AUSTIN — Justices of the United States Supreme Court heard oral argument Tuesday in Biden v. Texas, a case that will test the White House’s ability to set immigration policy and is currently in favor of Texas in the lower courts.
Migrant Protection Protocols is a program introduced in January 2019 under the Trump administration. It was used to return 70,000 migrants to Mexico before being suspended by President Joe Biden shortly after taking office in January 2021. DHS officially announced the end of the program in June, which was immediately returned by the law.
Texas, along with the state of Missouri, claim in their lawsuit that the Biden administration failed to legally terminate the program in a manner consistent with federal immigration laws and procedural law. administrative and therefore DHS should continue to implement the program. The New Orleans-based 5th Circuit of Appeals ruled in favor of Texas in December, adding that the United States does not have the capacity to detain all immigrants ineligible for admission pending a hearing. The Biden administration went to SCOTUS hoping to overturn that decision.
“Returning from contiguous territory cannot be the solution for the duration of the program here,” said Solicitor General Elizabeth Prelogar, who was advocating on behalf of the federal government. “To the extent that you’re concerned about how parole works, that concern doesn’t go away based on the implementation of the MPP.”
Prelogar argued that if that were the case, every administration would be violating the immigration detention law since it was enacted in 1996.
In April, both states sued the Biden administration after the Homeland Security Secretary issued a memorandum ending Migrant Protection Protocols, a former Department of Homeland Security policy under which certain noncitizens arriving at the southwestern border were sent back to Mexico pending a hearing. in US immigration court, according to court documents. The move was part of the White House’s effort to unravel the controversial Trump-era agenda, also known as “Stay in Mexico.”
Between January 2019 and January 2021, more than 71,000 asylum seekers, including children and people with disabilities, were in Mexico under this program, according to Human Rights Watch data.
Chief Justice John Roberts argued that without the program, DHS would be completely overwhelmed, even more so than it already is where bed shortages are an ongoing concern.
Prelogar pushed back on the idea, saying that while yes, capacity continues to strangle the work of DHS, MPP is not the answer. She added that the program itself is very limited in who can be admitted, saying that only 6.5% of those encountered at the border were registered for the program.
However, she added, parole capacity and tactics are not the central issue of the case. Instead, she argued that lower courts misinterpreted the law that kept the program going after the Biden administration twice tried to end it. She added that the Biden administration had the legal authority to end the program.
“Using the return of contiguous territory versus the release within, I think is ultimately a political judgment call for the secretary,” Prelogar said, adding that “the secretary should finally be allowed to put his political decision in force”.
“It’s not like ‘returning to Mexico’ is free; this implies a huge investment of our diplomatic resources and our commitment to this bilateral negotiation. I think the secretary is absolutely correct that in light of the enormous costs he has identified with the program, and in light of his determination to [MPP] actually undermined other strategies and programs that he thought would be more effective in stemming the tide of irregular migration, that there was good reason to make this political decision,” she said.
Texas Attorney General Judd Stone argued that under federal law, border enforcement officials are required to detain migrants or return them to Mexico. If there is limited capacity in the United States, they are legally obligated to send migrants back to Mexico where they can await a hearing on their asylum claim.
Although he said he knew the United States could not detain all migrants – especially since Congress only funds less than 40,000 detention beds – keeping the policy in place means that there will be fewer violations of immigration law.
Proponents of the program say it sends an already vulnerable population into dangerous towns and situations while they wait, where many say they have been attacked, robbed and raped. Even then, very few people obtain refuge in the United States.
And the hearing process itself is already heavily delayed due to delays due to the coronavirus pandemic, leaving migrants waiting months before they can appear before a judge. A recent to push by Texas Governor Greg Abbott reduce illegal immigration by zero tolerance border security policies and oversight have also led the state to increase the number of detentions.
The court’s three liberal justices appeared to lean favorably toward the Biden administration, adding that they had diplomatic concerns about how the federal government would continue to implement a policy deeply dependent on Mexico’s cooperation. Judge Elena Kagan noted that she was concerned Mexico could change its mind or the terms of the deal at any time.
While Texas lawyers suggested diplomatic relations wouldn’t be at stake, Kagan pushed back on the question, “What are we supposed to do, drive truckloads of people to Mexico and leave them in Mexico?”
MPP is a separate program from Title 42, a pandemic-era emergency rule that has allowed US immigration authorities to deport migrants and asylum seekers due to public health concerns related to COVID-19. Texas and the Biden administration are also in a legal battle sunset of Title 42 which Texas officials say will flood the state with even more undocumented immigrants. The Biden administration acknowledged the likely influx of thousands of immigrants, but said the rule was put in place for public health reasons that no longer apply. It is due to end on May 23.
Texas has sued the Biden administration at least 10 times over border issues and 26 times across the board since Biden took office last January.
Following the hearing, Texas Attorney General Ken Paxton told a press conference that he felt good about what his side was presenting.
“We know that the Trump administration has implemented this program successfully, the numbers have dropped dramatically, as we expected. The Biden administration made no attempt to do that,” Paxton said. “This is a problem that does not only affect border states. It affects the whole country. »
