WASHINGTON – A divided Supreme Court on Tuesday required President Joe Biden’s administration to reinstate a controversial immigration policy that forces migrants to wait in Mexico while U.S. officials process their asylum claims.
Biden asked the Supreme Court to intervene after the U.S. Court of Appeals for the 5th Circuit based in New Orleans ruled his administration improperly halted the Trump-era immigration policy shortly after his inauguration. Republican attorneys general in Texas and Missouri sued in April to reinstate the program.
A conservative majority of the high court said in a brief order Tuesday night that the Biden administration failed to demonstrate the decision to end the program was not “arbitrary and capricious.” The court’s three liberal associate justices, Stephen Breyer, Sonia Sotomayor and Elena Kagan, would have allowed the administration to continue its suspension of the program.
The White House and the Justice Department declined to comment.
The Department of Homeland Security said in a statement late Tuesday that it “regrets” the Supreme Court’s decision but that the department “will comply with the order in good faith.” The department said it was engaging with Mexican officials about the program.
The Biden administration had previously told the Supreme Court that restarting the program would create a “diplomatic and humanitarian crisis.” The administration had asked the high court to block the lower court’s order temporarily while the underlying legal fight continues over how it halted the program.
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The Trump administration implemented the Migrant Protection Protocols program in January 2019 as part of its effort to limit immigration – both legal and illegal – at the U.S.-Mexico border and end what critics call “catch and release” policies. By the end of 2020, the Trump administration had enrolled 68,000 people in the program, according to court records.
The program permitted the U.S. to send migrants, including those from Central America, to Mexico while they waited for an immigration judge to review their case. A federal district court in Texas found that the policy acted as a deterrent, leading to a significant reduction in enforcement encounters along the nation’s southern border.
But others question whether that reduction was driven by the policy or other factors. And critics say the program left migrants in dangerous conditions while they waited for the U.S. immigration system to catch up to surges in asylum applications.
A group of immigrant advocates and former immigration judges told the high court this week that the policy “was a humanitarian catastrophe” that left asylum seekers “murdered, raped, kidnapped, extorted, and compelled to live in squalid conditions where they faced significant procedural barriers to meaningfully presenting their protection claims.”
The state attorneys general told the court that the Biden administration’s decision was “arbitrary and capricious” and violated the Administrative Procedure Act, which sets standards for how federal agencies craft regulations and engage in decision-making. Similar procedural claims were frequently raised against the Trump administration.
“The Biden administration was correct to rescind the Trump return to Mexico policy, the whole point of which was to punish people for seeking asylum by trapping them in miserable and dangerous conditions,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, which had filed a brief at the Supreme Court supporting the Biden administration in the case.
“The government must take all steps available to fully end this illegal program, including by re-terminating it with a fuller explanation,” Jadwat said. “What it must not do is use this decision as cover for abandoning its commitment to restore a fair asylum system.”
But at least some Republicans applauded the court’s order. GOP House Leader Kevin McCarthy called it “wise” in a tweet and said it should serve “as a reminder” for the Biden administration to “take America’s border security seriously.”
The Supreme Court sided with the government against immigrants in several cases in its most recent term. A unanimous court curbed a 30-year-old program for foreign nationals whose countries are ravaged by war or natural disaster, ruling in July its temporary protection from deportation doesn’t guarantee a more permanent stay.
A 5-3 majority ruled in March against an immigrant who had lived in the country illegally for 25 years and who asserted he wrongfully faced deportation for using a false Social Security card. The court found the immigrant did not meet the burden required to show he should have been allowed to present his case to avoid deportation.