Arkansas Democrat-Gazette

High court to speed up review of Remain-in-Mexico policy

- ROBERT BARNES AND NICK MIROFF

The Supreme Court on Friday said it will expedite review of the Biden administra­tion’s attempt to remove President Donald Trump’s policy requiring most asylum seekers along the southern border to wait in Mexico for their cases to be decided, with a ruling by the end of the court’s term this summer.

The justices put a fast track review of the plan in place to do away with the “Remain in Mexico” policy known as Migrant Protection Protocols (MPP). Lower courts said the Biden administra­tion did not provide an adequate reason for getting rid of the Trump policy, and that its own procedures regarding asylum seekers who enter the country were unlawful.

Last summer, the Supreme Court refused to stop the rulings by a Texas federal judge and the U.S. Court of Appeals for the 5th Circuit, over the objections of the court’s three liberal judges. The administra­tion says it has complied with the orders, but told the Supreme Court that full considerat­ion by the court was necessary because the lower courts usurped the powers of the president.

Lower courts in effect have commanded the Biden administra­tion to continue the policies of the last president “in perpetuity,” Solicitor General Elizabeth B. Prelogar told the Supreme Court.

The justices called for expedited briefing in the case so it can be heard in April.

U.S. District Judge Matthew Kacsmaryk said last year the administra­tion was violating federal immigratio­n law and didn’t adequately explain its reasons for canceling the policy. A federal appeals court upheld his decision.

Shortly after taking office in January, President Joe Biden said the administra­tion would not continue enrolling migrants in the protocols and ordered a review of the program. He and immigratio­n rights groups had criticized immigratio­n policies implemente­d by the Trump administra­tion as counterpro­ductive and at odds with the nation’s historical practices.

“I’m not making new law. I’m eliminatin­g bad policy,” Biden said at the time.

After the Supreme Court refused to intervene in August, the Biden administra­tion reopened negotiatio­ns with Mexico and said it would reimplemen­t the protocols.

Since the program’s return on Dec. 6, most of the asylum seekers sent back to Mexico have been young adult men from Nicaragua and Venezuela, and the Biden administra­tion has exempted those considered vulnerable because of mental and physical health issues, advanced age, sexual orientatio­n or gender identity.

Biden officials returned 403 asylum seekers to Mexico in December and January, according to the administra­tion’s most recent report. Nicaraguan nationals accounted for 59% of those enrolled, while Venezuelan­s were 23%, and Cubans 10%, according to the report.

President Donald Trump returned nearly 70,000 asylum seekers to Mexico in 2019 and 2020.

The Biden administra­tion says it is complying with the district court order to restore the protocols “in good faith,” and that its ability to send back migrants has been limited by Mexican authoritie­s and the coronaviru­s pandemic.

The Title 42 public health law, which allows border officials to bypass normal immigratio­n proceeding­s and rapidly “expel” migrants, remains the administra­tion’s primary border management tool, officials say.

Under Biden, U.S. officials and immigratio­n judges are now asking migrants if they fear a return to Mexico, rather than waiting for them to independen­tly express those concerns. That triggers additional safeguards and interviews with U.S. officials.

About three-quarters of the asylum seekers placed in the protocols have said they are afraid to go back to Mexico, but fewer than 15% were determined to be in danger and exempted from the program, according to the report.

Under the latest version of the program, U.S. and Mexican officials are working with the United Nations’ Internatio­nal Organizati­on for Migration to provide safe transport to and from U.S. border crossings, as well as to secure shelter facilities in Mexico.

When the Supreme Court refused to stop the lower court orders last August, it said in a short order that the administra­tion “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.”

The unsigned order referred to a 2020 Supreme Court decision that cited similar reasons in blocking Trump from ending the Obama administra­tion’s program shielding some young undocument­ed immigrants from deportatio­n, the Deferred Action for Childhood Arrivals, or DACA.

In her filing asking the Supreme Court to take up the protocols case, Prelogar said DHS laid out its reasons for ending MPP in a memo “comprehens­ively addressing the district court’s concerns.”

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