Biden to End Wait in Mexico on Appeal?

October 26, 2021

IRLI opposes effort to ditch program Supreme Court left in place

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a friend-of-the-court brief in the Fifth Circuit Court of Appeals in opposition to the Biden administration’s appeal of a district court order restoring the Wait in Mexico asylum policy. The district court had ordered this Trump administration policy of returning asylum seekers to Mexico to wait for their asylum hearings in that country, rather than in the United States, resumed until such time as the border is under control.

Faced with this court order, the administration filed emergency applications in the Fifth Circuit and the Supreme Court to have the district court’s order stayed, or suspended, pending appeal. The Fifth Circuit declined to do so and, following a friend-of-the-court brief by IRLI opposing the administration’s application in the Supreme Court, that Court also denied a stay, leaving the district court’s order in place during the appeal process.

In its brief, IRLI shows that Wait in Mexico is vital in reducing the incentive for aliens to cross our border to make meritless asylum claims. And IRLI defends the district court’s order that the administration keep Wait in Mexico in place until the border is under control: IRLI points out that the law gives the administration the choice of either detaining arriving asylum-seekers or returning them to Mexico to wait for their hearings, and the administration lacks the capacity to do the former during the current crisis. Thus, what the district court ordered—the resumption of Wait in Mexico until detention becomes an option—is the only lawful course for the administration to take.

“Wait in Mexico is a key component of Trump policies that, working together, had brought control to our border,” said Dale L. Wilcox, executive director and general counsel of IRLI. “By going back on these policies, Biden has created the current influx. We hope the Fifth Circuit upholds the district court here, as we press forward to reverse the administration’s other unlawful and disastrous border policies.”

The case is State of Texas, State of Missouri v. Biden, 21-10806 (Fifth Circuit).