Supreme Court tells Biden to REINSTATE Trump's 'remain in Mexico' policy that forces immigrants to remain south of the border while seeking asylum in US
The Supreme Court on Tuesday issued an order that effectively forces the Biden administration to reinstate a Trump-era policy that requires people to wait in Mexico while seeking asylum in the United States.
With the three liberal justices in dissent - Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan - the court said the administration likely violated federal law in its efforts to rescind the program informally known as 'Remain in Mexico.'
The short unsigned order declared that the Biden administration had failed to show that rescinding the policy 'was not arbitrary and capricious.'
It was unclear precisely which justices voted to end the stay and if any had recused themselves or been absent from the vote.
A federal judge in Texas, U.S. District Judge Judge Matthew J. Kacsmaryk, had previously ordered that the program be reinstated last week.
The Biden administration appealed to the 5th U.S. Circuit Appeal in New Orleans and asked for a delay in re-implementing the program while the case makes its way through the court system, but that was denied on Thursday.
Supreme Court Justice Samuel Alito ordered a brief delay on Friday to allow the full court time to consider the administration's appeal for the stay.
The high court's order in the case means the case will now continue to proceed through the courts and be heard by an appeals court - and it could ultimately return to the Supreme Court, as noted by The New York Times.
As the court case proceeds, the administration must make a 'good faith effort' to restart the program.
President Joe Biden suspended the program on his first day of office and the Homeland Security Department ended it in June
Migrants arrive at El Ceibo, Guatemala, on Thursday after being deported from the US and Mexico
A US Border Patrol agent processes a group of migrants in Sunland Park, New Mexico, on July 22, 2021
The Supreme Court on Tuesday refused to block a court ruling ordering the Biden administration to reinstate a Trump-era policy that forces people to wait in Mexico while seeking asylum in the U.S.
There also is nothing preventing the administration from trying again to end the program.
The American Civil Liberties Union called on the administration to present a fuller rationale for ending Remain in Mexico that could withstand court scrutiny.
'The government must take all steps available to fully end this illegal program, including by re-terminating it with a fuller explanation. What it must not do is use this decision as cover for abandoning its commitment to restore a fair asylum system,' said Omar Jadwat, director of the ACLU's immigrant rights project.
Formally known as the Migration Protection Protocols, the policy required tens of thousands of migrants seeking asylum in the United States to turn back to Mexico.
It was meant to discourage asylum seekers but critics said it denied people the legal right to seek protection in the U.S. and forced them to wait in dangerous Mexican border cities.
Judge Kacsmaryk ordered that the program be reinstated in response to a lawsuit filed by the states of Texas and Missouri, whose governors have been seeking to reinstate some of the hardline anti-immigration policies of the Trump administration.
The Biden administration argued in briefs that the president has 'clear authority to determine immigration policy' and that Homeland Security Secretary Alejandro Mayorkas had discretion in deciding whether to return asylum seekers to Mexico.
Justice Samuel Alito ordered a brief delay on Friday to allow the full court time to consider the administration's appeal
In its brief to the Supreme Court on Friday, the administration argued that the policy had been dormant for more than a year.
The Biden administration argued that abruptly reinstating it '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.'
The Trump administration largely stopped using the 'Remain in Mexico' policy at the start of the pandemic, at which point it began turning back virtually everyone crossing the Southwest border under a different protocol - a public health order that remains in effect.
The Trump-era policy that Biden can't escape
The MPP program was initiated in 2019 and deported certain migrants at the southern border to Mexico pursuant to Section 235(2) of the Immigration and Nationality Act .
The Department of Homeland Security suspended the program on January 21, 2021, the day that President Joe Biden was inaugurated.
Since then, no new individuals have been enrolled and the DHS terminated the program on June 1.
Under the policy, those who were eligible could register online to confirm eligibility to begin processing into the United States while remaining in Mexico.
Those who the U.S. government determined to be eligible for processing would be contacted by facilitating organizations and provided instructions for accessing a designated staging location, where they would complete a health questionnaire and undergo testing for COVID-19.
At staging sites, facilitating organizations would provide legal orientation and support before being transported to designated ports of entry for processing into the United States.
The MPP enrollees that made it this far into the program could then be released by DHS while their cases make their way through immigration court.
Source: Department of Homeland Security
The Biden administration said the pre-pandemic policy had been 'largely dormant' for months during the Trump administration even before the outbreak of COVID-19.
President Joe Biden suspended the program on his first day of office and the Homeland Security Department ended it in June.
Texas and Missouri argued that the Biden administration had not gone through proper administrative procedures in ending the policy, a legal argument that was repeatedly successful in some of the legal challenges brought against Trump administration immigration policies.
Kacsmaryk was nominated to the federal bench by Trump.
The 5th Circuit panel that ruled Thursday night included two Trump nominees, Andrew Oldham and Cory Wilson, along with Jennifer Walker Elrod, nominated to the appeals court by President George W. Bush.
The Trump administration previously filed an emergency application to continue its Remain in Mexico policy after it had been blocked by a federal appeals court.
The U.S. Court of Appeals for the Ninth Circuit had said the policy was causing 'extreme and irreversible harm' because it was at odds with federal law and international treaties.
The Biden administration had requested that the Supreme Court dismiss the Trump-era court case in June.
In July, White House Press Secretary Jen Psaki was asked whether President Joe Biden believed he has executive authority to determine where Afghan nationals await decisions on their applications for Special Immigration Visas.
The reporter noted the similarities to the Trump-era Remain in Mexico policy and the current housing of Afghan nationals in nations like Qatar while they await decisions on their SIVs.
'Well, it's a different program, obviously - which I know you're conveying. And what we are trying to determine is U.S. facilities and bases that are located in different parts of the world where we can house these brave and courageous individuals while their processing continues,' Psaki said.
She added: 'And it's already law, so we are - we are in a position where we can make a decision to relocate individuals from Afghanistan to these third-party countries.'
The number of children under age 18 apprehended at the border was 834 on August 5, according to Health and Human Services. The 30-day average is just 512.
Just 612 children in HHS custody were released to parents and guardians, meaning the total number of migrant children held by the US increased by more than 200.
A new report says encounters at the border reached 210,000 in July alone
The numbers from CBP show more migrants crossing in 2021 than recent years
The number of children traveling alone who were picked up at the border reached an all-time high of more than 19,000 in July, according to preliminary numbers shared with the Associated Press by David Shahoulian, assistant secretary for border and immigration policy at DHS.
It's just a sign of a greater influx - 210,000 migrants crossed into the US along the southern border in July.
It's the highest one-month total in 21 years, according to the Department of Homeland Security.
More than 188,000 migrants were encountered by law enforcement in June - compared to 33,000 in June 2020.