Biden asks Supreme Court to hear case on ‘Remain in Mexico’ policy

The Biden administration on Wednesday asked the Supreme Court to review its case seeking to end the Trump-era “Remain in Mexico” policy.

Earlier this month, three Republican-appointed judges for the U.S. 5th Circuit Court of Appeals rejected the White House’s appeal to allow an end to the Migrant Protection Protocols (MPP), also known as the Remain in Mexico policy, and upheld a lower court’s determination that the Department of Homeland Security’s (DHS) termination of the policy under the Biden administration was improper.

Soon after assuming office, the Biden administration sought to end MPP, but Texas and Missouri sued in an effort to keep the policy in place, calling it a “common sense” approach to asylum law.

Immigration advocates, meanwhile, say that the MPP is in violation of U.S. statute as well as the country’s international obligations to give asylum-seekers a safe place to wait as their applications are processed.

The 5th Circuit’s decision was written by Trump-appointed Judge Andrew Oldham, who said that DHS’s proposed approach to the policy was “as unlawful as it is illogical.”

In its petition to the Supreme Court, the Department of Justice under the Biden administration said that the Supreme Court should review this case as previous decisions against ending MPP were made on “erroneous interpretations” of federal laws — namely the Immigration and Nationality Act and the Administrative Procedure Act.

The Justice Department noted that the 5th Circuit ruled that U.S. code requires DHS to maintain the Remain in Mexico policy. The agency argued that if this is correct, then all other administrations — including the Trump administration — were in violation of federal law since 1997, when the specific section of the code in question went into effect.

The Justice Department further argued that the lower court had erred in its decision that Homeland Security Secretary Alejandro Mayorkas’s decision earlier this year to terminate MPP had no legal effect. The department stated that Mayorkas had done “exactly” what he was supposed to do and the 5th Circuit’s decision “ignored bedrock principles of administrative law.”

“In short, the lower courts have commanded DHS to implement and enforce the short-lived and controversial MPP program in perpetuity. And they have done so despite determinations by the politically accountable Executive Branch that MPP is not the best tool for deterring unlawful migration; that MPP exposes migrants to unacceptable risks; and that MPP detracts from the Executive’s foreign-relations efforts to manage regional migration,” the petition stated.