The Supreme Court on Thursday ruled that the Biden administration could shut down former President Donald Trump’s “Remain in Mexico” policy.
Associate Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh joined Chief Justice John Roberts in ruling 5-4 that the Biden administration acted within the bounds of the law when it terminated the program.
Officially known as the Migrant Protection Protocols, the “Remain in Mexico” program was a 2019 U.S. government action the administration of former President Donald Trump took in response to an influx of migrants at the southern border at the time.
Under the policy, immigration officials would return migrants entering the United States from Mexico unlawfully or without required documentation back to Mexico, where they would wait outside the country while their immigration proceedings took place.
“The MPP will provide a safer and more orderly process that will discourage individuals from attempting illegal entry and making false claims to stay in the U.S., and allow more resources to be dedicated to individuals who legitimately qualify for asylum,” the Department of Homeland Security said at the time.
During their wait on Mexican territory, the migrants would receive necessary humanitarian assistance and protection from the Mexican government.
The Trump administration cited Section 235 of the Immigration and Nationality Act to justify the creation of the Remain in Mexico policy.
According to Section 235 of the Act, “in the case of an alien . . . who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the U.S.,” the Secretary of Homeland Security “may return the alien to that territory pending a [removal] proceeding.”
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According to the American Immigration Council, since January 2019, when Trump instituted the policy, nearly 70,000 migrants were sent back to Mexico under the MPP as of January 2022. During the pandemic, Trump used another provision known as Title 42 to deny asylum seekers entry into the U.S., citing public health concerns.
Human-rights advocates criticized the Remain in Mexico program because returned migrants were housed in unsanitary tent encampments where reports of sexual assault, kidnappings and torture were rampant, the New York Times reported.
The Biden administration sought to end the program after President Joe Biden came into power. However, it was subsequently forced to reinstate the program in response to a court order following a lawsuit from the state of Texas in Texas v. Biden.
Missouri and Texas — states that sued the Biden administration over the program’s termination — did so because, according to them, terminating the MPP would mean they would be forced to provide government services to migrants waiting in the U.S. for their immigration proceedings, the Times reported.
Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas took the plaintiffs’ side and ordered the Biden administration to reinstate the program, which the Biden administration did reluctantly.
The Supreme Court in 2021 refused to block Kacsmaryk’s order, the Times reported.
The case subsequently passed through an appeals court and eventually reached the Supreme Court, which gave the Biden administration a win in the Thursday ruling, finally allowing it to close the program as it sought to.
Roberts wrote in the majority opinion that “under the Court of Appeals’ interpretation,” the law “authorized the District Court to force the Executive to the bargaining table with Mexico, over a policy that both countries wish to terminate, and to supervise its continuing negotiations with Mexico to ensure that they are conducted ‘in good faith.’”
“That stark consequence confirms our conclusion that Congress did not intend section 1225(b)(2)(C) to tie the hands of the Executive in this manner,” the majority opinion stated.
“Due to the huge numbers of aliens who attempt to enter illegally from Mexico, DHS does not have the capacity to detain all inadmissible aliens encountered at the border, and no one suggests that DHS must do the impossible,” Justice Samuel Alito wrote in his dissenting opinion, joined by Justices Clarence Thomas and Neil Gorsuch.
“But rather than avail itself of Congress’s clear statutory alternative to return inadmissible aliens to Mexico while they await proceedings in this country, DHS has concluded that it may forgo that option altogether and instead simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings.”
“This practice violates the clear terms of the law, but the Court looks the other way,” Alito wrote.
Migrant rights advocates welcomed the decision to allow the Biden administration to end the controversial program.
“While we celebrate today, access to asylum at the border is still under threat, as Title 42 is abused to forcibly expel asylum-seekers to dangerous areas in Mexico where they face the threat of kidnapping, rape and violence, deport them to the very countries from which they fled persecution, and force them to take desperate and perilous routes to try to find safety,” Amnesty International said in a Thursday news release.
“The Supreme Court was right to reject the spurious argument that this cruel policy is statutorily required,” Judy Rabinovitz, special counsel with the American Civil Liberties Union’s Immigrants’ Rights Project, said, according to an ACLU news release.
“While, as noted in the decision, the case will return to the district court, the Biden administration can and should move forward swiftly to finally terminate ‘remain in Mexico’ for good — a result that has been long, and unjustly, delayed.”
Republican officials, however, criticized the decision.
“The Supreme Court’s decision upholding DHS’s termination of the Remain-in-Mexico policy will only embolden the Biden Administration’s open border policies. More than fifty people recently died in a trailer—people who were allowed to cross our border illegally because of President Biden’s policies,” Republican Texas Gov. Greg Abbott said in response to the decision.
“Reinstating and fully enforcing Remain-in-Mexico would deter thousands more migrants from making that deadly trek, and President Biden should take that simple step to secure the border because it is the only humane thing to do.”
“Ending ‘Remain in Mexico’ will only benefit human smugglers and traffickers. We’re going to see an acceleration of people coming to the border. The Biden Administration cannot terminate this program,” Republican House Rep. Andy Biggs of Arizona said.
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