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Supreme Court Orders ‘Remain in Mexico’ Policy Reinstated

August 25, 2021 by Dan McCue

WASHINGTON — The Supreme Court on Tuesday evening refused to block a court ruling ordering the Biden administration to reinstate a Trump-era policy that forces people to wait in Mexico while seeking asylum in the U.S.

With the court’s three liberal justices in dissent, the unsigned ruling said the administration likely violated federal law in its efforts to rescind the program informally known as Remain in Mexico.

Though the court did not explain the rationale behind its decision in detail, the majority in the 6-3 ruling said the Biden administration appeared to act arbitrarily and capriciously when it rescinded the policy, formally known as the Migrant Protection Protocols.

The majority also cited the court’s decision last year in Department of Homeland Security v. Regents of University of California. 

That decision blocked the Trump administration’s effort to undo the Deferred Action for Childhood Arrivals program, an Obama-era program protecting young immigrants who came to the U.S. as children.

The three dissenting justices, Stephen Breyer, Elena Kagan and Sonia Sotomayor, did not write an opinion expressing their views of the case.

A federal judge in Texas had previously ordered that the program be reinstated last week. Both he and the 5th U.S. Circuit Court of Appeals refused the administration’s request to put the ruling on hold.

Instead the 5th Circuit ordered an expedited consideration of the administration’s appeal.

The Justice Department had asked the court last week to suspend the lower court’s order, saying the MPP “has been formally suspended for seven months and largely dormant for nearly nine months before that.”

Justice Samuel Alito temporarily halted the order to allow for the administration to file documents to make its case, but the court ultimately denied it.

It’s not clear how many people will be affected and how quickly. Under the lower court ruling, the administration must make a “good faith effort” to restart the program.

But there is nothing in any of the court documents that explicitly prevents it from trying to rescind the program again.

In the meantime, immigration advocates said that in reinstating the program, the justices were ignoring the dangers associated with it.

“Thousands of people have suffered the horrible consequences of the Migrant Protection Protocols. The Supreme Court has now upheld the Texas court’s decision and, instead of keeping MPP a stain in the history books, it will continue to be a present-day disaster,” Kate Melloy Goettel, legal director of litigation at the American Immigration Council, said in a statement.

“Forcing vulnerable families and children to wait in provisional camps in Mexico puts their lives at risk, while also making it nearly impossible for them to access the asylum process. The Biden administration can and must work to terminate the policy again immediately. Rather than turning away people fleeing harm, we should ensure people have a fair day in court,” she said.

In a statement posted to its website last night, the Department of Homeland Security said it respectfully disagrees with the district court’s decision and regrets that the Supreme Court declined to issue a stay. 

“DHS has appealed the district court’s order and will continue to vigorously challenge it,” the statement said. “As the appeal process continues, however, DHS will comply with the order in good faith. Alongside interagency partners, DHS has begun to engage with the Government of Mexico in diplomatic discussions surrounding the Migrant Protection Protocols. 

“DHS remains committed to building a safe, orderly, and humane immigration system that upholds our laws and values. DHS continues to process individuals in accordance with U.S. law and our mission. Pursuant to the CDC’s Title 42 public health order, DHS continues to expel single adults and families encountered at the Southwest Border,” the statement concluded.

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