As expected, a conservative appeals court this week rejected the Biden administration’s second attempt to end the policy that forces asylum-seekers to wait for their U.S. immigration court dates in Mexico. The Fifth Circuit Court of Appeals sided with an August decision by a right-wing judge that ordered the Biden administration to reinstate Remain in Mexico, formally known as Migrant Protection Protocols (MPP).
Legal experts had said Judge Matthew Kacsmaryk, an appointee of the previous administration, was “wrong on the law”—and just flat-out ridiculous. The three-judge appeal panel’s ruling on Monday was no different.
The panel claimed “the suspension of the protocols was ‘arbitrary and capricious’ and contrary to federal administrative law,” CBS News reported. But American Immigration Council Policy Counsel Aaron Reichlin-Melnick said that “from an admin law perspective, the decision is nonsensical.”
“In an unprecedented move, the 5th Circuit ruled that MPP was required by a 1996 law—even though it did not exist before 2019,” he wrote at Immigration Impact. The judge who authored the opinion, Andy Oldham, was also appointed by the previous administration. Reichlin-Melnick noted in a separate Twitter thread that the judge’s “sheer contempt for the Biden administration oozes off of the page at nearly every juncture.”
“When Trump takes office again, I look forward to Judge Oldham declaring that, yes, DHS can indeed implement any immigration programs it likes, so long as those programs hurt immigrants,” Reichlin-Melnick continued. He warned at Immigration Impact that “[g]iven this outcome MPP will likely remain in place for months, if not years.” This is a horrific prospect for asylum-seekers, who have commonly faced violence when returned to Mexico.
Since the official restart of MPP last week, nearly 90 vulnerable people have been returned to Mexico. “DHS has said it plans to expand the policy across the entire U.S.-Mexico border, including in Texas' Rio Grande Valley,” CBS News said. The Biden administration also expanded MPP to return more people than the policy did under the previous administration, something that was not required by the court order.
“The program’s return was ordered by the courts,” Vox reported. “The policy’s expansion, however, was a choice made by the Biden administration.”
Advocates further said that the Fifth Circuit Court of Appeals panel’s ruling adds to the urgent case for why Democrats must act on court reform. For example, before his appointment by the previous administration Oldham was general counsel to right-wing extremist and Texas Gov. Greg Abbott, and aided in his legal efforts challenging the popular and successful Deferred Action for Childhood Arrivals program. At just 43 years old, he could be on the bench for decades.
“Last night’s 5th circuit ruling on MPP was radical in its sweep, stunning in its mischaracterization of the law, and depressingly predictable as a way station on the anti-immigrant judicial pipeline,” said David Leopold, former president of the American Immigration Lawyers Association. In August, he authored a must-read piece detailing what he calls the “anti-immigrant judicial pipeline.”
“From Ken Paxton to Texas judges to the 5th circuit court, pro-Trump conservatives have put their thumbs on the scale to advance Trump policies and conservative political goals under the guise of the law,” Leopold continued this week. “Unless the White House and Democrats on Capitol Hill institute changes into the federal judiciary, this is our future on immigration and other progressive issues.”
Legal experts had said Judge Matthew Kacsmaryk, an appointee of the previous administration, was “wrong on the law”—and just flat-out ridiculous. The three-judge appeal panel’s ruling on Monday was no different.
The panel claimed “the suspension of the protocols was ‘arbitrary and capricious’ and contrary to federal administrative law,” CBS News reported. But American Immigration Council Policy Counsel Aaron Reichlin-Melnick said that “from an admin law perspective, the decision is nonsensical.”
“In an unprecedented move, the 5th Circuit ruled that MPP was required by a 1996 law—even though it did not exist before 2019,” he wrote at Immigration Impact. The judge who authored the opinion, Andy Oldham, was also appointed by the previous administration. Reichlin-Melnick noted in a separate Twitter thread that the judge’s “sheer contempt for the Biden administration oozes off of the page at nearly every juncture.”
“When Trump takes office again, I look forward to Judge Oldham declaring that, yes, DHS can indeed implement any immigration programs it likes, so long as those programs hurt immigrants,” Reichlin-Melnick continued. He warned at Immigration Impact that “[g]iven this outcome MPP will likely remain in place for months, if not years.” This is a horrific prospect for asylum-seekers, who have commonly faced violence when returned to Mexico.
Since the official restart of MPP last week, nearly 90 vulnerable people have been returned to Mexico. “DHS has said it plans to expand the policy across the entire U.S.-Mexico border, including in Texas' Rio Grande Valley,” CBS News said. The Biden administration also expanded MPP to return more people than the policy did under the previous administration, something that was not required by the court order.
“The program’s return was ordered by the courts,” Vox reported. “The policy’s expansion, however, was a choice made by the Biden administration.”
Advocates further said that the Fifth Circuit Court of Appeals panel’s ruling adds to the urgent case for why Democrats must act on court reform. For example, before his appointment by the previous administration Oldham was general counsel to right-wing extremist and Texas Gov. Greg Abbott, and aided in his legal efforts challenging the popular and successful Deferred Action for Childhood Arrivals program. At just 43 years old, he could be on the bench for decades.
“Last night’s 5th circuit ruling on MPP was radical in its sweep, stunning in its mischaracterization of the law, and depressingly predictable as a way station on the anti-immigrant judicial pipeline,” said David Leopold, former president of the American Immigration Lawyers Association. In August, he authored a must-read piece detailing what he calls the “anti-immigrant judicial pipeline.”
“From Ken Paxton to Texas judges to the 5th circuit court, pro-Trump conservatives have put their thumbs on the scale to advance Trump policies and conservative political goals under the guise of the law,” Leopold continued this week. “Unless the White House and Democrats on Capitol Hill institute changes into the federal judiciary, this is our future on immigration and other progressive issues.”