The Supreme Court said Tuesday that the Biden administration likely violated federal law by trying to end a Trump-era program that forces people to wait in Mexico while seeking asylum in the United States.
Along with three liberal justices dissenting, the High Court declined to block a lower court ruling ordering the administration to reinstate the program informally known as Remain in Mexico.
It is unclear how many people will be affected and how quickly. Under the lower court’s decision, the administration must make a “good faith effort” to restart the program.
There is also nothing preventing the administration from trying again to terminate the program, officially called Migrant Protection Protocols.
A Texas federal judge previously ordered the program reinstated last week. He and the United States Court of Appeals for the 5th Circuit both denied the administration’s request to stay the decision.
Judge Samuel Alito ordered a brief delay to allow the full court to consider the administration’s appeal to stay the decision while the case continues to make its way through the courts.
The 5th Circuit ordered expedited review of the administration’s appeal.
The court offered little explanation for its action, though it cited its opinion last year rejecting the Trump administration’s efforts to end another immigration program, Deferred Action for Newcomers. children. In that case, the court ruled that the decision to terminate DACA was “arbitrary and capricious,” in violation of federal law.
The administration has “failed to show a likelihood of success on the assertion that the memorandum overriding the migrant protection protocols was not arbitrary and capricious,” the court wrote in an unsigned order Tuesday.
The three dissenting justices, Stephen Breyer, Elena Kagan and Sonia Sotomayor, did not write an opinion expressing their views on the case.
In a statement, the Department of Homeland Security said it regretted the High Court declined to issue a stay. The department said it would continue to challenge the district court order.
The American Civil Liberties Union called on the administration to present a more comprehensive rationale for ending the stay in Mexico that could withstand judicial scrutiny.
“The government must take all available steps to completely end this illegal program, including terminating it with a fuller explanation. What he must not do is use this decision as a cover to abandon his commitment to restoring a fair asylum system,” said Omar Jadwat, director of the ACLU’s Immigrant Rights Project.
During Donald Trump’s presidency, policy required tens of thousands of migrants seeking asylum in the United States to return to Mexico. It was intended to discourage asylum seekers, but critics said it denied people the legal right to seek protection in the United States and forced them to wait in dangerous Mexican border towns.
The judge, U.S. District Judge Matthew J. Kacsmaryk in Amarillo, Texas, ordered the program reinstated in response to a lawsuit brought by the states of Texas and Missouri, whose governors have sought to reinstate some of the anti -extremists -the immigration policies of the Trump administration.
The Biden administration argued in briefs that the president had ‘clear authority to determine immigration policy’ and that Homeland Security Secretary Alejandro Mayorkas had discretion to decide whether to remove applicants. asylum in Mexico.
The policy has been dormant for more than a year, and the administration argued that abruptly reinstating it “would harm U.S. relationships with vital regional partners, severely disrupt its operations on the southern border, and threaten to create a crisis.” diplomatic and humanitarian. ”
The Trump administration largely stopped using the “Remain in Mexico” policy at the start of the pandemic, when it began turning back virtually everyone who crossed the southwest border under a different protocol – an order. public health which remains in force.
President Joe Biden suspended the program on his first day in office, and the Department of Homeland Security terminated it in June.
Kacsmaryk was appointed to the federal bench by Trump. The 5th Circuit panel that ruled Thursday night included two Trump appointees, Andrew Oldham and Cory Wilson, as well as Jennifer Walker Elrod, an appeals court appointee by President George W. Bush.
At the High Court, at least five of the six Tory justices, including three appointed by Trump, voted to restart the scheme. Under the court’s opaque handling of emergency appeals, judges don’t always say publicly how they voted.