Politico

Supreme Court rejects challenge to Biden effort to end Trump’s ‘Remain in Mexico’ program


The Supreme Court has rejected a major challenge to President Joe Biden’s effort to shut down his predecessor’s “Remain in Mexico” program that forced many asylum seekers trying to cross the U.S. border to return to Mexico to await hearings before U.S. immigration judges.

In a 5-4 decision, the justices ruled that federal immigration law does not mandate that the Biden administration send asylum applicants back to Mexico. The decision also leaves intact, for now, the federal government’s authority to release or “parole” foreign citizens into the U.S. as they await immigration court hearings.

The decision did not rule out the possibility that other legal challenges to the Biden administration’s move to wind down the program might eventually succeed, but it clears the way for the feds to stop sending migrants back to Mexico for the time being.

Chief Justice John Roberts and Justice Brett Kavanaugh joined the court’s liberal justices in the majority, while the other conservative justices dissented.

Critics of the program, implemented by former President Donald Trump’s administration in 2019 and officially called the “Migrant Protection Protocols,” have long said it exposes migrants to danger and poor living conditions in Mexican border towns as they pass the weeks or months until their appointment at a U.S. immigration court along the border.

The decision comes as Republicans have repeatedly slammed the Biden administration for its handling of immigration and border policy and called on Biden to keep in place Trump-era policies. They argue that Biden’s efforts to roll back Trump policies has resulted in a spike in the number of migrants making the dangerous trek to the U.S. southern border.

On Tuesday, at least 50 migrants were found dead in a tractor-trailer in San Antonio in what authorities called the deadliest migrant smuggling operation in U.S. history. The deaths quickly were politicized as Texas Gov. Greg Abbott blamed Biden and said it was a result of the president’s “deadly open border policies.” In a statement, Biden pushed back on the move to politicize the deaths.

“Exploiting vulnerable individuals for profit is shameful, as is political grandstanding around tragedy,” Biden said.

Biden’s administration sought to end the Remain in Mexico program in February 2021, but last August a federal judge in Amarillo, Texas, ordered officials to reinstate the program. The Biden administration has enrolled more than 7,200 migrants in the program since it was officially restarted in December, according to figures from the Department of Homeland Security. More than 70,000 migrants were placed in the program during the Trump administration.

Acting on a suit filed by the states of Texas and Missouri, Trump-appointed U.S. District Court Judge Matthew Kacsmaryk said the Biden administration’s action failed to comply with its legal duty to consider all relevant factors before reversing the program.

The issue reached the Supreme Court on an emergency basis later that month, with the justices turning away the Justice Department’s request to suspend the policy while litigation over the issue continued. The high court’s three Democratic appointees indicated they would have allowed the program to remain sidelined as the legal challenge proceeded.

Roberts wrote the majority opinion released Thursday, but it did not deal with some of the key issues related to the case, like whether the administration’s final order shutting down the program last year complied with basic legal requirements for significant actions by federal agencies.

The majority also declined to resolve whether a provision in federal immigration law that says authorities “shall” detain people who enter the U.S. unlawfully mandates such detention in all cases.

Instead, Roberts simply concluded that the Immigration and Nationality Act gives the Secretary of Homeland Security discretion to decide when immigrants should be sent back to contiguous countries like Mexico and Canada and the government isn’t required to do so.

“The INA itself does not require the Secretary to continue exercising his

discretionary authority under these circumstances,” Roberts wrote.

The majority also found that the lower court’s ruling had posed a “significant burden” on the Biden administration’s ability to conduct diplomatic relations with Mexico

Three conservative justices, Clarence Thomas, Samuel Alito and Neil Gorsuch, declared in a dissenting opinion that Congress has required most foreigners in immigration proceedings be detained or removed from the country immediately. In an opinion written by Alito, they said DHS is required to pursue the option to send migrants to Mexico.

“DHS does not have the capacity to detain all inadmissible aliens encountered at the border, and no one suggests that DHS must do the impossible,” Alito wrote. “But rather than avail itself of Congress’s clear statutory alternative to return inadmissible aliens to Mexico while they await proceedings in this country, DHS has concluded that it may forgo that option altogether and instead simply release 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, but the Court looks the other way.”

Justice Amy Coney Barrett penned a separate dissenting opinion that said the case should have been returned to a lower court to decide whether a recent Supreme Court decision that limited immigration-related actions over groups of foreigners was an obstacle to further litigation.

Barrett said she agreed with Roberts and the majority about the government’s return-to-Mexico authority being discretionary, but she would not have reached that issue in this case.

The fight over the “Remain in Mexico” program was a reprise of sorts of a Supreme Court battle two years ago over Trump’s efforts to repeal the Obama-era Deferred Action for Childhood Arrivals program, which gives deportation protections and work permits to more than 800,000 immigrants brought to the U.S. illegally as children.

In a surprise ruling in June 2020, Chief Justice John Roberts joined the court’s four Democratic appointees at the time to hold that Trump’s effort to end the Deferred Action for Childhood Arrivals program did not consider all the required factors under federal law.

The high court’s decision effectively blocked Trump’s effort to repeal DACA, as he did not make another attempt to do so in his remaining seven months in office. Trump insisted before and after the high court’s ruling that he was willing to negotiate a compromise on the issue with Congress, but that Democratic lawmakers lost interest once it appeared they could frustrate his repeal efforts in the court.

The program, however, remains in legal limbo. In early July, the 5th Circuit Court of Appeals is set to hear oral arguments next month on the program’s legality.

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