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Supreme Court Allows Biden Administration to End 'Remain in Mexico' Program

By Laura Temme, Esq. | Last updated on

It's the end of days for the Migrant Protection Protocols, better known as the "Remain in Mexico" program. On its final day of decisions for the 2021-2022 term, the U.S. Supreme Court held that the Biden administration could end the Trump-era policy that required asylum seekers to stay on the Mexican side of the southern border while they waited for approval.

The Department of Homeland Security announced the Migrant Protection Protocols in late 2018, framing them as an alternative to detaining asylum seekers in the United States. The encampments created to house those told to "remain in Mexico" generated a lot of problems, including unsanitary living conditions, sexual assault, and torture.

In April 2019, a California federal district court issued a nationwide injunction preventing DHS from implementing them. The Ninth Circuit U.S. Court of Appeals upheld the injunction but narrowed it to apply only to California and Arizona. In March 2020, the Supreme Court held that DHS could move forward with "Remain in Mexico" until the Supreme Court issued a decision on legal challenges to the protocols.

Fast-forward to 2022, and we have that decision.

Biden Attempts to End "Remain in Mexico"

President Biden tried to end the "Remain in Mexico" program shortly after taking office. But federal courts ruled that federal immigration law requires those who cannot be detained to leave the United States until their asylum status is approved. Therefore, suspending the policy, in their view, violated federal immigration law.

Biden asked the Supreme Court to intervene, but the brief shadow docket order it released at the time essentially stated that it could not let Biden so easily end "Remain in Mexico" for the same reason it couldn't allow President Trump to immediately end DACA.

The Court's Decision

Chief Justice John Roberts wrote for the majority, joined by Justices Brett Kavanaugh, the retiring Stephen Breyer, Sonia Sotomayor, and Elena Kagan. The case was extraordinarily complex, requiring the court to examine three statutory provisions that seemed at odds with one another. However, the chief justice writes that the statute "plainly confers" discretion to the federal government to decide whether to return migrants to their home country.

In the majority's view, the statute says that the government "may" return someone to their home country pending immigration proceedings — not that it "must."

Justice Amy Coney Barrett concurred with most of the majority's analysis of the case but dissented based on a jurisdictional issue. She points to the court's decision in Garland v. Aleman Gonzalez earlier this term, which held that lower federal courts generally cannot grant injunctions against the government in immigration cases. Justice Barrett argues that the court should have vacated and remanded Biden's case for further proceedings.

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