Biden’s Revised Remain-in-Mexico Asylum Plan Gets Tough Hearing
(Bloomberg) -- The U.S. was questioned closely on whether it improperly ended the Trump administration’s “Remain in Mexico” asylum program, in a hearing that came as immigration across the Mexican border has surged.
A three-judge panel of the Fifth Circuit Court of Appeals on Tuesday also asked if President Joe Biden’s Department of Homeland Security was trying to game the courts by rolling out a new asylum policy late last week. Under the Migrant Protection Protocols, as the program is also known, some 70,000 asylum seekers must wait in Mexico instead of the U.S. while their claims are resolved.
The release of the new MPP policy on Oct. 29 “comes with some suspicion of gamesmanship,” Circuit Judge Andrew Oldham said early in the hearing. He asked why DHS waited until a few days before the oral arguments, “when all the things you’re saying could’ve been done immediately” after a trial court judge in Amarillo ordered the department to restart MPP in August.
Brian Ward, a lawyer for the Biden administration, said DHS Secretary Alejandro Mayorkas had been too busy.
“We’re busy too,” said Oldham.
Surge of Immigrants
Ward later said DHS had been scrambling to stand the program back up, in good faith, ever since the Amarillo ruling, although the U.S. hadn’t yet reached an agreement with Mexico on the details.
Putting an end to MPP was one of Biden’s first acts as president. The Amarillo judge, U.S. District Judge Matthew Kacsmaryk, an appointee of former president Donald Trump, ordered the program reinstated after Texas and Missouri sued, claiming it had successfully slowed the wave of unauthorized immigrants across the southern U.S. border.
The legal dispute is playing out as hundreds of thousands of people from Central America and elsewhere have come across the border in recent months and detentions of migrants have soared. Republicans say the crisis is evidence that Trump’s policies worked, while the Biden administration argues Remain in Mexico is doing more harm than good.
In unveiling the Oct. 29 memo, Mayorkas said the program “did not address the root causes of irregular migration.” In a 40-page analysis, DHS said it had determined that MPP was too flawed to fix and failed to provide “humanitarian protections that individuals deserve under the law.”
‘Pattern’ of Announcements
Oldham, who was appointed by Trump, was previously a Texas deputy solicitor general and legal adviser to Texas Governor Greg Abbott. He has already voted against Biden’s termination of MPP in an earlier phase of the current challenge. The other two judges on the panel were Kurt Engelhardt, also a Trump appointee, and Rhesa Barksdale, who was named by former president George H.W. Bush.
In Tuesday’s arguments, Texas’ attorney Benjamin Wilson accused the U.S. of engaging in “something of a pattern” of timing its policy announcements to influence court proceedings.
“Every time this case gets close to an inflection point, the government issues some kind of new memo, drops some kind of surprise,” Wilson said.
Barksdale asked Ward to explain in what ways the new DHS memo wasn’t simply an attempt to offer “new reasons to do the exact same things” the department wanted to do before. By claiming the memo replaces earlier policy memos and also cures legal defects Kacsmaryk identified in those memos, the U.S. was playing “heads you win, tails you win,” Barksdale said.
Ward said the Biden administration wasn’t playing games and defended the latest memo as “an entirely new agency decision” that further explains elements Kacsmaryk ordered addressed. He said he expects the new MPP memo would be the last.
The case is Texas v. Biden, 21-10806, U.S. Court of Appeals for the Fifth Circuit (New Orleans).
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