Immigration Article of the Day: Asylum, Interrupted by Haiyun Damon-Feng

Abstract

One of the cruelest and most devastating Trump-era immigration policies was the Remain in Mexico policy, formally titled the “Migrant Protection Protocols” (MPP). MPP upended decades of established asylum law and practice, forcing asylum seekers to wait in Mexico pursuant to a bilateral agreement between the U.S. and Mexico—where many were kidnapped, raped, tortured, or otherwise exploited or killed for their vulnerability as migrants—while they pursued their immigration cases before U.S. immigration courts. The Biden administration issued a memorandum terminating MPP in June 2021, but two months later, Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas ordered the administration to “enforce and implement MPP” in a nationwide injunction issued in Texas v. Biden. In so ordering, Judge Kacsmaryk broke with long-standing precedent cautioning judicial deference to the political branches in matters implicating foreign affairs and seemed to subordinate the Executive’s interest in controlling such matters to States’ interests in immigration enforcement. This essay is not a normative argument in defense of deference, but rather an account of how the District Court in Texas boldly—and without discussion or acknowledgment—did away with such deference in ordering the Biden administration to re-start MPP, and how the Supreme Court, in refusing to stay the injunction, seemed not to mind.

KJ