End of Stay in Mexico will benefit asylum seekers 3:11
(CNN) — The United States Supreme Court on Thursday gave the green light to President Joe Biden to end the controversial immigration policy known as “Remain in Mexico” or “Remain in Mexico,” which arose under the Trump administration.
The case now returns to the lower court for further trials related to Biden’s latest attempt to end the program. Biden’s attempt to end the program stands, but Thursday’s ruling suggested the order should be lifted shortly.
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The Supreme Court ruled 5-4 that the immigration law gives the federal government discretion to end the program that sends certain non-Mexican citizens who have entered the United States back to Mexico — rather than detaining them or releasing them to the United States – while their immigration procedures were developing.
Chief Justice John Roberts wrote for the majority that “Congress has delegated authority to return to contiguous territory on expressly discretionary terms”.
Roberts was joined by Liberal Justices and Judge Brett Kavanaugh, who also filed a favorable opinion. Justices Samuel Alito and Amy Coney Barrett wrote dissenting opinions, which were joined by the other dissenters.
With its ruling, the court said lower courts must now consider whether the administration complied with administrative law in the Biden administration’s recent attempt — with a memo filed in October — to end Trump-era policies.
Since the start of his tenure, Biden has sought to end this policy, which pushes certain non-Mexican citizens who have entered the United States back to Mexico — rather than detaining or releasing them in the United States — while their immigration procedures are pending.
Biden’s proposal to end the program had been challenged in court by a coalition of red states led by Texas, who argued that ending the program violated immigration laws. They also argued that the administration violated the Administrative Procedures Act – which requires authorities to take certain procedural steps in implementing the policy – in the way it scrapped the program officially known as the Migrant Protection Protocols Has.
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The program, first implemented in 2019 under then-President Donald Trump, has come under fire from immigrant rights advocates who argue it is inhumane and exposes asylum seekers with credible claims to dangerous and deplorable conditions in Mexico.
Before the Trump administration created the Remain in Mexico program, no other administration had taken such an approach to non-Mexican asylum seekers, requiring them to remain in Mexico during their immigration court process. Biden campaigned to end that policy, saying it “goes against everything that we stand for as a nation of immigrants.”
Biden has faced a growing number of border crossings over the course of his tenure amid mass migration in the Western Hemisphere. Since October, border officials along the US-Mexico border have encountered migrants more than a million times, despite many being turned away under a separate pandemic emergency rule. However, the Department of Homeland Security has claimed that the “remain in Mexico” policy has high human costs and is not an efficient use of resources.
According to the Biden Justice Department, the relevant immigration law had never been interpreted to require the government to return to Mexico migrants with pending immigration cases that it could not keep in detention.
“All presidential administrations have understood that this is purely discretionary. That’s true of the previous administration,” Attorney General Elizabeth Prelogar said at a hearing in April.
He also argued that keeping “Stay in Mexico” would not solve the essential problem: that Congress has directed that immigration officials “detain” asylum seekers whose cases are pending, but that lawmakers are not allocating enough resources to these detention facilities have .
“Returning contiguous areas cannot be the solution here,” Prelogar said, noting that when the Trump administration implemented the policy, only 6.5% of migrants found at the border were registered in the program.
“It has inherent limitations,” Prelogar said, noting the compliance the program demands of Mexico, a sovereign nation.
Biden first tried to suspend the program on the day he took office in 2021, sparking the lawsuit from the red states. In June, Homeland Security secretary Alejandro Mayorkas released a memorandum formally ending the policy, but a federal judge in Texas blocked the move in August.
Days later, the Supreme Court refused to stay that ruling while the appeal was settled, forcing Biden to reinstate “remain in Mexico.”
In October, Mayorkas issued a new memorandum ordering the shutdown of the program to address procedural flaws revealed in the August district court ruling. One of the points of contention in the lower court proceedings was whether this October memorandum overturned previous rulings, and the US Fifth Circuit Court of Appeals found that it did not.
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Politics resumed last December. More than 5,000 immigrants have since been repatriated to Mexico under the program, according to the International Organization for Migration. Nicaragua, Cuba, Colombia and Venezuela are among the nationalities participating in the program.
The key issue in the case was the discretion afforded to the executive branch by the immigration laws in question, which have been amended several times over the last century. One of the provisions of the law states that asylum seekers whose applications are still being examined must be “detained” while these procedures are carried out.
Another provision, passed in 1996, states that the federal government can “return” immigrants awaiting trial to the contiguous territory through which they entered. Another provision states that immigration officers may, on a case-by-case basis, parole immigrants whose cases are pending.
The Beginning of Stay in Mexico
On Thursday, December 20, 2018, the Remain in Mexico or Remain in Mexico program was officially announced.
On that day, Kirstjen Nielsen, who was Secretary of Homeland Security (DHS) at the time, announced that the United States had notified Mexico that people who had entered the country illegally or who had entered the country without the necessary papers would seek asylum sent to Mexico to await resolution of their US immigration procedures.
Asylum seekers from Guatemala, Honduras and El Salvador had to wait outside the United States until their immigration procedures were completed, according to DHS.
This policy forced migrants to remain in Mexico pending their hearing in the US immigration court.
According to DHS, the migrants would first be returned to Mexico, then asked to appear in court, and then allowed into the country to attend the hearing.
A DHS official said at the time that Mexico would continue to provide humanitarian assistance to people awaiting trial near the border.