The Supreme Court Tuesday declined the Biden administration’s request to block a lower court order keeping the Trump administration’s “Remain in Mexico” policy for asylum-seekers in place.
The unsigned order stated that the Biden White House failed to show that its decision to end the program, which required asylum claimants to wait in Mexico until their case could be heard in a US immigration court, was not “arbitrary and capricious.”
The order noted that the high court’s so-called “liberal wing” — consisting of Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor — would have granted the administration’s stay request.
US District Judge Matthew Kacsmaryk had issued a nationwide injunction Aug. 13 ordering that the “Remain in Mexico” program — officially known as the Migrant Protection Protocols (MPP) Program — be reinstated effective Aug. 21. The Fifth Circuit Court of Appeals denied the Biden administration’s initial appeal Aug. 19, but Supreme Court Justice Samuel Alito granted a temporary stay the following day so that the full court could consider the matter.
President Joe Biden initially suspended the “Remain in Mexico” policy hours after taking office on Jan. 20. The Republican attorney generals of Texas and Missouri had challenged the suspension in April, warning of a surge of illegal immigration that would result.
On June 1, while the case was pending before Kacsmaryk, Homeland Security Secretary Alejandro Mayorkas formally canceled the policy, stating that keeping it in place was not “consistent with this Administration’s vision and values and would be a poor use of the Department’s resources.”
Mayorkas stated that approximately 68,000 people were affected by the policy, which was implemented in January 2019 by then-Homeland Security Secretary Kirstjen Nielsen.
In his initial ruling, Kacsmaryk, a Trump appointee, stated that the administration had violated the Administrative Procedure Act of 1946, which spells out certain steps federal agencies must take when implementing policy. Specifically, he found that Mayorkas “failed to consider several of the main benefits” of the policy, including that it “reduc[ed] the number of aliens DHS would have to detain by returning certain aliens to Mexico.”
Critics of the program argued that it threw up near-insurmountable obstacles to successful asylum claims by forcing claimants to wait out violent conditions in Mexico, where they had limited access to lawyers and difficulty making it to court.
There was no immediate reaction to the ruling from the White House Tuesday night.