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Supreme Court sides with Biden’s efforts to end ‘Remain in Mexico’ program

June 30, 2022 Updated Thu., June 30, 2022 at 10:07 p.m.

Families preparing to seek asylum in the U.S. board a bus at a shelter for migrants in Reynosa, Mexico, on May 1. The Supreme Court on Thursday rejected a challenge to the Biden administration’s efforts to end a Trump-era immigration program that forces asylum seekers arriving at the southwestern border to await approval in Mexico.  (Kirsten Luce/The New York Times)
Families preparing to seek asylum in the U.S. board a bus at a shelter for migrants in Reynosa, Mexico, on May 1. The Supreme Court on Thursday rejected a challenge to the Biden administration’s efforts to end a Trump-era immigration program that forces asylum seekers arriving at the southwestern border to await approval in Mexico. (Kirsten Luce/The New York Times)
By Adam Liptak New York Times

WASHINGTON – The Supreme Court on Thursday rejected a challenge to the Biden administration’s efforts to end a Trump-era immigration program that forces asylum-seekers arriving at the southwestern border to await approval in Mexico.

Chief Justice John Roberts wrote the majority opinion, joined by Justice Brett Kavanaugh and the court’s three liberal members. Justice Amy Coney Barrett agreed with much of the chief justice’s analysis.

The challenged program, known commonly as Remain in Mexico and formally as the Migrant Protection Protocols, applies to people who left a third country and traveled through Mexico to reach the U.S. border. After the policy was put in place at the beginning of 2019, tens of thousands of people waited in unsanitary tent encampments for immigration hearings. There have been widespread reports of sexual assault, kidnapping and torture.

Soon after he took office, President Joe Biden sought to end the program. Texas and Missouri sued, and lower courts reinstated it, ruling that federal immigration laws require returning immigrants who arrive by land and who cannot be detained while their cases are heard.

Since the Biden administration restarted the program in December, far fewer migrants have been enrolled than during the Trump era. That is in part because the United States agreed to take additional steps to meet certain demands from Mexico, including that migrants be sent back under the program only if there is sufficient shelter space.

By the end of May, the Biden administration had enrolled into the program more than 7,200 migrants since December 2021. Most of those enrolled in recent months are from Nicaragua and are men.

From January 2019, when the Trump administration started the program, to the end of 2020, nearly 70,000 migrants were sent back to Mexico to wait for their court hearings, according to the American Immigration Council.

The case, Biden v. Texas, No. 21-954, was unusually complex, involving three statutory provisions pointing in different directions.

One provision said the federal government generally “shall detain” immigrants while they await consideration of their immigration proceedings. But Congress has never allocated enough money to detain the number of people affected.

In 2021, for example, the government processed about 670,000 migrants arriving along the Mexican border but had the capacity to detain about 34,000.

The second provision said the government “may return” migrants who arrive by land to the country from which they came.

The third provision allowed the government to release migrants into the United States while they await their hearings “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”

Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas, in Amarillo, ruled last year that immigration laws required returning noncitizens seeking asylum to Mexico whenever the federal government lacked the resources to detain them.

The Biden administration promptly asked the Supreme Court to intervene, but it refused to block Kacsmaryk’s ruling, which required it to restart the program.

The three more liberal justices dissented.

The court’s brief, unsigned order at the time said the administration had appeared to have acted arbitrarily and capriciously in rescinding the program, citing a 2020 decision that had refused to let the Trump administration immediately rescind an Obama-era program protecting the young immigrants known as “Dreamers.”

The Biden administration then took steps to restart the program even as it issued a new decision seeking to end it. Administration officials, responding to criticism that they had acted hastily, released a 38-page memorandum setting out their reasoning.

They concluded that the program’s costs outweighed its benefits. Among those costs, the memo said, were the dangerous conditions in Mexico, the difficulty immigrants faced in conferring with lawyers across the border and the ways in which the program undermined the administration’s foreign policy objectives and domestic policy initiatives.

A three-judge panel of the 5th U.S. Circuit Court of Appeals, in New Orleans, rejected the administration’s plan to shut down the program.

“The government says it has unreviewable and unilateral discretion to create and to eliminate entire components of the federal bureaucracy that affect countless people, tax dollars and sovereign states,” Judge Andrew S. Oldham wrote for the panel. “The government also says it has unreviewable and unilateral discretion to ignore statutory limits imposed by Congress.”

“And the government says it can do all of this by typing up a new ‘memo’ and posting it on the internet,” he added. “If the government were correct, it would supplant the rule of law with the rule of say-so. We hold the government is wrong.”

This article originally appeared in The New York Times.

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