The Supreme Court Gives President Joe Biden The End To The “Remain in Mexico” Policy

June 30, 2022

Immigration Law Gives the Federal Government the Discretion to End the Program, Formally known as Migrant Protection Protocols.

Since the beginning of his presidential term, President Biden has tried to wind down the policy, which sends certain non-Mexican citizens who entered the US back to Mexico — instead of detaining them or releasing them into the United States — while their immigration proceedings were in limbo with USCIS.

Chief Justice John Roberts wrote in his majority opinion that “Congress conferred contiguous-territory return authority in expressly discretionary terms.”

” The Supreme Court’s decision is a huge victory for the Biden immigration agenda as the administration has suffered several losses in lower courts in its efforts to reverse Trump’s hardline immigration policies. Several of the red states that challenged the termination of Migrant Protection Protocols have also brought lawsuits challenging other attempts by Biden to pivot away from his predecessor’s aggressive approach and those cases are still working their way through lower courts.”

Roberts was joined by the liberal justices and Justice Brett Kavanaugh, with Kavanaugh also filing a concurring opinion.

Justices Samuel Alito and Amy Coney Barrett wrote dissenting opinions, joined by the other dissenters.

The lower courts must now consider whether the government complied with administrative law with the more recent attempt that the Biden administration made to end the Trump-era policy.

Biden’s bid to terminate the program had been challenged in court by a coalition of red states led by Texas that argued that ending it ran afoul of immigration law. They also argued that the administration violated the Administrative Procedure Act — which requires that agencies take certain procedural steps when implementing policy — in how it went about unwinding Migrant Protection Protocols.

The program, which was first implemented in 2019 under then-President Donald Trump, is inhumane and that it exposes asylum seekers with credible claims to dangerous and squalid conditions in Mexico. Before the Trump administration put the “Remain in Mexico” program in place, no other administration had embraced such an approach toward non-Mexican asylum-seekers that required them to stay in Mexico over the course of their immigration court proceedings in the United States. Biden campaigned on ending the policy and has said it “goes against everything we stand for as a nation of immigrants.”

The Department of Homeland Security, though, has maintained that the “Remain in Mexico” policy comes at a steep human cost and is not an effective use of resources.

According to the Biden Administration, immigration law had never before been interpreted as requiring the government to send migrants back to Mexico with pending immigration proceedings that it was unable to hold in detention.

Alex R. Hernandez Jr. practices national immigration law from his office in Los Angeles, California. For more information call 818-797-9903.

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