DemDaily: Remain in Mexico: SCOTUS Upholds “Extreme and Irreversible Harm”

August 26, 2021

Protection for immigrants took another blow Tuesday with the Supreme Court of the United States (SCOTUS) refusal to stay a federal court ruling striking down the Biden administration's attempt to end the Trump-era "Remain in Mexico" Asylum Policy.

The policy, formally called the Migrant Protection Protocols (MPP), applies to people who left a third country and traveled through Mexico to reach the US border.

The Migrant Protection Protocols (MPP) is "a US Government action whereby certain foreign individuals entering or seeking admission to the US from Mexico - illegally or without proper documentation - may be returned to Mexico and wait outside of the US for the duration of their immigration proceedings."

The program, implemented January 25, 2019 by President Donald Trump's US Department of Homeland Security (DHS), was touted by then-DHS Secretary Kirstjen Nielsen as "an unprecedented action" that would "allow more resources to be dedicated to individuals who legitimately qualify for asylum."

A makeshift camp for migrants in Tijuana, Mexico near the US border (Emilio Espejel/AP)

Since the policy was enacted, more than 70,000 Latin American migrant families and children have been swept up in the MPP program, waiting for immigration hearings in unsanitary tent encampments, while subject to kidnapping, sexual assault, torture, abuse, lack of basic necessities and other dangers in Mexican border cities.

On the US side, Homeland Security had set up border MPP "Tent Courts" to allegedly adjudicate cases, but which were closed to attorneys, witnesses, the media and the public.

On his first day in office, January 20, 2021, President Joe Biden suspended the MPP program and began a phased process for unwinding Trump's hardline immigration policies. The MPP or "Remain in Mexico" policy was officially terminated in June 2021.

"As President Biden has made clear, the U.S. government is committed to rebuilding a safe, orderly, and humane immigration system." - Secretary of Homeland Security Alejandro Mayorkas. February 11, 2021

The Republican-led states of Texas and Missouri sued in April, arguing that the Biden administration's decision to terminate the policy violated federal immigration law and procedures. They also contended that, without the policy, large numbers of migrants can enter the United States based on dubious asylum claims, imposing costs on the states.


Texas US District Judge Matthew Kacsmaryk, who was appointed to the federal bench by former President Trump, agreed with the states and ordered the administration to reinstate the policy by August 21st. The US Court of Appeals for the 5th Circuit concurred.

The Biden administration appealed to the Supreme Court last Friday, arguing that the district court's order requiring the government to reinstate the policy immediately would interfere with US-Mexico relations and "threaten chaos at the border."

In an unsigned order on Tuesday, SCOTUS, now controlled by a 6 to 3 conservative majority, refused to stay the ruling, saying said that the administration had appeared to act arbitrarily and capriciously in rescinding the program.

Although the decision was unsigned, the court's three liberal members, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, said they would have granted a stay of the trial judge's ruling.

The order cited the court's 2020 ruling in Department of Homeland Security v. Regents of the University of California, which rejected the Trump administration's efforts to terminate the Deferred Action for Childhood Arrivals program, an Obama-era policy that protected immigrants known as "dreamers" who were brought as children to the US without authorization. In Regents, the court held that the Trump administration had not properly explained its decision to end DACA.

Since SCOTUS' 2020 DACA decision, a Texas judge ruled in July, 2021 that DACA was illegal and blocked further applications (read more)

This is not the first time SCOTUS has reviewed the MPP program, however. In response to an emergency application from the Trump administration last year, the court stayed a federal appeals court ruling which blocked it.

The justices also agreed to hear the Trump administration's formal appeal to the Ninth Circuit's decision blocking the law, which had ruled MPP was at odds with federal law and international treaties and was causing "extreme and irreversible harm."

The Supreme Court later dismissed the case in June in response to a request from the Biden administration.

In this case, Biden acting Solicitor General Brian Fletcher pointed to the court's precedent of staying "broad lower-court injunctions against executive branch policies addressing matters of immigration, foreign policy and migration management," arguing that the Biden administration should receive the same deference the courts had afforded the Trump administration.

SCOTUS' decision means that, as of 12:01am yesterday, the Biden administration had to resume enforcing the MPP policy while litigation continues in the lower courts.

"The Department of Homeland Security respectfully disagrees with the district court's decision and regrets that the Supreme Court declined to issue a stay. DHS has appealed the district court's order and will continue to vigorously challenge it.  As the appeal process continues, however, DHS will comply with the order in good faith." - Biden Administration statement

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Kimberly Scott

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Sources: New York Times, Human Rights Watch, SCOTUSBlog, American Immigration Lawyers Association, Reuters

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