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Supreme Court sides with Biden on future of ‘Remain in Mexico’ policy

As the White House faces increased pressure on immigration, the Supreme Court gave it the green light to enforce of one of its first actions. 

WASHINGTON (CN) — The Biden administration's abandonment of an old policy for asylum seekers to "Remain in Mexico" won Supreme Court approval in a divided ruling on Thursday. 

Chief Justice John Roberts wrote the majority opinion of the court, which says the government did not violate the Immigration and Nationality Act in discarding a policy that took root in a previous administration. Justices Alito, Thomas, Gorsuch and Barrett dissented. 

Former President Donald Trump created the policy officially known as the Migrant Protection Protocols or MPP to prevent the so-called “catch and release” of asylum seekers into the U.S., making them to wait in Mexico instead for their claims to get processed. 

Immigration advocates claimed it created a humanitarian disaster at the border, however, and President Joe Biden suspended the program on his first day in office, quickly incurring a challenge by the Republican-led states Texas and Missouri. 

When a Trump-appointed judge restored MPP against the Biden administration’s wishes, both the Fifth Circuit and Supreme Court left that ruling in place. These courts then considered the case on the merits, with the Fifth Circuit again ruling for the states and the Supreme Court holding oral arguments in April.

The justices had appeared wary during arguments of handing authority to states to overrule the administration’s decision —especially when foreign policy is concerned. The government told the justices that a single district court in Texas shouldn’t be able to dictate the administration’s negotiations with Mexico. But the justices were also critical of the government questioning how its actions would impact Congress' directives. 

A point of contention for the parties is language within the Immigration and Nationality Act that says the government “shall” detain immigrants during removal proceedings, and that the secretary “may” return immigrants to their home countries while their case proceeds. The states say this language proves the administration must detain migrants or send them back to Mexico, but the government maintains that this language gives them the discretion to grant parole. 

The majority agreed with the government’s argument and said “may” gives the government discretionary authority. 

“The use of the word ‘may’ in section 1225(b)(2)(C) thus makes clear that contiguous-territory return is a tool that the Secretary ‘has the authority, but not the duty,’ to use,” Roberts said, joined by Justices Breyer, Sotomayor, Kagan and Kavanaugh.

Roberts notes that every presidential administration has interpreted the statute this way. 

“Indeed, at the time of IIRIRA’s enactment and in the decades since, congressional funding has consistently fallen well short of the amount needed to detain all land-arriving inadmissible aliens at the border, yet no administration has ever used section 1225(b)(2)(C) to return all such aliens that it could not otherwise detain,” Roberts wrote. 

IIRA is short for a 1996 law called the Illegal Immigration Reform and Immigrant Responsibility Act.

Joined by Thomas and Gorsuch, Alito wrote that Homeland Security is violating the clear terms of the law by releasing asylum seekers into the United States. 

Monika Y. Langarica, a staff attorney at the Center for Immigration Law and Policy, said the ruling was only a partial win because the court left open the ability for the policy to be reinstated. 

“For years, at the border, we have witnessed the devastating impact the Remain in Mexico policy has had on the lives of thousands of people seeking safety,” Langarica said in a statement. “Today’s decision is a win for the movement that has long sought to expose the horrors of MPP. But it’s not a final victory, as the court’s opinion leaves open a door for MPP to be reinstated.”

The American Civil Liberties Union applauded the ruling and urged the Biden administration to fully terminate the Remain in Mexico policy. 

“The Supreme Court was right to reject the spurious argument that this cruel policy is statutorily required,” Judy Rabinovitz, special counsel with the ACLU’s Immigrants’ Rights Project, said in a statement. “While, as noted in the decision, the case will return to the district court, the Biden administration can and should move forward swiftly to finally terminate ‘remain in Mexico’ for good — a result that has been long, and unjustly, delayed.”

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