U.S. Supreme Court says Biden administration must comply with ruling to restart “remain in Mexico” program for asylum-seekers

Migrants crossing the border in Roma receive instructions and are apprehended by U.S. Customs and Border Protection on Aug. 15, 2021.
Migrants crossing the border in Roma receive instructions and are apprehended by U.S. Customs and Border Protection on Aug. 15, 2021.

Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.

The Supreme Court on Tuesday said the Biden administration must comply with a lower court’s ruling to reinstate President Donald Trump’s policy that required many asylum-seekers to wait outside the United States for their cases to be decided.

The administration had asked the court to put on hold a federal judge’s order that the “remain in Mexico” policy known as Migrant Protection Protocols (MPP) had to be immediately reimplemented. U.S. District Judge Matthew Kacsmaryk ruled earlier this month that the Biden administration did not provide an adequate reason for getting rid of the policy, and that its procedures regarding asylum-seekers who enter the country were unlawful.

Over the objections of the three liberal justices, the court’s conservative majority agreed the administration had not done enough to say why it was changing the policy.

The administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious,” the court said in a short unsigned order.

It said Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan would have granted the administration’s request.

The action could be an ominous sign for the new administration. The court often showed deference to the Trump administration in such emergency matters, including when it first came up with the policy at issue.

Acting Solicitor General Brian H. Fletcher had been explicit about that in his brief to the court.

“In recent years, this Court has repeatedly stayed broad lower court injunctions against Executive Branch policies addressing matters of immigration, foreign policy, and migration management,” Fletcher wrote. “It should do the same here.”

But in the short order, the court referenced a decision from 2020 in which it stopped the Trump administration from dismantling the Obama-era program — Deferred Action for Childhood Arrivals — that protected immigrants brought to the country unlawfully as children.

The Biden administration made an emergency request that the Supreme Court justices act, saying Kacsmaryk “fundamentally misunderstood” federal immigration law and improperly meddled in immigration and foreign policy decisions left to the executive branch.

“MPP has been rescinded for 2.5 months, suspended for 8 months, and largely dormant for nearly 16 months,” Fletcher wrote.

“The district court’s mandate to abruptly reimpose and maintain that program under judicial supervision 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.”

A panel of the U.S. Court of Appeals for the 5th Circuit had largely sided with Kacsmaryk and had refused the government’s request to stay his ruling while considering the government’s appeal.

Shortly after taking office in January, President Biden said the administration would not continue enrollment in the MPP and ordered a review of the program. He and immigration rights groups had criticized immigration policies implemented by President Donald Trump and his administration as counterproductive and at odds with the nation’s historic practices.

“I’m not making new law. I’m eliminating bad policy,” Biden said at the time.

Under the program, more than 60,000 asylum-seekers were sent to wait outside U.S. territory while their claims were processed in immigration courts. The states of Texas and Missouri filed suit, saying that rescinding the policy would result in a flow of undocumented immigrants into those states.

While the litigation was underway, Department of Homeland Security Secretary Alejandro Mayorkas filed a seven-page memo on June 1 detailing what he saw as MPP’s shortcomings and why his department was rescinding the policy adopted in late 2018.

On Aug. 13, Kacsmaryk, a Trump-nominee who took the bench in 2019, ruled for the states. He vacated Mayorkas’s decision and issued a nationwide permanent injunction, to take effect in seven days. He required DHS to “enforce and implement MPP in good faith” until Mayorkas provided additional explanation for his decision and until the department has “sufficient detention capacity to detain all aliens” arriving at the border without permission to enter.

Kacsmaryk said the law gave the administration only two options for migrants seeking asylum: “mandatory detention or a return to a contiguous territory.”

At the Supreme Court, the Biden administration said that was an “egregious” misreading of the law. The law gives the executive branch discretion, they argued, and said such a reading of the law “has never been accepted by any presidential administration since the statute’s enactment in 1996, including while MPP was operational.”

It defended Mayorkas’s decision-making. But said even if it was insufficient, the solution would be to require additional reasoning, not to reimplement a program that requires delicate negotiations with Mexican officials and others.

While Biden pledged during the campaign to end the “remain in Mexico” program, he has continued the Trump administration’s policy of expelling migrants from the southern border to prevent spreading the coronavirus.

Thousands of single adults are still being expelled, though in recent months the Biden administration has admitted most migrant families and unaccompanied minors to seek refuge in the United States.

The case is Biden v. Texas.

Maria Sacchetti contributed to this report.

Join us Sept. 20-25 at the 2021 Texas Tribune Festival. Tickets are on sale now for this multi-day celebration of big, bold ideas about politics, public policy and the day’s news, curated by The Texas Tribune’s award-winning journalists. Learn more.