A ruling this week preventing the Biden administration from undoing a Trump-era program that kept immigrants in Mexico for their immigration hearings marks the latest legal turmoil for the Biden administration, just as it contemplates a potentially seismic end to the Title 42 expulsions.
This week, a federal court in Texas stopped the completion of the Migrant Protection Protocols (MPP), a Trump-era policy that involved migrants being returned to Mexico while their cases went through the system. Tent courts have been set up along the border as part of an effort to stop the release of migrants inland.
The Biden administration called the policy cruel and ineffective, forcing migrants to camp in Mexico, and upon taking office, the president moved immediately to scrap it. The end of the policy in early 2021 coincided with a massive increase in illegal migration at the border, a rise that reached record levels and is still ongoing.
A Texas and Missouri lawsuit claimed that the administration’s reversal of the policy was unlawful and the administration was forced to reinstate it. The case reached the Supreme Court of the United States, which found favor of the administration and ruled that the lower court should now look for the first time at whether the Biden administration’s October 29, 2021 memo canceling the policy was legal under the Administrative Procedures Act.
THE FEDERAL COURT OF TEXAS SUSPENDS THE TERMINATION OF THE POLICY OF PERMANENCE IN MEXICO
District Judge Matthew Kacsmaryk ruled on that question this week, barring the administration from canceling the show. A DHS spokesperson told Fox News Digital on Saturday that DHS Secretary Alejandro Mayorkas was “well within his authority to terminate the previous administration’s program.”
“We do not agree with this decision and we are determining the next steps,” the spokesperson said.
The confusion surrounding MPP is not the biggest question mark over the administration’s immigration policy. That pertains to Title 42, which is currently scheduled to end on Wednesday, which many fear will unleash a new wave of migration to the US.
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Title 42, like MPP, was instituted during the Trump administration at the start of the COVID-19 pandemic and has been used ever since to remove most migrants at the southern border for public health reasons.
The Biden administration initially leaned on the order, but then tried to end it earlier this year. He was later prevented from doing so by a federal court in response to a lawsuit from the red states. Since then, DHS has continued to use Title 42, going so far as to expand it in October to include Venezuelan citizens as part of a cooperative agreement with Mexico.
However, a November lawsuit from the American Civil Liberties Union (ACLU) convinced a federal judge to declare the use of Title 42 illegal, giving the Biden administration five weeks to revoke the order.
That five-week period ends Wednesday, and DHS has acknowledged that it will likely be followed by an immediate surge in migration, an eventuality it says it has a plan to address. The Biden administration appealed the ruling, but that appeal will not arrive in time for the December 21 deadline. Meanwhile, in another case, a federal appeals court this week refused to halt the Dec. 21 uprising in response to an appeal by Republican-controlled states. That lawsuit may reach the US Supreme Court in the coming days.
EL PASO HIT BY A 255% INCREASE IN MIGRANT ENCOUNTERS AS TITLE 42 NEARS THE END
Meanwhile, the Biden administration is still engaged in another legal battle regarding its internal enforcement policies for Immigration and Customs Enforcement (ICE).
In 2021, the administration issued a memo restricting ICE agents to prioritizing three groups of illegal immigrants: recent border crossers, “aggravated felons,” and national security threats. The narrowed priorities coincided with a sharp drop in arrests and deportations, but the administration claimed it was prioritizing threats to the American homeland, with Mayorkas declaring it had “fundamentally changed immigration enforcement in the interior.”
“For the first time, our policy explicitly states that the unlawful presence of a non-citizen in the United States will not, by itself, be a basis for the initiation of an enforcement action,” he said.
That led to a legal challenge from red states, who said the policy was hurting them and was against federal law, which mandates that DHS detain most illegal immigrants. The guidelines have since been frozen, raising uncertainty about how ICE should carry out its mission.
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The matter is now before the Supreme Court. In oral arguments last month, the conservative majority indicated it could rule against the administration. Chief Justice John Roberts noted that federal immigration law requires that DHS “shall” unlawfully detain and remove most non-citizens from the country.
“It’s our job to say what the law is, not whether or not it can be implemented or if there are difficulties there,” Roberts said.
A ruling on the case is expected by June 2023.
Fox News’ Greg Wehner and William Mears contributed to this report.