On Thursday, the Supreme Court cleared the way for Biden’s administration to end “Remain in Mexico”, a policy that allowed asylum-seekers to wait outside the U.S. to face their court hearings. It was first implemented by President Donald Trump.
Chief Justice John Roberts wrote a 5-4 opinion. He rejected Republican-led arguments that officials should be forced to continue the policy. The court ruled that the decision to end the program did not violate a 1996 law on migrant detention and that lower courts should have considered a second memo ending the program.
Sonia Sotomayor and Elena Kagan joined Brett Kavanaugh as chief justices in supporting the Biden administration in the case known as Biden V. Texas. Justices Samuel Alito, Amy Coney Barrett and Clarence Thomas filed separate dissenting opinions.
Roberts’ opinion overturned a 5th Circuit Court of Appeals ruling that required border officials to revive in December the Remain in Mexico rules. These rules were formerly known as the Migrant Protection Protocols. Roberts stated that the 1996 law authorizing this program doesn’t require officials to return migrants in Mexico but only gives them the option, noting the use the word “may” in the statute.
Roberts stated that Congress did not intend to require asylum seekers to return to Mexico under the law.
Roberts noted that a court order mandating use of the Remain Mexico policy interfered in the president’s broad powers of conducting foreign policy. The Mexican government must also accept the return of migrants.
Alito stated in his dissent that he agreed with the court majority that lower courts were not authorized to order the Biden administration reinstate Remain in Mexico. However, he also listed several disagreements with Roberts. Alito acknowledged that Congress has not provided enough detention beds for all illegal crossings of the U.S. Border. However, he stated that officials are not authorized to release large numbers who have not been returned to Mexico.
Alito claimed that Remain in Mexico should not have been implemented. Instead, the Biden administration chose to “simply release into this country untold quantities of aliens who will be removed if their removal proceedings are initiated.”
Alito stated that “this practice is contrary to the clear terms and the Court looks the other direction.”
A federal judge in Missouri and Texas ordered the Biden administration, in August 2021, to revive the Remain in Mexico rules. He found that the memo by Homeland Security Alejandro Mayorkas in June, which was intended to end the policy, was legally defective.
U.S. Judge Matthew Kacsmaryk was a Trump appointee and required that the administration implement the Remain In Mexico protocols “in good faith” up until it properly terminated them and until enough holding facilities were established to hold all the migrants covered by the 1996 detention law.
Mayorkas responded by issuing a more detailed memo in October, to try and end the MPP policy for a second time. The 5th Circuit upheld Kacsmaryk’s ruling, but refused to take into consideration Mayorkas’ second termination notice.
Biden’s administration had to revive Remain in Mexico after legal problems. However, it overhauled the program by asking migrants if they fear persecution in Mexico. Officials were required to ask them if they are afraid of persecution before sending them there. They also offered enrollees coronavirus vaccinations. Some groups were exempted from the policy including those with serious medical conditions and the elderly.
According to government data, 7,259 migrants were enrolled in Remain in Mexico by the Biden administration as of May. This was in addition to the limited implementation of the program in December. According to DHS statistics, the U.S. processed more than 1 million migrants along its southern border during that time.
Thursday’s Supreme Court decision sent the case back down to the lower courts, to determine if Mayorkas’ second attempt at ending the policy was in accordance with administrative rules.
DHS released a statement on Thursday saying that they were pleased with the Supreme Court’s affirmation that the Secretary has the discretionary power to end the program. They also stated that they would continue their efforts to do so as soon as legally permissible.
Trump’s administration used the MPP policy for 70,000 migrants to be returned to Mexico. Many of them lived in deplorable conditions near the U.S. Border. Human rights workers reported hundreds of attacks on migrants who were forced to wait in Mexico. These included in areas that the U.S. government advises Americans not visit due to widespread crime and kidnappings.
Trump claimed that MPP discouraged migrants seeking better economic opportunities from applying for asylum. They could not stay and work in the U.S. The Biden administration, however, argued that the policy was ineffective and imposed “unjustifiable personal costs” on asylum-seekers by putting them at risk of being victimized in Mexico.
Republican lawmakers have attributed unprecedented numbers of migrant arrests in the last year to the Biden administration’s decision to end Remain in Mexico rules, and other Trump-era borders restrictions.
Officials from the Biden administration claim that record-breaking border arrivals are a result of a regional displacement crisis, which was triggered by violence, economic instability, corruption, and natural disasters in Latin America.
U.S. Border Patrol agents at the Mexican border registered 222,000 migrant arrests in May. This is an all-time high monthly total. Customs and Border Protection is its parent agency. It has processed more than 1.5 million migrants in fiscal year 2022. This will be completed at the end September.
Although it has not used MPP policy much since its revival, the Biden administration relied on Title 42, a Trump measure to quickly expel hundreds of thousands from the U.S. border with Mexico.
According to Department of Homeland Security statistics, more than 2 million migrants have been expelled to Mexico and their home countries by the U.S. since March 2020.
Title 42 was threatened by the Biden administration in May. However, officials cited improving pandemic conditions. A federal judge in Louisiana ruled in favor of keeping expulsions going. Trump also appointed the judge. He said that the policy was illegally terminated.
