In an opinion released today, June 30, 2022, the U.S. Supreme Court ruled that President Joe Biden’s administration could end a policy put in place during former President Donald Trump’s term that allows the U.S. government to send certain asylum-seekers to Mexico as their cases move through the immigration court system.
Chief Justice John Roberts delivered the opinion, which determined that the Biden administration’s attempts to end the Migrant Protection Protocols (MPP) policy did not violate the Immigration and Nationality Act, as lower courts had argued. It holds that an October 29, 2021 memorandum from U.S. Secretary of Homeland Security Alejandro Mayorkas “constituted final agency action” on the policy.
Justices Stephen Breyer, Sonia Sotomayor, Elaine Kagan, and Brett Kavanaugh agreed with Roberts; and Kavanaugh filed a concurring opinion in the Biden v. Texas case. Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett dissented.
MPP, also known as the “Remain in Mexico” policy, was first implemented in January, 2019 under former U.S. Secretary of Homeland Security Kirstjen Nielsen.
“Under MPP," Roberts’ opinion explained, "certain non-Mexican nationals arriving by land from Mexico were returned to Mexico to await the results of their removal proceedings under section 1229a of the Immigration and Nationality Act (INA)."
According to the Justice for Immigrants organization, “making vulnerable people wait to access asylum protection and due process in Mexico is concerning for a number of reasons.” These include leaving vulnerable people to wait in “dangerous and unsafe circumstances, including those in which their lives may be at risk,” and leaving them without access to health services and humanitarian aid.
When Biden became president, the new administration announced it would suspend the MPP program. In June, 2021, Mayorkas announced the program would be officially terminated in a memorandum.
However, Texas and Missouri brought suit against the government officials behind the decision in the Northern District of Texas. The states claimed the June 1 memorandum violated the INA and the Administrative Procedure Act (APA), and the District Court agreed, vacated the memorandum and imposed a nationwide injunction ordering the Government to enforce the policy.
The government appealed the decision, and while that appeal was pending Mayorkas released the October 29 memoranda, which reiterated the administration’s intention to terminate the MPP. Then, the Court of Appeals agreed with the District Court in full.
“With respect to the INA question, the Court of Appeals agreed with the District Court’s analysis that terminating the program would violate the INA, concluding that the return policy was mandatory so long as illegal entrants were being released into the United States,” Roberts explained in his opinion.
After the decision was announced Thursday, some officials criticized it, including Texas Attorney General Ken Paxton.
“I am disappointed in SCOTUS allowing Biden to dissolve the Remain-in-Mexico program, one of our last & best protections against the Dems’ border crisis,” he said in a tweet. “I will con’t [sic] to fight to secure our border & hold Biden accountable in my dozen other border-security suits in federal court.”
On the other hand, Rep. Joaquin Castro (D-Tex.) urged the Biden administration to use the court’s ruling as an opportunity to begin the process to “unwind” Title 42, a COVID-19 pandemic-related provision that authorizes the Director of the Centers for Disease Control and Prevention (CDC) to suspend entry of individuals into the U.S. to protect public health.
“Today, SCOTUS opened the door for the Biden administration to rescind Remain in Mexico and allow vulnerable people to seek asylum from safety in the U.S.,” Castro said.