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Supreme Court to Weigh Biden Bid to End ‘Remain in Mexico’ Rule

Feb. 18, 2022, 8:02 PM

The U.S. Supreme Court will take up a contentious immigration clash, agreeing to decide whether President Joe Biden’s administration can end a Trump-era policy requiring asylum seekers at the southern border to wait in Mexico for their cases to be processed.

The administration rescinded former President Donald Trump’s so-called “remain in Mexico” policy last year, only to have a judge order it reinstated. U.S. District Judge Matthew Kacsmaryk said the administration was violating federal immigration law and didn’t adequately explain its reasons for canceling the policy. A federal appeals court upheld his decision.

The Supreme Court indicated it will hear the appeal on an expedited basis, with arguments in late April, so that the justices can rule by the end of their term in late June or early July.

The conservative-controlled court hinted at its leanings on Aug. 24, when it rejected Biden’s request to block Kacsmaryk’s ruling while the litigation went forward. That forced the administration to negotiate with the Mexican government to re-implement the program, which began resuming in December.

U.S. Solicitor General Elizabeth Prelogar argued that the appeals court decision “deeply intrudes into the core concerns of the executive branch.” The ruling “profoundly circumscribes the executive branch’s constitutional and statutory authority over discretionary immigration decisions and the conduct of foreign relations,” she said in her appeal.

The case has underscored the extent of the partisan divide in the federal judiciary. All four of the lower-court judges to rule against the administration, including the Trump-appointed Kacsmaryk, were named by Republican presidents. At the Supreme Court, the only dissenters from the Aug. 24 order were the three Democratic appointees.

Asylum Seekers

The policy, known as the Migrant Protection Protocols, or MPP, has forced almost 70,000 asylum-seekers to remain in Mexico while their applications are processed. Critics say MPP is forcing people to live in dangerous and squalid conditions in Mexico. Supporters say it’s needed to manage a crush at the border and ensure that undocumented immigrants don’t disappear into the U.S. and fail to show up for their asylum hearings.

Biden’s administration suspended the policy on the day he was inaugurated last year and formally rescinded it on June 1.

Texas and Missouri are challenging the cancellation. They say federal law requires the Department of Homeland Security to detain people who enter the U.S. illegally or send them to a neighboring country while their deportation and asylum proceedings take place.

Federal law “mandates detention, and DHS must use available tools, including MPP, to fulfill that mandate,” the two states argued in court papers.

Texas and Missouri also say DHS violated the federal law that governs administrative agencies by failing to adequately consider the MPP’s benefits and the impact on the states that relied on the program.

When it rejected the administration in August, the Supreme Court suggested it viewed DHS’s explanation for its decision as inadequate. The high court majority pointed to a 2020 decision that cited similar reasons in blocking Trump from scrapping a program that shields some young undocumented immigrants from deportation.

The court said the Biden administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.”

Prelogar, the Biden administration’s top Supreme Court lawyer, said DHS laid out a fuller explanation in October in a memo “comprehensively addressing the district court’s concerns.”

One issue in the case is whether the Supreme Court will consider the October memo, something the New Orleans-based 5th U.S. Circuit Court of Appeals refused to do. In ruling against the administration, the 5th Circuit said the memo had “no present legal effect.”

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

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Tony Czuczka

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