(CN) — The Biden administration urged a Fifth Circuit panel Tuesday to vacate an injunction ordering it to reinstate a Trump-era program that returned thousands of immigrants to Mexico to await resolution of their asylum cases.
Former President Donald Trump claimed his program, launched in January 2019 and officially called Migrant Protection Protocols, had ended the "catch and release" of immigrants coming to the U.S. and making meritless asylum claims before being released into the country to await their court hearings, sometimes for years due to a large backlog of asylum cases.
Many of the 58,000 people forced to wait in Mexico took shelter in makeshift tent camps near the border where some became victims of extortion, kidnapping, robberies and assaults by drug cartels and even corrupt Mexican law enforcement, as documented in numerous reports by media outlets and human rights groups.
President Joe Biden suspended MPP, better known as “Remain in Mexico,” on his first day in office, then terminated it via a June 1 memo from Department of Homeland Security Secretary Alejandro Mayorkas.
In the interim between the suspension and termination of MPP, Texas and Missouri sued Biden and DHS officials in April, claiming without the program more undocumented immigrants would remain in their states, increasing their health care, education, social services and law enforcement costs.
U.S. District Judge Matthew Kacsmaryk, a Trump appointee, sided with the states in an Aug. 13 order after a one-day bench trial.
He found the Biden administration had violated the Administrative Procedure Act by offering an arbitrary reason for ending MPP. Mayorkas said he had concerns it was operating ineffectively because about 44% of the asylum cases of people enrolled in it were adjudicated with in absentia deportation orders, meaning they did not make it to their hearings. But Kacsmaryk said Mayorkas was wrong to assume those abandoning their cases had legitimate asylum claims.
Kacsmaryk also found that by ending MPP, Biden was violating a federal law that gives the government two options in the handling of asylum seekers: mandatory detention or return to a contiguous territory.
He ordered DHS to keep MPP in place “until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under Section 1225 without releasing any aliens because of a lack of detention resources,” citing part of the Immigration and Nationality Act.
The Biden administration appealed to the Fifth Circuit, but a panel of the New Orleans-based appellate court declined to stay the injunction, as did the U.S. Supreme Court in a 6-3 ruling.
A different Fifth Circuit panel held a hearing in the case Tuesday.
Justice Department attorney Brian Ward argued the injunction should be vacated because Mayorkas issued another memo Oct. 29 terminating MPP that addressed all the problems Kacsmaryk had with Mayorkas’ June 1 termination memo.
Acknowledging MPP “likely contributed to reduced migratory flows,” Mayorkas wrote in the latest memo there is significant evidence enrollees were subject to extreme violence at the hands of Mexican drug cartels, and had difficulties accessing counsel and getting to their asylum hearings – which were held in South Texas within temporary structures before immigration judges presiding remotely via video software – because they had to travel across an international border.
Ward told the panel MPP has not yet been restored because Mexico says it is unwilling to take asylum seekers back unless improvements are made to the program.
U.S. Circuit Judge Andrew Oldham, a Trump appointee, asked for clarity on how Mexico’s position had changed. “So they [Mexico] accepted 58,000 prior to January 2021 and now their position is we’ll accept zero?” he asked.
Ward said he is not involved in the U.S.-Mexico negotiations. But he noted enrollments in MPP began declining back in spring 2020 when Trump’s DHS started using a different pandemic-related policy known as Title 42 to immediately expel most immigrants illegally entering the country—a policy Biden has kept in place, despite Republicans’ claims his administration is releasing millions of undocumented immigrants into the U.S.
Oldham and U.S. Circuit Judge Kurt Engelhardt, another Trump appointee, also questioned why DHS had appealed in the first place if it was just going to redo the rescission memo to address Kacsmaryk’s issues with its first attempt to end the program.
Ward said Texas and Missouri can still challenge the new termination memo before Kacsmaryk. He added he believes Kacsmaryk erred in reading the statutes as giving DHS only the options of detaining asylum seekers entering the country from Mexico or returning them to Mexico.
“DHS has authority and discretion to parole individuals for humanitarian reasons or any other reason agency deems to be a significant public benefit,” Ward said, describing a process in which the government gives immigrants permission to remain temporarily in the U.S. after making the determinations on a case-by-case basis.
But Benjamin Wilson, Texas deputy solicitor general, told the Fifth Circuit judges the case is properly before them and should not be remanded because the June 1 memo has not in fact been replaced by the new one.
“The October 29 memo right now is not effective on its face,” Wilson said. “It says DHS cannot rescind MPP until the district court’s injunction is vacated.”
As for Kacsmaryk’s order for MPP to remain in place until the government has capacity to imprison all immigrants subject to mandatory detention, Wilson said DHS has put nothing into the record about how many it is detaining and its detention capacity.
Citing a report from DHS, Wilson said the agency paroled around 30,000 immigrants into the U.S. in September.
“It’s difficult to imagine every one of those is on a case-by-case basis for urgent humanitarian reasons or for some other public benefit,” Wilson said. “We think, as the district court found, they are doing it because of a lack of detention resources.”
Despite the government’s claims negotiations with Mexico are holding up reimplementation of MPP, Wilson argued certain immigrants can be returned to Mexico absent any deal.
“We are basically saying they are dragging their feet for a whole number of reasons…There is at least some subset of individuals who could be subject to MPP, even assuming the United States needs the government of Mexico’s consent,” he said.
U.S. Circuit Judge Rhesa Barksdale, a George H.W. Bush appointee, rounded out the panel. The judges did not say when they would issue a ruling.
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