Court Examines Biden’s Power to End Remain in Mexico Policy

(CNN) — The administration of the president of the United States, Joe Biden, will ask the Supreme Court this Tuesday to allow him to end a border policy of the Trump era known as Remain in Mexico, a case that will test the capacity of the White House to establish an immigration policy.

Under the unprecedented program, launched in 2019, the Department of Homeland Security (DHS) sent certain non-Mexican citizens who entered the United States to Mexico, instead of detaining or releasing them, while its procedures were developed. of immigration.

Critics say this policy is inhumane and exposes asylum seekers with credible claims to dangerous and miserable conditions. Migrants subject to the program, formally known as Migrant Protection Protocols, have had to live in makeshift camps along Mexico’s northern border.

The Remain in Mexico program is separate from the public health authority, known as Title 42, which allows border officials to return migrants found at the border, thus preventing them from applying for asylum, unlike the policy. Stay in Mexico, which still gives migrants that opportunity. (Title 42 is the subject of separate legal challenges; a federal judge on Monday temporarily blocked termination of that authority).

Tuesday’s case and the political fallout over the Biden administration’s effort to eliminate Title 42 next month have once again highlighted the politically precarious situation for the White House and the uphill battles the administration faces in the courts.

While Biden himself promised to end the “Remain in Mexico” program upon taking office, he has been prevented from doing so by federal courts.

Biden’s challenges of immigration policy

The case raises questions not only about immigration law, but also about a president’s control over politics and his diplomatic relations with neighboring countries.

Initially, the Department of Homeland Security issued a memorandum last June to end the program. But after two states, Texas and Missouri, filed a challenge, a district judge struck down the memo and ordered the Remain in Mexico policy reinstated.

The court said the administration had failed to adequately explain its decision-making process in its attempt to terminate the program in violation of the Federal Administrative Procedure Act. Going a step further, the court also interpreted immigration law to require the Department of Homeland Security to return certain non-U.S. citizens to Mexico when it does not have sufficient funds to detain them on U.S. soil, despite the discretion of the Department of Homeland Security. long-standing that allows the authorities to decide who to release or detain.

The Department of Homeland Security tried again last fall, issuing a new memorandum which offers a fuller explanation of its decision to end the program, but an appeals court ultimately upheld the district court’s ruling and refused even to consider the reasoning presented in the new memo, suggesting it had come too late.

“The lower courts in this case adopted unprecedented limitations on the ability of federal agencies to change policy and issue new decisions in response to adverse court rulings,” Andrew J. Pincus, an attorney with Mayer Brown LLP, said in an interview.

“If upheld by the court, they would drastically restrict agency decision-making across the government,” he added.

What is Title 42 and how does it affect migrants to enter the US? 3:43

This is the situation of migrants under the Remain in Mexico policy

As of April 17, more than 2,300 migrants have been sent back to Mexico under the Remain in Mexico policy since it was renewed late last year, according to the International Organization for Migration.

Attorney General Elizabeth Prelogar told judges in court papers that lower courts had relied on “new and erroneous interpretations” of federal law to force DHS to maintain a program that the administration has “twice determined to be contrary to the interests of the United States”

And he pointed out that not even the Trump administration had interpreted immigration law to determine that the government should be able to detain most people who arrive at its borders.

“As interpreted by the appeals court, every presidential administration, including the one that adopted the Migrant Protection Protocols (MPP), has been in continuous and systematic violation” of immigration law, he wrote. “The Executive has long exercised its discretion to choose how best to allocate limited resources by prioritizing which noncitizens to leave in custody and which to remove, what procedures to use to seek removal, and whom to detain during the removal process.” .

Prelogar said the law offers the government alternative options for processing applicants, noting that some may be admitted “on conditional admission” and others may be placed in expedited removal proceedings. He noted that in fiscal year 2021, DHS processed more than 671,000 migrants under traditional immigration protocols, an average of more than 55,000 a month.

He also argued that the lower court’s opinion would have “dramatic implications in foreign relations” because it forces the executive branch to send people from third countries to Mexico, the territory of a foreign sovereign.

Texas Attorney General Ken Paxton, along with Missouri Attorney General Eric S. Schmitt, urged the Supreme Court to uphold lower court opinions. He said the Trump administration launched the program because “tens of thousands of aliens illegally enter the nation’s southern border every month.”

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