Biden can end ‘Remain in Mexico’ policy, US Supreme Court rules

Lower courts had blocked revoking the Trump-era programme that saw asylum seekers at southern border returned to Mexico.

The US Supreme Court has ruled that the administration of President Joe Biden properly ended a Trump-era policy that forced some asylum seekers to wait in Mexico for their United States immigration hearings.

The top court justices issued a five-to-four decision on Thursday in a case that centred on the Migrant Protection Protocols (MPP) – commonly referred to as “Remain in Mexico”, a policy first instituted under former President Donald Trump.

Chief Justice John Roberts wrote the decision and was joined by fellow conservative Justice Brett Kavanaugh, as well as the court’s three liberal justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Biden suspended MPP on his first day in office in January 2021. But lower courts ordered it reinstated in response to a lawsuit from the Republican-led states of Texas and Missouri. Still, the current administration has sent far fewer people back to Mexico than the Trump administration.

The heart of the legal fight was about whether immigration authorities, with far less detention capacity than needed, had to send people to Mexico or whether they had the discretion under federal law to release asylum seekers into the US while they awaited their hearings.

About 70,000 people were enrolled in the programme after Trump launched it in 2019 and made it a centrepiece of efforts to deter asylum seekers.

After Biden’s suspension of the programme, Homeland Security Secretary Alejandro Mayorkas ended it in June 2021. But two months later, a federal district court in Texas ordered the Biden administration to reinstate the scheme. An appeals court later upheld that decision.

The programme resumed in December, but barely 3,000 migrants had enrolled by the end of March, during a period when authorities stopped migrants about 700,000 times at the US-Mexico border.

Democratic-led states and progressive groups were on the administration’s side, while Republican-run states and conservative groups sided with Texas and Missouri.

Immigration advocacy groups have decried the push to send asylum seekers to Mexico as cruel and inhumane.

Asylum seekers have been subjected to violence, kidnappings and rape in dangerous, cartel-controlled Mexican border towns, where many were forced to wait in squalid camps for months and even years for their hearings in the US.

While the top court ruled that revoking the Trump-era policy did not violate immigration law, it sent the case back to the district court to assess whether the Biden administration’s move was consistent with administrative law.

The American Civil Liberties Union (ACLU), a civil rights advocacy group, welcomed the court’s decision on Thursday.

“The Supreme Court was right to reject the spurious argument that this cruel policy is statutorily required,” Judy Rabinovitz, special counsel with the ACLU’s Immigrants’ Rights Project, said in a statement.

“While, as noted in the decision, the case will return to the district court, the Biden administration can and should move forward swiftly to finally terminate ‘remain in Mexico’ for good — a result that has been long, and unjustly, delayed.”