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Supreme Court allows Biden to end Trump-era 'Remain in Mexico' policy

The policy required people seeking asylum at the southern border to wait in Mexico while their claims were decided.
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WASHINGTON — The Supreme Court handed President Joe Biden a victory Thursday, ruling that he can shut down a Trump administration program designed to restrict immigration at the southern border.

The court said in a 5-4 ruling that the Biden administration acted properly in seeking to end the "Remain in Mexico" policy, formally known as the Migrant Protection Protocols. It required people seeking asylum at the southern border, mainly from Central America, to wait in Mexico while their claims were decided.

Writing for the majority, Chief Justice John Roberts said a lower court overreached when it found the policy had to remain in place.

Under "the court of appeals’ interpretation," he wrote, a judge could "force the executive to the bargaining table with Mexico, over a policy that both countries wish to terminate, and to supervise its continuing negotiations with Mexico to ensure that they are conducted 'in good faith.'”

Roberts was joined by Justices Brett Kavanaugh, Elena Kagan, Sonia Sotomayor and Stephen Breyer.

In a sharply worded dissent, Justice Samuel Alito criticized border policy and said it was his colleagues who erred.

"Due to the huge numbers of aliens who attempt to enter illegally from Mexico, DHS does not have the capacity to detain all inadmissible aliens encountered at the border, and no one suggests that DHS must do the impossible. But rather than avail itself of Congress’s clear statutory alternative 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," Alito wrote in a dissent that was joined by Justices Clarence Thomas and Neil Gorsuch. 

In a separate dissent, Justice Amy Coney Barrett said she thought the court shouldn't have decided the case on the merits because more information was needed.

Kavanaugh, in an opinion concurring with Roberts, noted the number of people sent back while the Trump administration was using the policy was "relatively small." "In general, when there is insufficient detention capacity, both the parole option and the return-to-Mexico option are legally permissible options under the immigration statutes. As the recent history illustrates, every President since the late 1990s has employed the parole option, and President Trump also employed the return-to-Mexico option for a relatively small group of noncitizens," Kavanaugh wrote.

Texas Attorney General Ken Paxton, who'd filed suit to block the policy from being lifted, called the ruling "an unfortunate one."

"Today’s decision makes the border crisis worse," Paxton said.

In a statement Thursday, the Department of Homeland Security said it would end the Trump-era program as soon as possible.

"We welcome the Supreme Court’s decision affirming that the Secretary has the discretionary authority to terminate the program, and we will continue our efforts to terminate the program as soon as legally permissible," the department said.

From late January 2019 until Biden suspended the program, more than 68,000 people were shuttled back to Mexico. Tent cities sprang up near border entry stations on the Mexican side of the border. Human rights groups said hundreds of asylum-seekers were kidnapped, raped, tortured or assaulted.  

Immediately after taking office, Biden ordered an end to the program. He cited the dangerous conditions along the border, the difficulty migrants faced in getting help from lawyers in the United States and the complications the program produced for America’s foreign policy dealings with Mexico.  

Biden quickly shut it down, but Texas and Mississippi sued. They said the Trump-era program vastly reduced the surge of migrants at the southern border, decreasing the numbers coming from El Salvador, Guatemala and Honduras by 80 percent. A federal court in Texas ruled for the states.

U.S. District Judge Matthew Kacsmaryk for the Northern District of Texas said federal law required the government to send asylum-seekers back to Mexico if there was no room to detain them and if they cannot safely be allowed to wait in the U.S. for their claims to be evaluated. The Biden Department of Homeland Security, the judge said, failed to offer a sufficiently detailed explanation for why it wanted to abandon the policy.

Kacsmaryk issued an injunction to prevent the government from shutting the program down, and a federal appeals court agreed, so the Trump policy was once again in effect. Last August, the Supreme Court also declined to let the White House shut the program down while the court case was working its way through the appeals process.

The Justice Department argued that federal immigration law gave the government discretion to return migrants to Mexico while their asylum claims were considered or, on a case-by-case basis, to allow them to wait inside the U.S. if they would not present a danger. There simply isn’t enough space, given limited funds provided by Congress, to detain them all, government lawyers said.

The federal government “has long exercised discretion to choose how best to allocated limited resources by prioritizing which noncitizens to take into custody and remove,” they told the justices.