The Supreme Court issued an order Tuesday afternoon declining to stop the resurgence of a Trump-era border policy that requires asylum seekers waiting in Mexico while their cases are reviewed by U.S. immigration judges.
The conservative super-majority of the high court denied the Biden administration’s emergency request to continue the suspension of the order of a federal judge who forces U.S. border officials to re-establish the so-called “Remain-in-Mexico” program.
As the current suspension of the lower court judge’s ruling expires Tuesday at midnight, the Biden administration will have the legal mandate to implement the Trump-era border rule on Wednesday.
Judges Elena Kagan, Sonia Sotomayor and Stephen Breyer, who form the Liberal minority in the Supreme Court, indicated that they would have accepted the Biden administration’s request.
Tuesday’s ruling is a significant legal setback for the Biden administration, which has maintained that it cannot implement the policy of staying in Mexico without the Mexican government agreeing to accept migrants returned by the U.S.
Last week, the Mexican foreign ministry described the possible resurgence of Remain-in-Mexico as a “unilateral” action by the United States, saying no policy change had yet been officially announced.
U.S. immigration officials were commissioned to “reimplement” the remainder in Mexico as of 12:01 p.m. Wednesday, according to an internal note from the Department of Homeland Security obtained by CBS News.
The note from Andrew Davidson, the U.S. head of asylum, noted that DHS is working on a “rapid” reactivation of the policy, but said it depends on Mexico’s “concurrence” as well as “the establishment of related infrastructures, processes and systems and capabilities. “
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U.S. officials were also instructed to stop prosecuting and admitting asylum seekers who were previously subject to Remain-in-Mexico rules. Earlier this summer, the Biden administration had allowed 13,000 of these asylum seekers to enter the U.S. and continue their cases there.
“Once the necessary prerequisites are met,” the United States will begin returning migrants to Mexico, according to the statement.
In a statement, the Department of Homeland Security said it was holding “diplomatic discussions” with the Mexican government over the rule of the remainder in Mexico, which the Trump administration called Migrant Protection Protocols (MPPs).
“The Department of Homeland Security disagrees respectfully with the district court’s decision and regrets that the Supreme Court has refused to issue a suspension,” the department said. “DHS has appealed the district court order and will continue to vigorously challenge it. While the appeals process continues, however, DHS will comply with the order in good faith.”
During the tenure of former President Donald Trump, more than 70,000 Latin American migrants were enrolled in MPP and returned to Mexico, where many found themselves in late-night tent camps and dangerous border cities. Proponents of asylum seekers strongly denounced the policy, calling it inhuman and draconian.
President Biden, who criticized the program during the 2020 presidential campaign, suspended him on his first day in office. Secretary of Homeland Security Alejandro Mayorkas formally ended the program in June.
Despite its withdrawal from MPP policy, the Biden administration has continued to cite a public health law that was first invoked by the Trump administration in March 2020 to quickly expel the southern U.S. border. most migrant adults and some families with children without allowing them to apply for asylum.
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At the heart of the current MPP case lawsuit is a lawsuit filed by Texas and Missouri, alleging that the Biden administration terminated the program illegally.
Earlier this month, U.S. District Judge Matthew Kacsmaryk, who was appointed to the federal military by former President Trump, agreed with the arguments presented by Texas and Missouri, considering that the termination of MPP policy by the Biden administration was illegal.
Kacsmaryk ordered federal officials to resurrect the Resta program in Mexico until it is “legally terminated” and the government has the detention capacity to detain all asylum seekers and migrants subject to mandatory detention.
Last week, the Fifth Circuit Court of Appeals refused to suspend Kacsmaryk’s order, with a group of three judges backing his legal opinion. Judge Samuel Alito subsequently granted the Biden administration a four-day “administrative stay,” which expires Tuesday at midnight.
In its opinion last week, the Fifth Circuit noted that if the Biden administration’s good faith efforts to implement MPP are thwarted by Mexico, it will nevertheless comply with the district court’s order, provided that adhere to the rest of the legal requirements “.
On Tuesday, the Supreme Court said its order “should not be considered to affect” the interpretation of the fifth circuit of Kacsmaryk’s original ruling.
Omar Jadwat, director of the American Civil Liberties Union’s Immigrant Rights Project, urged the Biden administration to move quickly to try to end once again the rule of the remainder in Mexico.
“The government must take all available measures to completely end this illegal program, even re-finalize it with a more complete explanation,” Jadwat said. “What it should not do is use this decision as protection to abandon its commitment to restoring a fair asylum system.”