June 30, 2022

Supreme Court allows Biden to end 'Remain in Mexico' policy


The Supreme Court on Thursday sided with the Biden administration in its effort to end a Trump-era immigration policy that requires U.S. asylum-seekers at the southern border to wait in Mexico while their applications are processed.

The 5-4 ruling found that the administration did not violate federal immigration law when it sought to rescind the policy.

While the justices returned the case to lower courts for additional proceedings, an October rescission by the Department of Homeland security notes it will take effect “as soon as practicable” following a decision from the court.

Under Former President Trump’s 2019 “Remain in Mexico” policy, more than 70,000 asylum-seekers were returned from the U.S. to Mexico. 

The program, formally called the Migrant Protection Protocols (MPP), marked an extreme departure from the previous practice of allowing those fleeing violence and persecution to cross the border and remain in the U.S. while they apply for asylum, a process that can take years to complete.

The court sided with the Biden administration in ruling that it has no obligation to continue with the Trump-era policy.

The law “plainly confers a discretionary authority to return aliens to Mexico during the pendency of their immigration proceedings,” Chief Justice John Roberts wrote for the majority. 

“The use of the word ‘may’… thus makes clear that contiguous-territory return is a tool that the Secretary ‘has the authority, but not the duty,’ to use,” he wrote.

Immigration advocates had long pleaded with both Trump and Biden to scrap the policy, noting that vulnerable migrants, who are not from Mexico and may not even be Spanish speakers, faced dangerous conditions as they waited months on end for any movement in their cases.

Court action from Texas and Missouri forced the Biden administration to rescind the policy twice, first in June of last year and then again in October. A second memo from DHS Secretary Alejandro Mayorkas jumped from 4 pages to 39 pages, justifying his rationale by focusing on the inhumane conditions.

“I recognize that MPP likely contributed to reduced migratory flows. But it did so by imposing substantial and unjustifiable human costs on the individuals who were exposed to harm while waiting in Mexico,” Mayorkas wrote, adding that the policy “fails to provide the fair process and humanitarian protections that all persons deserve.” 

It has also complicated relations with Mexico, which agreed to a restart of the program only with numerous caveats about who could be sent to wait there, noting the risks faced by the elderly, the sick, and those who identify as LGBTQ.

Texas-based U.S. District Judge Matthew Kacsmaryk, a Trump appointee, sided with the challengers and blocked Biden’s effort to rescind the program. The judge concluded that federal law requires that the federal government either detain asylum-seekers at the southern border or return them to Mexico, effectively whittling away at presidential discretion.

But the Supreme Court decision warns both against imposing limitations on executive authority and the need to “avoid ‘the danger of unwarranted judicial interference in the conduct of foreign policy.’”

Interpreting the law as a mandate “imposed a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico,” Roberts wrote, noting that bilateral relations mean “the Executive therefore cannot unilaterally return these migrants to Mexico.” 

The ruling also rejects arguments from the lower courts that DHS did not follow the Administrative Procedures Act in rescinding the policy – a key detail as the Biden administration faces similar arguments in its effort to unwind Title 42, another Trump-era border policy.

Due to the lower courts’ decisions, the Biden administration has been re-instituting Remain in Mexico with some 4,000 migrants having been removed to the country since November 2021, according to the American Immigration Council.

It’s been a difficult process for the administration as many legal aid groups did not want to partner with the government in carrying out what they see as an inhumane program. 

But even as the Biden administration ends MPP, the decision may change little at the border. 

Even though it has now rescinded Title 42, courts have ruled that policy must stay in place, leaving another policy that allows for the rapid expulsion of migrants – this one blocking them wholesale from the asylum system. 

“I’m glad the Supreme Court is paving the way for the United States to finally revoke this xenophobic policy,” Sen. Bob Menendez (D-N.J.) said in a statement.

“With today’s decision, we must commit ourselves to doing the difficult work ahead to meet our domestic and international legal obligations with respect to asylum seekers and to repair our longstanding status as a beacon of hope and opportunity for those fleeing from violence and persecution. Ensuring a final end to Title 42 is critical to meeting those obligations.”

Lower courts had twice sided with GOP states challenging the policy.

Early into Biden’s White House tenure, his administration sought to formally end the Trump-era policy. Homeland Security Secretary Alejandro Mayorkas issued a memorandum in June 2021 ordering an end to the program, which prompted the legal challenge by the attorneys general of Texas and Missouri.

Texas-based U.S. District Judge Matthew Kacsmaryk, a Trump appointee, sided with the challengers and blocked Biden’s effort to rescind the program. The judge concluded that federal law requires that the federal government either detain asylum-seekers at the southern border or return them to Mexico, effectively whittling away at presidential discretion.

The Supreme Court’s Thursday decision reversed this determination, which had been affirmed by a lower federal appeals court.

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