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Supreme Court gives Biden administration time to fight 'Remain in Mexico' policy for migrants

The program was meant to discourage asylum seekers but critics said it denies people the legal right to pursue protection in the U.S.
Image: Central American migrants expelled from the U.S. under Title 42 walk towards Mexico on the Lerdo Stanton International Bridge, as seen from Ciudad Juarez
Central American migrants, who were airlifted from Brownsville to El Paso, Texas, U.S., and expelled from the United States under Title 42, walk towards Mexico on the Lerdo Stanton International Bridge, as seen from Ciudad Juarez, Mexico, Aug. 17, 2021.Jose Luis Gonzalez / Reuters

WASHINGTON — The U.S. Supreme Court late Friday granted the Biden administration an opportunity to fend off a Trump immigration policy that forces thousands to wait in Mexico while seeking asylum in the U.S.

In issuing a stay, Justice Samuel Alito said in a terse order that the lower court's order could be paused until Tuesday so that the parties could fight it out before the full Supreme Court.

The Justice Department had asked the court late Friday to delay the reinstatement of the Trump policy informally known as “Remain in Mexico."

U.S. District Judge Matthew J. Kacsmaryk last week ordered that the program be reinstated Saturday.

The Biden administration appealed to the 5th U.S. Circuit Appeal in New Orleans and asked for a delay in re-implementing the program, pending appeal, but that was denied Thursday. So it went to the highest court.

Formally known as the Migration Protection Protocols, the policy required tens of thousands of migrants seeking asylum in the U.S. to turn back to Mexico. It was meant to discourage asylum seekers but critics said it denied people the legal right to seek protection in the U.S. and forced them to wait in dangerous Mexican border cities.

Kacsmaryk ordered that the program be reinstated in response to a lawsuit filed by the states of Texas and Missouri, whose governors have been seeking to reinstate some of the hardline anti-immigration policies of the Trump administration.

The Biden administration argued in briefs that the president has “clear authority to determine immigration policy” and that Homeland Security Secretary Alejandro Mayorkas had discretion in deciding whether to return asylum seekers to Mexico.

In its brief to the Supreme Court on Friday, the administration argued that the policy had been dormant for more than a year and that abruptly reinstating it “would prejudice the United States’ relations with vital regional partners, severely disrupt its operations at the southern border, and threaten to create a diplomatic and humanitarian crisis.”

The Trump administration largely stopped using the “Remain in Mexico” policy at the start of the pandemic, at which point it began turning back virtually everyone crossing the Southwest border under a different protocol — a public health order that remains in effect. The Biden administration said the pre-pandemic policy had been “largely dormant” for months even before the outbreak of Covid-19.

President Joe Biden had suspended the policy on his first day in office, and the Department of Homeland Security said it was permanently terminating the program in June.

Texas and Missouri argued that the Biden administration had not gone through proper administrative procedures in ending the policy, a legal argument that was repeatedly successful in some of the legal challenges brought against Trump administration immigration policies.

Kacsmaryk was nominated to the federal bench by Trump. The 5th Circuit panel that ruled Thursday night included two Trump nominees, Andrew Oldham and Cory Wilson, along with Jennifer Walker Elrod, nominated to the appeals court by President George W. Bush.

Dennis Romero contributed.