August 14, 2021
Court orders program must resume until border under control
WASHINGTON—In a major victory, a Texas federal district court on Friday ordered the resumption of the key Trump immigration policy of returning asylum seekers to Mexico to wait for their asylum hearings in that country, rather than in the United States. In so ruling, the court agreed with a friend-of-the-court brief the Immigration Reform Law Institute (IRLI) had filed in the case. Attorneys United for a Secure America, a project of IRLI, also filed a brief in the case.
As the court noted, the policy had been very successful in discouraging meritless asylum claims, since aliens could no longer make such claims as a quick way of being released into the United States. When the Biden administration rescinded the policy and started releasing asylum seekers into the United States again, it did not even mention how effective the policy had been, or explain why it was getting rid of it despite its effectiveness. This failure to explain, the court found, made the Biden rescission of the policy—which has helped set off the current border surge—arbitrary and capricious.
The court also noted that federal law requires the detention of asylum seekers pending their hearings if they are not returned to Mexico, and that immigration authorities currently lack the facilities to detain the massive surge of asylum seekers the rescission of the wait in Mexico policy has caused. The court accordingly ordered that the wait in Mexico policy must be resumed, and may not be rescinded again until the government has the capacity to comply with the law and detain the asylum seekers it does not send to Mexico.
“This is a massive victory, and shows the courts can be effective in combatting the border crisis the administration has deliberately created,” said Dale L. Wilcox, executive director and general counsel of IRLI. “As a practical matter, this ruling means that the wait in Mexico policy is back in force until the border is under control. We applaud the court for its strong, thorough, and well-reasoned decision, and remain dedicated to reversing all of the administration’s other unlawful policies that, by design, have created this crisis.”
The case is State of Texas, State of Missouri v. Biden, 2:21-CV-067 (N.D. Tex.).
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