The Biden administration restarted the policy last week after a district court order ordered the policy to be reinstated. The Supreme Court previously denied a request from the administration that the show’s revival remain on hold while the case is appealed. Since the program was reinstated, 86 migrants have been returned to Mexico, according to the International Organization for Migration.
On Monday night, 5th Street upheld the district judge’s ruling blocking the administration’s termination of the program. The opinion – made by three Republican-appointed judges – said the administration’s effort to end the program did not comply with the Administrative Procedure Act, which sets out specific processes agencies must take to enact new policies.
The federal government has sole discretion to decide whether to detain migrants or release them on parole within the United States while their asylum claims are reviewed. Fifth Street says Congress has put “case-by-case” limits on the government’s ability to release migrants on parole and that.”[d]eciding for alien parole as opposed to case-by-case decision making. “
“According to the district court’s findings, (the Department of Homeland Security) lacks the resources to detain every foreign national seeking admission to the United States. That means DHS cannot detain everyone § 1225(b)(2)(A) says it will “detain,” 5 Circuit said, referring to relevant immigration law. “So it’s left with a class of people: aliens it captures at the border but it’s incapable of detaining.”
Round 5 said that by terminating the program, “DHS refused to return that class to the contiguous territories,” as the law allows it to do.
In October, DHS re-issued the termination memorandum and again outlined the reasons for the termination. After additional review, DHS found that while the policy may have resulted in a reduction in border crossings, the humanitarian costs would justify ending the policy.
“It delves much deeper into decision-making and the reasoning behind the decision,” a Homeland Security official told reporters at the time, referring to the new memo. “It also addresses some of the alleged failures of the previous memo – addressing the alleged costs to states and the alleged concerns about the impact of terminating” the policy. .
On Monday, the 5th Round dismissed the Justice Department’s arguments that the October termination memo brought the case to the fore.
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