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Appeals court rules against Biden administration, 'remain in Mexico' policy to stay in place

The Biden administration has been trying for months to end the Trump-era immigration policy, but also began reimplementing it while the legal battle continued.

NEW ORLEANS — The Biden administration can't currently end a Trump-era migrant rule known as the "remain in Mexico" policy, an appeals court ruled Monday, setting the stage for a showdown in the Supreme Court over U.S. immigration standards. 

Formally known as the Migrant Protection Protocols — or MPP — the policy was one of former President Donald Trump's signature acts. It was a deal with Mexico that had the country at the southern border receiving Central American migrants who had previously tried to claim asylum at a U.S. port of entry, rather than allowing them to remain in the country while their claim was processed. 

The migrants often stayed in sprawling refugee camps on the Mexico side of the border until U.S. immigration courts heard their cases. These camps were a flashpoint during Trump's presidency, with reports from the border drawing strong condemnation from immigration advocates. 

The Biden administration had the Department of Homeland Security terminate the program when Biden took over in the Oval Office. But several Republican-led states pushed back, suing the administration and claiming that the termination was improperly done. 

A federal judge in Texas issued a decision in August. The Supreme Court then denied a request from the Biden administration to put the MPP on hold while the legal challenges made their way through the court system. 

Earlier this month, the U.N. International Organization for Migration said a pair of migrants had been returned to Mexico under the policy after it was reinstated amidst the legal battle over its future. 

According to the Associated Press, the returns were scheduled to begin in El Paso with up to 50 migrants to be returned daily to Ciudad Juarez, a U.S. official who spoke on condition of anonymity because details were not made public said. 

Before that, the program had been recently a footnote in the immigration debate because of COVID-19. Both the Trump and Biden administrations had been turning back migrants under public health orders issued by the Centers for Disease Control and Prevention. 

Over the administration's tenure, DHS has outlined in increasingly detailed memos the administration's plans and rationale for termination of the MPP, in repeated attempts to end its enforcement. 

Their latest attempt was an October notice of termination memo that senior federal officials hoped would make the ongoing court cases against the Biden administration moot, ending the program in a way designed to avoid further legal scrutiny. 

But those memos drew the ire of conservative judges in charge of overseeing the case in appeals court.

The Fifth District Court of Appeals on Monday released an opinion siding with the states suing Biden. Penned by Trump appointee Judge Andrew Oldham on behalf of the three-judge panel, the 112 page opinion is a critique of the federal government's policy shift.

"DHS claims the power to implement a massive policy reversal—affecting billions of dollars and countless people—simply by typing out a new Word document and posting it on the internet," Oldham wrote. "No input from Congress, no ordinary rulemaking procedures, and no judicial review." 

In short, the ruling forces the Biden administration to continue the policy holdover from the previous administration. 

Immigration advocates cried foul immediately, poking at what they called inconsistencies and structural issues with the ruling. 

"The decision was written by Judge Oldham, whose sheer contempt for the Biden administration oozes off of the page at nearly every juncture," tweeted Aaron Reichlin-Melnick, policy counsel for the American Immigration Council.

The latest ruling is sure to be appealed by the Biden administration, at which point it will go to the Supreme Court. 

If the high court chooses to hear the case, it will be a test of the executive branch's power over immigration policy, determined by a 6-3 conservative majority with several members directly appointed to the bench by Trump. 

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