The Supreme Court is considering the case to end the “Stay in Mexico” rule for asylum seekers

On Tuesday, the Supreme Court will hear oral arguments in a case that can determine whether the Biden administration can terminate the so-called “Stay in Mexico” policya rule first implemented under former President Donald Trump that requires migrants arriving at the southern border to wait outside the United States for their asylum hearings.

At the heart of the case, known as Biden v. Texas, is the decision last year by President Bidens appointed to suspend and eventually end the policy used by the Trump administration to demand that 70,000 Latin American migrants wait outside the United States while their asylum requests were reviewed.

Formally known as the Migrant Protection Protocols, the Trump administration reduced the rule at the beginning of the COVID-19 pandemic, and Mr. Biden ended it when he took office. In August 2021, Republican officials in Texas convinced a federal judge that order U.S. border officials will reinstate the program.

In his decision, which was later upheld by a federal appeals court, U.S. Judge Matthew Kacsmaryk, a Trump nominee, said the administration did not adequately justify Remain in Mexico’s dismissal and that the termination of the policy led to officials violating a 1996 law. requiring detention of certain migrants.

Since December, the Biden administration has implemented border policy, albeit in a limited way. But it continues to claim that it has the authority to end the program once and for all and condemns its “unjustified human cost” to asylum seekers.

Justice Department lawyers who asked the Supreme Court to intervene in the case on an expedited basis are expected on Tuesday to argue that the executive has broad authority to repeal policies adopted by previous administrations.

In a briefing to the court, Justice Department attorneys said the lower court’s conclusions would mean that any U.S. administration has been “in open and systemic violation” of the 1996 Migrant Detention Act, as only Trump implemented Remain in Mexico policy, and only in early 2019.

The Biden administration has also said that it is logistically impossible to detain all migrants who reach the border between the United States and Mexico, as Congress has only allocated funds for about 34,000 immigration prison beds.

However, Texas state attorneys have argued that U.S. border officials are generally required to either detain or return migrants to Mexico. If the United States cannot detain migrants due to capacity constraints, Texas has argued that it should return them to Mexico so they can wait there as long as their asylum cases last.

“Petitioners would prefer not to choose between the options provided to Congress – namely, to detain, individually release or return incarcerated aliens. Instead, they seek the power to release classes of aliens en masse,” Texas told the Supreme Court. in an application on April 7th.

The specific questions the Supreme Court must consider are whether to overturn the 5th Circuit Court of Appeals’ conclusion that officials must enforce Remain in Mexico to comply with the 1996 Migration Detention Act, and whether the Court of Appeals should have considered the Biden administration’s second attempt to end the policy.

In its decision in December, upholding the original ruling against Remain in Mexico’s dismissal, the 5th District rejected the argument that another notice of dismissal from Department of Homeland Security (DHS) Secretary Alejandro Mayorkas remedied the alleged legal deficiencies in his first notice of termination.

“DHS claims the power to implement a massive political turnaround – affecting billions of dollars and countless people – simply by writing a new Word document and posting it on the Internet,” the court said in its scathing statement.

Since the reintroduction of the rule in December, the Biden administration has enrolled 3,012 migrants in the Remain in Mexico program, most of them asylum seekers from Cuba, Nicaragua and Venezuela, DHS data show. During that period, U.S. officials along the southern border have treated migrants over 700,000 times.

While Mr. Biden has been trying to end the rules for Remain in Mexico, his administration kept another border policy from the Trump era, known as Title 42, which has allowed U.S. officials to expel migrants quickly without screening them for asylum because of the pandemic. Title 42 expires at the end of May.

The Trump administration’s implementation of Remain in Mexico provoked strong criticism from advocates of migrants, who said the rule left asylum seekers at the mercy of criminal groups in dangerous Mexican border towns. Human Rights First, a U.S. group, reported hundreds of cases of migrants being kidnapped, assaulted or otherwise injured after their return to Mexico.

Lawyers also said the program trampled on the fair trial of asylum seekers. Fewer than 800 migrants enrolled in the Remain in Mexico protocols were granted U.S. refuge, while tens of thousands lost their cases or were ordered deported due to missing court dates, an analysis of government data from Syracuse University’s TRAC project shows.

But officials in the Trump administration said the program effectively reduced border arrivals by preventing migrants fleeing economic hardship from using the asylum system to live and work in the United States indefinitely.

The Biden administration made significant changes to its iteration of the Remain in Mexico program, including by requiring U.S. border officials to ask migrants if they fear being harmed in Mexico before being sent there.

The administration has also offered COVID-19 vaccines to potential enrollees and expanded the categories of asylum seekers considered too vulnerable to be returned to Mexico, including the elderly, people with medical conditions and members of the LGBTQ community.

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