A federal appeals court delivered yet another loss for the Biden administration this week as the president continues to try to repeal a popular and effective Trump-era immigration policy.
The 5th U.S. Circuit Court of Appeals ruled that the administration must keep “Remain in Mexico,” a policy requiring migrants to stay in Mexico while they await court proceedings in the U.S., in place.
The Department of Homeland Security “claims the power to implement a massive policy reversal — affecting billions of dollars and countless people — simply by typing out a new Word document and posting it on the internet,” the court ruled.
“No input from Congress, no ordinary rulemaking procedures, and no judicial review,” the judges wrote. “DHS has come nowhere close to shouldering its heavy burden to show that it can make law in a vacuum.”
This is the third time the courts have ordered the Biden administration to reinstate “Remain in Mexico.” In August, U.S. District Judge Matthew Kacsmaryk ordered DHS to reinstate it, blasting the White House for not fully considering the consequences of its removal. The U.S. Supreme Court later upheld that decision.
Last week, the DHS reluctantly complied and began sending migrants back to Mexico. DHS and the State Department are coordinating housing for asylum-seekers away from dangerous border cities, and the U.S. will also provide transportation for migrants to and from ports of entry when they need to return to attend court hearings.
However, DHS Secretary Alejandro Mayorkas informed department officials in October that, no matter what the courts say, his intention is to keep trying to repeal the policy.
“After carefully considering the arguments, evidence, and perspectives presented by those who support re-implementation of [Remain in Mexico],” he stated, “those who support terminating the program, and those who have argued for continuing [Remain in Mexico] in a modified form, I have determined that [Remain in Mexico] should be terminated.”
