Fifth Circuit: Biden Administration's Termination of "Remain in Mexico" Policy "Arbitrary and Capricious"

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President Trump's "Remain in Mexico" Policy lives on.  Due to court order, the Biden administration recently restarted the Trump policy.  An appeals court has upheld that order.

Alyssa Aquino for Law360 reports that the U.S. Court of Appeals for the Fifth Circuit has rejected the Biden administration's attempts to end the policy requiring asylum-seekers to wait in Mexico while their claims are processed. The court found that "the U.S. Department of Homeland Security's June memorandum ending the Migrant Protection Protocols [MPP],  . . .  had failed to address border states' reliance on MPP or the program's benefits, as required under federal administrative law."  

A Trump appointee and former General Counsel to Texas Governor Greg Abbott, Judge Andrew S. Oldham  wrote the opinion for the court, which held on the merits that the decision to terminate the Remain in Mexico policy

"was arbitrary and capricious under the APA. That Act, among other things, requires courts to set aside agency actions that overlook relevant issues or inadequately explain their conclusions. We anchor our analysis to a recent Supreme Court decision that applied this doctrine in the immigration context.  [Department of Homeland Security v. Regents of the University of California (2020), the DACA case]  Under that precedent, this is not a close case.

The Termination Decision is independently unlawful because it violates 8 U.S.C. § 1225. That statute (among other things) requires DHS to detain aliens, pending removal proceedings, who unlawfully enter the United States and seek permission to stay. It’s true that DHS lacks the capacity to detain all such aliens. Congress, however, created a statutory safety valve to address that problem. Another part of § 1225 allows DHS to return aliens to contiguous territories, like Mexico, while removal proceedings are pending. That safety valve was the statutory basis for the Protocols. DHS’s Termination Decision was a refusal to use the statute’s safety valve. That refusal, combined with DHS’s lack of detention capacity, means DHS is not
detaining the aliens that Congress required it to detain."

KJ