SCOTUS: Biden administration can end ‘Remain in Mexico’ policy

The Supreme Court ruled the Biden administration had the right to no longer enforce Migrant Protection Protocols, also known as the “Remain in Mexico” policy. The ruling states the White House did not violate federal immigration law with its decision.

The 5-4 decision in Biden v. Texas means the Department of Homeland Security is no longer required to follow the Trump-era policy of sending asylum seekers back to Mexico to wait for their hearing. The majority opinion was written by Chief Justice John Roberts.

Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Amy Coney Barrett dissented.

In the opinion, the Chief Justice said the “the Government’s rescission of MPP did not violate” the Immigration and Nationality act, and the Biden Administration’s action “did constitute final agency action.”

Secretary of Homeland Security Alejandro Mayorkas terminated MPP on June 1, 2021, but a district court remanded the matter back to the agency. The court determined terminating the policy violates federal law because DHS did not have enough capacity to house migrants while they wait for their immigration hearings and that Secretary Mayorkas did not properly explain his decision to terminate. 

The federal law at play was 8 U.S. code 1225 which requires the government to detain aliens making a claim for asylum until their hearing is complete. 

Secretary Mayorkas released a second memorandum in October 2021 that provided a much more detailed explanation as to why he was terminating MPP, but the court said it had no legal effect. 

One of the main issues in the case was the use of two words in the law: “may” and “shall”. 

Attorneys for President Biden argued that a portion of 8 U.S. Code 1225 states the government “may return” immigrants to contiguous countries, meaning they are not obligated to do so. Lawyers representing the state of Texas pointed to a clause that states immigrants “shall be detained”. 

President Biden’s legal team argued that when the government lacks the capacity to detain all the immigrants seeking asylum, it has the discretion to parole certain immigrants on a case-by-case basis. The administration said this practice allows DHS to release immigrants who are not a security threat nor flight risk and save the bed space for higher priority migrants.