The Supreme Court on Friday said it would weigh in on a legal battle between Republican-led states and the Biden administration over the Trump-era “Remain in Mexico” border policy, which was reinstated in a limited fashion in December due to a lower court order.
Granting a request by the Justice Department, the high court agreed to hold oral arguments in April on a lawsuit filed by Texas and Missouri that required the Biden administration to reverse its decision to end the “Remain in Mexico” protocols, which require migrants to wait for their asylum hearings outside of the U.S.
The case is part of a broader legal feud between the federal government and Texas, which has filed multiple lawsuits seeking to block immigration policies enacted under President Biden, a Democrat who denounced the Trump administration’s border policy as draconian and inhumane.
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In August, at the request of Texas and Missouri, a federal judge ordered the Department of Homeland Security (DHS) to revive the “Remain in Mexico” protocols, ruling that the Biden administration had improperly terminated the Trump-era program, under which 70,000 migrants were returned to Mexico.
U.S. Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, also concluded the program’s termination led the DHS to violate a law that governs the detention of some migrants who don’t have legal permission to be in the country.
While it appealed the ruling, the Biden administration issued a new termination memo in October, saying the policy’s “unjustifiable human costs” on asylum-seekers returned to dangerous border cities in Mexico outweighed its role as a deterrent for migrants thinking of entering the U.S. unlawfully.
But in December, the Fifth Circuit Court of Appeals upheld Kacsmaryk’s ruling. In a scathing opinion, a panel of Republican-appointed judges refused to review DHS’ second termination attempt, dismissing the Biden administration’s argument that the new memo rendered the case moot.
In early December, the Biden administration restarted a version of the Migrant Protection Protocols, the Trump-era policy’s official name, instituting several changes, including a requirement that border officials ask migrants whether they fear being harmed in Mexico before sending them there
The administration has also provided coronavirus vaccines to those enrolled in the program and expanded the categories of vulnerable asylum-seekers who can’t be returned to Mexico to include the elderly, those with acute medical conditions and migrants who identify as members of the LGBTQ community.
As of February 13, 572 migrants had been returned to Mexico since MPP was reinstated in December, according to the United Nations migration agency, which has been transporting asylum-seekers to local shelters.
When it instituted the MPP program in 2019, the Trump administration argued it deterred migrants fleeing economic hardship from crossing the southern border illegally to seek asylum, which is for foreigners who can prove they could be persecuted in their home countries because of their political views, religion, nationality, race or membership in a social group.
But Democrats and advocates strongly criticized the policy, saying it made asylum-seekers easy prey to violent criminals and cartel members in northern Mexico, including areas the State Department warns U.S. nationals not to visit because of rampant crime and the risk of being kidnapped.
U.S. border officials made over 1.7 million migrant apprehensions in fiscal year 2021, a record. While the number of migrants entering U.S. custody remains high, border arrivals decreased in January to the lowest level since Mr. Biden’s first full month in office.
While Mr. Biden has sought to end the “Remain in Mexico” rules, his administration has retained a more sweeping Trump-era border policy, known as Title 42, that allows U.S. officials to swiftly expel migrants without screening them for asylum due to the coronavirus pandemic.
