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.
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 their hearings.
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 the courts.
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 enter unlawfully.”
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 Mexico.
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.