- The Washington Times - Friday, December 16, 2022

A federal judge has ruled that the Biden administration acted too rashly last year when it attempted to end President Trump’s “Remain in Mexico” border policy.

The ruling Thursday was a legal defeat for President Biden, but its practical effect was not clear. There is still more legal wrangling and Judge Matthew J. Kacsmaryk, while blocking the Biden administration‘s revocation, didn’t explicitly order the Trump program be restarted at this time.

The decision is also separate from ongoing cases over the Title 42 pandemic border policy, which like Remain in Mexico allowed the government to quickly push illegal immigrants back across the border into Mexico.

Title 42 is slated to expire early next week under a separate judge’s order, and Homeland Security is preparing for illegal immigration — already at a sustained record pace — to double.

Both Title 42 and Remain in Mexico, officially known as the Migrant Protection Protocols or MPP, helped the Trump administration solve the previous border surge in 2018 and 2019. But the Biden administration, taking a more permissive approach to illegal immigration, has tried to end them.

In an October 2021 memo, Homeland Security Secretary Alejandro Mayorkas said MPP was cruel and no longer a valuable tool. He indicated U.S. interests were better served by allowing illegal immigrants to enter and wait for immigration court hearings here, rather than outside the country.

SEE ALSO: Immigrant rights activists warn Biden not to act like Trump as a new border surge approaches

Judge Kacsmaryk said Mr. Mayorkas relied on “incorrect legal conclusions.”

He said the law generally suggests that illegal immigrants on U.S. soil are to be detained, but for limited circumstances. MPP was an alternative, keeping them outside of U.S. soil.

In opting to admit and then release them, Mr. Mayorkas was defying the obligation imposed by the law, Judge Kacsmaryk ruled.

“Accordingly, Defendants likely could not — and did not — properly analyze the strength of using MPP to reduce their noncompliance with their detention mandates,” the judge wrote.

He said that rendered Mr. Mayorkas’s decision arbitrary, and that means it violated the Administrative Procedure Act, which governs agency decision-making.

The MPP case went to the Supreme Court earlier this year, and the justices delivered a 5-4 decision in favor of the Biden administration — but sent the case back to Judge Kacsmaryk for more review of Mr. Mayorkas’ October 2021 memo.

Thursday’s ruling was the result.

After an earlier MPP ruling by Judge Kacsmaryk, the Biden administration was forced to revive the program, but did so reluctantly, placing relatively few people into the program.

Biden officials say MPP is cruel because it left migrants in northern Mexico waiting for immigration court dates months or years in the future. Activists said the migrants became targets for abuse and violence.

The alternative is to let them into the U.S. to await those hearings — effectively giving them a foothold in the country which it has proved hard to break, even once they are determined not to have valid claims of protection. Most will not qualify for asylum.

But the fact that they made it, and remain, despite having no claims has served as an incentive driving the surge of newcomers.

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

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