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Supreme Court takes up bid by Biden to end remain-in-Mexico policy

The Trump-era immigration policy will face high court scrutiny in April after thwarting a previous challenge

President Joe Biden persuaded the Supreme Court on Friday to consider his move to unravel a federal policy that forces people seeking U.S. asylum to wait out their determinations in Mexico.

Officially known as Migrant Protection Protocols but better known as Remain in Mexico, the policy launched in January 2019 with the Trump administration saying it would prevent the “catch and release” of migrants into the U.S. For immigration advocates, however, it has morphed into a humanitarian disaster.

Whereas before immigrants could stay in the U.S. while their asylum claims were processed, the new policy does not allow then across the border. The Mexican government has promised to provide protection for the immigrants, but many have faced violence at the hands of criminal organizations and corrupt Mexican law enforcement while forced into squalid tent camps at the border. 

With the election of President Joe Biden, MPP seemed to be on its way out. The program was suspended on Biden’s first day in office, and the Secretary of Homeland Security formally terminated it in June of last year.

Texas and Missouri then revived the policy with a suit against the Biden administration, arguing that the policy’s termination led to increased health care, education, social services and law enforcement costs because of an increase in undocumented immigrants. 

MMP was restored after a one-day bench trial and ruling from U.S. District Judge Matthew Kacsmaryk, whom Trump installed in 2019. Biden fought the ruling, but both the Fifth Circuit and the Supreme Court blocked relief — the latter this past August in a 6-3 ruling. Biden has returned to the high court after a Fifth Circuit panel rejected his next appeal in December.

In the petition for a writ of certiorari, Solicitor General Elizabeth Prelogar says the Department of Homeland Security should not have to maintain a program that it considers contrary to U.S. interests. 

“The lower courts have commanded DHS to implement and enforce the short-lived and controversial MPP program in perpetuity,” Prelogar wrote. “And they have done so despite determinations by the politically accountable Executive Branch that MPP is not the best tool for deterring unlawful migration; that MPP exposes migrants to unacceptable risks; and that MPP detracts from the Executive’s foreign-relations efforts to manage regional migration. Worse yet, the court of appeals has effectively precluded consideration of the Secretary’s operative explanation of those concerns.” 

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The government contends that the lower court intruded on the power of the executive branch to make immigration decisions and conduct foreign relations. Forcing the administration to maintain MPP means that the courts have interfered in America's bilateral relationship with Mexico, the government says. 

“By requiring the Executive to engage in ongoing negotiations with a foreign sovereign over the contours of a border-wide immigration program, the lower courts effected a major and ‘unwarranted judicial interference in the conduct of foreign policy’ and executive prerogative,” Prelogar wrote. “The injunction forces the Executive to prioritize MPP negotiations over other collaborative efforts that the Secretary believes will yield better results in managing immigration and border security.”

Arguments in the case hinge on provisions within the Immigration and Nationality Act. MPP was invoked using a section of the act that says the Homeland Security secretary “may” return immigrants to their home countries while their case processes. While the lower courts found that the act requires the government to continue using MPP, Prelogar contends that the word "may" conveys that Homeland Security has discretion over returning immigrants to Mexico. 

“Congress’s use of the word ‘may’ in Section 1225(b)(2)(C) thus unmistakably indicates that contiguous-territory return is always a discretionary tool that the Secretary has permission to use, but never one that he is compelled to use,” she wrote.

Texas argues that Homeland Security must return immigrants to their own country because it does not have the capacity to keep them in detention in the U.S. The act says the agency “shall” detain immigrants during removal proceedings, and Texas argues that, because Homeland Security, doesn’t have the capacity to keep them in the U.S., the government needs to send them to Mexico. 

“DHS lacks capacity to detain most arriving aliens, so under the circumstances, contiguous-territory-return is the only way DHS can avoid violating its detention obligations,” Texas Attorney General Ken Paxton wrote in the state’s brief (emphasis in original). “When one has both a duty and an optional method of fulfilling the duty, and under the circumstances the option is the only way to fulfill that duty, the option becomes obligatory.” 

Texas claims the suspension of MPP resulted in a surge of illegal border crossings that rose to unprecedented levels and created “the most catastrophic and prolonged border crisis in modern American history.” 

“The current border crisis has created a humanitarian catastrophe,” Paxton wrote. “The enormous numbers of illegal aliens provide the ideal conditions for organized cartels to commit human smuggling, human trafficking, drug trafficking, and brutal sexual exploitation of migrants.” 

Per their custom, the justices did not comment on their decision to take up the case Friday. The order does put proceedings on the fast track, with oral arguments set for April. The White House referred questions on the case to the Department of Justice, which did not immediately respond to requests for comment. The Texas attorney general's office also did not immediately respond to requests for comment.

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A group of more than 100 people who surrendered to Border Patrol agents near Sasabe in July 2021, including more than 90 children.

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