Judge Matthew Kacsmaryk of the United States District Court for the Northern District of Texas delivered a blow to the Biden Administration on Friday by ordering the reinstatement of  the Trump-era Migrant Protection Protocols (MPP) program, also known as the “Remain-in-Mexico” policy. This is only the latest of a string of losses by the Biden Administration in its first six months in court.

Under the Migrant Protection Protocols program in January 2019  asylum seekers who passed through Mexico on their way to the U.S. had to stay in Mexico while their claims were processed in U.S. courts. The policy was meant to end a practice of claiming asylum in order to draw out appeals for years or not appearing for required hearings. It was intended to deter many who just wanted to gain entrance in the United States. It also reduced the burden for beds and facilities along the border.

In his 53-page opinion, Judge Kacsmaryk found that the states of Texas and Missouri had shown sufficient injury after noting increases in human trafficking and other criminal acts as part of the surge at the Southern border after President Joe Biden ended the policy. Some 13,000 undocumented immigrants have been admitted to the country since the ending of the policy.

Kacsmaryk held that the June memo by Homeland Security Secretary Alejandro Mayorkas to formally end the Remain in Mexico policy violated the Administrative Procedure Act (APA) by failing to consider the program’s “benefits.”

That should sound familiar. Within two weeks of taking office, Biden racked up one of his first losses under the APA when he reversed Trump’s deportation order. While many are denouncing that and the most recent decision, it was precisely the attack used by Trump critics during the prior administration. Even though President Barack Obama did not satisfy APA conditions in imposing original rules, the Supreme Court enforced such procedures to reverse prior orders.  During that litigation over the Trump executive orders, I repeatedly noted that the Democratic challengers in court were making arguments that would likely used against the next Democratic president in seeking to quickly undo Trump’s orders.

The court ruled that the unilateral action was taken acted “arbitrarily and capriciously” in ending the Remain-in-Mexico policy.

A key issue in the Remain-in-Mexico policy is that there is a clear footprint in federal law. Congress gave DHS the option not to use  mandatory detention in the United States: “In the case of an alien described in [Section 1225(b)(2)(A)] who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, [DHS] may return the alien to that territory pending a proceeding under Section 1229a of this title.” § 1225(b)(2)(C).

The unilateral action is precisely what Democrats challenged under President Trump.  APA prohibits agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Accordingly, “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). The court found the Biden Administration violated APA by taking action without such review and reasonable deliberation.

One of the key issues will be whether the policy is an enforcement decision. The unreviewable actions includes an agency’s decision not to institute enforcement proceedings. ” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1905 (2020) (citing Heckler v. Chaney, 470 U.S. 821, 831–32 (1985)). However, the court rejected that characterization:

“the decision to terminate MPP “is more than a non-enforcement policy.” Regents, 140 S. Ct. at 1907. Although the termination of MPP itself does not confer affirmative benefits, the interaction between the termination of MPP and the lack of detention capacity necessarily means more aliens will be released and paroled into the Plaintiff States. And parole does create affirmative benefits for aliens such as work authorization. App. 337; Texas, 809 F.3d at 167 (“Likewise, to be reviewable agency action, DAPA need not directly confer public benefits.”) (emphasis added).

Moreover, the MPP program is not about enforcement proceedings at all. Any alien eligible for MPP has already been placed into enforcement proceedings under Section 1229a. The only question MPP answers is where the alien will be while the federal government pursues removal — in the United States or in Mexico.

That (and standing) could clearly divide judges.

Here is the opinion: Texas v. Biden

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