U.S. Supreme Court Agrees to Hear ‘Remain in Mexico’ Case – JURIST


The Supreme Court of the United States agreed Friday to hear the arguments in Biden versus Texas. The Biden administration is asking for a statement that it may stop enforcing the “Stay in Mexico” immigration policy first implemented by former President Trump.

Under the policy, formerly called the Migrant Protection Protocols (MPP), some non-citizens must return to Mexico to await a decision on their immigration process. Rights groups like the ALCU have criticized the policy, calling it a “humanitarian disaster”. Other critics claim that this practice amounts to “refoulement” in violation of Article 33 of the 1951 United Nations Convention relating to the Status of Refugees. A government practices refoulement when it returns refugees to territories where they may be in danger.

Biden’s Department of Homeland Security (DHS) attempted to shut down the program in June 2021 and October 2021. After a series of rulings against the government, the United States Court of Appeals for the Fifth Circuit affirmed the December 14, 2021 that the Biden administration was to restore the policy. The administration filed a motion in brief of certiorari before the Supreme Court on December 29, 2021.

The case before the Supreme Court revolves around two main issues. First, the Trump administration relied on 8 USC § 1225(b)(2)(C) establish the MPP. The article allows the government to remove a non-citizen arriving “from a foreign territory contiguous in the United States” in that territory pending immigration proceedings. According to the Fifth Circuit, this same provision “requires DHS to continue to use the MPP.” The Biden administration is asking the Supreme Court to say whether 8 USC § 1225 in fact requires the MPP.

Second, the Biden administration is asking the Supreme Court to decide “[w]ether the appeals court erred in finding that the secretary’s new decision terminating the MPP had no legal effect. The administration accuses the Fifth Circuit of ignoring “administrative law principles” in reaching its decision.

The government must file a memorial on the merits no later than March 14, 2022. The respondent must file its memorial on April 7, 2022. The case is set for oral argument during the second week of April.


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