U.S. Must Restart Trump’s Wait-in-Mexico Asylum Rule on Saturday

(Bloomberg) -- A federal appeals court ordered the Biden administration to reinstate the widely criticized Trump-era policy requiring asylum seekers at the southern border to wait in Mexico for their cases to be processed. 

The appellate court rejected the new administration’s plea to suspend the Saturday reinstatement deadline -- imposed last week by a judge in Texas -- for at least seven days to give the White House time to ask the U.S. Supreme Court to intervene.  President Joe Biden’s homeland security chief is expected to rush to the high court to stall re-implementation while the legal fight continues.

Lawyers for the Biden administration had argued that it’s not feasible to restart the policy on such a short timeline.

U.S. District Judge Mathew Kacsmaryk in Amarillo, Texas, ruled Aug. 13 that Biden’s Secretary of Homeland Security, Alejandro Mayorkas, didn’t follow proper federal procedures in ending the Migrant Protection Protocols, or MPP, established by Trump in 2019. 

The judge, appointed by former President Donald Trump, also rejected Biden Justice Department warnings that courts and states shouldn’t substitute their judgment for the president’s foreign-policy decisions or meddle in international diplomacy. Kacsmaryk ordered federal immigration officials to restart the program by Saturday morning.

Two appellate judges, also Trump appointees, on Thursday agreed with the trial judge in accepting an assessment by the Trump administration that program had suppressed illegal border crossings and discouraged migrants from trying to disappear inside the U.S. by filing asylum claims they didn’t plan to pursue. The Biden administration and migrant advocates rejected that assessment by the prior administration, saying it wasn’t based on empirical data.

The appeals court also said states were being financially harmed by a flood of immigrants who need social services like health care, education and drivers’ licenses, all of which Texas is required to provide to every resident by law. Texas noted that more than 50,000 asylum seekers were returned to wait in Mexico under the program just along the Texas border.

Remain in Mexico

Biden suspended the so-called Remain in Mexico Policy on his first day in office to fulfill a major campaign promise to overhaul U.S. asylum and immigration policies in a more humane fashion. In June, he ditched MPP completely after homeland security officials said a study of its costs and benefits favored letting asylum seekers wait in the U.S.

Texas and Missouri sued, claiming Biden failed to consider whether Trump’s policy successfully tamped down border crossings and deterred migrants from gaining illegal footholds in the U.S. with worthless asylum claims. Fifteen Republican-led states filed papers supporting the challenge.

Biden administration lawyers countered that southwest border crossings -- currently at historic highs -- began surging while the program was still in place. They also argued many asylum seekers have abandoned legitimate claims because deplorable health and safety conditions make waiting in Mexico too risky. 

Other asylum seekers have had their claims rejected by U.S. immigration judges, the homeland security department said, because the migrants couldn’t safely cross the border to keep their court appointments or lacked lawyers to help them navigate the process.

The White House pointed out Mexico hasn’t agreed to start accepting U.S. asylum seekers again as it has largely unwound MPP infrastructure on its side of the border. Kacsmaryk and the appellate panel told the Biden administration it could unilaterally re-impose the policy and Mexico would adjust, like it did when Trump instituted the program the first time.

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