The Supreme Court has issued an order effectively forcing the Biden administration to restore the Trump administration’s “Remain in Mexico” policy, which requires many asylum seekers to wait in Mexico while they await hearings on their requests for safe haven in the U.S.
The high court’s order, issued on Tuesday evening over the dissent of the court’s three Democratic appointees, rejected the Justice Department’s request for a stay that would have allowed the controversial policy to remain on ice while litigation over President Joe Biden’s effort to rescind it continues.
The ruling is a victory for the states of Texas and Missouri, which sued over the repeal of the policy and won a ruling from a federal judge in Texas earlier this month requiring that the Biden administration return to the practice President Donald Trump instituted in January 2019.
U.S. District Court Judge Matthew Kacsmaryk, a Trump appointee in Amarillo, Texas, ordered on Aug. 13 that the Biden administration reinstate the policy within seven days. The judge accepted arguments from the Republican attorneys general of Texas and Missouri that the Biden administration had failed to comply with legal requirements to consider all relevant factors before halting the Trump-era policy.
Critics of the Trump policy said it risked the lives of migrants by requiring them to wait in Mexico, including in border cities that are plagued by gangs, drugs and violence. Trump aides said it averted the problem of immigrants failing to show up at immigration hearings after being released to live in the U.S.
Immigrant rights advocates expressed disappointment in the high court’s action, but stressed that Biden still had authority to repeal the Trump-era policy through a new process that courts would approve.
“The Biden administration was correct to rescind the Trump return-to-Mexico policy, the whole point of which was to punish people for seeking asylum by trapping them in miserable and dangerous conditions,” said Omar Jadwat of the American Civil Liberties Union. “The government must take all steps available to fully end this illegal program, including by re-terminating it with a fuller explanation. What it must not do is use this decision as cover for abandoning its commitment to restore a fair asylum system.”
Paola Luisi of Families Belong Together, a coalition of immigrant rights groups, said: “Many people waiting in Mexico for their asylum cases have been kidnapped, raped and even killed as a direct result of this policy. They came to our doorstep with a belief in America — and our government sent them into danger. We cannot accept any policy — even temporary — that separates families. We urge the Biden administration to do everything within their means to put an end to this cruel ‘Remain in Mexico’ policy once and for all.”
While immigrant advocates focused particular anger at the “Remain in Mexico” policy, pandemic-related policies instituted under Trump and largely retained under Biden have also resulted in many asylum seekers being quickly expelled to Mexico.
The legal drive to force the Biden administration to restore the Trump-era “Remain in Mexico” policy is part of an effort by conservatives to leverage legal precedents set during the Trump presidency to unwind Biden’s initiatives on immigration and other issues. The Supreme Court’s brief order on Tuesday night cited the court’s ruling last year blocking Trump’s repeal of the Obama-era Deferred Action for Childhood Arrivals, or DACA, policy, which gave work permits and some protection against deportation to immigrants who entered the U.S. illegally as children.
In that decision, the Supreme Court ruled, 5-4, that the Trump administration violated the Administrative Procedure Act by failing to consider important factors in the decision. Chief Justice John Roberts angered Trump and some conservatives by joining the court’s Democratic appointees to block Trump’s wind-down of DACA.
After failing to win a stay from a federal appeals court last week, the Biden administration asked the Supreme Court to step in. On Friday night, Justice Samuel Alito temporarily stayed the lower-court order requiring a return to the “Remain in Mexico” policy. That stay was lifted by the court’s order Tuesday.
Justice Department lawyers argued that reinstating the policy would be highly disruptive and could roil U.S. relations with Mexico.
One glimmer of hope for the Biden administration in the Supreme Court’s order Tuesday night was language indicating that justices were not blessing the details of the injunction Kacsmaryk issued and holding open the possibility that the 5th U.S. Circuit Court of Appeals could modify it.
Sabrina Rodriguez contributed to this report.