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The U.S. Supreme Court rules Biden administration can end ‘Remain in Mexico’ immigration policy

Migrant women carrying small children walk down a road at night after crossing the border into the U.S.
Gregory Bull
/
AP
In this May 11, 2021, file photo, migrant women carry children in the rain at an intake area after turning themselves in upon crossing the U.S.-Mexico border in La Joya, Texas.

The decision is a setback for Texas Attorney General Ken Paxton, who filed suit against the Biden administration when the White House tried to rescind the policy.

The U.S. Supreme Court on Thursday ruled that the Biden administration did not violate federal law when it ended a Trump-era immigration policy that requires most asylum seekers wait in Mexico for their immigration hearings.

The Migrant Protection Protocols, also called remain in Mexico, requires that most asylum seekers wait in Mexico until their hearings in American immigration courts. It began in California and expanded to the Texas-Mexico border in early 2019. It’s forced more than 70,000 migrants back to Mexican border towns, which immigrant rights advocates have noted are continuously grappling with high violent-crime rates.

The decision is a setback for Texas Attorney General Ken Paxton, who filed suit against the Biden administration when the White House tried to rescind the policy in 2021. The state of Missouri joined Texas in the litigation.

The states’ attorneys general alleged the Biden administration did not follow proper procedure when it attempted to end the program.

The 5-4 decision written by Chief Justice John Roberts said otherwise.

“The Government’s rescission of MPP did not violate section 1225 of the [Immigration and Nationality Act], and the October 29 Memoranda did constitute final agency action,” the opinion reads.

Paxton said in a statement he was disappointed with the ruling.

"Today’s decision by the U.S. Supreme Court is an unfortunate one, and I believe it was wrongly decided. Over a year ago, Texas and Missouri sued the Biden Administration for illegally abandoning MPP. I won in district court and then won again on appeal. The Administration dragged its feet and refused to implement this effective program in good faith, allowing hundreds of thousands of illegals to pour over the border month after month," he said.

It's unclear when the program will end however, as the case will be returned to a district court for further review.

“It is complicated because there are very complex procedural and jurisdictional questions,” Denise Gilman, a professor at the University of Texas Law School who directs the school’s immigration clinic,  told The Texas Standard Thursday.

Gilman said the that because the Supreme Court ruled in favor of the Biden administration, the policy can end. But she said when that happens could depend on what the lower courts decide, which she said could take weeks.

Aaron Reichlin-Melnick, the policy director at the American Immigration Council, a Washington-based research and advocacy organization, said the Biden administration could move swiftly to end the program despite the case being returned to the lower court. He said that a memo issued by Department of Homeland Security Secretary Alejandro Mayorkas in October 2021 made clear the administration would act quickly after a final judgement.

“The termination of MPP will be implemented as soon as practicable after a final judicial decision to vacate the Texas injunction,” the memo reads.

“They will be permitted to terminate the remain in Mexico program for the foreseeable future while the case winds its way back through the courts,” Reichlin-Melnick said. “And it is pretty clear on the terms of ensuring the president does have the authority to terminate programs he does not want to carry out.”

It’s unclear if the White House will officially terminate the policy before the case is relitigated.

Paxton also vowed to keep fighting the Biden administration.

"Today’s decision makes the border crisis worse. But it’s not the end," he said. "I’ll keep pressing forward and focus on securing the border and keeping our communities safe in the dozen other immigration suits I’m litigating in court.”

Immigrant rights groups cheered the decision and called for the Biden administration to take further action.

“It is a bittersweet victory, after so many lives have been lost to atrocious immigration deterrence policies both on the federal level and in the state of Texas," said Fernando Garcia, the executive director of the El Paso-based Border Network for Human Rights. "This decision was long overdue, and it is shocking that the Supreme Court waited until today to determine the danger that migrants have been subjected to since Trump enacted this deadly policy."

Garcia called on the U.S. Congress to pass legislation to end the Title 42 policy, a separate Trump-era policy that allows federal agents to quickly return migrants to Mexico.

Even with the MPP program in place, the number of migrants encountered by U.S. Border Patrol agents at the southern border continues to climb to near-record levels. There were about 239,400 encounters between federal agents and migrants at the southwest border in May, a 2% increase compared to April, according to Customs and Border Protection. Texas continues to see the highest number of apprehensions, especially in the Rio Grande Valley, where there have been more than 333,000 encounters since the beginning of the federal government’s fiscal year in October, according to CBP statistics. That’s followed by the Del Rio Sector, where there have been more than 280,600 in the same time frame.

The decision comes the same week authorities discovered several dozen deceased migrants in the back of a tractor trailer in San Antonio. At least 53 people died in that tragedy.

U.S. Rep. Joaquin Castro, D-San Antonio, said the discovery should urge the Biden administration to act quickly.

“This week, 53 people died horrible deaths in San Antonio in a case that demonstrates the cruelty of Trump-era immigration policies. I’m glad that the Supreme Court has now opened the door for the Biden administration to rescind ‘Remain in Mexico’ and allow vulnerable people to seek asylum from the safety of the United States,” he said in a statement. “The Biden administration must now move swiftly to terminate ‘Remain in Mexico’ and establish the legal framework to unwind Title 42.”

The ruling also marks the second time this month the nation's high court has ruled against Republican states on immigration. Earlier this month the court dismissed an attempt by several states, including Arizona and Texas, to defend a Trump-era immigration rule that sought to deny legal residency to certain immigrants who use public benefits.

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Got a tip? Email Julián Aguilar at jaguilar@kera.org.You can follow Julián on Twitter @nachoaguilar.