Joe Biden’s effort to end President Donald Trump’s “Remain in Mexico” policy regarding immigrants seeking asylum in the U.S. was dealt another blow in federal court this week.
On Monday, the federal Fifth Circuit Court of Appeals upheld the U.S. District Court ruling for the Northern District of Texas that found that Biden’s Department of Homeland Security acted unlawfully when it stopped the Migrant Protection Protocols (MPP) enacted during the Trump administration.
The MPP, which became also known as the “Remain in Mexico” policy, was first enacted in 2019 and required persons seeking legal asylum in the U.S. to stay in Mexico while they wait for their hearing date in federal court. The policy was explicitly designed to reduce “catch and release instances,” where asylum seekers were released into the U.S. and often disappeared without returning for their asylum hearings.
Joe Biden blasted MPP as inhumane when he was running for president in 2020 because of the dangers he said face asylum seekers in Mexico. He made ending MPP one of his priorities upon assuming office.
The federal district judge hearing the resulting case ruled against the administration in October, finding that the reversal of the policy was not done according to the rules laid out in federal law. The judge ordered DHS to restart the MPP as previously established. The Biden Administration appealed that decision to the Fifth Circuit.
The three-judge panel of the Fifth Circuit that issued their order on review of the case affirmed the district judge’s ruling. That court specifically rejected the arguments of the administration’s lawyers that the case is moot and the DHS actions are not reviewable by federal courts at all.
The court found that the administration’s “proposed approach is as unlawful as it is illogical.”
The opinion said that the attempt by DHS to change federal policy by “simply typing out a new Word document and posting it on the internet” circumvents clear and established administrative procedures.
The court’s opinion also gave the administration sharp criticism for bypassing federal law established by Congress, setting out the rules that the executive branch must follow to change or end properly established policies formally. The ruling said that if the Biden administration’s argument were valid, the rule of law would be supplanted with the “rule of say-so.”
The latest ruling commands the administration to continue the MPP as established during the Trump administration. The Biden Administration is expected to ask the Supreme Court to grant a final case appeal.