US Supreme Court reinstates Trump-era ‘Remain in Mexico’ policy

The Supreme Court of the United States has denied President Joe Biden’s bid to rescind an immigration policy implemented by his predecessor that forced thousands of asylum seekers to wait in Mexico while seeking asylum in the US.

With three liberal justices dissenting, the court on Tuesday rejected the Biden administration’s effort to block a Texas-based judge’s ruling requiring the government to revive former President Donald Trump’s “remain in Mexico” policy, formally known as the Migrant Protection Protocols (MPP) programme.

The Supreme Court’s 6-3 conservative majority includes three justices appointed by Trump.

The brief order by the justices means that US District Judge Matthew Kacsmaryk’s ruling now goes into effect. The Texas judge was a Trump appointee.

The Department of Homeland Security said in a statement it regretted the Supreme Court’s decision and would continue to “vigorously challenge” the district court ruling.

As the appeals process continues, it said the agency will comply with the order “in good faith” and has begun discussions with Mexico.

The court’s decision referenced its 2020 ruling that thwarted Trump’s bid to end a programme introduced by Democratic former President Barack Obama that protects from deportation hundreds of thousands of immigrants – often called “Dreamers” – who entered the United States illegally as children.

Both cases concern whether the government followed the correct legal process in unwinding a previous administration’s policy.

Security, humanitarian crisis

Biden, who has sought since taking office in January to reverse many of Trump’s hardline immigration policies, rolled back the MPP programme.

Republican-led Texas and Missouri challenged the Democratic president’s move.

Biden’s administration turned to the Supreme Court after Kacsmaryk ruled that the Trump policy would have to be reinstated and the New Orleans-based 5th US Circuit Court of Appeals on August 19 denied the government’s request for a delay.

The 5th Circuit’s decision said the Biden administration must implement the MPP programme in “good faith”, which leaves the government some discretion in how to move forward.

The 5th Circuit panel included two Trump appointees, Andrew Oldham and Cory Wilson, along with Jennifer Walker Elrod, nominated to the appeals court by Republican President George W Bush.

Democrats and immigration advocates have criticised the MPP, saying the policy subjected migrants, primarily from Central America, to dangerous conditions in Mexican border cities.

Trump’s administration cited a “security and humanitarian crisis” along the US-Mexican border in refusing to allow migrants – seeking asylum because of a fear of persecution in their home countries – to enter the US ahead of hearings before immigration judges.

Reacting to the Supreme Court’s order, the American Civil Liberties Union called on the administration to present a fuller rationale for ending Remain in Mexico that could withstand court scrutiny.

“The government must take all steps available to fully end this illegal program, including by re-terminating it with a fuller explanation. What it must not do is use this decision as cover for abandoning its commitment to restore a fair asylum system,” said Omar Jadwat, director of the ACLU’s immigrant rights project.

Arrests of migrants caught crossing the US southern border have reached 20-year highs in recent months, a development that Republicans blame on Biden’s reversal of MPP and other Trump immigration policies.

Biden’s administration has left in place a separate Trump-era order that lets US border authorities, because of the COVID-19 public health crisis, rapidly expel migrants caught at the border without giving them a chance to seek asylum in the United States.