Supreme Court rejects Biden administration request to stay ‘remain in Mexico’ policy
MarkThomas / Pixabay
Supreme Court rejects Biden administration request to stay ‘remain in Mexico’ policy

The US Supreme Court dealt a blow to the Biden administration Tuesday night when it refused to grant a stay of a lower court order requiring the administration reinstate a Trump-era immigration policy.

The Migrant Protection Protocols (MPP), informally referred to as the “remain in Mexico” policy, requires that asylum seekers to the US remain in Mexico while they await a hearing in a US immigration court. The policy was announced by the Trump administration in 2018 and was implemented following an order of the Supreme Court in March 2020. When Biden took office, he announced the suspension of the MPP, followed by a memorandum from the Department of Homeland Security (DHS) permanently ending the MPP.

Texas and Missouri sued the government in federal district court, challenging the termination of the program. The district court found that the government had acted in an arbitrary and capricious manner in rescinding the MPP, violating the Administrative Procedure Act (APA). Last week the US Court of Appeals for the Fifth Circuit upheld the lower court’s ruling, forcing the Biden administration to seek an emergency stay with the Supreme Court.

The court denied the administration’s application for a stay, finding that the administration was unlikely to succeed on its claim that DHS’s memorandum rescinding the MPP was neither arbitrary nor capricious. The brief unsigned order cited Department of Homeland Security v. Regents of the University of California in support of the decision. That case involved the Trump administration’s attempt to end the Deferred Action for Childhood Arrivals (DACA) program. That decision found that the Trump administration had violated the APA by not properly explaining the decision to end the DACA program.

The three liberal justices, Stephen Breyer, Sonia Sotomayor and Elena Kagen, indicated that they would have granted the government’s request for a stay, but none of them wrote a formal dissent to the order. The US will now need to negotiate the implementation of this policy with Mexico while the full appeal of the district court’s ruling is still pending.