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Tipsheet

Judge Deals Blow to Biden's Effort to End 'Remain in Mexico'

AP Photo/Eric Gay

A federal judge has blocked the Biden administration from ending the Trump-era “Remain in Mexico” amid legal challenges. 

The policy requires asylum seekers to be sent to Mexico while they await proceedings in their cases, rather than detaining them or releasing them into the interior. President Biden has fought to end the policy, officially known as the Migrant Protection Protocols, since he took office. 

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Texas and Missouri took legal action to prevent Biden from ending the policy, delaying its repeal. The U.S. Supreme Court ruled 5-4 in June that Biden could end the policy and did not violate federal immigration law in trying to rescind it. 

But the Supreme Court also returned the case to lower courts for additional proceedings, tasking U.S. District Judge Matthew Kacsmaryk with determining whether the administration’s action was “arbitrary and capricious” in violation of the Administrative Procedure Act, which governs how federal agencies develop and issue regulations. 

Kacsmaryk ruled that the plaintiff in this case, Texas, met all requirements for a preliminary injunction to be issued: a likelihood to succeed on the merits of its argument, a likelihood of irreparable harm, the balance of equities tipping in its favor and the public interest being in favor. 

Kacsmaryk, who was appointed by former President Trump, found that the memo that the Biden administration issued in October 2021 failed to adequately include several considerations, including “key benefits” of the policy like the reduction of asylum claims without merit. He said in his ruling that the government also did not consider states’ costs and reliance interests in federal immigration policy. (The Hill)

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The ruling comes as border crossings are surging ahead of Title 42's end next week on Dec. 21, which allowed border officials to quickly turn back asylum-seekers and migrants on public health grounds due to the pandemic. 

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