NEW ORLEANS – A federal appellate court refused late Thursday to delay implementation of a judge’s order reinstating a Trump administration policy forcing thousands to wait in Mexico while seeking asylum in the U.S.
President Joe Biden had suspended former President Donald Trump’s “Remain in Mexico” policy on his first day in office and the Department of Homeland Security said it was permanently terminating the program in June, according to the court record. U.S. District Judge Matthew J. Kacsmaryk last week ordered that the program be reinstated Saturday.
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The Biden administration appealed to the 5th U.S. Circuit Appeal in New Orleans and asked for a delay in re-implementing the program, formally known as Migrant Protection Protocols, pending appeal. The administration argued in briefs that the president has “clear authority to determine immigration policy” and that the Secretary of the Department of Homeland security, Alejandro Mayorkas, had discretion in deciding whether to return asylum seekers to Mexico.
Lawyers for the states of Texas said Missouri, which challenged the suspension of MPP, opposed a stay of Kacsmaryk's order. They said the Biden administration had not gone through proper procedures in ending the policy. And they argued that after the policy was implemented immigrants without legitimate claims for asylum had begun to return to their home countries voluntarily.
A three-judge 5th Circuit panel denied a stay of Kacsmaryk's order late Thursday. “Even if the Government were correct that long-term compliance with the district court’s injunction would cause irreparable harm, it presents no reason to think that it cannot comply with the district court’s requirement of good faith while the appeal proceeds,” the ruling said.
The ruling affects thousands of asylum seekers with active cases who were subject to the remain in Mexico program.
Kacsmaryk was nominated to the federal bench by Trump. The 5th Circuit panel that ruled Thursday night included two Trump nominees, Andrew Oldham and Cory Wilson, along with Jennifer Walker Elrod, nominated to the appeals court by President George W. Bush.