Supreme Court: Biden Can End the ‘Remain In Mexico’ Policy

The Supreme Court ruled Thursday that the Biden Administration has the authority to end the controversial Trump-era immigration policy known as “Remain in Mexico,” in a win for Joe Biden and his Administration’s ability to determine its own immigration strategy.

In a 5-4 decision, the Supreme Court narrowly affirmed the Biden Administration’s authority to oversee U.S.-Mexico border procedure, and allows it to continue its efforts to end “Remain in Mexico”—officially called the Migrant Protection Protocols (MPP)—the Trump-era policy of returning migrants who have made a claim for asylum to Mexico while their case is adjudicated.

Chief Justice John Roberts wrote the majority opinion, joined by Justice Brett Kavanaugh and the court’s three liberals. Justice Amy Coney Barrett dissented, joined in part by the court’s other conservatives.

In the majority opinion, Roberts said the Administration’s actions to end the policy did not violate the law in the way red states who challenged the move had argued, potentially clearing the way for Biden to stop enrolling migrants in the program. But Roberts noted the Administration’s actions could be challenged on other grounds—specifically pointing to one section of the Administrative Procedure Act (APA)—and sent the decision back to the lower courts for further proceedings on separate legal questions.

Just four days ago, 53 migrants were killed by people smuggling from Mexico in San Antonio. Advocates and immigration experts blame the U.S. border with Mexico, MPP policies for encouraging dangerous illegal border crossings by people smugglers. “The Supreme Court’s decision paves the way for the Biden Administration to adopt a more orderly immigration process at the border,” says David Bier, the associate director of immigration policy at the libertarian Cato Institute. “‘Remain in Mexico’ was a failure. It dealt with asylum seekers so inhumanely that rather than ‘remaining in Mexico,’ they repeatedly crossed the border illegally.”

Since June 2021 the Biden Administration attempted to stop MPP. However, conservative states opposed the decision and claimed that the executive branch was not authorized to terminate the program in the manner it did. The 5th Circuit Court of Appeals ruled in the states’ favor in January, ruling that the Administration was bound to either detain asylum seekers in the U.S. or have them wait in Mexico—meaning the policy would have to stay in place until Congress allocated billions of dollars to expand the Department of Homeland Security’s (DHS’) detention capabilities. On Thursday, the Supreme Court ruled the 5th Circuit was wrong, and Roberts wrote in his opinion that the 5th Circuit’s interpretation of immigration law “imposes a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico, one that Congress likely did not intend [immigration law] to impose.”

“The larger policy story behind this case is the multi-decade inability of the political branches to provide DHS with sufficient facilities to detain noncitizens who seek to enter the United States pending their immigration proceedings,” Kavanaugh wrote in his concurring opinion. “But this Court has authority to address only the legal issues before us. We do not have authority to end the legislative stalemate or to resolve the underlying policy problems.”

In her dissenting opinion, Barrett wrote that she agreed with the majority’s analysis on the legal questions, “but not with its decision to reach them.” Barrett wrote that she would have remanded the case to the lower courts first.

The Supreme Court’s ruling was celebrated by immigrant rights activists who called upon the Biden administration to permit those still in Mexico Prison Permit (MPP) to travel to America to continue their asylum claims.

“We applaud the court’s decision,” said Priscilla Orta, supervising attorney for Lawyers for Good Government’s Project Corazon in Brownsville, Texas, an organization that provides pro bono legal advice for people enrolled in MPP. “At this moment, thousands of people have been enrolled in this program along the border. These people live in unsafe conditions and shelters that are in disrepair. In light of this decision, we now call on the Biden Administration to immediately pause all pending hearings and parole those enrolled so that they may seek asylum in safety.”

Continue reading: The Battle Over ‘Remain in Mexico’ Shows How U.S. Immigration Policy Has Reached ‘Peak Confusion’

According to conservative lawyers general, the Biden administration was unable to terminate MPP. “Today’s decision by the U.S. Supreme Court is an unfortunate one, and I believe it was wrongly decided,” said Texas Attorney General Ken Paxton in a statement. “Today’s decision makes the border crisis worse. But it’s not the end. I’ll keep pressing forward and focus on securing the border and keeping our communities safe in the dozen other immigration suits I’m litigating in court.”

DHS did not immediately respond to TIME’s request for comment.

Immigrants’ rights advocates have long criticized MPP, which was created in December 2018 and implemented in January 2019 by the Trump Administration. According to the Transactional Records Access Clearinghouse(TRAC), which is a Syracuse University research organisation, more than 71,000 people had enrolled in MPP. People with limited resources often stayed at dangerous Mexican border towns like Matamoros. They are located across the border from Brownsville in Texas. This led to makeshift tent encampments along the borders, housing hundreds of migrants living in difficult conditions. It is not uncommon for migrants to be subjected to violence.

In January 2021 the Biden Administration discontinued enrolling people in MPP and allowed those who were already in the program to come into the U.S., while an immigration judge reviewed their asylum claims. TRAC analyses show that only 10,300 of 71,000 migrants who were enrolled in the MPP program had been allowed to enter the U.S. before May 2021. Alejandro Mayorkas (DHS Secretary) issued a memorandum officially ending the program in June.

Next came the suit brought by Eric Schmitt and Texas Attorneys General Paxton. They argued Mayorkas didn’t follow the letter APA when he relaunched MPP. MPP launched again after the lower court decided in favor of the Attorneys General. According to TRAC, the program has seen more than 5,000 people enroll in it over the past six months. TRAC reports that only 1,109 of the cases filed have been heard in court. Only 27 asylum seekers were granted.

Continue reading: How Judges are Essentially Responsible for U.S. Immigrant Policy Right Now

“The Supreme Court’s decision to allow the Biden administration to terminate MPP doesn’t fix all of the complex issues along the U.S.-Mexico border,” says Austin Kocher, assistant professor and researcher at TRAC. “But it does remove a major barrier to the lawful asylum process.”

While immigrant advocates cheer the Supreme Court decision, Title 42, a Trump-era policy that blocked the U.S. asylum process from being implemented remains the main barrier.

The Biden Administration announced on April 1 plans to repeal Title 42. This is a federal health authority which the federal government invokes to expel any person who attempts an illegal crossing into the U.S. to stop the spread of COVID-19. Title 42 permits migrants to be expelled as a masse, without having to apply for asylum. Several states sued, arguing ending the program would create chaos, and in late May a federal judge ordered the Administration to continue enforcing Title 42 until litigation plays out—just as the courts had done with the Administration’s efforts to end MPP. That litigation is currently working its way through the court system, meaning a legal battle over the executive’s authority to oversee immigration policy could end up before the Supreme Court again fairly soon.

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