Supreme Court Requires Biden Administration to Revive “Remain in Mexico” Program
FAIR Take: Special Edition | August 2021
The Supreme Court rejected the Biden administration's request to stay a District Court’s order requiring the Department of Homeland Security (DHS) to restart the Migrant Protection Protocols (MPP) policy, commonly known as “Remain in Mexico.” MPP, which was implemented for the first time in 2019 but authorized by statute in 1996, allows U.S. Customs and Border Protection (CBP) to require certain illegal border crossers to wait in Mexico pending their immigration proceedings rather than be detained or released in the United States.
The Biden administration formally rescinded MPP in June after announcing its suspension on Inauguration Day. The suspension and ultimate rescission has caused DHS to release thousands of inadmissible aliens into the interior of the United States since January 2021.
The District Court held that MPP’s termination was arbitrary and capricious because of the agency’s failure thoroughly consider the consequences of eliminating the program, despite warnings from high-ranking officials. The District Court found that DHS failed to provide an adequate basis for its rescission, and did not adequately consider alternatives and the consequences of terminating the program. The court went further to say that DHS’s actions have resulted in a “systemic violation” of federal immigration law (INA § 1225) by forcing officers to continuously release inadmissible aliens into the United States on the basis of resource constraints.
The court order prohibits DHS from terminating the program until the department is both able to fully comply with procedures required by the Administrative Procedures Act (APA) and is able to regain control of the border. DHS may no longer justify releasing inadmissible aliens into the interior, contrary to federal law, on the basis of the border crisis it has fueled by its own actions.
The Biden administration appealed the case to the Supreme Court quickly after the Fifth Circuit Court of Appeals refused to stay the District Court’s order while the administration appealed the decision on the merits. The Supreme Court, with three judges dissenting, determined that the Biden administration "failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious."
The DHS responded that it while it disagrees with the courts’ decisions, it will implement the program “in good faith.” The Department also announced that it has initiated diplomatic discussions with the Government of Mexico to negotiate the program’s resurrection.
The Supreme Court’s ruling is the most recent in a series of judicial losses faced by the Biden administration. Earlier this year, the Supreme Court maintained a preliminary injunction against Biden’s 100-day moratorium on deporting aliens with final orders of removal. Just last week, the U.S. District Court for the Southern District of Texas imposed a preliminary injunction on the Biden administration’s restrictions for U.S. Immigration and Customs Enforcement (ICE) officers that significantly narrowed the categories of aliens that could be subject to arrest or deportation for violating immigration law.