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Supreme Court Could Upend This Controversial Biden Administration Immigration Policy

Asylum seekers in Laredo, Texas, in 2019. (Suzanne Cordeiro/AFP via Getty Images)
• February 18, 2022 6:00 pm

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The Supreme Court on Friday announced that it will decide on the Biden administration's bid to rescind the Trump-era "Remain in Mexico" policy for asylum seekers.

The justices said in a Friday afternoon order that they will hear arguments in April on whether the federal government has given sufficient justification for terminating the program, as required by federal law. Two red states challenged the Department of Homeland Security's decision to terminate the policy in June 2021 and prevailed before a trial judge and a federal appeals court.

President Joe Biden is pushing to repeal Remain in Mexico while he finalizes a policy that will make it easier for migrants who collect public benefits to get green cards. Both moves have been praised by open-borders advocates.

Formally known as the Migrant Protections Protocols (MPP), the policy requires migrants seeking asylum to wait in Mexico while their applications are reviewed by U.S. immigration authorities. The justices said in August 2021 that the protocols should remain in place while the legal challenge unfolds.

Texas and Missouri, the two red-state plaintiffs, said the Biden administration violated a federal law called the Administrative Procedure Act by failing to give a reasonable explanation for its decision to end Remain in Mexico.

A federal trial judge sided with the red-state challengers, and the Fifth U.S. Circuit Court of Appeals affirmed. The Fifth Circuit said the government failed to consider, for example, the effect that terminating Remain in Mexico would have on border states that inevitably shoulder the cost of supporting asylum seekers. The Trump administration agreed to consult with the states before making any changes to the protocols, but the Biden administration says it is under no obligation to do so.

The Fifth Circuit also faulted the Biden administration for failing to consider changes to the protocols short of scrapping it altogether.

"DHS was required to consider, not just the binary decision whether to keep or reject MPP, but also the alternatives that [were] within the ambit of MPP," the decision reads.

The Justice Department countered that the states are interfering with foreign policy, which is the concern of the executive branch. They also say they've addressed any legal deficiencies with the original June 2021 memo in a supplemental document issued in October. The Fifth Circuit said that document doesn't cure the border states' injuries and isn't relevant for technical reasons.

The case, No. 21-954 Texas v. Biden, will be heard in the second week of April, with a decision to follow by summer.