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Supreme Court Allows President Biden to End Trump-Era “Remain in Mexico” Policy; Border Agents Fear Illegal Surge When Lifted

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The policy, first implemented by President Donald Trump in 2019, had mandated that migrants seeking entry into the United States could not immediately gain entry into the country; instead, they were forced to wait in Mexico for the date of their hearing. Photo credit: White House Communications Agency. The appearance of U.S. Department of Defense (DoD) visual imagery does not imply or constitute endorsement.

WASHINGTON, D.C. – The Supreme Court on Thursday reversed a lower court’s ruling and decided in a 5-4 vote that President Joe Biden is allowed to end the Trump Administration’s “Remain in Mexico” policy, also known as the Migrant Protection Protocols (MMP).

The policy, first implemented by President Donald Trump in 2019, had mandated that migrants seeking entry into the United States could not immediately gain entry into the country; instead, they were forced to wait in Mexico for the date of their hearing.

Efforts on the part of the Biden Administration to end the policy had been blocked by a lower court after a lawsuit brought about by a coalition of red states led by Texas; it was initially ruled that the Department of Homeland Security’s suspension and eventual termination of the policy had violated federal law.

However, according to Supreme Court Chief Justice John Roberts – who wrote the Court’s opinion on Thursday’s ruling – the Biden Administration did not actually violate the law when they ended the policy.


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“The Government’s rescission of MPP did not violate section 1225 of the INA, and the October 29 Memoranda did constitute final agency action,” Roberts said. “8 U.S.C. Section 1225 plainly confers a discretionary authority to return aliens to Mexico during the pendency of their immigration proceedings. The use of the word ‘may’ in the law in question makes clear that contiguous-territory return is a tool that the (DHS) Secretary has the authority, but not the duty, to use.”

From here, the case will be sent back to the lower courts for additional proceedings; while the block on Biden’s attempt to end the policy currently remains in place, Thursday’s ruling likely means it will be lifted in the very near future.

Roberts was joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh in siding with the Biden Administration; Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett voted against it.

In a dissenting opinion, Justice Alito referred to the “Remain in Mexico” policy as a “clear statutory alternative” and that releasing undocumented migrants into the U.S. while awaiting their hearings is in violation of the law.

“Due to the huge numbers of aliens who attempt to enter illegally from Mexico, DHS does not have the capacity to detain all inadmissible aliens encountered at the border, and no one suggests that DHS must do the impossible,” Alito said. “But rather than avail itself of Congress’s clear statutory alternative to return inadmissible aliens to Mexico while they await proceedings in this country, DHS has concluded that it may forgo that option altogether and instead simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings. This practice violates the clear terms of the law, but the Court looks the other way.”

The Supreme Court ruling in Biden’s favor comes at a time when illegal crossings at the country’s southern border are at an all-time high. In May 2022 alone, U.S. Customs and Border Protection agents experienced 239,416 encounters with migrants attempting to cross the border, with officials expressing fears that those numbers will only continue to increase throughout the summer.


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