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Supreme Court Lets Biden End Trump Remain-in-Mexico Asylum Rule

June 30, 2022, 5:38 PM

The US Supreme Court freed President Joe Biden’s administration to end a Trump-era policy that forces asylum-seekers at the southern border to wait in Mexico for their cases to be processed, letting the president retake control of a key facet of his immigration policy.

Voting 5-4, the court said the “remain-in-Mexico” program isn’t required under federal immigration law even though the government lacks capacity to detain everyone. The Biden administration argued that federal officials can release many of the applicants into the country while they await hearings.

The ruling gives Biden a legal victory, restoring the president’s authority over an issue that has traditionally been within White House control. At the same time, the decision will heighten the challenge for Biden as he navigates the politically fraught issue of the border influx. His administration is also waging a court fight to end separate, pandemic-driven Title 42 controls.

Chief Justice John Roberts and Justice Brett Kavanaugh joined the court’s three liberals in the majority, saying a federal trial judge was wrong to order the administration to reinstate the program. Roberts said Congress didn’t intend “to tie the hands of the executive in this manner.”

Though the ruling frees the administration from the lower court order, litigation is likely to continue. The majority said Texas and Missouri, the two states challenging the administration’s rescission of the program, can lodge additional arguments at the lower court level.

Justices Clarence Thomas, Amy Coney Barrett, Samuel Alito and Neil Gorsuch dissented. Writing for everyone in that group except for Barrett, Alito said federal law bars the government from releasing an undocumented immigrant into the US while the person awaits a hearing.

“Congress has provided a clear answer to that question, and the answer is no,” Alito wrote.

Biden fulfilled a campaign promise by suspending the remain-in-Mexico policy on the day he took office, but he soon became mired in litigation. The Supreme Court last year forced the administration to restart the program, a step that required negotiation with the Mexican government.

Dangerous Conditions

The White House referred reporters to the Department of Homeland Security, which didn’t immediately respond to a request for comment. Immigration advocates hailed the ruling.

“While, as noted in the decision, the case will return to the district court, the Biden administration can and should move forward swiftly to finally terminate ‘remain in Mexico’ for good -- a result that has been long, and unjustly, delayed,” Judy Rabinovitz, special counsel with the ACLU’s Immigrants’ Rights Project, said in an emailed statement.

Texas Attorney General Ken Paxton tweeted that “I am disappointed in SCOTUS allowing Biden to dissolve the Remain-in-Mexico program, one of our last & best protections against the Dems’ border crisis.”

Critics said the program, formally known as the Migrant Protection Protocols, has forced people to live in dangerous and squalid conditions in Mexico. Supporters said MPP was needed to manage a crush at the border and ensure that undocumented immigrants show up for their asylum hearings. It forced thousands of asylum-seekers to stay in Mexico.

The administration formally rescinded MPP in June 2021, only to have the district judge order it reinstated and a federal appeals court uphold that decision. The Biden administration argued that the lower court rulings intruded into core aspects of the president’s job: managing the border and conducting foreign relations.

In his opinion for the court, Roberts said the appeals court decision “imposed a significant burden upon the executive’s ability to conduct diplomatic relations with Mexico.”

Texas and Missouri argued that federal law requires DHS to detain people who enter the US illegally or send them to a neighboring country while their deportation and asylum proceedings take place.

Texas and Missouri also said DHS violated the federal law that governs administrative agencies by inadequately considering MPP’s benefits and the impact on the states that relied on the program.

Roberts said that, in assessing those arguments, a federal appeals court should have considered an October 2021 DHS memorandum that laid out a fuller explanation for the rescission of the program.

The case is Biden v. Texas, 21-954.

(Updates with excerpt from dissent in seventh paragraph, reaction starting in ninth paragraph.)

To contact the reporter on this story:
Greg Stohr in Washington at

To contact the editors responsible for this story:
Elizabeth Wasserman at

Greg Stohr

© 2022 Bloomberg L.P. All rights reserved. Used with permission.