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Supreme Court to hear Biden appeal of Trump-era 'Remain in Mexico' policy

The Biden administration has tried several times to end the policy that requires asylum seekers to wait outside the U.S. Each time they were rebuffed by the courts.

The Supreme Court Friday agreed to hear the Biden administration’s appeal of lower court decisions that have prevented the government from shutting down the "Remain in Mexico" policy enacted under former President Donald Trump.

The policy requires most people seeking asylum at the U.S. southern border to wait outside the country while their claims are considered.

The Biden administration has repeatedly tried to end the program, but has been rebuffed in court following challenges from Missouri and Texas. The states argued that after President Joe Biden nixed the policy, the number of migrants trying to enter the country skyrocketed.

The states said migrants know that even though the vast majority of asylum claims are rejected, most applicants are allowed in the U.S. while they wait. The Trump-era policy, the states argued, takes that incentive away.

Under the policy, at least 71,076 asylum seekers were returned to Mexico to await court decisions in 2019 and 2020, according to data from the nongovernmental Transactional Records Access Clearinghouse.

Since the policy was implemented, thousands of would-be refugees have set up homeless-style encampments just south of the border.

George Fishman, senior legal fellow at the Center for Immigration Studies, long critical of the impact of undocumented migrants from Mexico and points south, recently called the policy “the MVP of border enforcement.”

“It was wildly successful, in a very real sense being the closest thing we had to a silver bullet to bring the border under control,” he wrote last month.

Advocates for asylum seekers argue that forcing desperate people to wait beyond the borders of a country that recognizes the right to asylum is illegal. Amnesty International has opposed Remain in Mexico, known formally as Migrant Protection Protocols, arguing that it denies the right to seek asylum "as enshrined in domestic and international law."

On his first day in office, Biden suspended the protocols.

But Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas essentially ruled on Aug. 13 that Remain in Mexico must continue to define the country's approach to asylum seekers at the southern border. The Supreme Court previously denied the Biden administration’s request to pause that ruling.

In October, the administration reiterated its intention to end the policy, but another federal court intervened and ruled that the Department of Homeland Security does not have the power to make law "in a vacuum."

The Supreme Court will hear the case during its last week of oral argument this term, in late April.