White House press secretary Jen Psaki told reporters that the Biden administration believes the MPP is “inefficient, inhumane,” and “We did not eagerly reimplement it.”
Activists decried the ruling, saying MPP is putting people in danger while they wait for an immigration hearing.
“Yesterday’s federal appeals court decision reinstating the Migrant Protection Protocols is deeply disappointing,” said Joan Rosenhauer, Executive Director, Jesuit Refugee Service/USA. “We have seen first-hand the impact this harmful policy has had on the lives of asylum seekers lawfully petitioning for protection. We urge the Biden Administration to do everything in its power to reverse this policy and call on the courts to uphold long-standing rights and protections for those seeking safety in the U.S.”
