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Remain in Mexico was resurrected by a federal judge a week ago. Photo: John Moore/Getty Images

Federal judge resurrects ‘Remain in Mexico’ amid major activist backlash

U.S. District Judge Matthew Kacsmaryk ruled that when DHS Secretary Alejandro Mayorkas halted the program in June, he didn’t provide a “reasoned decision.”

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Late in the day on Friday, Aug. 13, a federal judge in Texas ordered the Biden administration to restore a Trump-era policy requiring migrants seeking asylum to wait in Mexico while their applications are pending. 

U.S. District Judge Matthew Kacsmaryk, who was appointed by former President Donald Trump, said the Biden administration “failed to consider several critical factors” before terminating the program earlier this year.  Texas and Missouri had sued the administration, claiming the program’s suspension worsened conditions at the border.

In June, DHS Secretary Alejandro Mayorkas officially halted the program, otherwise known as Migration Protection Protocols (MPP), in June.

At the time, he argued that the policy did not “adequately or sustainably enhance border management in such a way as to justify the program’s extensive operational burdens and other shortfalls.”

But on Friday, Aug. 13, Judge Kacsmaryk stated that Mayorkas didn’t provide a “reasoned decision” for ending the program, nor did he address “the problems created by false claims of asylum.” 

“Since its termination, the number of enforcement encounters on the Southwest border has skyrocketed,” Kacsmaryk wrote. 

He also noted that Mayorkas should have taken into account that some asylum seekers are found “non-meritorious” by federal immigration judges. 

While Kacsmaryk ordered the Biden administration to resurrect the program, he is allowing one week for the government to have the chance to appeal his decision. 

The judge’s decision has sparked a new round of debate among immigration advocates and lawyers on the legality of the 2019 policy. 

Legal advocates argue that Kacsmaryk is misinterpreting the law and if the policy is restored, migrants will be forced into dangerous conditions in Mexican border cities. 

Robert Painter, legal director for the Texas-based immigration services organization, American Gateways, told Reuters that it has not been settled legally whether or not MPP can be applied as a blanket policy for all asylum-seekers. 

“Legal or not, it certainly is an inhumane policy,” Painter said. 

According to data collected by the National Immigration Forum, from January 2019 to December 2020, more than 70,000 non-Mexican migrants were returned to Mexico through MPP to await court hearings.

Of the total number returned as of February 2021, about 42,000 either had their cases completed or had to terminate their case for some reason. 

Of the completed cases, 32,638 received an order of removal, 650 were granted asylum, and 9,206 had their cases terminated for other reasons. 

These 70,000 migrants sent to Mexico led to refugee camps on the Mexican side making many people targets for kidnappers and drug cartels seeking to profit from human smuggling and other crimes. 

Geoffrey A. Hoffman, a professor and director of the immigration clinic at the University of Houston law school, told Reuters Kacsmaryk cited a statute in his ruling that allows immigration agents to deny entry to certain immigrants and make them wait outside of the U.S.

However, Hoffman said, that particular statute does not apply to asylum-seekers, who are generally allowed to enter the country and await a hearing, as long as they have a credible case. 

“I think the main point is, [Kacsmaryk’s] decision gets it backwards. MPP was illegal, but the cancellation of MPP is not illegal,” Hoffman said.

On Monday, Aug. 16, the American Immigration Council, along with over 100 other organizations, sent a letter to Attorney General Merrick Garland and DHS Secretary Alejandro Mayorkas urging the administration to take all measures necessary to block the resurrection of MPP. 

“While it is not possible to undo the human suffering and damage to the rule of law and due process caused by the program, the United States cannot resume the infliction of MPP’s harms nor again abdicate its obligations to refugees under international and domestic law,” the organizations wrote.

In total, 108 organizations signed the letter, including Bay Area Border Relief, Catholic Charities of Southern New Mexico, Esperanza Immigrant Rights Project, Japanese American Citizens League, and Women’s Refugee Commission. 

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