Biden can end Trump’s ‘Remain in Mexico’ program, supreme court rules

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<span>Photograph: José Luis González/Reuters</span>
Photograph: José Luis González/Reuters

The supreme court has issued a ruling that will allow the Biden administration to end a Trump-era immigration program forcing asylum seekers attempting to enter the US at the southern border to return to Mexico while their claims are considered.

The ruling in favor of Biden was a change in tone after the supreme court’s conservatives in recent days overturned the constitutional right to abortion and curbed the Environmental Protection Agency’s ability to regulate greenhouse gases, among other decisions that enraged Democrats.

Chief Justice John Roberts handed down the ruling, which was joined by his fellow conservative justice Brett Kavanaugh and the three liberals on the court. The remaining four conservative justices dissented.

Soon after taking office, Biden had sought to completely end the program known informally as “Remain in Mexico” and formally as the Migrant Protection Protocols.

But lawsuits by Texas and Missouri forced the administration to reinstate the program, which the homeland security secretary, Alejandro Mayorkas, said imposes “unjustifiable human costs” and does “not address the root causes of irregular migration”.

Humanitarian groups, immigrant rights advocates and many Democrats have assailed the program as inhumane, while Republicans and conservatives argue that it has stemmed the flow of illegal immigration in a useful way and should continue.

“The supreme court’s decision to allow the administration to end the ‘Remain in Mexico’ policy is the first step toward remedying years of humanitarian injustice,” said Ben Ray Luján, New Mexico’s Democratic senator, in a statement following the verdict.

Luján added: “This dangerous, xenophobic policy established by the Trump administration has forced tens of thousands of vulnerable children, families, and other asylum seekers into unsafe conditions before their asylum requests can even be heard.”

However, Texas’s attorney general, Ken Paxton ,called the decision “an unfortunate one” that was “wrongly decided”.

“Today’s decision makes the border crisis worse. But it’s not the end. 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,” Paxton said.

Under the program, asylum seekers are forced to wait in Mexico while they await the hearings to adjudicate their claims for refuge in the US.

The program was initiated by Donald Trump in January 2019 as part of his administration’s aggressive efforts to curtail both legal and illegal immigration.

Karen Tumlin, founder and director of the immigrant advocacy group Justice Action Center called the ruling a blow against campaigns by Republican-led states to stop Biden from undoing his predecessor’s policies.

“Our hearts are full as we welcome this important decision for immigrants fleeing in search of safety. But we are keenly aware that the same court that issued this decision today, made us all less safe with its decisions this term, ending the precious safeguard of reproductive freedom, prohibiting life-saving gun control laws, attacking Indigenous sovereignty, and restricting our ability to act on climate change,” Tumlin said in a statement.

Asylum advocates and immigration groups, as well as many Democrats, say the program ignores US law and abandons the country’s commitment to international asylum laws.

Illegal border crossings fell sharply under the policy, after Mexico, under threat by Trump of higher tariffs, agreed to accept the migrants. Since then, tens of thousands of people have been returned to Mexico to await immigration hearings in squalid encampments at the border. Often fleeing violence and tragedy in their home countries, the asylum seekers are exposed anew to violence in Mexico while they wait.

During oral arguments in April, the administration argued that the program was discretionary and “not in the interests of the United States”, according to court filings.

The suing states argued that releasing the migrants to Mexico was the only way to comply with a statute requiring these migrants be detained while they await consideration of their immigration proceedings, given that Congress has never allocated enough resources to detain them all in the US.

Last year, a judge in Texas ruled that immigration laws require the US to return asylum seekers to Mexico whenever the government is unable to detain them. The Biden administration asked the supreme court to intervene to block the ruling, but it declined to do so, requiring the US to restart the program.

Meanwhile, the administration is locked in another lengthy legal battle with conservative states over another Trump-era policy enacted at the start of the pandemic that allows authorities to expel migrants without giving them a chance to make asylum claims.

Under pressure from immigration advocacy groups, the Biden administration moved to lift the public emergency health order known as Title 42. Ostensibly enacted to control the spread of Covid-19, the order is now the subject of a fierce debate over whether it is an effective and fair tool for controlling migration. The order remains in place after courts blocked the administration’s efforts to revoke it.

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