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Border & Immigration

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

FILE PHOTO: A migrant boy, an asylum seeker sent back to Mexico from the U.S. under the "Remain in Mexico" program officially named Migrant Protection Protocols (MPP), is seen near two members of the Mexican National Guard at a provisional campsite near th
Daniel Becerril/REUTERS
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A migrant boy, an asylum seeker sent back to Mexico from the U.S. under the "Remain in Mexico" program officially named Migrant Protection Protocols (MPP), is seen near two members of the Mexican National Guard at a provisional campsite near the Rio Bravo in Matamoros, Mexico February 27, 2020. Picture taken February 27, 2020.

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.

While the court's decision forces the administration to begin reinstating MPP there are still ways to permanently end the program, according to Omar Jadwat, director of the ACLU Immigrant's Right's Project.

“This is not, by any means, a ruling that says that we're at the end of the line and MPP needs to continue,” said Jadwat.

He said the court's response gave insight into why the original appeal faltered which the Biden administration can use in future hearings to make a stronger case against MPP.

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 among other infrastructural changes. These structures and systems no longer exist. The Biden administration will have to rebuild from scratch and certain hurdles–such as Mexico refusing to participate–could stop the program's implementation.

“There are roadblocks in it that could permanently halt it," said Jadwat.

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 Human Rights First 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 stopping the spread of COVID-19. Title 42 has also grown the number of people waiting on the Mexican side of the border to seek asylum in the United States.

“It is a real black mark on our record that we ever did this at all and deeply disappointing that we are on any kind of track to begin it in any way again,” said Jadwat.

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