U.S. Supreme Court Requires Biden Administration To Reinstate Trump’s 'Remain in Mexico' Policy

The court's conservative majority agreed with a federal judge in Texas that the administration did not do enough to explain the policy change. The three liberal justices dissented.

By Carolina Cuellar and Dan Katz, Texas Public Radio

The U.S. Supreme Court on Tuesday refused to block a federal court ruling to reinstate the controversial Trump-era Migrant Protection Protocols (MPP) that required asylum seekers to wait in dangerous conditions in Mexico for their day in court.

The high court's 6-3 decision centered on whether the Biden administration took the proper procedural steps in unwinding the policy and explaining why it did so.

The court's conservative majority agreed with a federal judge in Texas that the administration did not do enough to explain the policy change. The three liberal justices dissented.

U.S. District Judge Matthew Kacsmaryk, a Trump appointee, had ordered the Biden administration to revive MPP after denying an appeal in a lawsuit brought by Texas and Missouri to bring the program back. The two Republican-led states claimed the Democratic president's roll back of the program led to an influx of migration to the border.

The Biden administration — which has attempted to reverse many of Trump's hard-line immigration policies — argued that reinstating the program "would result in irreparable harm." 

The three liberal Supreme Court justices in their dissent said they would have blocked the lower court ruling. 

“We know that MPP is an unlawful interpretation of asylum law,” said Ruby Powers, an immigration attorney and part of the American Immigration Lawyers Association. “It just seems like we're playing the same game that happened under the Trump administration with back to back litigation.”

Former President Donald Trump originally issued the policy in 2019 to deter immigrants — mostly from Central America — from coming to the U.S.-Mexico border to seek asylum. 

Immigration courts were moved to tents along the Texas-Mexico border and were made difficult to access, which made immigrant rights activists question whether people were receiving fair trials.

Around 70,000 people fell under MPP. Many had no connections in Mexico and were forced to live on the street or in overcrowded shelters. The organization  said it has counted at least 1,544 public reports of murder, rape, and other attacks committed against people who fell under MPP.

The Mexican state of Tamaulipas, which borders much of South Texas, is on the State Department's “Do Not Travel” list alongside countries like Afghanistan and Syria because murder, carjackings, extortion and sexual assault are so common.

“Making people wait at the mercy of the elements outside of the United States while they're waiting for their asylum claim to be adjudicated is just inhumane,” Powers said.

The Department of Homeland Security tweeted that it would continue to challenge the district court order but would begin re-implementation of the MPP policy.

“Alongside interagency partners, DHS has begun to engage with the Government of Mexico in diplomatic discussions surrounding the Migrant Protection Protocols (MPP),” the agency tweeted.

Meanwhile, the Biden administration has continued implementing Title 42, a seldom used public health order enacted by the Trump administration to quickly expel asylum seekers arriving at the border under the pretext of stoping the spread of COVID-19. Title 42 has also grown waiting on the Mexican side of the border to seek asylum in the United States.