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Supreme Court Orders Biden Admin to Reinstate ‘Remain in Mexico’ Policy

Mimi Nguyen Ly

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The Supreme Court has ordered the Biden administration to reinstate the Trump-era “Remain in Mexico” policy, which requires people seeking asylum to wait in Mexico until their case is heard.

The court wrote in an unsigned order (pdf) on Aug. 24 that the Biden administration failed to show that it hadn’t acted in an “arbitrary and capricious” manner when it rescinded the policy, officially known as the Migrant Protection Protocols (MPP) program, that started in 2019 under then-President Donald Trump’s administration.

The court cited its opinion from 2020 that rejected the Trump administration’s effort to end a separate immigration program, the Deferred Action for Childhood Arrivals (DACA). In that decision, the court ruled that ending DACA would be “arbitrary and capricious” and in violation of federal law.

President Joe Biden suspended the MPP program in January, and the Department of Homeland Security (DHS) officially terminated the policy in June, telling employees in a memo that it would no longer enforce the program.

The move triggered a lawsuit from Texas and Missouri, with the attorneys general from the two states arguing that DHS Secretary Alejandro Mayorkas had failed to provide “reasoned justification” to suspend the program.

U.S. District Judge Matthew Kacsmaryk, a Trump appointee, subsequently ordered the Biden administration to revive the program, but stayed his ruling until Aug. 21 to provide time for appeal.

A panel for the U.S. Court of Appeals for the 5th Circuit rejected the federal government’s arguments on Aug. 19, finding that the termination of the program “has caused an increase in unlawful immigration in Texas” and that Mayorkas did fail to consider several relevant factors, including the benefits of MPP and potential alternatives to the program.

The federal government filed an emergency motion to the Supreme Court requesting a stay regarding the ruling, in which the Department of Justice said the “Remain in Mexico” program “has been formally suspended for seven months and largely dormant for nearly nine months before that.”

Associate Justice Samuel Alito temporarily blocked the MPP program’s reinstatement on Aug. 20, just hours before the policy was set to restart, to allow the Biden administration to file documents and to allow the full Supreme Court to consider the application.

The court ultimately declined to intervene. The unsigned order notes that Associate Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan would have granted the Biden administration’s request.

“Our order denying the Government’s request for a stay of the District Court injunction should not be read as affecting the construction of that injunction by the Court of Appeals,” the order reads.

Zachary Stieber contributed to this report.