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Federal Appeals Court Slaps Down Biden's Attempt to End a Key Trump Policy

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The Biden administration’s latest attempt to end former President Donald Trump’s “Remain in Mexico” policy for migrants seeking asylum in the United States was blocked Monday by the 5th U.S. Circuit Court of Appeals.

Texas and Missouri sued President Joe Biden and his administration over their efforts to end the policy, officially called the Migrant Protection Protocols.

Texas Attorney General Ken Paxton welcomed the appellate court’s ruling, calling it a “big victory for border security” in a Tuesday post on Twitter.

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The Department of Homeland Security under the Trump administration implemented the “Remain in Mexico” policy in January 2019 to “secure the borders, enforce immigration and customs laws, facilitate legal trade and travel, counter traffickers, smugglers and transnational criminal organizations, and interdict drugs and illegal contraband.”

Under the MPP, the U.S. government can send foreign individuals illegally entering the country across the nation’s southern border back to Mexico, where they await their immigration proceedings.

The policy sought to make the immigration process “safe and orderly,” reduce the number of people abusing the immigration system, and stop smugglers and traffickers from exploiting “vulnerable populations,” the DHS stated in a January 2019 news release.

The Trump administration said the policy derived its authority from Section 235 of the Immigration and Nationality Act.

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That provision permits the secretary of homeland security “in the case of an alien … who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the U.S.” to “return the alien to that territory pending a [removal] proceeding.”

When Biden and his administration took over this year, they quickly tried to get rid of the MPP, suspending the policy on Jan. 20 and then ending it permanently on June 1.

Texas and Missouri sued the administration over the suspension decision and the termination decision.

According to court documents, the U.S. District Court for the Northern District of Texas ruled that the Biden administration’s termination decision was in violation of the Administrative Procedure Act, which regulates how government agencies can make policies, and the immigration statute 8 U.S.C. § 1225.

Per that law, DHS has to, among other things, detain immigrants, “pending removal proceedings, who unlawfully enter the United States and seek permission to stay,” according to the appeals court.

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The district court then ordered the DHS to implement the protocols in good faith or to take a new action that adhered to the law.

The Biden administration tried to get the 5th Circuit Court of Appeals to stay the injunction while the appeal was pending, only to have that request denied. The Supreme Court followed suit.

In response to that ruling, the administration announced it was reinstating the MPP in a Dec. 2 news release.

CNN reported that the Biden administration has sent 86 migrants back to Mexico, according to the United Nations’ International Organization for Migration.

The 5th Circuit Court of Appeals on Monday night upheld the district court’s ruling in State of Texas v. Biden. The appeals court affirmed that the Biden administration did indeed violate the Administrative Procedure Act and immigration law by terminating the MPP.

“The Termination Decision is independently unlawful because it violates 8 U.S.C. § 1225,” Trump-appointed Judge Andrew Oldham wrote on behalf of the three appellate judges.

“It’s true that DHS lacks the capacity to detain all such aliens. Congress, however, created a statutory safety valve to address that problem,” Oldham added, explaining that a part of that statute is a “safety valve” that permits “DHS to return aliens to contiguous territories, like Mexico, while removal proceedings are pending.”

“That safety valve was the statutory basis for the Protocols. 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 judge wrote.

According to the court documents, the Biden administration claimed that a provision in the law allowed DHS to “parole aliens into the United States on a case-by-case basis.”

“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 decisionmaking,” Oldham wrote.

“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 judge said.

“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.”

Oldham wrote, “If the Government were correct, it would supplant the rule of law with the rule of say-so. We hold the Government is wrong. The Government’s motion to vacate the judgment and remand for further proceedings is DENIED. The judgment of the district court is AFFIRMED.”

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Andrew Jose is a freelance reporter covering security, U.S. politics, and foreign policy, among other beats. He has bylines in several outlets, notably the Daily Caller, Jewish News Syndicate, and the Times of Israel.
Andrew Jose is a freelance reporter covering security, U.S. politics, and foreign policy, among other beats. He has bylines in several outlets, notably the Daily Caller, Jewish News Syndicate, and the Times of Israel. Speak to Andrew securely via Follow Andrew on Twitter: @realAndrewJose
Georgetown University, School of Foreign Service
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