Supreme Court temporarily blocks Trump-era ‘Remain in Mexico’ reinstatement

The United States Supreme Court decided on Friday to temporarily block a judge’s order calling for the reinstatement of the Trump administration’s “Remain in Mexico” immigration policy, also known as Migrant Protection Policy or MPP,  following a halt by President Biden.

Justice Samuel Alito issued a temporary stay after the U.S. Court of Appeals for the 5th Circuit of New Orleans rejected a request by the Biden administration to delay the reinstatement of MPP. The stay will be in place until Tuesday so that justices can review filings submitted in connection with the case, according to the Associated Press.

Judge Matthew Kacsmaryk ruled in favor of Texas and Missouri on August 13 in a lawsuit in which the states alleged that the Biden administration’s attempt to end MPP was illegal and harmful, putting the onus on the administration to “enforce and implement” the policy amid a surging border crisis.

The states officially claimed that the way in which the Biden administration ended MPP was illegal and that it was harmful because it encouraged migrants to illegally cross the border, fueling the crisis.

Kacsmaryk reinforced those claims in his ruling that the Biden administration’s June 1st memo formally terminating the Trump-era policy was in breach of the Administrative Procedures Act (APA).

The MPP, enacted by the Trump administration, effectively ended the problematic catch and release loophole in the American immigration system. The policy required that the U.S. and Mexico’s governments work together to send migrants back to Mexico for their asylum hearings instead of releasing them into the U.S. until their hearing date.

Court tents were set up as a result along the border so that migrants could enter for their hearing before going back to Mexico to await the results.

Critics of the policy claim it was cruel and that it endangered migrants when they were sent back over the border into Mexico.

The Biden administration pledged to end the policy, which Kacsmaryk noted “contributed to the current border surge.” He evidenced the increase in border apprehensions from less than 80,000 in January 2021 to about 173,000 in April 2021. He also cited July’s record number of encounters at the border, a 20-year high of 212,000.

Kacsmaryk’s initial ruling required the Biden administration to “enforce and implement MPP in good faith” until it has been “lawfully rescinded” in concurrence with APA standards, and “until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under Section 1255 without releasing any aliens because of a lack of detention resources.”

Last year, a federal appeals court in San Francisco ordered MPP be halted during proceedings by immigrant advocacy groups that challenged the law. At the Trump administration’s request, the Supreme Court reinstated the policy while the litigation proceeded, and scheduled arguments for March 2021. The justices canceled that hearing after Biden formally ended the policy.

The fate of MPP will not be determined until next Tuesday.

Kay Apfel

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