Supreme Court: Biden may end Trump-era ‘remain in Mexico’ policy for migrants

The Supreme Court on Thursday allowed the Biden administration to end a Trump-era immigration policy that required migrants seeking asylum to remain in Mexico while their cases are reviewed, ending a yearlong legal fight over a policy critics say contributed to a humanitarian crisis on the border.

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Chief Justice John Roberts wrote for a 5-4 majority. He was joined by Associate Justice Brett Kavanaugh and the court’s liberal bloc. Associate Justices Samuel Alito, Neil Gorsuch, Clarence Thomas and Amy Coney Barrett dissented.

In the final opinion handed down in the 2021-2022 term, Roberts said that the lower court’s ruling against the administration “imposed a significant burden upon the executive’s ability to conduct diplomatic relations with Mexico.” That’s because, Roberts noted, the United States cannot unilaterally return migrants who are from Central America to Mexico. Those returns must be negotiated with Mexican officials. 

© Gregory Bull, APPeople gather as Rev. Albert Rivera, bottom left, speaks during a protest of people waiting in Mexico as they hope to apply for asylum, May 19, 2022, in Tijuana, Mexico. The Supreme Court has ruled that the Biden administration properly ended a Trump-era policy forcing some U.S. asylum-seekers to wait in Mexico. The justices’ 5-4 decision for the administration came in a case about the “Remain in Mexico” policy under President Donald Trump.

The decision represented a rare win for Biden at the conservative Supreme Court and allowed the administration to unwind a policy held over from President Donald Trump.

In dissent, Alito blamed the administration for releasing “into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings.

“This practice violates the clear terms of the law,” Alito said, “but the court looks the other way.”

The Trump administration implemented the “remain in Mexico” policy, also known as Migrant Protection Protocols, in January 2019 as part of its effort to curb immigration. It requires migrants from Central American and other nations seeking asylum to wait in Mexico for their claims to be reviewed. By the end of 2020, the federal government had enrolled 68,000 people in the program, according to court records.

Fulfilling a campaign pledge, Biden rescinded the program last year. Texas and Missouri sued, asserting the Department of Homeland Security didn’t follow the law when it unwound the program because it didn’t explain its reasoning for doing so. The U.S. Court of Appeals for the 5th Circuit sided with the states in December. 

Federal law requires DHS to detain migrants while their asylum claims are considered, but Congress hasn’t provided enough money to fulfill that mandate for most migrants. Of the 220,000 encounters border agents had with immigrants on the southwest border in March, DHS had funding for only 32,000 detention beds, federal officials told the court. 

The Biden administration never disputed that it is required by law to detain those immigrants. The question was what to do with those people when Congress hasn’t provided the money to carry out the requirement. Texas and Missouri said the law demanded that most of those people be returned to Mexico. Biden officials countered that the law has no such requirement, and they pointed out that no prior administration before Trump’s – Republican or Democrat – interpreted it that way. 

Instead, the Biden administration wound up paroling thousands of migrants into the United States to await hearings. The administration said the arrangement allows officials to prioritize for detention people who are most likely to commit crimes or flee.

The program is related to but different than Title 42, implemented in 2020, which expedites the removal of asylum seekers because of the COVID-19 pandemic. Biden has attempted to halt that program but the effort has been put on hold by a federal court. Neither the White House nor the Department of Homeland Security immediately responded to a request for comment about the decision.

The lawsuits are being hashed out as the nation is experiencing a sharp increase in migrants at the southern border. U.S. Customs and Border Protection encountered 234,088 individuals at the border in April, the highest monthly total in 22 years. 

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