A federal judge in Riverside vacated the Remain in Mexico policy on Wednesday and barred the government from using it. Jesus G. Bernal, sitting in the Central District of California, wrote that the department has neither the discretionary authority nor a legitimate reason to enforce a program that violates the Constitution or federal law. The policy he struck down is the one that sends an asylum claimant back across the river to wait for his hearing. The Supreme Court has already said the statute allows that return. The order is in the government’s lap for an appeal, and it is not built to survive one.
What he did
The case is Immigration Defenders Law Center against the secretary, filed in October 2020, number 20-cv-09893. It attacks the Migrant Protection Protocols as they ran from 2019 into 2021, and it has been the vehicle for fighting the revival. Bernal granted the challengers judgment. He found the program arbitrary and capricious because, he said, the department did not fully consider conditions in northern Mexico before it sent people there, and because the wait obstructed the right to seek asylum, the right to a lawyer, and a fair hearing. He wrote that there is no harm to the government in being stopped from doing something unlawful, and that the public interest is the orderly application of rights. The bar he issued runs nationwide.
That is a district judge substituting his view of conditions in Mexico for the secretary’s view of the border, and then calling the substitution a holding that the secretary has no authority. The policy itself is simple. A claimant who arrives without papers can be returned to the contiguous country he came from, to wait for the immigration court instead of being released into the United States. It was stood up in January 2019. Lower courts split. In March 2020 the Supreme Court let it keep running while the fight went on. The Biden administration tried to kill it. A district judge in Texas said it could not. In June 2022 the Supreme Court said the rescission could proceed, because the return is a power the secretary may use, not a duty he must. May is the word in the statute. It is not must, and it is not must not.
JUST UNSEALED: A judge ruled this week that the first Trump administration’s “Remain in Mexico” policy illegally subjected thousands of people – many with meritorious asylum claims — to horrifically dangerous and violent conditions and deprived them of access to attorneys.
https://t.co/3USioy5ook
— Kyle Cheney (@kyledcheney) October 9, 2026
The decision he wrote past
Two holdings sit in the way of Wednesday’s order.
The first is that 2022 case. The Court read the contiguous-territory provision and treated the return as a lawful tool in the secretary’s hands. A judge who writes that the department lacks discretionary authority to run the program is not applying that reading. He is announcing a different one, in which a policy the statute permits becomes a policy the statute forbids once a court decides the waiting room is too rough. Conditions in a foreign city can be a reason for a secretary to hesitate. They are not a repeal of may.
The second is from this June. On June 25 the Supreme Court held, 6 to 3, that a person standing on the Mexican side of the line has not arrived in the United States. Arrival, Justice Alito wrote for the majority, happens when he crosses, not when he tries and fails. The asylum statute reaches the person who is physically here or who arrives. It does not hand a hearing to a man still in Mexico. Bernal’s order treats the wait in Mexico as the thing that strips the claimant of rights he is said to hold. The June case says those rights do not attach on that side of the line. A program that keeps him there until the hearing is the program the statute describes, and it is the arrangement the June majority refused to call an arrival.
Bernal did not distinguish those cases so much as step around them. He leaned on the review statute that lets a court call an action arbitrary, and on a record about counsel and conditions. Arbitrary-and-capricious is a real test. It is also the test district courts have used, in this administration, to freeze policies the Supreme Court has then unfrozen. The Ninth Circuit, last July, would only stay the revival as to the plaintiffs’ own clients, and left the broader fight hanging. Wednesday’s judgment is the broader fight, decided by one judge, against a statute the high court has read twice.
Whether it lasts
The appeal runs to the Ninth Circuit, which has been hostile to this policy before and may well affirm. That is the wrong court to treat as the end of the road. This Supreme Court has spent the term staying district judges who barred removals, including a Boston judge whose bar on third-country deportations the Court lifted, and it has just held that presence in Mexico is not presence here. A nationwide vacatur of a tool the statute calls discretionary, issued on the theory that the tool is forbidden, is the order this Court has been taking apart.
The government’s points write themselves. The statute says may return. The 2022 decision said that sentence is authority, not a mandate and not a ban. The June decision said the man waiting on the other bank has not yet arrived. A single judge’s finding that the department failed to write enough about Mexican conditions does not erase either holding, and a nationwide bar is the remedy the Court has been the least willing to leave in place. The challengers’ point is the one Bernal adopted: the wait is so dangerous, and the access to a lawyer so thin, that the program cannot be lawful no matter what the statute says. That argument asks an appeals court to prefer a factual record about camps and kidnappings to the text. It can win a panel. It is a poor bet for five justices who have already said the return is allowed and the arrival has not happened.
Nothing in Wednesday’s order stops the department from asking for a stay tomorrow. The pattern of this term is that the stay comes, and the nationwide bar does not hold. Bernal has knocked the policy down. He has not knocked down the statute, and he has not knocked down the Court that read it.
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