By Amy Howe
August 20, 2021
at 8:06 p.m.
President Joe Biden created his commission on court reform in April. (Naresh111 via Shutterstock)
The Biden administration on Friday asked the Supreme Court for an immediate stay so it does not have to reinstate a Trump-era program known as the “stay in Mexico” policy, which forces asylum seekers at the border Mexican-American to stay in Mexico while they await a hearing in US immigration court. Telling justices that the lower court’s order directing the administration to reinstate the program “threatens to create ‘a humanitarian and diplomatic emergency,'” Acting Solicitor General Brian Fletcher urged the Supreme Court to block the order, which would otherwise come into force. effect early Saturday morning.
The “stay in Mexico” policy, announced by the Trump administration in 2018, is not new to judges. In March 2020, the court cleared the Trump administration to begin enforcing the policy, officially known as the Migrant Protection Protocols, after a federal district judge in California blocked it. The court agreed in October 2020 to review a ruling by the United States Court of Appeals for the 9th Circuit, ruling that the policy was likely inconsistent with federal immigration law and international law, but judges ruled. dismissed the case in June 2021 at the request of the Biden administration, which had ended the policy after he took office.
The case now before the court was filed in April by Texas and Missouri, which argued (among other things) that the administration’s decision to end the policy violated federal immigration law and federal law governing the procedures that federal administrative agencies must follow. On August 13, a federal district judge in Texas ruled in favor of the states and ordered the federal government to reinstate the policy by August 21. The district judge denied the government’s request to suspend its decision while the government appealed. On Thursday, the United States Court of Appeals for the 5th Circuit also declined to freeze the district judge’s decision, which led to the government’s emergency appeal to the Supreme Court.
Critics of the policy say it has forced tens of thousands of Central American migrants to reside in squalid and dangerous camps along the Mexican border while awaiting the outcome of their asylum claims. Texas and Missouri say that without the policy in place, large numbers of migrants enter the United States on questionable asylum claims and impose costs on states.
In his 40-page filing on Friday, Fletcher defended Homeland Security Secretary Alejandro Mayorkas’ decision to end the policy like the one taken after the kind of scrutiny that “easily meets” the “standard of deference.” ” imposed by federal administrative law. Mayorkas, Fletcher wrote, simply concluded that the benefits of keeping the program in place were “far outweighed” by the benefits of ending it. Fletcher also pointed out that the district judge’s order requiring the administration to reinstate the policy “involves extremely sensitive foreign relations issues” and “threatens[s] border chaos” – especially in light of the COVID-19 pandemic.
Fletcher closed his case by recalling that under the Trump administration, the court “has repeatedly stayed broad lower court injunctions against executive branch policies dealing with immigration, foreign policy and migration management issues. “. The court should, he argues, “do the same here.”
The Biden administration’s request is directed to Judge Samuel Alito, who handles 5th Circuit emergency requests. Alito can act on the request alone or, as is more common in high-profile cases, refer it to the full court. The Biden administration has requested not only a stay of the district court injunction, but also a more limited stay, also known as an administrative stay, while the Supreme Court considers the government’s request; the court could respond very quickly to the request for an administrative suspension.
Update (August 20 at 11:29 p.m.): Late Friday night, Alito granted the Biden administration’s request a limited stay of the district court decision while the Supreme Court considers his request. In a brief order, Alito suspended the district court’s decision until 11:59 p.m. on Tuesday, August 24, “so that the full court may consider” the request. Alito also ordered states to respond to the administration’s request by 5 p.m. Tuesday. Alito’s order gives the government, albeit only on a temporary basis for now, the reprieve it requested from having to reinstate the “stay in Mexico” policy on Saturday.
This article has been originally published at Howe on the Court.