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With 'Remain in Mexico' order, Supreme Court challenges Biden on immigration

Lizeth Morales, left, of Honduras, and her son, Alex Cortillo, right, get a hug from Erika Valladares Ponce, center, as they wait to cross into the United States to begin the asylum process Monday, July 5, 2021, in Tijuana, Mexico.(AP Photo/Gregory Bull)
Lizeth Morales, left, of Honduras, and her son, Alex Cortillo, right, get a hug from Erika Valladares Ponce, center, as they wait to cross into the United States to begin the asylum process Monday, July 5, 2021, in Tijuana, Mexico.(AP Photo/Gregory Bull)
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The Supreme Court dealt a blow to President Joe Biden’s efforts to unravel the Trump administration’s immigration policies Tuesday, refusing to block a lower court order to reinstate the Migrant Protection Protocols program, which requires migrants to remain in Mexico while their court cases are pending in the United States.

The high court denied a Department of Justice request to temporarily stay the district court’s finding that the decision to end the “remain in Mexico” policy violated the Administrative Procedure Act. A brief unsigned order stated the Biden administration was unlikely to succeed in proving the policy change was not “arbitrary and capricious.”

The Supreme Court’s three liberal justices indicated they would have granted the stay. The Department of Homeland Security is now obligated to take steps toward reviving the program, which had been mostly dormant since the start of the COVID-19 pandemic last year but was formally terminated in June.

“The Department of Homeland Security respectfully disagrees with the district court’s decision and regrets that the Supreme Court declined to issue a stay,” the department said in a statement. “DHS has appealed the district court’s order and will continue to vigorously challenge it.”

In the meantime, DHS said it intended to “comply with the order in good faith” and had begun diplomatic talks with the Mexican government regarding MPP. The statement also noted single adult migrants and some families continue to be expelled from the U.S. under Title 42 public health authority.

Under MPP, more than 71,000 migrants who traveled through Mexico from third countries were ejected from the U.S. to dangerous border cities while immigration judges considered their cases. Former President Trump asserted the policy helped reduce illegal immigration, but human rights groups complained asylum-seekers subjected to forced return to Mexico were left in unsanitary conditions and frequently became targets of violence and kidnappings.

In a June memo rescinding the policy, Homeland Security Secretary Alejandro Mayorkas concluded MPP did not consistently reduce border crossings and created “extensive” operational burdens that detracted from the department’s mission. He stated the program was no longer “a necessary or viable tool,” and the administration planned to implement long-term reforms to the asylum system in its place.

Texas and Missouri sued Biden for terminating the program, arguing that the decision violated immigration and administrative law and that the influx of migrants imposed significant costs on the states. U.S. District Judge Matthew Kacsmaryk agreed, ordering DHS to reinstate the program, and the Supreme Court concluded the DOJ was unlikely to succeed in appealing that order.

“This is a huge win for border security and the rule of law and highlights our efforts to continually fight back on federal government overreach,” Missouri Attorney General Eric Schmitt said in a statement.

The DOJ had questioned Kacsmaryk’s interpretation of immigration law, in which he asserted that the federal government’s only options for dealing with asylum-seekers were mandatory detention or returning them to another country. It also accused him of effectively dictating foreign policy by reviving a program that requires sensitive negotiations with Mexico.

The states insisted Mayorkas failed to consider the benefits of the program or provide a sufficient rationale for ending it. In rejecting the stay, the Supreme Court cited its 2020 order blocking the Trump administration’s attempt to halt the Deferred Action for Childhood Arrivals program because it had not properly explained it.

“The legal issue seems to be, as it was with Trump trying to end DACA, a combination of both questions: first, what is the basis for the Biden administration ending the policy, and second, is that basis justifiable?” said Marisa Cianciarulo, an immigration law expert at Chapman University’s Fowler School of Law.

Tuesday’s order did not definitively resolve either of those questions, and litigation will continue in the Fifth Circuit Court of Appeals. Even if Kacsmaryk’s ruling is upheld, experts say Mayorkas could potentially take another swing at providing a reason for ending the program that judges would not deem “arbitrary and capricious.”

“This could and should be cured by the Biden administration giving a more robust explanation of their reasoning and factors considered in ending MPP,” said Lindsay Harris, director of the Immigration and Human Rights Clinic at the University of the District of Columbia.

Biden campaigned on a promise to rescind MPP and other Trump immigration directives, but the administration has struggled to implement new policies as the number of migrants detained at the border spiked to a 21-year high. He has also encountered repeated legal challenges from Texas and other states amid public disapproval of his handling of the border.

Proponents of Trump’s immigration policies celebrated the Supreme Court decision as a rebuke of Biden’s approach to the issue, which they maintain has driven the massive surge in border crossings. They accused the White House of flaunting its duty to uphold and enforce immigration laws, fostering threats to national security and public health in the process.

“The Biden administration has treated the immigration laws of the United States as, at best, suggestions for how it should deal with immigration enforcement in the United States,” Andrew Arthur, resident fellow on law and policy at the Center for Immigration Studies, said Tuesday. “Tonight’s Supreme Court order is proof that laws have meaning.”

