Justices agree to review Biden’s attempt to unwind Trump-era asylum policy 

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Supreme Court steps with the Library of Congress in the background

The Supreme Court on Friday afternoon agreed to decide whether the Biden administration must continue to enforce the Trump-era program known as the “remain in Mexico” policy, which requires asylum seekers to stay in Mexico while they wait for a hearing in U.S. immigration court. The justices fast-tracked the administration’s appeal, setting the case for oral argument in late April – with a decision expected before the court’s summer recess.

The justices have had extensive experience with the policy, formally known as the Migrant Protection Protocols, since the Trump administration announced it in 2018. In March 2020, the court allowed the Trump administration to begin enforcing the policy after a federal district judge in California blocked it. In October 2020, the Supreme Court agreed to review a ruling by the U.S. Court of Appeals for the 9th Circuit holding that the policy was likely inconsistent with both federal immigration law and international law, but the justices dismissed the case in June 2021 after the Biden administration ended the policy. Critics of the policy say that it forces asylum seekers to reside in dangerous and unsanitary camps in Mexican border towns.

Texas and Missouri went to federal court in Texas to challenge the Biden administration’s decision to end the policy. They contend that the decision to terminate the policy violated both federal immigration law and the federal law governing the procedures that federal agencies must follow. Without the policy, they allege, large numbers of migrants can enter the United States based on dubious asylum claims, imposing costs on the states.

Last summer, U.S. District Judge Matthew Kacsmaryk agreed with the states and ordered the Biden administration to reinstate the policy. After the U.S. Court of Appeals for the 5th Circuit declined to block Kacsmaryk’s ruling, the Biden administration sought emergency relief from the Supreme Court in August. Over the objection of Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, the court refused to step in and put Kacsmaryk’s order on hold. As a result, the Biden administration was required to resume enforcement of the policy while litigation continued in the lower courts.

On Oct. 29, the Department of Homeland Security issued a new decision terminating the policy, supported by a 38-page memorandum that explained that decision. The memorandum acknowledged the arguments for retaining the program, but it concluded that those “benefits do not justify the costs.” The 5th Circuit, however, upheld a district-court order requiring the Biden administration to continue the policy, holding that the explanation initially provided in June 2021 for ending the policy had been inadequate.

The Biden administration returned to the Supreme Court, asking the justices to weigh in on whether federal immigration law requires the administration to maintain the policy and on whether the Oct. 29 decision to end the program has any legal effect. Moreover, the administration added, because of the “importance of the case and the magnitude of the nationwide injunction’s ongoing interference with the Executive Branch’s conduct of immigration and foreign policy,” the justices “should hear and decide the case” during the 2021-22 term – which the court agreed on Friday to do.

This article was originally published at Howe on the Court. 



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