Bloomberg Law
Aug. 25, 2021, 1:54 AM

Top Court Rejects Biden, Allows Revival of Trump Asylum Rule (2)

Greg Stohr
Greg Stohr
Bloomberg News

A divided U.S. Supreme Court rejected President Joe Biden on a contentious immigration issue, clearing the way for resumption of a Trump-era policy requiring asylum seekers at the southern border to wait in Mexico for their cases to be processed.

In a one-paragraph order Tuesday, the high court left in force a lower court ruling that requires the Biden administration to restart the policy, which has forced almost 70,000 asylum-seekers to remain in Mexico while their applications are processed. Biden’s Department of Homeland Security rescinded the so-called “remain in Mexico” policy on June 1.

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.

The policy, formally known as the Migrant Protection Protocols, has largely been superseded during the pandemic by Centers for Disease Control and Prevention orders closing the border to most asylum seekers. The administration nonetheless told the justices the lower court order threatened to disrupt operations at the border and create a diplomatic crisis with Mexico.

Texas and Missouri sued to challenge the rescission, and U.S. District Judge Matthew Kacsmaryk ruled that the government’s explanation for the change was inadequate under the federal law that governs administrative agencies. Kacsmaryk, a Trump appointee, gave the government seven days to start reinstating the policy.

In rejecting Biden, the Supreme Court majority pointed to a 2020 decision that blocked then-President Donald Trump from rescinding the Deferred Action for Childhood Arrivals program, which shields some young undocumented immigrants from deportation and lets them seek jobs. The case involved similar issues about the adequacy of a government agency’s explanation.

The Biden administration “failed to show a likelihood of success” on its bid to overturn Kacsmaryk’s order, the Supreme Court majority said.

The Department of Homeland Security said in a statement it would “comply with the order in good faith” as it presses ahead with its appeal.

“The Department of Homeland Security respectfully disagrees with the district court’s decision and regrets that the Supreme Court declined to issue a stay,” the department said. “DHS has appealed the district court’s order and will continue to vigorously challenge it.”

Texas and Missouri, backed by other Republican-led states, said the remain-in-Mexico policy prevents migrants from filing asylum claims they don’t plan to pursue and then disappearing inside the U.S.

Biden administration lawyers contended that many asylum seekers have abandoned legitimate claims because deplorable health and safety conditions make waiting in Mexico too risky.

The case is Biden v. Texas, 21A21.

(Updates with DHS statement, in eighth and ninth paragraphs)

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Jon Morgan, John Harney

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