This week, the Supreme Court will hear a case that could entrench the Trump administration’s “stay in Mexico” policy, which forces asylum seekers to wait for their court dates in unsafe conditions in Mexico. Mexico’s stay-at-home policy, incorrectly dubbed the “Migrant Protection Protocols,” has created a humanitarian disaster at the border and has been the subject of legal action by the ACLU since it was first implemented in 2019.
President Biden made a campaign promise to end Remain in Mexico, acknowledging the grave harm it is causing asylum seekers. Biden kept his promise and ended the policy. But Texas and Missouri for follow-upand a federal district court judge in Texas ordered the federal government to restart the program.
The Biden administration has repeatedly tried to end the policy, including asking the United States Supreme Court at block the order as an emergency — a decision the ACLU supported in an amicus brief — but the court declined to do so. The Biden administration has been forced to resume politics as litigation continues.
Biden v. Trump has now made his way to the Supreme Court to be heard on the merits. Here’s what’s at stake.
The lower court’s decision under review by the Supreme Court would effectively uphold the Trump administration’s shameful stay-in-Mexico policy indefinitely, even though the policy did not exist under multiple administrations (including the Trump administration prior to 2019 ).
This decision is contrary to a fundamental tenet of a democracy: a new administration, chosen by the people, should be empowered to reject the policies of its predecessor and adopt those it deems to be in the public interest. The government is, of course, bound by the laws, including the obligation to give reasons for its political decisions. But by overturning the normal rules that govern agency decisions and unjustifiably locking in Trump’s policy, the lower court overstepped its role as a neutral enforcer of the rules.
The anti-democratic implications of this decision are deeply troubling and the Supreme Court must overrule it.
In ordering the Biden administration to resume the stay-in-Mexico policy, lower courts ruled that immigration law limits the federal government to only two options when people seek asylum at the border: detain them or forcibly return them to Mexico before their hearing. Since the Department of Homeland Security (DHS) does not have the capacity to detain everyone seeking asylum, the judge felt the only choice would be to send them to Mexico while their cases progressed.
This is a manifestly wrong choice. Congress has stipulated that DHS has broad authority to avoid unnecessarily detaining people and releasing people into their care networks while their immigration cases continue. In fact, every presidential administration has exercised broad discretion to release people rather than restrict DHS to two binary choices — including the Trump administration itself.
More importantly, what is at stake is whether the United States will continue to be a country that allows people fleeing persecution to seek safety within its borders. Stay in Mexico, and other related policies, like Title 42, which closed asylum access at the southern border for more than two years under the guise of public health, are attempts to dismantle the policy of long-standing American asylum that confirms our commitment to international human rights. rights standards.
During the two years the policy was in effect under Trump, Human rights first documented more than 1,540 reported cases of kidnappings, murders, torture, rape and other forms of violence against asylum seekers sent back to Mexico. US and Mexican authorities have failed to establish adequate housing options or provide access to medical care and work, leaving people vulnerable to transnational cartels that prey on migrants. Black and LGBTQ+ asylum seekers returned to Mexico faced particularly serious risks.
If the Supreme Court blocks the Biden administration from ending Stay in Mexico, it will enshrine a new legacy for the United States — a legacy of turning its back on international commitments and sending people directly into harm’s way.