Supreme Court rules Biden can end Trump-era ‘Remain in Mexico’ border policy, a loss for Texas GOP


The U.S. Supreme Court ruled Thursday that the Biden administration may end a Trump-era immigration policy that requires most asylum seekers to wait in Mexico while their claims are processed.

The 5-4 decision marks a major blow for Texas Attorney General Ken Paxton, who joined Missouri in suing the Biden administration last year to preserve the policy, known informally as “Remain in Mexico” and officially as the Migrant Protection Protocols. And it halts a trend of court rulings that have thus far hamstrung President Joe Biden’s efforts to roll back the immigration policies of his predecessor, Donald Trump, and restore legal pathways for migrants to enter the country.

Trump, who enacted the “Remain in Mexico” policy in early 2019, contended it was needed to crack down on meritless asylum claims and manage the record numbers of Central American families seeking entry to the U.S. — arguments later echoed by Texas and Missouri in the Supreme Court case.

Human rights groups and immigrant advocates say the program strands migrants — many of whom are fleeing countries plagued by extreme violence and poverty — in northern Mexico under dangerous and unsanitary conditions, with widely documented reports of robbery, torture, rape, kidnapping and other violent attacks.

Chief Justice John Roberts penned the majority opinion, finding that federal law allows but does not require immigration authorities to return asylum seekers to Mexico. He and Justice Brett Kavanaugh joined the three liberal members of the court to form a narrow majority.

Paxton, in a brief statement, called the court’s decision “an unfortunate one, and I believe it was wrongly decided.” He cited Justice Samuel Alito’s dissenting opinion, which argued that federal law does not allow the government to “simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided.”

The decision resolves an issue that stretches to the first day of President Joe Biden’s term, when he suspended new enrollments in the “Remain in Mexico” program. He would later formally end the policy, but a Texas district judge, siding with Texas and Missouri, ordered federal authorities to keep it in place, ruling that Biden’s preferred method for handling asylum seekers ran afoul of U.S. immigration law.

Shortly after, the Supreme Court rejected the Biden administration’s request to quickly intervene in the case, and a federal appellate court later upheld the district court decision. Then, after months of negotiation with Mexican leaders, immigration officials in December restarted a more limited version of the program, under which they have returned asylum seekers to Mexico at a much lower rate than during the Trump administration.

At issue in the “Remain in Mexico” litigation was a provision of federal law that allows migrants awaiting their asylum hearings to be temporarily released into the country on a case-by-case basis “for urgent humanitarian reasons or significant public benefit.” Conservatives have sought to scale back the practice, which they often deride as “catch and release,” arguing it contains loopholes that are easily exploited.

Lawyers from the Biden administration argued that releasing asylum seekers on parole would provide a “public benefit” by ensuring the Department of Homeland Security can use its limited detention space for those with a criminal history or who pose a flight risk.

The administration further contended that forcing the Trump-era policy to continue through a court order would interfere with the broad discretion historically granted to the president in setting federal immigration policy. Justice Department lawyers said Biden chose to end the Trump-era program in part because it imposes “unjustifiable human costs on migrants facing extreme violence in Mexico.”

Roberts, in the majority opinion, found that the lower court rulings forced the president “to the bargaining table with Mexico, over a policy that both countries wish to terminate” — and in doing so “imposed a significant burden” upon Biden’s “ability to conduct diplomatic relations with Mexico.”

Alito, meanwhile, argued that the Biden administration’s regular use of the parole option for asylum seekers “gives rise to a strong inference that the government is not really making these decisions on a case-by-case basis,” as required by law. He noted that more than 27,000 migrants were temporarily released into the country in April to await their asylum hearings. 

Texas and Missouri, meanwhile, said Biden’s move to end the policy would place a financial burden on border states where asylum seekers would be temporarily released, through the paroled migrants’ use of public services such as schools and medical care. Paxton and his counterpart in Missouri also argued that the policy deters those who attempt to “game” the system by disappearing into the country instead of showing up for their asylum hearings, while also speeding up the process for those with legitimate asylum claims.

U.S. District Judge Matthew J. Kacsmaryk sided with the states last August, issuing an order to reinstate Remain in Mexico and finding that a federal law grants the Biden administration just two options for asylum seekers: “mandatory detention” or “return to a contiguous territory.” Immigration officials, Kacsmaryk added, may only use a third route — temporarily releasing asylum seekers into the country on parole — in limited cases, and not “simply because DHS does not have the detention capacity” to hold them.

In legal filings and testimony before the Supreme Court, DOJ officials argued that Kacsmaryk’s view was “egregiously mistaken” and “has never been accepted by any presidential administration since the statute’s enactment in 1996, including while MPP was operational.” Under Kacsmaryk’s interpretation, the DOJ noted, DHS has been in “continuous and systemic violation” of federal law for more than two decades.

Kavanaugh, in a concurring opinion, wrote that immigration law grants presidents discretion to parole asylum seekers into the U.S. as long as the decision is “reasonable and reasonably explained.” It was not up to the court to decide whether DHS met the standard, Kavanaugh said, adding that federal courts “must be deferential” to the president on foreign policy and not “improperly second-guess” his judgment.

U.S. Rep. Joaquin Castro, D-San Antonio, urged Biden to “move swiftly” to end the Remain in Mexico program and turn his attention to another Trump-era policy: Title 42, the public health order that allows immigration authorities during a pandemic to expel migrants from the country before they can apply for asylum.

Despite facing pressure from within his party to end the policy, Biden continued it for more than a year, then announced in April he would lift the order. A federal judge has blocked the move, however, and immigration officials have continued a monthly pace of roughly 100,000 Title 42 expulsions.

“The United States has a legal and moral obligation to protect asylum-seekers, and I will continue fighting for a humane immigration system that prioritizes fairness and safety for all people,” Castro said in a statement.

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