Republican lawmakers said reinstating MPP would correct a grave policy error by the Biden administration and place greater responsibility on Mexico to help manage the crisis. Rep. Daniel Meuser, R-Penn., also suggested Central Americans would be less likely to pay smugglers to ferry them north if they know they must wait on the Mexican side of the border when they arrive.

“It gives a disincentive for people to make that trip,” Meuser said.

Immigrant advocates alleged it was federal judges who are overstepping their authority, dictating immigration policy and foreign policy to the White House. They urged President Biden to continue fighting to end MPP and to adhere to his campaign promises of creating a fairer, more humane immigration system.

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

Ursula Ojeda, a policy adviser for the Women’s Refugee Commission, called the Supreme Court decision “profoundly disappointing and heartbreaking,” asserting that MPP placed asylum-seekers in danger. She called on Biden to permanently halt the program and for Mexico to reject U.S. efforts to resume it.

“Last night’s decision puts asylum-seeking families and children at immediate risk of needless cruelty and harm, including detention, family separation, and prolonged forced stays in Mexican border towns that expose migrants to cartels and other dangers,” Ojeda said.

It is not yet clear what the immediate practical impact of this ruling will be. The U.S. is already ejecting as many single adults and families as Mexico will accept under Title 42, and that rule has precluded most migrants detained at the border from pursuing asylum claims at all. Although there was talk of suspending Title 42 earlier this summer, the spread of the delta variant of COVID-19 has revived public health concerns.

“As with initial implementation of the program, the reimplementation is predicated on concurrence from the Government of Mexico and the reestablishment of appropriate infrastructure, processes and related systems and capabilities,” a State Department official wrote in an email to asylum officers obtained by BuzzFeed News.

Roberto Velasco Alvarez, the Mexican official in charge of North American foreign policy, said the two countries would negotiate a resolution “based on respect for sovereignty and human rights,” which suggested there could be some resistance to the U.S. sending large numbers of migrant families back across the border with nowhere to go.

“MPP itself requires a high level of buy-in and coordination from the Mexican government, which the court is now trying to force the Biden administration to engage in,” Harris said, adding that it is not certain what the courts will consider a “good faith” effort to revive the program.

This is the latest in a series of legal defeats for the Biden administration on the immigration front, as rolling back Trump’s restrictive agenda proves more difficult than it may have sounded on the campaign trail. Last week, another Texas judge blocked a change in enforcement priorities DHS issued soon after Biden took office that directed Immigration and Customs Enforcement to focus on arresting undocumented immigrants deemed to pose a public safety or national security risk.

Trump critics were quick to note the judges who rejected Biden’s immigration policies, as well as three of the Supreme Court justices who denied the stay Tuesday, were appointed by Trump. The former president has often bragged about the lasting impact on the federal judiciary of the 234 judicial nominees he got confirmed during his four years in office.

Legal experts typically caution against presuming a judge will rule a certain way based on the president who nominated them. However, some fear persistent clashes between a conservative Supreme Court and a Democratic White House could undermine public perceptions of the independence and impartiality of the judiciary.

“I believe we’re seeing more ideology-based decisions, rather than strictly legal ones, from the Supreme Court than ever before,” Cianciarulo said. “The danger, of course, is that the public begins to see the court as yet another political wing of the government, causing further erosion of confidence in democratic processes.”

Trump frequently encountered legal challenges, as well, and courts also blocked some of his policies for violations of the Administrative Procedure Act. While the Supreme Court halted his repeal of DACA on similar grounds, it allowed many other controversial immigration orders to stand, citing the expansive authority of the executive branch.

Steve Vladeck, a law professor at the University of Texas, observed the Supreme Court granted 28 emergency stays for the Trump administration, including 11 that blocked lower court injunctions of immigration policies. The rejection of Biden’s first request for such a stay could represent an ominous sign for the White House.

“The 6-3 conservative majority has now made clear that the last four years of solicitude towards the President never happened, and that they will refuse to grant Biden the same kind of leeway that they routinely granted Trump,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, on Twitter.

Those who are eager to see President Biden fulfill his commitments to reform the immigration system see the recent rulings as setbacks that could discourage the administration from pursuing more aggressive changes.

“The administration is already worried about backlash and criticism from the anti-immigrant conservatives, and they are now going to be worried about the courts interfering with their executive power over immigration,” Harris said.

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According to Stephen Yale-Loehr, a professor of immigration law practice at Cornell University, the success of Texas and Missouri in salvaging MPP will likely inspire more Republican attorneys general to object to future policy initiatives. Even if the courts do begin to show greater deference to Biden, those legal hurdles could significantly hamper his immigration agenda.

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“The Supreme Court’s decision will embolden states like Texas to continue to challenge the Biden administration’s immigration policies in court,” Yale-Loehr said. “Even if the administration eventually wins on the merits, such challenges will slow down the process of making immigration policy changes.”

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