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Supreme Court to review ‘Remain in Mexico’ policy revival

It also granted the government's request to fast-track the case, paving the way for a potential ruling by summer

A stretch of the barrier along the U.S.-Mexico border near Columbus, N.M.
A stretch of the barrier along the U.S.-Mexico border near Columbus, N.M. (Bill Clark/CQ Roll Call file photo)

The Supreme Court agreed on Friday to consider whether the Biden administration may end a Trump-era program requiring asylum-seekers to wait in Mexico for decisions in their U.S. immigration cases.

The justices will decide if the government is legally required to preserve the so-called “Remain in Mexico” program, formally known as the Migrant Protection Protocols, or MPP. The Biden administration had ended the program last year, but a federal judge said it was improperly terminated and ordered it to be reinstated.

While it was in effect under the Trump administration, roughly 70,000 migrants who crossed the U.S.-Mexico border were pushed back and forced to wait months, or longer, in dangerous border towns while their asylum cases continued.

The high court also granted the federal government’s request to fast-track briefing and consider the case this term, paving the way for a potential ruling this summer. The high court plans to hear oral arguments in the case in April, according to the order.

The high court case centers on one of the Trump administration’s signature border policies, implemented in early 2019 amid a rise in migrant families seeking refuge. Humanitarian advocates panned the program while it was in effect, claiming it left migrants sent to Mexico vulnerable to gang violence and made it harder for asylum-seekers to find an American immigration lawyer.

Researchers with Human Rights First documented more than 1,500 publicly reported instances of rapes, murders, kidnappings and other attacks against migrants pushed back to Mexico under the program.

[Democrats slam DHS for ‘Remain in Mexico’ revival]

President Joe Biden’s administration sought to officially terminate the program shortly after taking office but was met with swift litigation from Texas and Missouri, both led by Republicans.

A Texas federal judge took issue with how the administration ended MPP and ordered the administration to make good-faith efforts to revive it, in a decision later upheld by a federal appeals court.

In August, shortly after the Texas court order, the Supreme Court rejected the Biden administration’s request for reprieve from the ruling but did not consider the merits of the case.

The Biden administration reinstated the program under court order in December, with some increased protections for migrants. But the administration has continued to fight the case in court, and the Justice Department asked the Supreme Court to step in later that month.

Homeland Security Secretary Alejandro Mayorkas also issued another memo in October terminating the program again in an effort to address the judge’s concerns. However, the appeals court concluded this subsequent termination memo had no legal effect.

Government lawyers told the high court in their Dec. 29 petition that the lower court rulings mandating the border policy’s revival, if allowed to stand, “will continue to severely impair the Executive Branch’s constitutional and statutory authority to manage the border and conduct the Nation’s foreign policy.”

In a response brief last month, Texas and Missouri countered that the federal immigration statute requires the government to detain migrants who arrive at the border without legal entry documents. Since the government lacks the capacity to detain all arriving migrants in immigration facilities within the United States, the government must then use its discretion to hold them in Mexico, they argued.

Karen Tumlin, director and founder of Justice Action Center, an immigrant advocacy group, said the appeals court ruling mandating MPP’s reinstatement was “so extreme it threatens to undermine any administration looking to enact the will of the people, regardless of political party or affiliation.”

“Each administration should have the freedom to enact their own foreign and domestic policy agendas, provided they do so correctly,” she said in a Friday statement. “The Supreme Court should uphold both law and morality and reject the lower courts’ outlandish orders.”

Todd Schulte, president of immigrant advocacy organization FWD.us, added that the high court’s eventual ruling “will stretch far beyond immigration, migration, or border policy.”

“What is at stake is the very ability of any future President of any political party to set and implement their own policies, particularly in the areas of foreign policy and national security,” he said in a statement.

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