Shortly after taking office, Joe Biden sought to cancel the Trump administration’s “Remain in Mexico” policy (formally known as Migrant Protection Protocols, or MPP). Asylum seekers who leave a third-country and travel through Mexico to the U.S. border must stay in Mexico while they await a court hearing on their asylum petitions. Many of the thousands of people who were forced to wait in Mexico for their asylum petitions have been there. become victimsThey are subject to sexual assault, kidnapping, and torture while they wait in crude encampments.
Alejandro Mayorkas was appointed secretary of the Department of Homeland Security on April 27. testified before the House Appropriations Subcommittee and the House Homeland Security Committee that under Trump’s Remain in Mexico program, 1,500 people were murdered, tortured, raped or were victims of other serious crimes.
The Remain in Mexico program is basically a “sham,” Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council, told Amy Goodman on Democracy Now!. “Less than 1% of people put into the program who were forced to have their cases heard at the border ever won, ever won their case, compared to 15 to 20% of people inside the United States.”
In response to a lawsuit brought by Missouri and Texas, a Trump-appointed federal court judge issued a nationwide injunction prohibiting Biden’s decision to end the Remain in Mexico program. A three-judge panel of the Fifth Circuit Court of Appeals upheld the district judge’s ruling, saying the Biden administration’s initial rationale for ending the program was inadequate. In August, a majority of the Supreme Court declined to suspend the injunction pending its review of the case.
The Supreme Court heard oral argumentsIn Biden v. Texas April 26, 2006. The court was divided over whether the Biden administration could terminate the program. Some members of the court said they were skeptical that Congress intended to allow large numbers of asylum seekers to be allowed into the United States. Others were skeptical that a federal court could order the Biden administration continue the program because it requires Mexico’s agreement and the Constitution reserves the power to direct foreign policy to the executive.
U.S. Solicitor General Elizabeth Prelogar told the court that Mayorkas had decided to end the Remain in Mexico program after concluding that its benefits “were outweighed by its domestic, humanitarian, and foreign policy costs.” Prelogar said Mayorkas exercised “his statutory discretion to make a policy judgment.”
The court members attempted to reconcile language from three sections of Immigration and Nationality Acts that were enacted at varying times. One section says the Department of Homeland Security “shall detain” undocumented people (with some narrow exemptions). Another section states that the Department of Homeland Security “may” return asylum seekers to Mexico or Canada (if they arrived by land) while they wait for the processing of their asylum claim. And a third section provides for parole and bond for asylum seekers on a case-by-case basis who would be temporarily released into the United States for “urgent humanitarian reasons” or if there is a “significant public benefit.”
Neither Texas nor the Biden administration disputed the fact that no administration has ever complied with the congressional mandate to detain all undocumented immigrants — due to a shortage of beds in detention facilities. Prelogar said that 220,000 migrants had been arrested near the U.S. border in march, but that there were only 32,000 beds within the detention facility. “No one disputes that the [Department of Homeland Security] does not have sufficient detention capacity” for all the migrants, she said.
Some right-leaning members of court seemed to oppose the administration’s decision to end the Remain in Mexico programme. Clarence Thomas said the “shall detain” provision creates a presumption in favor of detention, meaning that the administration should detain asylum seekers rather than release them on parole or send them to Mexico. Samuel Alito pointed out that the government had argued in another case that “shall be detained” created a mandate for detention. Brett Kavanaugh doubted that Congress had anticipated that hundreds upon thousands of undocumented immigrants would be released into the United States.
But Kavanaugh asserted that the Department of Homeland Security has determined that permitting noncitizens who are “not too dangerous” into the U.S. to free up detention space for those with criminal records constitutes a significant public benefit. Amy Coney Barrett appeared to echo Kavanaugh’s sentiments. She told Texas Solicitor General Judd Stone that if the administration is correct in saying that the need to prioritize bed spaces in detention centers constitutes a significant public benefit, “you lose, right?”
Sonia Sotomayor observed that the “shall detain” language had been in effect for more than a century and that no administration had ever “attempted to detain every single illegal immigrant.” She suggested that “we should accept what the practices have been through generations of presidents.”
Elena Kagan appeared to be in favor of allowing the government to end the Remain in Mexico programme. She said that requiring the continuation of the program would be “to basically tell the executive how to implement its foreign and immigration policy.” Kagan told Stone, “You’re putting the secretary’s immigration decisions in the hands of Mexico” because the U.S. can only return asylum seekers to Mexico with the cooperation of the Mexican government. “What do you mean it doesn’t require negotiation with the foreign power?” Kagan asked Stone. “What are we supposed to do? Just drive truckloads of people into Mexico and leave them without negotiating with Mexico?”
Chief Justice John Roberts did no indicate how he might vote on this case. But when Stone said that requiring the continuation of the Remain in Mexico program would mean there would be fewer violations of federal immigration law, Roberts retorted, “I think it’s a bit much for Texas to substitute itself for the secretary and say that you may want to terminate this, but you have to keep it because it will reduce to a slight extent your violations of the law.”
In her rebuttal, Prelogar commented on the “extraordinary nature of the district court’s injunction in this case and particularly with respect to its effects on foreign relations.” To return asylum seekers to Mexico pursuant to the Remain in Mexico program necessitates a “massive cross-border program,” requiring housing, work authorization, protection against predatory gang and cartel violence, and access to lawyers, she noted. “The idea that there is a single district court in Texas that is mandating those results … shows that something has powerfully gone awry here. This is not how our constitutional structure is supposed to operate and this is not the statute that Congress drafted.”
We will know the court’s decision by the end of June.
