Supreme Court upholds order keeping ‘Remain in Mexico’ policy in place

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Migrants wait in line for clothes and supplies in a makeshift migrant camp in the border town of Reynosa, Tamaulipas, Mexico on July 10, 2021.

The Supreme Court Tuesday declined the Biden administration’s request to block a lower court order keeping the Trump administration’s “Remain in Mexico” policy for asylum-seekers in place.

The unsigned order stated that the Biden White House failed to show that its move to end the program, which required asylum claimants to wait in Mexico until their case could be heard in a US immigration court, was not “arbitrary and capricious.” The court used similar rhetoric last year in rejecting the Trump administration’s attempt to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program.

The order noted that the high court’s so-called “liberal wing” — consisting of Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor — would have granted the administration’s stay request.

US District Judge Matthew Kacsmaryk in Amarillo had issued a nationwide injunction Aug. 13 ordering that the “Remain in Mexico” program — officially known as the Migrant Protection Protocols (MPP) program — be reinstated effective Aug. 21. The Fifth Circuit Court of Appeals denied the Biden administration’s initial appeal Aug. 19, but Supreme Court Justice Samuel Alito granted a temporary stay the following day so that the full court could consider the matter.

Migrants wait in line for clothes and supplies in a makeshift camp in the border town of Reynosa, Tamaulipas, Mexico, on July 10, 2021.
PAUL RATJE/AFP via Getty Images

President Joe Biden initially suspended the “Remain in Mexico” policy hours after taking office on Jan. 20. The Republican attorney generals of Texas and Missouri had challenged the suspension in April, warning of a surge of illegal immigration that would result.

On June 1, while the case was pending before Kacsmaryk, Homeland Security Secretary Alejandro Mayorkas formally canceled the policy, stating that keeping it in place was not “consistent with this Administration’s vision and values and would be a poor use of the Department’s resources.”

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Mayorkas estimated that 68,000 people were affected by the policy, which was implemented in January 2019 by then-Homeland Security Secretary Kirstjen Nielsen. The Trump administration largely stopped using the policy at the start of the COVID-19 pandemic, at which point it began turning back virtually everyone crossing the Southwest border under the so-called Title 42 health protocol.

Migrants wait in line for food in a makeshift migrant camp in the border town of Reynosa, Tamaulipas, Mexico on July 10, 2021.
Migrants in a camp in Reynosa, Tamaulipas, Mexico, on July 10, 2021.
PAUL RATJE/AFP via Getty Images

It’s not clear how many people will be affected by Tuesday’s order and how quickly. The Biden administration had argued that the president had “clear authority to determine immigration policy”, as well as that reinstating the program “would prejudice the United States’ relations with vital regional partners, severely disrupt its operations at the southern border, and threaten to create a diplomatic and humanitarian crisis.”

In his initial ruling, Kacsmaryk, a Trump appointee, stated that the administration had violated the Administrative Procedure Act of 1946, which spells out certain steps federal agencies must take when implementing policy. Specifically, he found that Mayorkas “failed to consider several of the main benefits” of the policy, including that it “reduc[ed] the number of aliens DHS would have to detain by returning certain aliens to Mexico.”

The judge ordered the Biden administration to make a “good faith” effort to restart the program and enforce it until and had been lawfully rescinded and immigration officials had enough space to hold all detained illegal immigrants.

Asylum seekers walk to the U.S.-Mexico border as a group of at least 25 immigrants were allowed to travel from a migrant camp in Mexico
Asylum seekers walk to the US-Mexico border as a group of at least 25 immigrants were allowed to travel from a migrant camp in Mexico.
John Moore/Getty Images

Critics argued that the policy threw up near-insurmountable obstacles to successful asylum claims by forcing claimants to wait out violent conditions in Mexico, where they had limited access to lawyers and difficulty making it to court.

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Missouri Attorney General Eric Schmitt hailed Tuesday’s ruling as “a huge win for border security and the rule of law, and highlights our efforts to continually fight back on federal government overreach.”

There was no immediate reaction from the White House Tuesday night.

With Post wires



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