Biden Could Face Further Legal Action Upon Restarting ‘Remain in Mexico’

WASHINGTON — In a letter sent Friday to U.S. Attorney General Merrick Garland and Homeland Security Secretary Alejandro Mayorkas, Marielena Hincapié, executive director of the National Immigration Law Center (NILC), warned that the Biden administration could face additional litigation if it restarts the Trump-era Migrant Protection Protocols (MPP), also known as the Remain in Mexico policy.

Hincapié informed the officials that MPP violates the terms of a permanent injunction in Orantes-Hernandez v. Meese, a federal class-action lawsuit first filed in the 1980s, that protects the rights of Salvadorans seeking safety in the United States. NILC represents plaintiffs in the case, along with the American Civil Liberties Union (ACLU) Immigrants’ Rights Project and the ACLU of Southern California.

Earlier in the week, DHS stated that it will restart MPP “within the coming weeks.”

In her letter, Hincapié writes:

“Despite your own considered analysis and conclusion that MPP imposed unacceptable conditions that denied access to counsel and to proceedings themselves, and further that it is not possible to fix MPP, the administration is poised to re-start the very policy and practices that it so fervently denounced when administered by the Trump administration. Put simply, there is no excuse for this renunciation and abdication on the part of the Biden administration.

“While appreciating the need to comply with the Texas district court order, nothing in that court’s order purports to excuse the Government from the pre-existing Orantes Injunction. Moreover, nothing in the order requires halting the MPP wind down or confining the wind down’s scope to the first two phases. And nothing in the court’s order requires that this administration embrace the cruel, inhumane, illegal, and, in too many instances, deadly facets of the prior administration’s implementation of MPP. While not bound to do any of this, the administration now appears to be committing itself to a path of violating the Orantes Injunction in addition to a host of other laws. These violations will be perpetrated on your watch, against the administration’s own stated principles.”

…

“…while violating law specific to Orantes class members, MPP is unlawful, inhumane, and immoral as applied to any individual seeking asylum in the United States, and we implore you to halt the rush to stand back up a policy that will inevitably lead to more deaths, sexual assaults, and kidnapping and that will further turn this country’s back on law and morality.”

More information about the Orantes injunction is available here.

The full text of the letter is available here.

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