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SCOTUS Agrees to Re-Hear Case Involving Biden’s Attempt to Reverse ‘Remain in Mexico’ Policy

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OPINION: This article may contain commentary which reflects the author's opinion.


The U.S. Supreme Court has agreed to revisit the Biden administration’s attempt to repeal a Trump-era policy dealing with illegal immigrants.

Department of Homeland Security Secretary Alejandro Mayorkas has twice attempted to rescind the “Migrant Protection Protocols,” otherwise known as former President Donald Trump’s “Remain In Mexico” policy, but both times his effort has been blocked by federal courts.

In December, the high court ruled that the Biden administration had not properly ended the program, violating provisions of the Administrative Procedures Act, and ordered DHS to reinstate it. But in April, the court plans to re-hear the case, according to USA Today:

In response, the administration restarted the policy, renegotiating with Mexico to keep asylum applicants in that country, but it started another effort to shut the program, hoping to withstand legal scrutiny. The U.S. Court of Appeals for the 5th Circuit shot down the administration’s latest effort to halt the policy in December. 

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The Department of Homeland Security has “thus been forced to reinstate and continue implementing indefinitely a controversial policy that the Secretary has twice determined is not in the interests of the United States,” the administration told the high court. 

The Trump administration implemented the Migrant Protection Protocols in January 2019 as part of its effort to limit immigration – legal and illegal – at the U.S.-Mexican border and end what critics call “catch and release” policies. By the end of 2020, the Trump administration had enrolled 68,000 people in the program, according to court records. 

“The program permitted U.S. authorities to send migrants, including those from Central America, to Mexico while they waited for an immigration judge to review their case. A federal district court in Texas found that the policy acted as a deterrent, leading to a significant reduction in enforcement encounters along the nation’s southern border,” the report continued.

Two states — Texas and Missouri — sued, arguing that the administration did not end the program properly, asserting that federal law requires only a “very few” migrants who cross the U.S. border illegally are allowed to remain in the country while their cases are processed.

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“On the government’s view, the vast majority of arriving aliens shall be so released,” the states told the court in legal papers. “The government thus engages in a ‘radical’ rewriting of the law.”

The Associated Press reported on the earlier December ruling:

President Joe Biden’s administration had appealed the August decision, but also began working with Mexico to reimplement the policy while the legal battle continued. Earlier this month, U.S. authorities sent the first two migrants back to Mexico under the reinstated policy.

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Monday’s ruling by three 5th Circuit judges said the administration’s move to end the policy was arbitrary and violated a federal immigration statute requiring detention of those in the country illegally pending removal proceedings. If there is no capacity to detain them, Judge Andrew Oldham wrote for the panel, the statute allows the Department of Homeland Security to return them to “contiguous territories” while proceedings are pending.

Earlier, U.S. District Judge Matthew Kacsmaryk issued an injunction against the Biden administration, writing: “Over the course of the program, border encounters increased during certain periods and decreased during others. Moreover, in making my assessment, I share the belief that we can only manage migration in an effective, responsible, and durable manner if we approach the issue comprehensively, looking well beyond our own borders.”

“At the very least, the Secretary was required to show a reasoned decision for discounting the benefits of MPP. Instead, the June 1 Memorandum does not address the problems created by false claims of asylum or how MPP addressed those problems. Likewise, it does not address the fact that DHS previously found that ‘approximately 9 out of 10 asylum claims from Northern Triangle countries are ultimately found non-meritorious by federal immigration judges,’ and that MPP discouraged such aliens from traveling and attempting to cross the border in the first place,” he added.

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