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Supreme Court's conservatives divided over 'Remain in Mexico' policy

Drew Angerer
Getty Images

The Trump-era policy required asylum seekers to wait for their immigration hearing in Mexico. The Biden administration suspended the program, but was blocked by the 5th U.S. Circuit Court of Appeals.

The Supreme Court seemed skeptical Tuesday of Texas and Missouri's effort to block the Biden administration from terminating the so-called "Remain in Mexico" program, but it's not clear there are five votes backing the Biden administration.

Officially called the Migrant Protection Protocols, the Remain in Mexico policy is a Trump-era immigration policy that required asylum seekers to wait for their immigration hearing in Mexico. It was devised by the Trump administration in hopes of deterring migrants from coming into the United States and asserting asylum claims, but has been criticized for subjecting asylum seekers to squalid living conditions and violent attacks, kidnapping, extortion and rape at the hands of criminal cartels.

The Biden administration suspended the program immediately upon taking office, but the 5th U.S. Circuit Court of Appeals, acting on a challenge brought by Texas and Missouri, ordered the new administrationto continue the Trump policy. The Supreme Court heard Tuesday's case on an expedited appeal.

The justices peppered each side with questions about the complicated layers of the Immigration Nationality Act, executive discretion, and how immigrations officials weigh the public interest when deciding whether to release asylum seekers or detain them.

The argument comes on the heels of another loss for the Biden administration. On Monday night, a Trump-appointed judge blocked the administration's attempt to terminate Title 42, another Trump-era immigration policy which dramatically expanded the number of undocumented immigrants subject to expedited removal without a hearing before an immigration judge.

This story will be updated
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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.