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