Biden administration asks Supreme Court to intervene in Remain-in-Mexico legal battle

The Justice Ministry on Wednesday asked the Supreme Court to intervene in a trial this has forced U.S. border officials to resuscitate a Trump administration program that forces migrants to wait in Mexico for their asylum hearings.

Citing “flawed” lower court rulings that mandated the revival of border policy, government lawyers representing the Biden administration said the case should be swiftly reconsidered by the Supreme Court, urging the conservative-leaning high court to hold oral argument in April.

At the center of the Justice Department’s request are two lower court rulings against the Biden administration’s attempts to end the so-called Remain-in-Mexico policy, officially called the Migrant Protection Protocols, or MPP.

In August, Republican officials in Texas and Missouri convinced a federal judge to order the Department of Homeland Security to reinstate the Remain-in-Mexico protocols, which were suspended hours after President Biden took office in January.

US Judge Matthew Kacsmaryk, appointed by former President Donald Trump, ruled that Homeland Security Secretary Alejandro Mayorkas did not sufficiently explain the end of the policy. He also found that the termination led the United States to violate a law that governs the detention of certain migrants.

The Biden administration quickly appealed the decision, and in late October Mayorkas released a new, more comprehensive notice of termination, arguing that the “unjustifiable human costs” of the policy on asylum seekers stranded in dangerous Mexican border towns outweighed its role in deterring migrants from traveling to the United States

But the Fifth Circuit Court of Appeals earlier this month rejected the Biden administration’s appeal and upheld Kacsmaryk’s decision. In a scathing opinion, a panel of Republican-appointed judges declined to consider Mayorkas’ second sack attempt, dismissing the administration’s argument that the new memo rendered the case moot.

To comply with court orders, the Biden administration re-launched a version of the Remain-in-Mexico rules in El Paso, Texas, earlier this month. U.S. authorities have so far returned 200 adult asylum seekers to Mexico as part of the relaunched program, according to the International Organization for Migration, which treats migrants.

Justice Department attorneys said on Wednesday lower court rulings, if upheld, would force the administration to continue the retention policy in Mexico until the Mexican government ceases to cooperate or Congress allocates enough funds to detain most migrants who reach the US border. .

In short, the lower courts ordered DHS to implement and enforce the short-lived and controversial MPP program in perpetuity, ”government lawyers wrote.

The Biden administration has asked the Supreme Court to review the Fifth Circuit’s interpretation of a law governing the detention of migrants, as well as its decision to ignore Mayorkas’ second termination memo.

After launching the MPP in 2019, the Trump administration returned 70,000 migrants to Mexico, where many found themselves awaiting their hearings in U.S. court in squalid camps or places plagued by criminality and violence. cartels. Hundreds of people said they were assaulted, kidnapped or otherwise victimized while waiting in Mexico.

While Biden and progressive supporters have sharply criticized the policy, the Trump administration argued that the program effectively reduced border apprehensions by deterring migrants who were not entitled to U.S. asylum from traveling to the United States. North.

The Biden administration has so far limited returns under reinstated rules from staying in Mexico to Ciudad Juárez, Mexico, but the policy is expected to be extended to the southern border in the coming weeks.

Haitian families cross the Rio Bravo river
Haitian families illegally cross the Rio Bravo River to surrender to US authorities at the Ciudad Juarez border in Mexico with El Paso, Texas.

Christian Torres / Anadolu Agency via Getty Images


To address concerns raised by the Mexican government, the Biden administration made several changes to the protocols before restarting them during the first week of December, including expanding the categories of at-risk asylum seekers who cannot be returned to Mexico.

The American authorities also offer migrants to be vaccinated against COVID-19[female[feminine and ask them if they fear being hurt in Mexico before sending them there.

While the reinstatement of the Remain-in-Mexico rules was ordered by the court, the Biden administration retained another Trump-era border restriction that allows the United States to expel adults and families quickly. migrants to Mexico or their country of origin without examining them for asylum.

The Biden administration has argued that the pandemic era policy, known as Title 42, is needed to prevent coronavirus outbreaks inside migrant detention facilities along the US-Mexico border. .

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