Supreme Court: Biden can't end Trump's 'Remain in Mexico'

Aug. 24, 2021 Updated 7:47 PM PT

WASHINGTON — The Supreme Court’s conservative majority on Tuesday upheld a Texas judge’s order that would require the Biden administration to follow President Trump’s so-called Remain in Mexico policy.

That program sought to deter Central American migrants from seeking asylum in the United States by requiring them to stay in Mexico until their cases were heard in the U.S.

The justices by a 6-3 vote rejected an appeal from Biden’s lawyers who said the Texas ruling conflicted with the principle that the executive branch has leeway on how best to enforce the immigration laws.

The case was seen as an early test of whether the court’s conservatives — including three appointed by Trump — would allow a lower court judge to challenge the president’s authority on a matter that the Supreme Court has historically given the executive branch wide latitude to control.

In a brief order, the justices said the Biden administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols [Remain in Mexico] was not arbitrary and capricious.”

The order cited last year’s 5-4 decision that blocked Trump from repealing the Obama-era immigration program that shielded immigrants who were brought to this country as children and lived here illegally.

Chief Justice John G. Roberts Jr., joined by the liberals, said the proposed repeal was “arbitrary and capricious” because Trump’s advisors had not given a clear or convincing explanation for the change in policy.

Dissenting from Tuesday’s order were the court’s three remaining liberals: Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. They said they would have granted the administration’s appeal and put the judge’s order on hold.

Throughout Trump’s term, immigrant rights lawyers went to court, often in California, seeking rulings that put the administration’s immigration policies on hold. That in turn spurred Trump’s lawyers to go directly to the Supreme Court in search of relief.

Now, Texas state lawyers are fighting Biden’s policies by suing before conservative judges in Texas.

Tuesday’s decision was lauded by conservatives there and beyond. The number of apprehensions at the border has increased dramatically this year.

“This halts Biden’s skirting of immigration laws and will reduce the record number of migrants entering,” Texas Gov. Greg Abbott tweeted Tuesday evening.

Don McLaughlin, the mayor of Uvalde, about 70 miles north of the border with Mexico, said he was “ecstatic about the ruling.”

“I hope it gives law enforcement a breather,” he said. “It will help border communities, but it won’t change things overnight.”

The ruling is a sharp setback for immigrant rights advocates who believed the new administration could reverse most of Trump’s strict enforcement policies.

The National Immigration Law Center in Los Angeles said it was “deeply disappointed” in the court’s action. “We are committed to doing everything we can to prevent this egregious policy from harming one more person and will use every tool at our disposal to oppose the Remain in Mexico policy, or any like it, and we urge the Biden administration to do the same,” said Marielena Hincapié, the center’s executive director.

Paola Luisi, director of the immigrant advocacy group Families Belong Together, called the decision unacceptable.

“Children and families were given no choice but to live in tent camps without access to clean water, medical care or schools,” Luisi said. “Many people waiting in Mexico for their asylum cases have been kidnapped, raped and even killed as a direct result of this policy. They came to our doorstep with a belief in America — and our government sent them into danger.”

The Biden administration can still seek a fuller appeal of the Texas judge’s order from the 5th Circuit Court based in New Orleans, and the Department of Homeland Security released a statement saying it would do just that.

In the meantime, however, the Biden administration must continue to follow Trump’s policy while that case makes its way through the courts.

At issue is whether the migrants who arrive at the southern border may enter the United States to present their pleas for asylum and stay in the country while their cases move through immigration courts.

In 2019, the Trump administration changed that practice and adopted the Remain in Mexico policy — known formally as Migrant Protection Protocols. It required tens of thousands of migrants from Central America to wait on the Mexican side of the border until their cases could be heard.

Defending the change, Trump administration’s officials said migrants with weak claims would no longer have “a free ticket into the United States” and, as a result, they “were beginning to voluntarily return home.”

But immigrant rights lawyers told the court the policy was “a humanitarian catastrophe: asylum seekers were murdered, raped, kidnapped, extorted, and compelled to live in squalid conditions where they faced significant procedural barriers to meaningfully presenting their protection claims.”

However, even before Biden was elected, the Remain in Mexico policy had been overtaken by the pandemic. The Trump administration barred immigrants from entering the country based on a health directive designed to stem the spread of infectious diseases, and the Biden administration maintained that rule. So the practical effect of Tuesday’s action will be limited for now.

But even amid the pandemic-related restrictions, Biden’s top immigration advisors decided to suspend and then formally repeal the Remain in Mexico policy. They said it had achieved mixed results, but had proved to be costly and difficult to coordinate. They said a significant percentage of the asylum seekers were not present when their cases were heard by an immigration judge.

Lawyers for Texas and Missouri sued in a federal court in Amarillo, Texas, and argued the Trump policy must be maintained. They said the repeal had triggered a surge of new migrants at the southern border, and if allowed to cross into the United States, they would prove a costly burden for Texas and its taxpayers.

U.S. District Judge Matthew Kacsmaryk, a Trump appointee, agreed with the Texas lawyers, and on Aug. 13 he issued a nationwide order that requires enforcement of the Remain in Mexico policy. He said Biden’s repeal of Trump’s policy was “arbitrary and capricious,” and violated federal procedural law.

A week later, the U.S. 5th Circuit Court of Appeals refused to block the judge’s order.

The administration then went to the Supreme Court to seek a temporary stay of the judge’s order. It cited several of its previous emergency orders that set aside rulings from judges in California and elsewhere that blocked Trump’s policies.

“In recent years, this court has repeatedly stayed broad lower court injunctions against executive branch policies addressing matters of immigration, foreign policy, and migration management. It should do the same here,” acting Solicitor Gen. Brian H. Fletcher wrote.

The case was Biden vs. State of Texas, 21A21.

Times staff writers Molly Hennessy-Fiske in McAllen, Texas, and Cindy Carcamo in Santa Ana
contributed to this report.