SCOTUS: Biden Can End Asylum Policy 07/01 06:15
The Supreme Court said Thursday the Biden administration can scrap a
Trump-era immigration policy to make asylum-seekers wait in Mexico for hearings
in U.S. immigration courts, a victory for a White House that still must address
the growing number of people seeking refuge at America's southern border.
WASHINGTON (AP) -- The Supreme Court said Thursday the Biden administration
can scrap a Trump-era immigration policy to make asylum-seekers wait in Mexico
for hearings in U.S. immigration courts, a victory for a White House that still
must address the growing number of people seeking refuge at America's southern
The ruling will have little immediate impact because the policy has been
seldom applied under President Joe Biden, who reinstated it under a court order
in December. It was his predecessor, Donald Trump, who launched the "Remain in
Mexico" policy and fully embraced it.
Two conservative justices joined their three liberal colleagues in siding
with the White House.
Under Trump, the program enrolled about 70,000 people after it was launched
in 2019. Biden suspended the policy, formally known as Migrant Protection
Protocols on his first day in office in January 2021. But lower courts ordered
it reinstated in response to a lawsuit from Republican-led Texas and Missouri.
Dynamics at the border have changed considerably since "Remain in Mexico"
was a centerpiece of Trump's border policies.
Another Trump-era policy that remains in effect and was not a part of
Thursday's ruling allows the government to quickly expel migrants without a
chance to ask for asylum, casting aside U.S. law and an international treaty on
grounds of containing the spread of COVID-19. There have been more than 2
million expulsions since the pandemic-era rule, known as Title 42 authority,
was introduced in March 2020.
In May, a federal judge in Louisiana prevented the Biden administration from
halting Title 42, in a case that may ultimately reach the Supreme Court.
The court's decision Thursday was released on the same day that the justices
dealt the administration a blow in an important environmental case about the
nation's main anti-air pollution law. That ruling could complicate the
administration's plans to combat climate change.
The heart of the legal fight in the immigration case was about whether U.S.
immigration authorities, with far less detention capacity than needed, had to
send people to Mexico or whether those authorities had the discretion under
federal law to release asylum-seekers into the United States while they awaited
After Biden's suspension of the program, Homeland Security Secretary
Alejandro Mayorkas ended it in June 2021. In October, the department produced
additional justifications for the policy's demise, but that was to no avail in
Chief Justice John Roberts wrote that an appeals court "erred in holding
that the" federal Immigration and Nationality Act "required the Government to
continue implementing MPP." Joining the majority opinion was fellow
conservative Brett Kavanaugh, a Trump-appointee, as well as liberal justices
Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Kavanaugh also wrote separately and noted that in general, when there is
insufficient detention capacity, both releasing asylum-seekers into the United
States and sending them back to Mexico "are legally permissible options under
the immigration statutes."
The Department of Homeland Security said it welcomed the ruling and that it
will "continue our efforts to terminate the program as soon as legally
permissible." It added in a statement that it continues to enforce Title 42 and
"our immigration laws at the border and administer consequences for those who
Cornell University law professor Stephen Yale-Loehr, an immigration expert,
said the Biden administration does not need to take any further action to end
the policy, but that Texas and Missouri can pursue a challenge over whether the
administration followed appropriate procedure in ending the program.
In a dissent for himself and fellow conservatives Clarence Thomas and Neil
Gorsuch, Justice Samuel Alito wrote that the practice of releasing "untold
numbers of aliens" into the United States "violates the clear terms of the law,
but the court looks the other way." Justice Amy Coney Barrett said she agreed
with the majority's analysis of the merits of the case but would have sent the
case back to a lower court for reconsideration.
Texas Attorney General Ken Paxton said in a statement that the decision was
"unfortunate." He argued it would make "the border crisis worse. But it's not
the end. I'll keep pressing forward and focus on securing the border and
keeping our communities safe in the dozen other immigration suits I'm
litigating in court." Gov. Greg Abbott, a Republican, said the decision would
"only embolden the Biden Administration's open border policies."
Since December, the administration has registered only 7,259 migrants in
"Remain in Mexico." U.S. authorities stopped migrants 1.2 million times on the
Mexico border from December through May, illustrating the policy's limited
impact under Biden.
About 6 of every 10 people in the program are Nicaraguans. The
administration has said it would apply the policy to nationalities that are
less likely to be subject to the broader Title 42 policy. Strained diplomatic
relations with Nicaragua makes it extremely difficult for the U.S. to expel
people back to their homeland under Title 42.
Immigrant advocates acknowledged that a relatively small number of asylum
seekers arriving on the southwest border are affected by the MPP program with
which the court ruling dealt. Still, advocates and Democrats were among those
cheering the decision as were those waiting in Mexico.
Oscar Rene Cruz, a taxi driver from Nicaragua who is in a Salvation Army
Shelter in Tijuana, Mexico, said after the ruling: "We are all very happy,
waiting to see what is going to happen now with us, we know the program has
finished but we haven't been told what they are going to do with us."
Cruz added: "I wish this will be over soon. Nobody wants to stay here" in
Rep. Pramila Jayapal, a Washington Democrat, said in a statement that those
"fleeing violence and persecution to seek asylum --as they are entitled to by
law --should not be forced to remain in places that have been deemed dangerous
and unsafe while they wait for their day in court."
Jacob Lichtenbaum, staff attorney for the immigrant rights group CASA in
Maryland, called the ruling a "major victory for safety, compassion, and the
rule of law."
But Rep. John Katko of New York, the top Republican on the House Homeland
Security Committee, said the program was a critical tool to help manage
arrivals on the southwest border and the current administration lacks a plan to
address the issue.
The case is Biden v. Texas, 21-954.