Jun 30, 2022 - Politics & Policy

SCOTUS allows Biden to end "Remain in Mexico" policy

A family of migrants walking on a road

Migrants taking part in a caravan heading to the US. Photo: Pedro Pardo/AFP via Getty Images

The U.S. Supreme Court will allow President Biden to finally end the Trump-era "Remain in Mexico" policy, according to a Thursday ruling.

Why it matters: It is a major victory for the Biden administration, allowing it to follow through on one of the president's clearest campaign promises on immigration.

  • However, the court is also sending the case back to a lower court to consider one of the Biden administration's attempts at ending the program.

What they're saying: "For the reasons explained, the Government’s rescission of MPP did not violate section 1225 of the INA, and the October 29 Memoranda did constitute final agency action," wrote Chief Justice John Roberts, who was joined by Justices Stephen Breyer, Elena Kagan, Brett Kavanaugh and Sonia Sotomayor.

  • The court has reversed a lower court's decision barring Biden from ending the program and "remand the case for further proceedings consistent with this opinion. On remand, the District Court should consider in the first instance whether the October 29 Memoranda comply with section 706 of the APA."

The big picture: The policy — formally known as Migrant Protection Protocols or MPP — was initially implemented under President Trump and has forced tens of thousands of asylum-seekers to wait out lengthy U.S. immigration court processes in Mexico.

  • Advocates have lambasted the program for putting migrants at risk of harm — both to their physical and mental health. There have been recent reports of people in the program getting kidnapped and attempting suicide.

By the numbers: Roughly 70,000 migrants were impacted under the Trump administration.

  • Since the Biden administration was forced to restart the program in December, the U.N.'s International Organization for Migration in Mexico has assisted nearly 6,000 people placed in the program, according to IOM data provided to Axios.
  • There are likely others who have been enrolled in MPP but did accept help from IOM.

"The larger policy story behind this case is the multi-decade inability of the political branches to provide DHS with sufficient facilities to detain noncitizens who seek to enter the United States pending their immigration proceedings," said Kavanaugh in his concurring opinion.

  • "But this Court has authority to address only the legal issues before us. We do not have authority to end the legislative stalemate or to resolve the underlying policy problems."

In his dissent, Justice Samuel Alito writes that DHS "does not have the capacity to detain all inadmissible aliens encountered at the border."

  • "But rather than avail itself of Congress’s clear statutory alter- native to return inadmissible aliens to Mexico while they await proceedings in this country, DHS has concluded that it may forgo that option altogether and instead simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings."
  • "This practice violates the clear terms of the law, but the Court looks the other way."

Between the lines: Courts have also forced the Biden administration to continuing using another Trump-era policy allowing officials to quickly turn back migrants at the border — Title 42.

  • Title 42, which cites concerns COVID-19 spread, is used far more frequently than MPP and does not come with a guarantee of an asylum process.
  • "As long as Title 42 is in place there will continue to be devastating harm to asylum seekers.  Unfortunately, the administration is clearly in no hurry to end Title 42," ACLU's Lee Gelernt told Axios.
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