The Supreme Court ruled Thursday the Biden administration can reverse the controversial “remain in Mexico” policy, which requires asylum seekers to stay in Mexico as they wait for a hearing in U.S. immigration court.
The policy, also known as Migrant Protection Protocols(MPP), was launched by Biden’s predecessor, Donald Trump in 2019 and was central to his administration’s border policies. Under it, U.S. border officials return non-Mexican asylum seekers to wait for months or years in dangerous locations in Mexico while their claims are adjudicated in U.S. immigration courts.
The Trump administration sent more than 71,000 asylum seekers to Mexico from January 2019 to January 2021. According to Human Rights Watch, that includes tens of thousands of Children and people with disabilities or chronic health conditions.
In October 2021, the Secretary of the Department of Homeland Security Alejandro Mayorkas concluded after a thorough review that the MPP had “endemic flaws, imposes unjustifiable human costs, and pulls resources and personnel away from other priority efforts to secure our border.”
In recognizing the danger it places on people seeking asylum, Biden made a campaign promise to end MPP and followed through. Lawsuits from Texas and Missouri followed his actions, and a federal Texas district court judge ordered the federal government to restart the program.
The justices ruled against Texas and Missouri in a 5-4 ruling, and sent the case to a district court to reevaluate whether the administration properly terminated the policy. The Department of Homeland Security said it welcomes the Supreme Court’s decision and will “terminate the program as soon as legally permissible.
Chief Justice John G. Roberts said an appeals court “erred in holding that the” federal Immigration and Nationality Act “required the Government to continue implementing MPP”. Justices Brett M. Kavanaugh, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan joined in the majority opinion.
In a dissent, Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, 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 agreed with Chief Justice Roberts’ opinion but dissented in light of the immigration detention case Garland v. Gonzalez.
“No court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of ” specified immigration provisions, except as applied to “an individual alien against whom proceedings under [those provisions] have been initiated,” said Barrett.
According to Human Rights First, through February 2021, there were at least 1,544 publicly documented cases of rape, kidnapping, assault, and other crimes committed against individuals sent back under MPP.
The lack of counsel, combined with the danger and insecurity that individuals face in border towns, made it nearly impossible for anyone subject to MPP to successfully win asylum, according to the American Immigration Council. Of the 42,012 cases completed under MPP, only 521 were granted relief in immigration court by December 2021.
Ninety-seventy percent of the individuals stranded by the Trump Administration in Mexico whose cases were decided under this policy lacked a U.S. lawyer to help them apply for asylum, reported Human Rights First.
