Federal appeals court rules that Remain in Mexico policy must be reinstated

AP Photo/Gregory Bull

Last week a U.S. District judge ordered that the Migrant Protection Protocols program be reinstated Saturday. The Biden administration went to to the 5th U.S. Circuit Appeal in New Orleans and asked for a delay in re-implementing the program, pending appeal. The Biden administration lost. As it stands now, the program will be back in effect Saturday.


The Migrant Protection Protocols program (MMP), commonly known as the Remain in Mexico policy, was part of the Trump administration’s border security enforcement plan. Trump and the Mexican government agreed that illegal migrants crossing the border would be sent back to Mexico to wait for asylum hearings, thus reducing overcrowding at the border. The agreement goes back to December 2018. It was implemented in January 2019 by former Secretary of Homeland Security Kirstjen Nielsen.

When Joe Biden came into office, he made good on some campaign promises to undo Trump’s immigration policies. He held himself out to be a kinder, gentler president who prefers open borders and mass amnesty for illegal immigrants. He put a stop to the Remain in Mexico policy during his first day in office by way of an executive order. He officially permanently stopped the program in June.

In April, Texas sued the Biden administration to reinstate the policy. The State of Missouri joined in the lawsuit. DHS said no way, Jose, so the case moved through the court system. Last week U.S. District Judge Matthew J. Kacsmaryk ruled in favor of Texas and Missouri. The Biden administration appealed and the 5th U.S. Circuit Court of Appeals in New Orleans ruled against the Biden administration Thursday night.


The Biden administration went to to the 5th U.S. Circuit Appeal in New Orleans and asked for a delay in re-implementing the program, formally known as Migrant Protection Protocols, pending appeal. The administration argued in briefs that the president has “clear authority to determine immigration policy” and that the Secretary of the Department of Homeland security, Alejandro Mayorkas, had discretion in deciding whether to return asylum seekers to Mexico.

Lawyers for the states of Texas said Missouri, which challenged the suspension of MPP, opposed a stay of Kacsmaryk’s order. They said the Biden administration had not gone through proper procedures in ending the policy. And they argued that after the policy was implemented, immigrants without legitimate claims for asylum had begun to return to their home countries voluntarily.

A three-judge 5th Circuit panel denied a stay of Kacsmaryk’s order late Thursday. “Even if the Government were correct that long-term compliance with the district court’s injunction would cause irreparable harm, it presents no reason to think that it cannot comply with the district court’s requirement of good faith while the appeal proceeds,” the ruling said.

For those keeping score at home, Kacsmaryk was nominated to the federal bench by Trump. The 5th Circuit Court includes Andrew Oldham and Cory Wilson, Trump nominees, and Jennifer Walker Elrod who was nominated by George W. Bush.


In June, the Biden administration decided to offer a second chance to enter the U.S. to those asylum-seekers with denied claims. One way or the other, the administration is determined to allow a free flow of illegal migrants across the southern border into the U.S.

There is little doubt that Team Biden will appeal to the Supreme Court.

In a second defeat Thursday, U.S. District Judge Drew Tipton in Corpus Christi, Texas blocked Biden’s administration from enforcing its guidance limiting who can be arrested and deported by U.S. immigration agents. Texas and Louisiana challenged guidance from ICE in February. Tipton ruled that ICE “violated a federal law requiring that the government “shall detain” people who commit certain crimes or are otherwise deemed eligible for deportation.” “Put simply, the Government has instructed federal officials that ‘shall detain’ certain aliens means ‘may detain’ when it unambiguously means must detain,” Tipton wrote.

In February DHS announced that ICE agents would prioritize arrests based on the threat illegal immigrants posed to the country or their community.

The guidelines instruct Immigration and Customs Enforcement (ICE) agents to focus on immigrants deemed national security and public safety threats and those who entered the United States after Nov. 1, 2020. Agents will need pre-approval from a senior manager if they want to arrest someone who does not fall into one of those categories.

“Like every law enforcement agency at the local, state, and federal level, we must prioritize our efforts to achieve the greatest security and safety impact,” acting ICE Director Tae Johnson said in a statement.


Thursday wasn’t a good day for the Biden administration but it was good for the American people. The battles will continue as long as we have a porous southern border, floods of illegal migrants, and an administration that is fine with chaos and destruction that comes from open borders.

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