Court Punts as Biden Seeks to Duck ‘Remain in Mexico’ Restart

The Biden administration lost its effort to immediately sideline a court order to reinstate the Trump-era “Remain in Mexico” border policy, forcing the Department of Homeland Security to make its case before a panel of conservative judges this week.

The U.S. Court of Appeals for the Fifth Circuit on Monday declined to immediately decide the government’s request to scrap an injunction that requires DHS to restart the Trump-era policy despite its arguments that the progam had “unjustifiable human costs.” The court instead will move forward with oral arguments scheduled for Tuesday, against the Biden administration’s wishes.

Remain in Mexico, also known as the Migrant Protection Protocols, forced many migrants to wait across the southern border for months while U.S. officials weighed their asylum claims in makeshift tent courts.

The Biden administration tossed the policy earlier this year and quickly faced litigation from Texas and Missouri. A federal district court concluded the termination was lacking in analysis and ordered a restart. A panel of three conservative Fifth Circuit judges is weighing DHS’s appeal.

Days before the argument date, DHS unveiled a new termination memo that attempts to address many of the district court’s concerns by considering a broad range of impacts of the program and its proposed cancellation. The agency asked the Fifth Circuit to cancel arguments, dissolve the injunction, and send the dispute back to district court in light of the new memo.

Biden Makes New Bid to Kill Trump ‘Remain in Mexico’ Policy

The states on Monday countered that the “that purported rescission is meaningless and cannot provide the basis for mooting the appeal.”

The Biden administration’s immigration policies have faced an onslaught of litigation and adverse rulings. DHS has said it’s working “in good faith” to comply with the district court’s order even as it tries to sideline it, but Remain in Mexico can’t be reinstated unless Mexico consents.

The case is Texas v. Biden, 5th Cir., No. 21-10806, 11/1/21.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editors responsible for this story: Robin Meszoly at rmeszoly@bgov.com; Fawn Johnson at fjohnson@bloombergindustry.com; Sarah Babbage at sbabbage@bgov.com

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