The Biden administration on Monday asked the U.S. Supreme Court to overturn a Fifth Circuit ruling that barred the government from ending the controversial Trump-era “Remain in Mexico” border asylum policy.
Officially called the Migrant protection protocols (MPP), “Stay in Mexico” requires non-Mexican asylum seekers to stay in Mexico pending their hearings in US immigration court. The Biden administration has tried to roll back the policy several times, suspending it at the start of President Biden’s term in January 2021 before issuing a formal termination notice in June 2021.
The administration told the Supreme Court that the Fifth Circuit Court of Appeals wrongly upheld a Texas federal judge’s order requiring the government to restart the MPP in August 2021. That order incorrectly applied the law on Immigration and Nationality (INA) stating that the INA requires the federal government to return migrants to Mexico when they cannot be held in a detention center.
The government argued that the INA clearly gives the government the choice to return a migrant to “contiguous territory” such as Mexico or Canada, but does not require migrants to be returned. As the the government’s memorial to the Court statedthe law “unambiguously establishes a discretionary power, not a mandatory duty” to return non-nationals to Mexico.
The Supreme Court case stemmed from the administration’s attempts to end the policy. Shortly after the suspension of the MPP, the the states of Texas and Missouri sued the government in April 2021 to keep the MPP in place, and in August a federal judge in Texas found that Biden’s Department of Homeland Security (DHS) failed to follow federal administrative procedure law during the cancellation of the policy and ordered the program to be restarted.
DHS attempted to address the issues identified by the federal court in the first termination notice, rescinding the first notice and issuing a new termination note for MPP in October 2021. The October memo stated that while the MPP may have helped deter some illegal border crossings, its benefits did not justify the “unjustifiable human costsof the program and was not in the interest of the United States.
In a widely critical opinionthe Fifth Circuit Court of Appeals rejected the second government memo. The Supreme Court expedited the case, originally agreeing to hear it during the second week of April. Oral arguments in the Supreme Court case are set for April 26 and a decision is expected before the Court’s summer recess.
The deal is Biden vs. Texas et al., case number 21-954, in the United States Supreme Court.