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Supreme Court hints it might let Biden end Trump-era 'Remain in Mexico' immigration policy

Several justices appeared skeptical of claims by two states that the Biden administration acted improperly in briefly shutting down the policy, which requires asylum seekers to wait in Mexico while their claims are decided.

WASHINGTON — The Supreme Court on Tuesday hinted that it might be open to allowing President Joe Biden to shut down a Trump administration program designed to restrict immigration at the southern border.

The outcome did not appear certain after nearly two hours of courtroom argument, but the court’s conservative majority appeared to be considering the option of letting the program end. 

Several of the justices appeared skeptical of claims by two states that the Biden administration acted improperly in briefly shutting down the “Remain in Mexico” policy, formally known as the Migrant Protection Protocols. It requires people seeking asylum at the southern border, mainly from Central and South America, to wait in Mexico while their claims are decided.

After Biden shut the program down, Texas and Missouri sued, and a federal judge in Texas ordered the government to start it up again. Judd Stone, the Texas solicitor general, told the court Tuesday that under federal immigration law the government must either detain people who enter the U.S. illegally or send them to Mexico to wait. Only a limited number, on a case-by-case basis, can be allowed to remain in the U.S., he said.

Stone said the government wasn’t evaluating the thousands of immigrants allowed to wait in the U.S. carefully enough, but Solicitor General Elizabeth Prelogar, appearing for the Justice Department, said they were reviewed individually.

Justice Samuel Alito was skeptical. He suggested their process was like the limited security screening given to baseball fans entering Nationals Park.

“You’ve got a little check list. You go, boom, boom, boom," he said. "That’s what you think Congress meant by a case-by-case determination?”

Because Congress has never provided enough money to detain all those who cross the border, Stone said, the government has no option but to send the remaining immigrants to Mexico to wait. He said the Biden administration was violating a provision of immigration law requiring detention.

But several justices noted that Congress has never provided enough detention capacity. 

“Could you have brought the same lawsuit against the previous administration?” Justice Clarence Thomas asked.

“Congress may want detention, but it hasn’t come up with the money for more beds,” Chief Justice John Roberts said.  

Prelogar said the Trump-era program requires continual dealings with Mexico, with imposes a foreign policy cost on the policy. But Stone said there’s nothing about the judge’s order to keep the program going that requires “negotiation with a foreign power.”

 Justice Elena Kagan interrupted him. “What do you mean it doesn’t require negotiating with a foreign power?" she asked. "What are we supposed to do, just drive truckloads of people into Mexico and leave them without negotiating with Mexico?”

Justice Brett Kavanaugh said the key issue in the case is a provision that allows immigration authorities to release people into the U.S. while their asylum claims are evaluated when that would provide a significant public benefit. “Why is that wrong?” he asked.

From late January 2019 until Biden suspended the Remain in Mexico program, nearly 70,000 people were shuttled back to Mexico. Tent cities sprang up in Mexico near border entry stations, and human rights groups said hundreds of asylum seekers were kidnapped, raped, tortured, and assaulted while waiting to get into the US.  

Immediately after taking office, Biden began trying to end the program. In addition to the dangerous conditions along the border, he cited the difficulty immigrants faced in getting help from lawyers in the U.S. and the complications it produced in America’s foreign policy dealings with Mexico.  

In their lawsuit, Texas and Missouri said the Trump-era program vastly reduced the surge of immigrants at the southern border, decreasing the number coming from El Salvador, Guatemala, and Honduras by 80 percent. A federal district court judge in Texas ruled for the states, finding that the Biden Department of Homeland Security failed to offer a sufficiently detailed explanation for why it wanted to abandon the policy. 

The judge said federal law requires the government to send asylum seekers back to Mexico if there’s no room to detain them and they cannot safely be allowed to wait in the U.S. for their claims to be evaluated. An appeals court and the U.S. Supreme Court then declined to block the ruling, so the program was put back in force

As the Supreme Court considers the future of the program, another move by the Biden administration to end a Trump-era immigration restriction is generating a court battle. The Biden administration planned to lift a public health order that prevented migrants and asylum seekers from entering the U.S. because of concerns about Covid, but a federal judge in Louisiana said Monday he would grant a temporary restraining order to put that on hold. 

The Trump-era public health order was put in place in early 2020 and prevented migrants and asylum seekers from crossing the border into the U.S. due to the Covid pandemic. The Centers for Disease Control said in early April that it was no longer necessary to safeguard public health.

The Supreme Court will issue a decision in the Remain in Mexico case by late June.