The Supreme Court on Thursday paved the way for the Biden administration to end the so-called “Remain in Mexico” policy, a program first implemented under President Donald Trump that forced asylum seekers to wait for their hearings outside the United States.
In a 5-4 opinion written by Chief Justice John Roberts, the high court rejected the arguments of Republican-led states trying to force officials to maintain the policy, ruling that the decision to end it did not violate a Migrant Detention Act of 1996 and that a second The lower courts should have taken into account the termination note of the program.
Judges Sonia Sotomayor, Elena Kagan, Stephen Breyer and Brett Kavanaugh joined the Chief Justice to side with the Biden administration in the case, known as Biden v. Texas. Judges Samuel Alito and Amy Coney Barrett presented dissenting opinions separately, apart from which Judges Neil Gorsuch and Clarence Thomas joined.
In his view, Roberts overturned a ruling by the 5th Circuit Court of Appeals that forced border officials to revise the rules of staying in Mexico, formally known as Migrant Protection Protocols, in December. Roberts said the 1996 law authorizing the program does not require officials to return migrants to Mexico, but simply gives them the option to do so, and noted the use of the word “pot.” to the statute.
If Congress wanted the law to require asylum seekers to be returned to Mexico, Roberts wrote, “it would not have conveyed that intention through an unexpressed inference in conflict with the express and unequivocal term ‘may.’ .
Roberts also noted that a court order requiring the use of the policy of remaining in Mexico interfered with the president’s broad powers to conduct foreign policy, as the Mexican government must accept the return of migrants to its territory.
In his dissent, Alito said he agreed with the majority of the court that the lower courts did not have the authority to order the Biden administration to reinstate Remain in Mexico, but listed several disagreements with the decision of Roberts. Alito did not argue that Congress has never funded enough detention beds to detain all migrants crossing the U.S. border illegally, but said officials have no authority to release a large number of non-returned migrants. in Mexico.
Instead of implementing Remain in Mexico, Alito argued, the Biden administration decided to “simply release to the country an incalculable number of foreigners who are very likely to be eliminated if they submit to their expulsion process.”
“This practice violates the clear terms of the law, but the Court looks the other way,” Alito wrote.
In August 2021, a federal judge overseeing a lawsuit by Republican officials in Texas and Missouri ordered the Biden administration to revise the rules of staying in Mexico, finding that a note issued by Homeland Security Alejandro Mayorkas in June by ending politics was legally deficient.
U.S. Judge Matthew Kacsmaryk, appointed by Trump, demanded that the administration implement the protocols to remain in Mexico “in good faith” until they finish them properly and until the government has created enough detention facilities to detain all migrants subject to the 1996 detention law.
In response, Mayorkas issued a fuller note in October to try to end MPP policy for the second time. But Kacsmaryk’s sentence was later upheld by the 5th Circuit, which refused to consider Mayorkas’ second termination note.
Legal setbacks forced the Biden administration to resurrect Remain in Mexico in December, although it revised the program, requiring officials to ask migrants if they feared persecution in Mexico before sending them there, offering vaccinated enrollees. against coronavirus and exempting certain groups from politics, including asylum seekers with serious medical conditions, the elderly, and members of the LGBT community.
Since December, the Biden administration has implemented Remain in Mexico on a limited scale, enrolling 7,259 migrants in the program by the end of May, government data show. During that same period of time, U.S. officials along the southern border prosecuted migrants more than a million times, according to DHS figures.
The Supreme Court ruling on Thursday returned the case to lower courts to decide whether Mayorkas’ second attempt to end politics followed administrative rules. DHS representatives did not respond to requests for comment.
The Trump administration used the MPP’s policy to return 70,000 migrants to Mexico, many of whom lived in sordid camps near the U.S. border. Human rights workers have reported hundreds of reported attacks on migrants forced to wait in Mexico, including areas the U.S. government warns Americans not to visit because of crime and widespread kidnappings.
The Trump administration said the MPP deterred migrants seeking better economic opportunities from using the asylum system to stay and work in the U.S., but the Biden administration argued that the policy was ineffective and went imposing “unjustifiable human costs” on asylum seekers putting them at risk of asylum. victimization in Mexico.
Republican lawmakers have attributed unprecedented levels of migrant arrests last year to the Biden administration’s decision to end the rules of staying in Mexico and other Trump-era border restrictions.
But Biden administration officials have argued that record arrivals at the border are part of a crisis of regional displacement caused by economic instability, violence, corruption and natural disasters related to the pandemic in Latin America.
In May, U.S. Border Patrol agents along the border with Mexico recorded 222,000 migrant arrests, a record monthly high. Customs and Border Protection, its parent agency, has prosecuted migrants more than 1.5 million times in fiscal year 2022, which will end in late September.
Although it has used the MPP policy sparingly since it revived it, the Biden administration has relied on another Trump measure known as Title 42 to quickly expel hundreds of thousands of migrants from the U.S.-US border. Mexico without allowing them to apply for asylum.
Since March 2020, the United States has cited Title 42, a World War II-era public health authority, for deporting migrants more than 2 million times to Mexico or its countries of origin, show Department of Homeland Security statistics.
The Biden administration tried to end Title 42 in May, citing improved pandemic conditions, but Republican-led states convinced a Louisiana federal judge to require officials to continue with the expulsions. The judge, who was also appointed by Trump, said the policy had been improperly canceled.
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Camilo Montoya-Galvez is the immigration journalist for CBS News. Based in Washington, it covers immigration policy and policy.