US Supreme Court agrees to hear ‘Remain in Mexico’ policy case News
© WikiMedia (Joe Ravi)
US Supreme Court agrees to hear ‘Remain in Mexico’ policy case

The US Supreme Court agreed Friday to hear oral arguments in Biden v. Texas. The Biden administration seeks a declaration that it may cease enforcement of the “Remain in Mexico” immigration policy first implemented by former President Trump.

Under the policy, formerly called the Migrant Protection Protocols (MPP), certain noncitizens must return to Mexico to await a decision on their immigration proceedings. Rights groups like the ALCU have criticized the policy, calling it a “a humanitarian catastrophe.” Other critics say the practice amounts to “refoulement” in violation of Article 33 of the 1951 UN Convention Relating to the Status of Refugees. A government practices refoulement when it returns refugees to territories where they may be in danger.

Biden’s Department of Homeland Security (DHS) attempted to terminate the program in June 2021 and October 2021. After a series of decision against the government, the US Court of Appeals for the Fifth Circuit affirmed on December 14, 2021 that the Biden administration must reinstate the policy. The administration filed a petition for a writ of certiorari in the Supreme Court on December 29, 2021.

The case before the Supreme Court hinges on two main issues. First, the Trump administration relied on 8 USC § 1225(b)(2)(C) to institute the MPP. The section allows the government to return a noncitizen arriving “from a foreign territory contiguous to the United States” to that territory pending an immigration proceeding. According to the Fifth Circuit, that same provision “requires DHS to continue using MPP.” The Biden administration seeks the Supreme Court’s word on whether 8 USC § 1225 in fact necessitates MPP.

Second, the Biden administration asks the Supreme Court to decide “[w]hether the court of appeals erred by concluding that the Secretary’s new decision terminating MPP had no legal effect.” The administration accuses the Fifth Circuit of ignoring “hornbook principles of administrative law” to reach its decision.

The government must file a brief on the merits on or before March 14, 2022. Respondent must file their brief on April 7, 2022. The case is set for oral argument during the second week of April.