Will the policy of staying in Mexico remain under Biden? The Supreme Court must decide


Kelsey Reichmann

Courthouse News Service

Next Tuesday, in a contentious battle that could have big implications for administrative law, the Supreme Court will hear arguments about the Biden administration’s stumbling efforts to shape its own immigration policies.

When President Joe Biden was elected, immigration advocates breathed a sigh of relief expecting the new administration to roll back one of the best-known immigration policies of the Trump era: migrant protection protocols – better known as Stay in Mexico – aimed at preventing the “catch and release” of migrants in the United States

The policy required migrants to stay in Mexico instead of the United States while their asylum claims were processed, but, immigration advocates say, created a humanitarian disaster at the border in the process.

Biden moved quickly to fulfill his base’s wish, suspending the program on his first day in office. In late June 2021, his Homeland Security Secretary officially ended the policy.

Soon after, however, the administration’s plans hit a snag when Texas and Missouri revived the policy in a combination claim that the layoff resulted in increased costs for health care, education, social services and law enforcement. A Appointed by Trump judge restored MPP, and this decision was made despite calls from the Biden administration to the Fifth Circuit and Supreme Court. The Biden administration appealed to the judges again after the Fifth circuit defeat, and the high court agreed to hear the case in February.

Tuesday’s arguments will delve into the provisions of the Immigration and Nationality Act. Provisions in the law say the agency ‘shall’ detain immigrants while the removal process continues, and the Secretary of Homeland Security ‘may’ remove immigrants to their home country while the case continues . The decision of the court will depend on the interpretation of these provisions.

Texas argues that DHS must detain migrants while their applications are processed, and since the United States does not have the capacity to hold all migrants in detention, it says the government must deport them while they wait. .

“The petitioners would prefer not to choose from the options offered by Congress — namely, to detain, individually release parole, or to remove covered aliens,” Texas Solicitor General Judd Stone II wrote in the states brief. “Rather, they seek the power to free classes of aliens in the United States en masse. But Congress has barred that possibility by limiting the relevant DHS parole authority to case-by-case exercises in narrow circumstances.

The government argues that congressional language gives DHS the discretion to determine that certain nonnationals need not be detained pending deportation, and the executive branch has always maintained that discretion.

“The statutory language is clear: the secretary ‘may remove’ non-citizens arriving by land in Mexico or Canada pending deportation proceedings,” US Solicitor General Elizabeth Prelogar wrote in the government’s brief. “Congress’s use of the word ‘may’ unequivocally indicates that return to contiguous territory is a discretionary tool that the secretary has ‘the power, but not the duty’ to use.”

Prelogar also points to the fact that the United States has never had the detention capacity to detain every person who crosses the border, so every administration would violate the statute.

“According to the Court of Appeals’ unprecedented interpretation of Section 1225, all
The presidential administration – including the one that adopted the MPP – has been in open and systemic violation of the INA since the relevant provisions were enacted in 1996,” Prelogar wrote. “And the profound implications of this interpretation for the executive’s constitutional authority to manage the border and conduct foreign policy confirms that the court erred.”

The district court ruled that the government’s dismissal in June violated the Administrative Procedure Act because it offered an arbitrary reason to terminate the MPP. In October, Homeland Security released a memorandum that included a 39-page explanation for the termination of the MPP. When the government appealed to the Fifth Circuit, the appeals court declined to give legal effect to the October dismissal and said the government was undertaking a new decision-making process while appealing the dismissal of the lawsuit. initial dismissal. Administrative law experts argue that the Fifth Circuit’s decision sets a dangerous precedent in this case.

“The Fifth Circuit’s ruling prohibiting the executive branch from changing a policy if it does not satisfy the APA on its first attempt is patently wrong and dangerous,” wrote Kathleen Hartnett, a Cooley attorney representing administrative law professors, in an amicus brief in the Case. “This goes against the fundamental principles of administrative law and the multiple decisions of this Court. And it threatens the ability of agencies to advance change in response to the democratic process and to changing understandings of science, markets, and other realities on the ground.

Seventeen states and the District of Columbia have weighed in on the case, expressing concerns about the precedent the decision could set for the executive branch. States also claim that the MPP harms members of their communities and stops the migration that states rely on.

“At the most basic level, the decision below harms amici states by depriving those states of members of their communities who might have migrated there but for the court order reinstating the MPP,” Jane Elinor Notz wrote. , Solicitor General of Illinois, in the memorandum of the States. . “Immigrants – including non-citizens – are a vital and substantial part of our nation.”

The MPP isn’t the only Trump-era immigration policy in Biden’s crosshairs. The administration also plans to end a public health authority — known as Title 42 — that allowed border officials to turn away migrants at the southern border. A lawsuit from more than 20 states has already been filed challenging the action.

While vote
found that 85% of Democrats were confident in Biden’s ability to make sound decisions on immigration policy early in his presidency, that number has now fallen to 66%. It’s unclear how these court battles will play out, however, it’s likely they could play a role in the upcoming midterm elections.

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