By Zachary Stieber
West Virginia on Thursday sued President Joe Biden’s administration, alleging its refusal to restart the Trump era policy known as Remain in Mexico will lead to an increase in drug trafficking.
Homeland Security Secretary Alejandro Mayorkas on June 1 officially ended the policy, concluding it was “not the best strategy for implementing the goals and objectives of the Biden-Harris Administration.”
In practice, the administration halted the program the day Biden took office.
When he ended it, Mayorkas failed to consider the impact it would have on efforts to stop drug smuggling, including the smuggling of fentanyl, West Virginia Attorney General Patrick Morrisey alleged in the new lawsuit.
Morrisey said he sent a letter to Mayorkas detailing the concerns in June but never heard back, triggering the legal action.
“Ending the Remain in Mexico policy will undoubtedly lead to an increase in illegal drug trafficking and thus senseless deaths from fentanyl,” the Republican said in a statement. “I’ve long believed that a lawsuit should not be necessary to force the government to secure our southern border. We spoke out two months ago, yet the administration has failed to respond to our concerns. The border is more porous than ever. In the face of such silence and inaction, and because so many lives are at stake, litigation is the only remedy left to West Virginia.”
The federal court in Charleston was urged to declare the ending of the Remain in Mexico policy arbitrary and capricious, which would violate federal law. The court should instruct DHS and Mayorkas to reconsider whether to end the program, including a consideration of the potential impact on fentanyl trafficking, the suit also said.
DHS did not immediately respond to a request for comment.
Remain in Mexico, formally the Migrant Policy Protocols (MPP), forced many asylum seekers to wait in Mexico while their asylum claims were adjudicated.
The program, which was implemented in January 2019, was aimed at discouraging illegal immigration and spurious asylum applications. DHS found the program to be effective. In a review published Oct. 28, 2019, the agency said it “has been an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system.”
MPP was linked to a decrease in illegal immigrant encounters at the U.S.-Mexico border, according to the review. In another review last year, the agency found the program remained effective, describing it as “a cornerstone of DHS’s ongoing efforts to restore integrity to the immigration system—and of the United States’ agreement with Mexico to address the crisis at our shared border.”
Mayorkas disagreed. He said his own review determined MPP had “mixed effectiveness,” claiming as proof in part that illegal immigrant encounters increased during certain periods under the program and rose in others.
Any benefits the program may have offered “are now far outweighed by the challenges, risks, and costs that it presents,” he added later, citing in part how tens of thousands of asylum seekers were waiting in Mexico “with uncertainty” while immigration courts designated to hear their cases were closed due to the COVID-19 pandemic from March 2020 and April 2021.
The administration may be forced to restart the program, due to litigation against Mayorkas’s decision.
A federal judge ruled last week that the administration “failed to consider several critical factors” before canceling the program, including ignoring how the program led some immigrants with asylum claims that lacked merit to voluntarily return home.
U.S. District Judge Matthew Kacsmaryk, a Trump appointee, ordered the resumption of the program, but stayed his ruling for seven days. The Biden administration asked the judge to keep the stay in place until an appeal was decided on, a motion he rejected on Aug. 17.
Unless an appeals court overrules Kacsmaryk, the ruling goes into effect on Aug. 20.