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Supreme Court struggles over Biden’s bid to end ‘Remain in Mexico’ program

Due to the "Remain in Mexico" policy dispute being heard by the highest court in the United States, immigrant rights activists demonstrated in front of the US Supreme Court building. During arguments, justices appeared vexed over President Biden's endeavor to end the Trump-era policy on asylum-seekers.STEFANI REYNOLDS/AFP via Getty Images

WASHINGTON — The Supreme Court appeared frustrated Tuesday during arguments over whether the Biden administration can end a Trump-era immigration program that forces asylum-seekers arriving at the southwestern border to await approval in Mexico.

The challenged program, known commonly as Remain in Mexico and formally as the Migrant Protection Protocols, applies to people who left a third country and traveled through Mexico to reach the US border. After the policy was put in place at the beginning of 2019, tens of thousands of people waited in unsanitary tent encampments for immigration hearings. There have been widespread reports of sexual assault, kidnapping, and torture.


Soon after he took office, President Biden sought to end the program. Texas and Missouri sued, and lower courts have reinstated it, ruling that federal immigration laws require returning immigrants who arrive by land and who cannot be detained while their cases are heard.

Several justices expressed wariness about wading into foreign affairs and suggested that there was no entirely satisfactory answer to the questions posed by the case, largely because the relevant statutory provisions were hard to reconcile.

One provision says that the federal government generally “shall detain” immigrants while they await consideration of their immigration proceedings. But Congress has never allocated enough money to detain the number of people affected.

In 2021, for example, the government processed about 670,000 migrants arriving along the Mexican border but had the capacity to detain about 34,000.

“Congress may want detention,” Chief Justice John Roberts said, “but it hasn’t come up with the money to provide more beds.”

Judd Stone II, the solicitor general of Texas, said that required the federal government to turn to a second statutory provision, which says it “may return” migrants who arrive by land to the country from which they came.

Elizabeth Prelogar, the US solicitor general, responded that the provision was by its terms discretionary — after all, it used the word “may” — and required the consent of the other nation. She added that no administration, including the Trump administration, had interpreted the provision to require returning all immigrants who could not be detained.


Justice Elena Kagan said the second provision was meant to be discretionary because another country was affected.

“Congress, aware that Mexico is a sovereign nation, did not think it appropriate to say, ‘You must ship people back to Mexico,’” she said. “It understood that there was going to have to be discretion and significant foreign policy considerations involved in that choice.”

A third provision allows the government to release migrants into the United States while they await their hearings “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” Prelogar said the government used that provision for tens of thousands of migrants each month.

Justice Samuel Alito questioned whether the government was applying the statutory criteria in more than cursory fashion. Roberts told Prelogar that “there is no limit, as you read the statute, to the number of people you can release into the United States.”

The liberal justices said the court should be wary of, in effect, conducting foreign policy.

“Judges, this is above your pay grade,” Justice Stephen Breyer said. “Stay out of it as much as you can.”

Kagan said federal judges should not be able to order the government to take actions at odds with its diplomatic priorities. “What are we supposed to do?” she asked. “Just drive truckloads of people to Mexico and leave them without negotiating with Mexico?”


Last year, Judge Matthew J. Kacsmaryk of the US District Court for the Northern District of Texas, in Amarillo, ruled that the immigration laws required returning noncitizens seeking asylum to Mexico whenever the government lacked the resources to detain them.

The Biden administration promptly asked the Supreme Court to intervene, but it refused to block Kacsmaryk’s ruling, which required it to restart the program. The three more liberal justices dissented.

The court’s brief unsigned order at the time said that the administration had appeared to have acted arbitrarily and capriciously in rescinding the program, citing a 2020 decision that had refused to let the Trump administration immediately rescind an Obama-era program protecting the young immigrants known as Dreamers.

The Biden administration then took steps to restart the program even as it issued a new decision seeking to end it. Administration officials, responding to criticism that they had acted hastily, released a 38-page memorandum setting out their reasoning.

They concluded that the program’s costs outweighed its benefits. Among those costs, the memo said, were the dangerous conditions in Mexico, the difficulty immigrants faced in conferring with lawyers across the border, and the ways in which the program undermined the administration’s foreign policy objectives and domestic policy initiatives.

A three-judge panel of the US Court of Appeals for the 5th Circuit, in New Orleans, rejected the administration’s plan to shut down the program.