The Long-Lasting Legacy of US Federal Judges on Immigration

Since taking office in January 2021, President Biden has rescinded many Trump-era immigration policies.[1] However, federal judges appointed by former-President Trump have complicated Biden’s efforts.[2] One policy caught in the courts of conservative judges is a Trump administration policy requiring many people awaiting asylum hearings to wait in Mexico rather than within the United States, as had been the norm previously.[3]

            In late 2018 the then-Secretary of Homeland Security, Kirstjen Nielsen, announced the “Migrant Protection Protocols,”[4] otherwise known as the Remain in Mexico Policy.[5] The policy, implemented in January 2019, purports to more efficiently allocate resources, deter false asylum claims, and restore “integrity to the American immigration system”[6] by forcing many Central American asylum seekers to await their hearings before an immigration judge in Mexico.[7]

This policy, which advocates have argued violates international human rights law,[8] has been a humanitarian disaster.[9] According to Human Rights Watch. “[a]sylum seekers swept up in the MPP [Migrant Protection Protocols] program face kidnapping, sexual assault, exploitation, lack of basic necessities, abuse and other dangers in Mexico, with no meaningful access to due process in the United States.”[10] Further, they have been left to live in makeshift encampments with limited resources[11] and have not received adequate protection from the Mexican government.[12]

            Less than two weeks into his administration, President Biden issued an executive order asking the Secretary of Homeland Security to “promptly review and determine whether to terminate or modify the program known as the Migrant Protection Protocols (MPP)”[13] On June 1st, after a phased program to restore processing at the Southern border,[14] Secretary of Homeland Security Alejandro Mayorkas officially terminated the program.[15]

            However, less than two months later, a Trump-appointed federal judge in the Southern District of Texas[16] ordered the Biden administration to reinstate the policy[17] because its rescission violated the Administrative Procedure Act[18] and the Immigration and Nationality Act.[19] An order issued by the Supreme Court on August 24th, refusing to issue a stay of the District Court’s injunction, explained that the government would likely be unable to successfully claim that the June 1st memo ending the policy was not arbitrary and capricious.[20] In response, on October 29th, Secretary Mayorkas released an updated memo terminating the Remain in Mexico Policy.[21] It explained that the program posed humanitarian challenges[22] and has diverted attention from other issues in diplomacy with Mexico.[23]

            It remains to be seen how this memo will impact the ongoing appeals from the decision in Texas district court. However, in a November 2nd hearing at the Fifth Circuit, the panel expressed frustration with the new memo[24] and on December 2nd, the Biden administration, to immediate criticism, announced that it had reached an agreement with Mexico to restart the Remain in Mexico Program.[25] Regardless, it is clear that Trump-appointed judges will continue to place hurdles in the path of immigration reform. In the case of the Remain in Mexico policy, should judges continue requiring its enforcement, the United States will continue creating a humanitarian crisis in northern Mexico[26] and fail in its obligations to accept asylees under human rights law.[27]

Micaela Gold is a staff member of Fordham International Law Journal Volume XLV.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.
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[1] See, e.g., Proclamation No. 10141, 86 Fed. Reg. 7005 (Jan. 20, 2021) (revoking bans on entry for nationals of certain countries).

[2] See, e.g., Additional Information: DACA Decision in State of Texas, et al., v. United States of America, et al., 1:18-CV-00068, (S.D. Texas July 16, 2021) (“Texas II”), USCIS, https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/additional-information-daca-decision-in-state-of-texas-et-al-v-united-states-of-america-et-al-118-cv (last visited Nov. 12, 2021) (discussing a district court decision declaring DACA “illegal”).

[3] See State v. Biden, No. 2:21-CV-067-Z, 2021 WL 3603341, at *27-28 (N.D. Tex. Aug. 13, 2021)(ordering the federal government to enforce the policy); Ian Millhiser, A Trump judge ordered Biden to reinstate one of Trump’s cruelest immigration policies, Vox (Aug. 17, 2021), https://www.vox.com/2021/8/17/22627107/trump-judge-remain-in-mexico-matthew-kacsmaryk-immigration-asylum-joe-biden-donald-trump.

[4] See Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration, DHS.gov (Dec. 20, 2018), https://www.dhs.gov/news/2018/12/20/secretary-nielsen-announces-historic-action-confront-illegal-immigration.

[5] See Q&A: Trump Administration’s “Remain in Mexico” Program, Human Right Watch (Jan. 29, 2020 10:00 AM), https://www.hrw.org/news/2020/01/29/qa-trump-administrations-remain-mexico-program.

[6] See Migrant Protection Protocols, DHS.gov (Jan. 24, 2019), https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols.

[7] See Human Right Watch, supra note 5.

[8] See Michelle Chen, Trump’s ‘Remain in Mexico’ Policy Is Illegal Under International Law, The Nation (Mar. 7, 2019), https://www.thenation.com/article/archive/trump-border-mexico-international-law-human-rights/.

[9] See Any Version of “Remain in Mexico” Policy Would Be Unlawful, Inhumane, and Deadly, Human Rights First, 2 (2021), https://www.humanrightsfirst.org/sites/default/files/MPPUnlawfulInhumaneandDeadly.pdf.

[10] See Human Right Watch, supra note 5.

[11] See Human Right Watch, supra note 5.

[12] See Human Rights First, supra note 9, at 3.

[13] Exec. Order No. 14010, 86 Fed. Reg. 8267 (Feb. 2, 2021).

[14] Alejandro N. Mayorkas, Termination of the Migrant Protection Protocols Program, DHS, 2 (2021), https://www.dhs.gov/sites/default/files/publications/21_0601_termination_of_mpp_program.pdf.

[15] See id.

[16] See Millhiser, supra note 3.

[17] See State v. Biden, No. 2:21-CV-067-Z, 2021 WL 3603341, at *27 (N.D. Tex. Aug. 13, 2021); Millhiser, supra note 3.

[18] See State v. Biden, No. 2:21-CV-067-Z, 2021 WL 3603341, at *22 (N.D. Tex. Aug. 13, 2021).

[19] See id., at *23.

[20] See Biden v. Texas, No. 21A21, 2021 WL 3732667, at *1 (U.S. Aug. 24, 2021).

[21] Alejandro N. Mayorkas, Termination of the Migrant Protection Protocols, DHS, 2 (Oct. 29, 2021), https://www.dhs.gov/sites/default/files/publications/21_1029_mpp-termination-memo.pdf.

[22] See id.

[23] See id. at 3.

[24] See Mike LaSusa, 5th Circ. Wary Of Latest Bid To End 'Remain In Mexico' Policy, Law360 (Nov. 2, 2021), https://www.law360.com/texas/articles/1436973/5th-circ-wary-of-latest-bid-to-end-remain-in-mexico-policy.

[25] See Eileen Sullivan, Mexico to Allow U.S. ‘Remain in Mexico’ Asylum Policy to Resume, New York Times (Dec. 2, 2021), https://www.nytimes.com/2021/12/02/us/politics/asylum-mexico-us.html.

[26] See Human Right Watch, supra note 5.

[27]  See Chen, supra note 8.