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The Supreme Court gave the Biden administration permission to move forward with dismantling a significant Trump-era immigration policy, a move that will change how asylum-seeking migrants are treated at the border.
The justices sided with the Department of Justice on Thursday in its attempt to rescind the Migrant Protection Protocols, known as the “Remain in Mexico” policy, which forced asylum-seekers at the U.S.-Mexico boundary to wait in Mexico through court proceedings rather than being released into the United States.
Democrats said the move allows President Joe Biden to fulfill his campaign promise to gut MPP, while Republicans were upset with the outcome and argued the move will lead to more noncitizens being released into the U.S. every month.
“It will result in many more crossings and releases,” said Tom Homan, former acting director of U.S. Immigration and Customs Enforcement.
Democrats still happy it’s over
Since MPP was implemented three years ago under then-President Donald Trump, approximately 75,000 people have been enrolled, according to the International Rescue Committee, an organization that helps migrants.
Expelled migrants lived in makeshift outdoor camps, effectively homeless in northern Mexico cities, for months. Immigrant rights groups documented crimes against the migrants and instances in which they were kidnapped and held ransom by the cartels until family members could pay ransom.
“MPP was designed by the Trump administration to deter asylum-seekers from Latin America and the Caribbean from entering the United States via the southwest border,” said Sen. Bob Menendez (D-NJ). “Tens of thousands of migrants from the region have been needlessly exposed to kidnappings, extortion, trafficking, and rape in dangerous communities in Mexico while waiting for their immigration claims to be adjudicated in the United States.”
Possibility of aggravating crisis at border
In May alone, U.S. border officials released more than 95,000 noncitizens into the U.S., according to federal court documents. Conservatives fear now, in light of Thursday’s news, that that figure will rise in the coming months because noncitizens can no longer be forced to wait in Mexico.
“The Biden administration has been very clear that they are committed to tearing down every effective border security program in existence. This decision helps clear the way for their open border agenda,” said Rodney Scott, former Border Patrol chief during the Trump and Biden administrations.
Sen. Marco Rubio (R-FL) said the rescission “will send yet another signal to the trafficking networks and cartels that America’s border is wide open.”
Data show Biden hardly utilized MPP
Biden initially suspended the policy in January 2021 and then attempted in June 2021 to outright end it. Texas and Missouri sued and were backed by the Supreme Court.
In October 2021, the Biden administration made a second attempt to end MPP on the basis that it imposed “substantial and unjustifiable human costs on the individuals who were exposed to harm while waiting in Mexico.”
In early December 2021, it re-implemented the program, as ordered by the high court earlier in the year. However, in the six months since then, just 4,000 of the 1.3 million people encountered attempting to enter the U.S. from Mexico without permission have been sent back to Mexico under MPP, according to Aaron Reichlin-Melnick, policy director for the American Immigration Council.
The low return rate indicates the Biden administration did not reinstate it to the extent it existed under Trump and that the program’s anticipated extinction may not have the drastic effect on releases into the U.S. that Republicans claim it will.
Impacts of releases
The end of MPP, while not a move that will affect the border overnight, has greater implications for the immigration court in the long term, Homan, the former ICE official, said.
“What they didn’t consider is DOJ Executive Office for Immigration Review data that clearly shows almost 9-out-of-10 Central Americans that claim fear at the border never get relief from U.S. courts because they don’t qualify or don’t show up at court,” Homan wrote in a message. “And what happens to them? According to the DHS Lifecycle report, if they are a family unit they leave as ordered 6% of the time. If they are an unaccompanied alien child they only leave 3% of the time.”
Immigration restrictionist group NumbersUSA said the federal government ought to be detaining illegal immigrants, including asylum-seekers, for the duration of legal proceedings; returning them to Mexico or their country of origin; or paroling them on a case-by-case basis.
“That the [Supreme Court] majority allows the government to pick a fourth option — mass release into the United States — enables the Biden Administration’s non-enforcement of immigration law,” NumbersUSA Vice President of Government Relations Rosemary Jenks said in a statement.
Implications for future immigration lawsuits
One of the biggest ramifications of the Supreme Court decision will not directly affect the border but will affect how federal courts can intervene in national immigration matters going forward, policy analysts explained.
Theresa Cardinal Brown, who worked at the Department of Homeland Security during Democratic and Republican administrations, said the high court barred lower courts from issuing “blanket” or nationwide injunctions.
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“This is potentially a really big precedent affecting current and future litigation over immigration enforcement policies. Previous SCOTUS ruling said that class action suits against immigration policies are limited. This decision would seem to limit future lawsuits by states as we have seen against both the Trump and the Biden administration over various enforcement policies,” Brown, managing director of immigration and cross-border policy at the Washington-based Bipartisan Policy Center think tank, wrote in a series of tweets Thursday.
“The continued litigation, and back and forth with injunctions and reversals has really created severe problems for consistent policymaking and operational implementation,” Brown added. “As I said in a previous news article: We’re in ‘peak confusion’ over what immigration policy is in place.”
