Remain in Mexico to Remain?

September 8, 2022

IRLI argues rescission of vital program should be delayed

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a friend-of-the-court brief in a Texas federal district court in the latest episode of a long-running case in which the states of Texas and Missouri won the resumption of the Trump-era program, known as Remain in Mexico, of returning asylum-seekers who crossed the border illegally to Mexico to wait there, rather than in the United States, for their asylum hearings. The U.S. Supreme Court, after refusing to suspend that resumption of the Remain in Mexico program, later found that a federal statute stripped the district court of jurisdiction to order that resumption through an injunction.

In response, the states now ask the district court to order the Biden administration’s rescission of the program postponed, that is, “stayed,” under a provision of the Administrative Procedure Act. In supporting that postponement, IRLI shows in its brief that the rescission of the program was arbitrary and capricious because the administration failed to consider the very relevant factor of whether Remain in Mexico was necessary to achieve operational control of the border. Congress has defined such operational control to include the elimination of unlawful entries to the United States, and directed federal agencies to achieve it. By not even considering whether Remain in Mexico—which was highly effective in reducing unlawful entry by aliens with invalid asylum claims—was helpful to achieving that control, the administration violated its duty to consider all relevant factors, and so acted arbitrarily and capriciously, in violation of federal law.

“President Trump put in place a set of policies, including Remain in Mexico, that brought operational control of the border within sight,” said Dale L. Wilcox, executive director and general counsel of IRLI. “In undoing these policies, the current administration has never even considered the disastrous effect on the federal government’s operational control of the border. That makes its actions unlawful in this and many other cases, and we hope the district court grants the postponement requested here for this reason in particular.”

The case is State of Texas, State of Missouri v. Biden, No. 2:21-cv-00067 (N.D. Tex.).