Why ending ‘Remain in Mexico’ border policy is a good thing

Keeping the program would have meant unnecessary deaths.

Children play as migrant families live in tents at the Movimiento Juventud 2000 shelter in Tijuana in April.PATRICK T. FALLON/AFP via Getty Images

In a horrific, almost unspeakable tragedy, at least 53 migrants died this week when the tractor trailer in which they were being smuggled into the country was abandoned under the sweltering heat in San Antonio. They had no air conditioning or access to water, and were allegedly found covered with meat seasoning, presumably to mask human odor and avoid detection. They came from Mexico, Guatemala, and Honduras — desperate for a better life. It was among the country’s deadliest migrant episodes on the southern border.

Make no mistake, Trump’s signature hard-line immigration policies at the border helped set the stage for those migrant deaths. Even though President Biden has been at the White House for a year and a half, he has effectively been prevented from setting his own border policy, mainly because Texas, among other states, has challenged those efforts in court.

But on Thursday, the Supreme Court allowed the Biden administration to terminate “Remain in Mexico,” which requires migrants seeking asylum at the southern border to wait in Mexico for a ruling on their claims. The 5-4 decision represents a major victory for Biden. Ending Remain in Mexico was way overdue.

In a month packed with historically awful Supreme Court decisions, the Remain in Mexico opinion feels like a breath of fresh air.

Officially known as the Migrant Protection Protocols, the program was implemented by the Trump administration in early 2019. In the two years the policy remained in effect before the Biden administration attempted to end it last June, more than 70,000 people, mainly from Central and South America, were sent back to Mexico to wait for a court date. It was a major departure from longstanding practice; in general, US law allows asylum seekers to stay in the country while their cases move through the complicated and backlogged immigration court system.

When Biden announced the program’s termination, the states of Missouri and Texas sued, arguing that ending Remain in Mexico violated federal law. The states claimed, among other arguments, that if the program ends, they would incur costs due to the large number of migrants with questionable asylum claims who would be let into the country. Remain in Mexico was reactivated in late 2021 as the case moved through the federal courts.

But the case had always been a long shot. “Texas’s argument was so out there,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council. The Texas solicitor general argued that the Biden administration has to keep the program because under immigration law the government only outlines three outcomes for individuals applying for asylum at the border: It has discretion to temporarily allow them into the country on a case-by-case basis; it can return them to Mexico or Canada if they arrived by land, or it can hold them in a detention center. “After oral argument, it seemed justices were skeptical of Texas’s claim. I’m surprised it got three votes.”

A big theme of the Supreme Court majority opinion, written by Chief Justice John Roberts, was the tremendous implications that the case would have on foreign affairs, since Mexico’s cooperation is needed for the program’s operation. During oral argument, Justice Elena Kagan said that if Biden is not allowed to terminate the program, it would “put the United States essentially at the mercy of Mexico” and give a foreign country “all the leverage in the world to say, well, you want to comply with the court’s order, here are 20 things that you need to do for us.”

Plus, as Roberts wrote in the majority opinion, “[T]he Court has taken care to avoid ‘the danger of unwarranted judicial interference in the conduct of foreign policy.’ . . . That is no less true in the context of immigration law.”

Despite its official name, the Migrant Protection Protocols has not functioned at all as a protection mechanism. On the contrary, the policy put the lives of asylum-seekers at risk by forcing them to wait for months in dangerous border towns in Mexico where many have been kidnapped or raped. It’s one of the reasons why the program has been so insidious: It has further endangered people who were already vulnerable in the first place.

Or worse. Because the southern border is practically closed to asylum seekers, migrants are pushed to take desperate measures, like the migrants who died inside the trailer in San Antonio. Granted, the perilous trip that people embark on to reach North America has always claimed lives. But this year there’s evidence that deaths at the southern border, as well as apprehensions of migrants, are on the rise.

Keeping the program would have meant unnecessary deaths. The Biden administration must see through the program’s termination to restore the right to claim asylum by desperate migrants.