The Supreme Court on Thursday gave President Joe Biden the green light to end the controversial “Remain in Mexico” immigration policy that originated under the Trump administration.
Since the beginning of his administration, Biden has tried to wind down the policy, which sends certain non-Mexican citizens who entered the US back to Mexico — instead of detaining them or releasing them into the United States — while their immigration proceedings played out.
The ruling was 5-4, and states that immigration law gives the federal government the discretion to end the program, formally known as Migrant Protection Protocols.
Writing for the majority, Chief Justice John Roberts said that “Congress conferred contiguous-territory return authority in expressly discretionary terms.”
The Supreme Court’s decision is a major victory for the Biden immigration agenda as the administration has suffered several losses in lower courts in its efforts to reverse Trump’s hardline immigration policies. Several of the red states that challenged the termination of Migrant Protection Protocols have also brought lawsuits challenging other attempts by Biden to pivot away from his predecessor’s aggressive approach and those cases are still working their way through lower courts.
Roberts was joined by the liberal justices and Justice Brett Kavanaugh, with Kavanaugh also filing a concurring opinion. Justices Samuel Alito and Amy Coney Barrett wrote dissenting opinions, joined by the other dissenters.
With its ruling, the court said that lower courts must now consider whether the government complied with administrative law with the more recent attempt that the Biden administration made — with a memo rolled out in October — to end the Trump-era policy.
Biden’s bid to terminate the program had been challenged in court by a coalition of red states led by Texas that argued that ending it ran afoul of immigration law. They also argued that administration violated the Administrative Procedure Act — which requires that agencies take certain procedural steps when implementing policy — in how it went about unwinding Migrant Protection Protocols.
The program, which was first implemented in 2019 under then-President Donald Trump, has been criticized by immigrant-rights advocates, who argue that it’s inhumane and that it exposes asylum seekers with credible claims to dangerous and squalid conditions in Mexico.
Before the Trump administration put the “Remain in Mexico” program in place, no other administration had embraced such an approach toward non-Mexican asylum-seekers that required them to stay in Mexico over the course of their immigration court proceedings in the United States. Biden campaigned on ending the policy and has said it “goes against everything we stand for as a nation of immigrants.”
Biden has grappled with a growing number of border crossings over the course of his administration amid mass migration in the Western hemisphere. Since October, border authorities have encountered migrants more than a million times along the US-Mexico border, though many have been turned away under a separate pandemic-emergency rule. The Department of Homeland Security, though, has maintained that the “Remain in Mexico” policy comes at a steep human cost and is not an effective use of resources.
According to the Biden Justice Department, the relevant immigration law had never before been interpreted as requiring the government to send migrants back to Mexico with pending immigration proceedings that it was unable to hold in detention.
“Every presidential administration has understood this to just be a purely discretionary authority. That goes for the prior administration,” Solicitor General Elizabeth Prelogar said at oral arguments in April.
She also argued that keeping “Remain in Mexico” in force would not solve the essential problem: that Congress has instructed that immigration officials “shall” detain asylum seekers whose proceedings are pending but that lawmakers have failed to appropriate sufficient resources for those detention facilities.
“Contiguous territory return cannot be the solution here,” Prelogar said, while noting that when the Trump administration was carrying out the policy, only 6.5% of the migrants encountered at the border were enrolled in the program.
“It has inherent constraints,” Prelogar said, pointing to the buy-in the program requires of Mexico, a sovereign nation.
Biden first sought to suspend the program on the day he took office in 2021, prompting the red states’ lawsuit. That June, Department of Homeland Security Secretary Alejandro Mayorkas issued a memo formally ending the policy — but a federal judge in Texas blocked that move in August. The Supreme Court days later refused to put that ruling on hold while the appeal played out, effectively requiring Biden to revive “Remain in Mexico.”
In October, Mayorkas issued a new memo ordering the program’s termination, which sought to address the procedural flaws laid out in the district court’s August ruling. A point of contention in the lower court proceedings was whether that October memo made the earlier rulings moot, with the 5th US Circuit Court of Appeals finding that it did not.
The policy restarted last December. More than 5,000 migrants have been returned to Mexico under the program since then, according to the International Organization for Migration. Nicaragua, Cuba, Colombia, and Venezuela are among the nationalities enrolled in the program.
The most sweeping issue in the case was the level of discretion left to the executive branch by immigration statutes in question, which were amended on several occasions over the last century-plus. One provision of the law says that asylum seekers whose claims are still being vetted “shall” be detained pending those proceedings.
Another provision, adopted in 1996, said the federal government “may return” migrants still awaiting their proceedings to the contiguous territory from which they entered. Another provision says that, on a “case by case” basis, immigration officials may release on parole migrants whose proceedings are pending.
The Biden administration’s opponents in the case had argued that the administration had been releasing migrants on parole in a categorical way that went beyond the “case by case” basis outlined in the statute.
“Petitioners would prefer not to choose from the options Congress has provided—namely, to detain, individually parole, or return covered aliens,” Texas said in a brief. “They instead seek the power to release classes of aliens into the United States en masse.”
This story has been updated with additional information.
