A Texas federal judge on Thursday ruled for a second time that the U.S. Department of Homeland Security can’t end a Trump administration program that forced asylum seekers to wait outside the country while their claims are resolved.
The so-called “Remain in Mexico” program had already been halted by President Joe Biden, but U.S. District Judge Matthew Kacsmaryk in Amarillo ruled the policy must go back into effect while Texas and Missouri play out their legal challenge to keep it in place.
Kacsmaryk called the Biden administration’s Oct. 29 memoranda to halt the program — formally known as the Migrant Protection Protocols, or MPP — “arbitrary and capricious” and said officials failed to consider possible benefits of keeping it in place.
“The October 29 memoranda fail to consider MPP’s deterrent effect on illegal border crossings and the reduction of unmeritorious claims,” the judge wrote in Thursday’s 35-page order.
The dispute has already been before the U.S. Supreme Court twice, including a June 30 decision where the court granted Biden permission to scrap the program. Kacsmaryk then permitted the states to amend their complaint to include questions highlighted by the Supreme Court, including whether the DHS decision was arbitrary or capricious.
After the U.S. Supreme Court’s most recent ruling, Kacsmaryk on Aug. 8 initially lifted his order requiring continuation of the policy. DHS immediately announced it would no longer enroll new asylum seekers in the program or return asylum candidates to Mexico after their court appearances.
The decision on Thursday by Kacsmaryk, a Trump appointee, is the latest in a whiplash-inducing string of rulings over the program, which Biden had pledged to shut down when he was campaigning to be president.
The White House didn’t immediately respond to a request for comment on the ruling.
Texas Attorney General Ken Paxton celebrated the ruling in a post on Twitter.
Kacsmaryk first ruled in December that the White House had failed to follow required federal rulemaking steps when Biden halted MPP on his first day in office in January 2021. That decision came after Texas and Missouri sued on complaints MPP had successfully tamped down unauthorized immigration during the previous administration and undocumented migrants were overwhelming the southern border since Biden said he’d end MPP.
The order in December forced the administration to renegotiate immigration terms with Mexico early this year. The U.S. Supreme Court initially refused Biden’s emergency plea to intervene, so DHS resumed the program.
After several intermediate rulings, the challenge returned to the Supreme Court in June, where a narrow majority decided Biden could end MPP. In a related case, the justices ruled that lower courts have no authority to dictate specific actions or inaction by agency officials regarding immigration policy.
So the Supreme Court ordered Kacsmaryk to reverse his 2021 order reinstating MPP. But the justices also invited the Amarillo judge to explore a lingering question: whether DHS had acted in an “arbitrary and capricious” manner in issuing its final MPP termination memo, dated Oct 29.
Texas and Missouri asked to amend their challenge to include DHS’s Oct. 29 memo and requested Kacsmaryk to indefinitely delay the date DHS’s termination memo takes effect.
(Madlin Mekelburg and Jordan Fabian contributed to this report.)
