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Supreme Court refuses to block reinstatement of 'Remain in Mexico' program
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Supreme Court refuses to block reinstatement of 'Remain in Mexico' program

  • A young boy in Nogales, Sonora, is one of hundreds waiting to access asylum under a series of policies implemented by the Trump administration in 2019 and 2020.
    Paul Ingram/TucsonSentinel.com A young boy in Nogales, Sonora, is one of hundreds waiting to access asylum under a series of policies implemented by the Trump administration in 2019 and 2020.

In a 6-3 order, the Supreme Court’s conservative judges declined Tuesday night to stay a federal judge’s order requiring the Biden administration to reinstate a Trump-era immigration program that sent more than 60,000 asylum applicants back to Mexico.

In an Aug. 13 ruling, U.S. District Judge Matthew Kacsmaryk ordered President Joe Biden to restore the program formally known as Migrant Protection Protocols, finding the Department of Homeland Security had “failed to engage in reasoned decision making” when it ended the program.

Biden had suspended the program on his first day in office before terminating it with a June 1 memo.

Republicans frequently cite the move to back their claims that Biden’s policies have enticed immigrants to illegally enter the country at levels not seen for decades, with Border Patrol apprehensions nearly tripling from 78,417 in January to 212,672 in July. Border crossings typically fall off amid dangerous summer heat.

Texas and Missouri sued the Biden administration in April, claiming that without MPP, more undocumented immigrants would remain in their states, increasing their health care, education, social services and law enforcement costs.

Former President Donald Trump implemented MPP in January 2019 and at the end of his term he claimed it had ended the “catch and release” of immigrants coming to the U.S., making meritless asylum claims, then being released to await their court hearings, sometimes for years due to a large backlog of asylum cases.

But there were well documented problems. Many of those turned away took shelter in squalid, makeshift tent camps near the border where they were targeted by cartels and corrupt Mexican law enforcement officials.

Immigrant advocates noted “1,500 known cases of rape, kidnapping, torture, assault, trafficking and other crimes carried out against migrants sent back to Mexico under MPP.”

Enrollees were given court dates and traveled to South Texas to attend hearings in temporary structures before immigration judges in virtual hearings.

But many of them never made it.

DHS Secretary Alejandro Mayorkas justified the termination of MPP, arguing it was operating ineffectively because 44% of its asylum cases were adjudicated with in absentia deportation orders, where the applicants did not show up for their hearings.

But Kacsmaryk, a Trump appointee, said Mayorkas was wrong to assume those abandoning their cases had legitimate asylum claims. He cited an October 2019 DHS report in which the agency concluded MPP was causing immigrants without meritorious claims to voluntarily return home.

Kacsmaryk also found that the Biden administration, by ending MPP and releasing those allowed to stay in the U.S., violated a federal law that confines the government to two options in the handling of asylum seekers: mandatory detention or return to a contiguous territory.

Some analysts disagree with Kacsmaryks characterization of the law, arguing instead that the statute allows officials to grant “parole into the United States” and releases on bond.

He ordered the Biden administration to restore the program by Aug. 20.

After the Fifth Circuit denied the government’s stay motion, Supreme Court Justice Samuel Alito granted a stay until midnight Wednesday to give the full court time to consider the matter.

The high court declined Tuesday night to stay Kacsmaryk’s order.

“The applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious,” the court wrote in an unsigned one-page order. It says the court’s liberal justices — Sonia Sotomayor, Elena Kagan and Stephen Breyer — would have granted the stay.

The government’s appeal will now proceed before the Fifth Circuit in New Orleans. It has tentatively scheduled oral arguments for the first week of November.

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