Shortly after taking office, Joe Biden sought to cancel the Trump administration’s “Remain in Mexico” policy (formally known as Migrant Protection Protocols, or MPP). Under the policy, asylum seekers who leave a third country and travel through Mexico to the U.S. border are forced to stay in Mexico while awaiting a court hearing on their asylum petitions. Many of the tens of thousands who have been compelled to wait in Mexico have become victims of kidnapping, sexual assault and torture as they wait in crude encampments.
On April 27, Alejandro Mayorkas, secretary of the Department of Homeland Security, testified before the House Appropriations Subcommittee and the House Homeland Security Committee that under Trump’s Remain in Mexico program, 1,500 people were murdered, tortured, raped or were victims of other serious crimes.
The Remain in Mexico program is basically a “sham,” Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council, told Amy Goodman on Democracy Now!. “Less than 1% of people put into the program who were forced to have their cases heard at the border ever won, ever won their case, compared to 15 to 20% of people inside the United States.”
But in response to a lawsuit filed by the states of Texas and Missouri, a Trump-appointed federal district court judge issued a nationwide injunction forbidding Biden from ending the Remain in Mexico program. A three-judge panel of the Fifth Circuit Court of Appeals upheld the district judge’s ruling, saying the Biden administration’s initial rationale for ending the program was inadequate. In August, a 6-3 majority of the Supreme Court refused to suspend the injunction while it reviewed the case.
The Supreme Court heard oral arguments in Biden v. Texas on April 26. Several members of the court seemed torn about whether the Biden administration could end the program. Some said they doubted that Congress meant to permit the release of large numbers of asylum seekers into the United States. Others expressed skepticism that a federal judge could require the Biden administration to continue the program since it requires the agreement of Mexico and the Constitution reserves the conduct of foreign policy to the executive branch.
U.S. Solicitor General Elizabeth Prelogar told the court that Mayorkas had decided to end the Remain in Mexico program after concluding that its benefits “were outweighed by its domestic, humanitarian, and foreign policy costs.” Prelogar said Mayorkas exercised “his statutory discretion to make a policy judgment.”
The members of the court tried to reconcile language in three different sections of the Immigration and Nationality Act that were enacted at different times. One section says the Department of Homeland Security “shall detain” undocumented people (with some narrow exemptions). Another section states that the Department of Homeland Security “may” return asylum seekers to Mexico or Canada (if they arrived by land) while they wait for the processing of their asylum claim. And a third section provides for parole and bond for asylum seekers on a case-by-case basis who would be temporarily released into the United States for “urgent humanitarian reasons” or if there is a “significant public benefit.”
Neither Texas nor the Biden administration disputed the fact that no administration has ever complied with the congressional mandate to detain all undocumented immigrants — due to a shortage of beds in detention facilities. As Prelogar told the court, 220,000 migrants were apprehended near the U.S. border in March but there were only 32,000 beds in the detention facilities. “No one disputes that the [Department of Homeland Security] does not have sufficient detention capacity” for all the migrants, she said.
Some right-wing members of the court appeared to lean against allowing the administration to end the Remain in Mexico program. Clarence Thomas said the “shall detain” provision creates a presumption in favor of detention, meaning that the administration should detain asylum seekers rather than release them on parole or send them to Mexico. Samuel Alito pointed out that the government had argued in another case that “shall be detained” created a mandate for detention. Brett Kavanaugh was skeptical that Congress anticipated that hundreds of thousands of undocumented people would be released into the United States.
But Kavanaugh asserted that the Department of Homeland Security has determined that permitting noncitizens who are “not too dangerous” into the U.S. to free up detention space for those with criminal records constitutes a significant public benefit. Amy Coney Barrett appeared to echo Kavanaugh’s sentiments. She told Texas Solicitor General Judd Stone that if the administration is correct in saying that the need to prioritize bed spaces in detention centers constitutes a significant public benefit, “you lose, right?”
Sonia Sotomayor observed that the “shall detain” language had been in effect for more than a century and that no administration had ever “attempted to detain every single illegal immigrant.” She suggested that “we should accept what the practices have been through generations of presidents.”
Elena Kagan also appeared to favor allowing the administration to end the Remain in Mexico program. She said that requiring the continuation of the program would be “to basically tell the executive how to implement its foreign and immigration policy.” Kagan told Stone, “You’re putting the secretary’s immigration decisions in the hands of Mexico” because the U.S. can only return asylum seekers to Mexico with the cooperation of the Mexican government. “What do you mean it doesn’t require negotiation with the foreign power?” Kagan asked Stone. “What are we supposed to do? Just drive truckloads of people into Mexico and leave them without negotiating with Mexico?”
Chief Justice John Roberts did not signal how he might vote in this case. But when Stone said that requiring the continuation of the Remain in Mexico program would mean there would be fewer violations of federal immigration law, Roberts retorted, “I think it’s a bit much for Texas to substitute itself for the secretary and say that you may want to terminate this, but you have to keep it because it will reduce to a slight extent your violations of the law.”
In her rebuttal, Prelogar commented on the “extraordinary nature of the district court’s injunction in this case and particularly with respect to its effects on foreign relations.” To return asylum seekers to Mexico pursuant to the Remain in Mexico program necessitates a “massive cross-border program,” requiring housing, work authorization, protection against predatory gang and cartel violence, and access to lawyers, she noted. “The idea that there is a single district court in Texas that is mandating those results … shows that something has powerfully gone awry here. This is not how our constitutional structure is supposed to operate and this is not the statute that Congress drafted.”
We will know the court’s decision by the end of June.