Biden administration loses another decision on ending ‘stay in Mexico’ policy


The Biden administration has suffered another legal setback in its bid to end a Trump-era immigration policy requiring U.S. asylum seekers at the southern border to stay in Mexico while their claims are adjudicated.

The United States Court of Appeals for the Fifth Circuit, in a decision Monday night said the Department of Homeland Security failed to engage in reasoned decision-making when it ended Trump’s policy in violation of a law that governs the actions of federal agencies. DHS failed to consider several elements, including the potential benefits of the program, the court said, adding that the agency’s approach violated federal immigration law.

“DHS failed to consider several relevant factors and important aspects of the issue when making the termination decision,” Judge Andrew Oldham wrote for a three-judge panel.

The ruling upheld a Texas federal judge, who issued a ruling in August that came to the same conclusion.

DHS did not immediately respond to a request for comment.

Former President Donald Trump introduced the policy, officially known as the Migrant Protection Protocols, in 2019 at the height of a surge in the number of families from Central America coming to the US border.

The policy slowed the pace of border crossings, but critics said it subjected asylum seekers to violence and inhumane conditions in Mexico.

Border towns like Brownsville, Texas are seeing their resources stretched as they struggle to manage the growing number of migrant families crossing the US-Mexico border. Reporting by Michelle Hackman of the WSJ. Photo: Veronica G. Cardenas

President Biden’s administration decided to end the program shortly after taking office, but has since suffered a series of court losses.

The Fifth Circuit, which presides over the cases of Texas, Louisiana and Mississippi, had already denied an emergency request by the administration to end “Remain in Mexico”, and the Supreme Court also said that the administration could not abandon the Trump administration rules as the litigation continues. These prior lawsuits were not final decisions.

In practice, the program had taken a back seat during the Covid-19 pandemic because US officials in the Trump and Biden administrations were turning back migrants under public health orders issued by the Centers for Disease Control and Prevention.

After adverse court rulings, the Biden administration began reimplementing Stay in Mexico last week, even as it continues to fight in court to end it. DHS also recently released a more detailed explanation of why it wants to end the program, hoping to add new legal support to its plans.

Liberal critics have pointed out that the current Stay in Mexico parameters under the Biden administration are broader than under the previous administration. All migrants from the Western Hemisphere are now eligible to be placed in the program, which means that Haitian migrants can for the first time also be returned to Mexico.

The program now operates at eight ports of entry in California, Arizona and Texas, wider than under the Trump administration’s implementation.

After Monday’s ruling from the Fifth Circuit, the administration has the option to ask the Supreme Court to fully reconsider the case.

The three judges on the appeals court panel were appointed by Republican presidents.

Write to Brent Kendall at and Michelle Hackman at

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Appeared in the print edition of December 15, 2021 under the title “Biden is in retreat on immigration”.


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