The Supreme Court on Thursday ruled in favor of the Biden administration’s decision to end the so-called “stay in Mexico” policy, a Trump-era program that sends some asylum seekers to wait for asylum. across the border to their immigration hearing.
The judges said the administration has discretion to decide what to do when detention is not an option for all asylum seekers due to lack of space, and that officials are not required to do so. send outside the United States, as indicated by lower court rulings.
In a 5-4 decision, Chief Justice John Roberts wrote for the majority that the “government’s reversal” of the policy “did not violate” immigration law, and he said the Lower courts that had ruled against the Biden administration lacked the power to direct officials on what remedies to use in the face of high levels of border migration.
Roberts was joined by Justice Brett Kavanaugh and liberal Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett dissented.
The case now returns to the lower courts, but it looks like the Biden administration will have the power to end the policy, at least for now.
The controversial program, launched under former President Donald Trump in 2019, has allowed border officials to send non-Mexican asylum seekers back across the border to await their cases, often putting them at risk as many have forced to wait in unsanitary camps and conditions, with limited access to legal representation.
Between 2019 and 2021, the Trump administration sent more than 71,000 migrants in Mexico under the Migrant Protection Protocols (MPP), its official name.
This policy has been described as inhumane by immigration advocates. According to the group Human Rights First, migrants suffered more than 1,500 violent incidents during this period in Mexico, where border towns can be more dangerous, including murders, rapes, assaults and kidnappings.
President Joe Biden sought to end the policy beginning in January of last year, and the Department of Homeland Security issued a memo in June to officially complete the program.
But after a challenge from Missouri and Texas, a federal judge ruled in August last year that the Biden administration must continue the policy, leading to diplomatic negotiations with Mexico and a restart of the MPP in December 2021.
“We still believe the program is ineffective, inhumane, and we have not been eager to reimplement it,” White House press secretary Jen Psaki said at the time.
On Thursday, immigration advocates applauded the decision and urged the Biden administration to act to quickly reverse the policy once again.
“This Supreme Court ruling paves the way for the Biden administration to finally deliver on its promise to end this cruel and horrific policy once and for all,” said Juliana Macedo do Nascimento, Deputy Director of Federal Advocacy. of United We Dream, in a report. “People will always move, and it’s our responsibility as a country to live up to our values of welcoming immigrants.”
Other groups have blamed Congress for the lack of immigration reform and options to effectively administer asylum and process the hundreds of thousands of migrants who reach the US-Mexico border each year.
“Border security cannot be assured until our immigration laws are finally updated to meet the needs of this century,” Texas Border Coalition President Eddie Treviño, Jr. said in a statement. communicated.
This idea was taken up by Judge Kavanaugh on Thursday in a separate opinion concurring with the majority. He was highly critical of the lack of immigration resources provided to border agencies.
“The broader political story behind this case is the decades-long failure of the political branches to provide DHS with sufficient facilities to detain non-nationals seeking entry into the United States pending immigration processing,” he wrote.
“But this Court only has the power to deal with the legal issues before us. We don’t have the power to end the legislative deadlock or resolve the underlying political issues,” he said. he adds.
More than 5,000 migrants have been returned to Mexico since the program restarted under Biden, according to data collected by Syracuse University’s TRAC database, indicating it was applied on a smaller scale than under Trump.
Few migrants enrolled in the Stay in Mexico program have been able to obtain legal advice or successfully obtain asylum, TRAC database data shows. Less than 8% of migrants sent to Mexico under President Trump had legal aid, which greatly helps his immigration record. Less than 1% of these 71,000 migrants have been granted asylum.
In a dissenting opinion, Judge Alito wrote that the Biden administration is breaking the law by deciding to release migrants into the country on parole instead of using its option to send them back to Mexico when detention is not possible. .
“The district court should assess, among other things, whether it is ‘arbitrary and capricious’ for DHS to refuse to use its return authority in contiguous territory,” he wrote, and “whether DHS’s overturning of the MPP results in it making parole decisions on a categorically illegal basis rather than on a case-by-case basis as mandated by law.”
Tom Homan, former acting director of Immigration and Customs Enforcement (ICE) under Trump, said the Stay in Mexico policy “has helped create the most secure border we’ve ever had.” He also praised the current pandemic-related Title 42 restriction at the border that allows many people who cross to be immediately deported, a policy also put in place by the former president.
“Policies like Remain in Mexico and Title 42 are the last levees holding back a crushing tidal wave,” Homan wrote.
But in line with Justice Kavanaugh and other immigration advocacy groups, Homan also called for reform: “Now it’s up to Congress to do its part to secure our borders, resolve Biden’s border crisis and reduce illegal immigration.”
The Associated Press contributed to this report.
