Washington — Thursday’s Supreme Court ruled that the Biden administration could revoke a Trump-era immigration program that would await approval in Mexico for certain asylum seekers arriving at the southwestern border.
Judge John G. Roberts, Jr., expressed a majority in favor of a 5-4 decision, saying that immigration law gave the president the discretion to return immigrants arriving by land to their country of origin. But that discretion is not obligatory, he continued.
An important provision written by the presiding judge used the word “may” rather than “must”. The provision “means what it says:” May “means” May “,” he wrote.
Judge Roberts added that the president would need to be ordered to negotiate with Mexico in order to mandate the dismissal. Judges must not lightly interfere with the president’s ability to carry out foreign policy, he wrote, at a welcomed event by a human rights lawyer.
“It was clearly unpleasant for the Supreme Court to insert itself into diplomatic relations between the United States and foreign countries,” said Robin Bernard, a lawyer at Human Rights First.
This decision was a victory for the Biden administration. The Biden administration has faced several legal issues and a setback in immigration policy. However, the number of people allowed to stay in the country to apply for asylum has little practical impact, as the government has rarely dispatched them to wait for proceedings in Mexico. Urgent public health regulations that have been in place since the beginning of the pandemic have had a far greater impact and have prevented many asylum seekers from staying in the United States to demand protection.
The Supreme Court returned the case to the lower court on the question of whether the administration properly closed the case.
Judge Brett M. Kavanaugh, Judge Stephen G. Breyer, Judge Sonia Sotomayor, and Judge Elena Kagan have joined Judge Roberts’ opinion. Judge Amy Coney Barrett agreed with much of the Supreme Court’s analysis, but said he still questioned whether the lower court had jurisdiction over the case and opposed it.
Judge Samuel A. Arito Jr., with the addition of Judges Clarence Thomas and Neil Gorsuch, opposed. Judge Arito wrote that the Department of Homeland Security would need to use its discretion to return migrants if there were no legal alternatives.
“Rather than taking advantage of Congress’s explicit statutory alternative to return unauthorized aliens to Mexico while waiting for proceedings in this country, the DHS has completely abandoned that option and instead countless in this country. Aliens very likely to be eliminated if a reasonable number of them appear at their removal hearing. This practice violates the clear terms of the law, but the courts take a different view. increase.”
The opposition program, commonly known as the Immigration Protocol, which remains in Mexico, applies to those who have left a third country and traveled to Mexico to reach the border with the United States. After the policy was implemented in early 2019, tens of thousands of people were waiting for immigrant hearings in unsanitary tent camps. Reports of sexual assault, kidnapping and torture are widespread.
Shortly after he took office, President Biden tried to end the program.
Texas and Missouri have filed proceedings, lower courts have revived them, and federal immigration law has arrived by land, requiring the return of immigrants who cannot be detained while the case is being heard. I gave it.
Since the Biden administration resumed its program in December, far fewer immigrants have been registered than in the Trump era, offending many Republicans who have characterized Mr. Biden as vulnerable to border security. Part of the reduction is because the United States has agreed to take additional steps to meet certain demands from Mexico. This includes migrants being sent back under the program only if there are sufficient shelters and access to legal assistance is improved.
Between December and the end of May, the Biden administration enrolled more than 4,300 migrants returned to Mexico, mainly those who could not be expelled under public health regulations. Most of the registrants in recent months are men from Cuba, Nicaragua and Venezuela. If the program is not implemented, more single adults from these countries will be allowed to enter and stay in the United States while the asylum case goes through court.
More than 800,000 immigrants have been released to the country since Mr. Biden took office to wait for immigration, despite staying in Mexico and enforcing urgent public health regulations. This can take years.
From January 2019, when the Trump administration began the program, to the end of 2020, about 70,000 migrants were sent back to Mexico to await a court hearing.
Supreme Court case, Biden vs. Texas, No. 21-954 was very complex and contained three statutory provisions pointing in different directions.
According to one provision, the federal government generally “must detain” immigrants while waiting for immigration proceedings to be considered. But Congress has never allocated enough money to stop the number of affected people.
The second provision states that the government “may return” migrants arriving by land to their country of origin.
The third provision allowed the government to release immigrants to the United States while waiting for a hearing “on a case-by-case basis for urgent humanitarian reasons or for the significant public good.”
Judge Matthew J. Kaxmalic of the Federal District Court for the Northern District of Texas in Amarillo said immigration law in Mexico for non-citizens seeking asylum whenever the federal government lacks the funds to detain them. It was ruled last year that it demanded that it be returned to.
The Biden administration immediately sought intervention from the Supreme Court, but refused to block Judge Kaxmalic’s decision, which required the administration to resume the program. Three more liberal judges objected.
A short unsigned order from the court at the time quoted the 2020 decision that the Trump administration refused to immediately revoke the Obama-era program to protect known young immigrants, as the administration ended the program. As Dreamers, he said he seemed to act arbitrarily and whimsically.
The Biden administration then took steps to resume the program, despite announcing new justifications for ending the program. In response to criticisms of rushing action, government officials issued a 38-page memorandum explaining why.
They concluded that the cost of the program outweighed its benefits. Among these costs are the dangerous situation in Mexico, the difficulties faced by immigrants in consulting with lawyers across borders, and how the program undermined the administration’s foreign policy objectives and domestic policy initiatives. Was included.
A committee of three judges from the Federal Court of Appeals for the Fifth Circuit in New Orleans rejected the government’s plan to close the program.
“The government states that creating and eliminating all the components of the federal bureaucracy that affect countless people, taxes and sovereign states has unreviewable and unilateral discretion.” Judge Andrew S. Oldham wrote on the panel. “The government also says that ignoring the statutory restrictions imposed by Congress has unreviewable and unilateral discretion.”
“And the government says you can do all this by typing in a new” memo “and posting it on the Internet,” he added. “If the government is right, it will replace the rule of law with the rule of law. We think the government is wrong.”
Over the past year, a record number of undocumented immigrants have sought entry into the United States.
However, an emergency public health rule, introduced by the Trump administration at the beginning of the pandemic and known as Title 42, has tens of thousands of asylum seekers turned back by border authorities without the opportunity to express fear of persecution or return. rice field. .. To Mexico. The Biden administration had planned to lift the rule in late May, but a federal judge blocked it.
“Despite this decision from the Supreme Court, Title 42 remains intact, which means that the borders are still closed for those seeking asylum,” said Bernard of Human Rights First. Mr. says.
Of the 70,000 people initially registered by the Trump administration, 27,000 had a pending case when the Biden administration suspended its policy of staying in Mexico. By August 2021, about 13,000 of them had been processed by the United States when the court ordered the program to resume. Thousands were still waiting.
Oscar Chacon, executive director of Advocacy Group’s Alianza Americas, said the ruling allowed the Biden administration to find “a more common-sense and humane approach to asylum at the US-Mexico border.” rice field.
However, he said other administrative policies aimed at achieving that goal were similarly blocked by the courts.
Cardinal Teresa Brown, head of immigration and cross-border policy at the Bipartisan Policy Center, said the only way to delay court intervention in immigration policy would be to leave the White House and set policies by enforcement order. Instead, he said that Congress would pass the law.
“The ultimate responsibility for these issues lies with Congress. Congress has failed to repeatedly cooperate with legislation that could clarify increasingly inconsistent opposition judicial decisions,” said Cardinal Brown. Told.
Congress has not agreed to change immigration law since 1986.