The Supreme Court said Thursday that the Biden administration could end a Trump-era immigration policy known as “Stay in Mexico” that had forced thousands of asylum seekers to wait south of the border while their claims were reviewed.
The court ruled 5-4, with Chief Justice John Roberts and Judge Brett Kavanaugh joining the three Liberal judges in the majority.
Officially called the “Migrant Protection Protocols” – or MPP – the policy was created in 2019 to send unauthorized immigrants, including asylum seekers, back to Mexico while their cases are heard in the immigration court.
Trump administration officials wanted the policy to serve as a deterrent to migrant flows along the southwestern border. Human rights monitors and immigrant advocacy groups said the policy violates international law, putting vulnerable people at risk for higher documented numbers of kidnappings, extortion and violence in the areas where they had to wait.
President Biden tried to formally end the MPP last year but was sued by the Republican-led states of Texas and Missouri, who claimed the immigration and naturalization law required the government to continue the program. A federal court ordered the policy to continue as legal problems arose.
The INA says the Department of Homeland Security “will” detain unauthorized non-citizens pending immigration proceedings, but it also allows their parole in the country on a case-by-case basis if it is determined to be for “public benefit.”
Congress never allocated sufficient funds to meet the law’s requirement to detain all migrants and asylum seekers pending an immigration hearing; every administration has had to exercise a certain degree of discretion in its enforcement.
In contradiction, Judge Samuel Alito wrote, “…instead of taking advantage of Congress’s clear legal alternative to return unauthorized aliens to Mexico while they await proceedings in this country, DHS has concluded that it can forgo that option and instead simply be released into Mexico. This country has countless numbers of aliens who are very likely to be removed if they show up for their removal hearings. This practice is against the clear terms of the law, but the Court is looking the other way.”
The Biden administration argued that the MPP required expensive and complicated negotiations with Mexico and that foreign policy jurisdiction rests solely with the president, not with the states or federal courts.
Under President Donald Trump, about 70,000 migrants were enrolled in the program and sent back to Mexico to await US immigration hearings. So far, the Biden administration has enrolled 5,000 migrants in the program. Only 2.4% were exempted after their claims were heard, a recent survey found.
The court’s decision comes as the flow of migrants to the southwestern border continues to put a strain on law enforcement and humanitarian resources. Customs and Border Protection reported 239,416 encounters with migrants in May, a two percent increase from April; a quarter of these were repeat offenders.
A separate Trump-era border enforcement policy known as Title 42 — activated during the pandemic to quickly expel migrants due to COVID — remains in effect and unaffected by the court’s ruling. Biden has also attempted to revoke Title 42, but lower courts have ordered that proceedings continue as legal proceedings progress.