- The Washington Times - Tuesday, August 24, 2021

The Supreme Court on Tuesday rebuffed President Biden’s request to halt a lower court order that revives the Trump-era “Remain in Mexico” border policy, effectively forcing the new administration to make a “good faith” effort to push illegal immigrants back across the border.

The justices issued a brief order saying Mr. Biden and his team failed to show they were likely to succeed in their challenge to the district judge’s ruling that Homeland Security acted arbitrarily in revoking the policy, officially known as the Migrant Protection Protocols.

Six justices, all GOP appointees, backed the lower-court judge. The three Democrat-appointed justices sided with Mr. Biden.

The ruling is a devastating blow to the Biden team, which had made erasing Trump-era immigration policies a major hallmark of its first seven months in office.

Homeland Security, in a statement, said it would work “in good faith” to comply with the court orders, though it will still fight to surmount them. The department said it has already begun negotiating with Mexico over restarting MPP.

“DHS remains committed to building a safe, orderly, and humane immigration system that upholds our laws and values,” the department said in an unsigned statement.

“Remain in Mexico” was instituted in late 2018 and really took hold in summer 2019, as the country was facing a previous border surge of Central Americans. Homeland Security figured that migrants were coming and making bogus claims of asylum, forcing their quick release and giving them a foothold in the country while their cases dragged on for years in the immigration courts.

Under MPP, they were expelled back across the border into Mexico to await their court proceedings, denying them the foothold they had sought.

Analysts credited MPP with solving the previous border surge.

But the Biden team said it was a cruel policy, forcing illegal immigrants to wait in Mexico, where they were victimized by cartels.

The program was suspended on Inauguration Day, and Secretary Alejandro Mayorkas fully revoked it in June.

Texas and Missouri sued and won in lower court, with the judge ruling Mr. Mayorkas skipped too many steps in revoking the policy, violating the Administrative Procedure Act.

Judge Matthew J. Kacsmaryk, a Trump appointee to the federal bench in Texas, also ruled that MPP had worked, and he said Mr. Mayorkas never grappled with that fact. The judge issued a preliminary injunction.

The Biden legal team had asked for the ruling to be halted while the case was more fully argued and appealed. The 5th U.S. Circuit Court of Appeals, and now the Supreme Court, both rejected that demand.

Justice Department lawyers had said the MPP interfered with U.S. foreign relations, and Mr. Mayorkas concluded it wasn’t successful enough to justify the resources devoted to it. He said the new Biden team had another way of trying to solve border issues. 

“The injunction would disrupt border operations and ongoing efforts to manage migration and combat criminal networks,” the federal lawyers argued.

So far, the new Biden approach does not appear to be working better. The U.S. is facing an unprecedented surge of migrants that began in January. Analysts say they are coming because they believe — with good cause — that they’ll see more lenient treatment under the Biden policies.

Judge Kacsmaryk had also rejected Mr. Mayorkas’s conclusion that MPP wasn’t successful. He pointed to a Homeland Security evaluation conducted in October 2019 that found the program to be a major success in deterring bogus claims. The judge said the new secretary couldn’t wave his own department’s findings away without a more serious explanation.

The American Civil Liberties Union, which had argued against the Remain in Mexico policy, said after Tuesday’s ruling that the Biden administration must go back and issue a more complete and reasoned decision ending MPP in order to satisfy the courts.

“The government must take all steps available to fully end this illegal program, including by re-terminating it with a fuller explanation. What it must not do is use this decision as cover for abandoning its commitment to restore a fair asylum system,” said Omar Jadwat, head of the ACLU’s immigrant rights project.

But the Immigration Reform Law Institute, which backed the states’ challenge, said the high court’s ruling “repudiated the entire Biden immigration agenda.”

“All Americans should be thankful to the Court for bringing Remain in Mexico back and reining in the irresponsible, hyper-partisan policies of this administration,” said Dale L. Wilcox, IRLI’s executive director.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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