Immigration rights were dealt a surprise victory on Thursday morning when the Supreme Court of the United States ruled that President Joe Biden’s administration can terminate the former President Donald Trump-era border policy known as Remain in Mexico. Biden attempted to end the harmful program, which is officially called the Migrant Protection Protocols (MPP), in February 2021 after immigration advocates successfully pressured his administration to make good on one of his campaign promises. But Texas and Missouri sued the federal government, and a federal judge ordered the program reinstated in August. The Biden administration attempted to end the program again in October 2021 and eventually appealed the order but lost in December 2021 in the notoriously conservative U.S. Court of Appeals for the 5th Circuit, which concluded that the decision by Secretary of Homeland Security Alejandro Mayorkas to terminate MPP had no legal effect. Now, the Supreme Court has officially sided in favor of the Biden administration, deciding in the Biden v. Texas case that according to a part of the U.S. Code, the Department of Homeland Security does not have to continue enforcing the policy, and the October memorandum was a final agency action. The 5-4 opinion authored by Chief Justice John Roberts states federal law allows asylum-seekers and migrants to be released on parole while their immigration case is pending. The decision is a “huge sigh of relief” for immigration advocates eager to end the policy.
“We are relieved that the Supreme Court ruled on the side of justice, human rights, and to uphold our standing on the international stage as a nation that wants to be seen again as a welcoming country for those seeking safety,” said Tessa Petit, the co-executive director of the Florida Immigrant Coalition. “International law states that everyone has the right to seek and enjoy asylum from persecution in other countries and protects refugees from being returned to countries where they risk being persecuted. Black migrants being made to wait in Mexico are being persecuted, targeted, and sometimes killed. This ruling, while it’s just one step, brings us a bit closer to upholding the values that we know this country can achieve.”
Remain in Mexico forces asylum-seekers and migrants to stay in facilities across the southwest border as they await their immigration proceedings. The court order reinstated it in December 2021 and expanded the policy to include all asylum-seekers from the Western hemisphere, namely Haitians. Advocates were concerned that continuing the program would continue to harm already vulnerable migrants desperate for better living conditions. The most recent tragedy occurred on Monday evening in San Antonio, Texas, when more than 50 migrants were found in a semi-truck. At least 53 migrants had died of heat exhaustion and dehydration as of Thursday afternoon.
“These migrants made the impossible and tough decision to try to cross into the states and seek refuge in probably one of the most dangerous ways possible,” said Haddy Gassama, UndocuBlack Network’s director of policy and advocacy. “This is a direct result of policies such as Remain in Mexico, such as Title 42. The southern border as we know it and access to asylum is pretty much just sealed and closed, so people are finding more and more dangerous ways to try to seek refuge. These so-called deterrent mechanisms are not working. It’s just resulting in more and more deaths.”
The Supreme Court’s decision comes after a series of bombshell rulings that have expanded gun rights, called into question the division of church and state, and upended national abortion rights by overturning the landmark decision in Roe v. Wade. Gassama said it is the inevitable conclusion after conservative presidents, namely, former President Donald Trump, were able to appoint several Supreme Court justices and decisively shift the political makeup of the court to the right. The Supreme Court’s decision in Biden v. Texas is the last of the 2021-22 term.
“This ruling from the Supreme Court comes after several bad rulings that have limited our right to an abortion, our right to clean air, and our right to due process,” said Juliana Macedo do Nascimento, deputy director of federal advocacy of United We Dream. “This Court has proven itself to be dangerous to human rights, and so the Biden administration must act swiftly to protect them on all fronts. When people move, their rights move with them. Policies like ‘Remain in Mexico’ and Title 42 only deny people their rights and disproportionately affect Black migrants. President Biden and Congress must work to ensure they are protecting the human rights of immigrants and people seeking asylum by ending policies that make it harder for them to seek safety, and defunding the agencies that target them, including ICE and CBP.”
The Supreme Court has previously issued two immigration-related rulings this term. On June 13 in Johnson v. Arteaga-Martinez, they ruled against extending a previous ruling that said the government could not detain certain immigrants for more than six months without constitutional problems. In an opinion written by Justice Sonia Sotomayor, the court held that the government is not obligated to offer a bond hearing after six months of detention. On the same day, the Supreme Court ruled in Garland v. Gonzalez that immigrants cannot seek injunctive relief when challenging detentions, making it more difficult for immigrants to bring their claims to court.
“Many of us in the movement and many of us who are immigrants ourselves are reeling and we’re mourning,” Gassama said. “These [deaths] are direct results of people not having any access to their international human right to seek safety and refuge and asylum in the U.S.”
According to data from the Department of Homeland Security, since the MPP program was reinstated in December 2021, 7,259 migrants have been enrolled. Of those enrolled, 4,387 have been returned to Mexico to be processed and await their immigration proceedings. Upon being entered into the program, U.S. Customs and Border Protection screens asylum-seekers for fear of returning to Mexico. If an asylum-seeker is found to have a reasonable fear of persecution or torture, or if they are particularly vulnerable (for reasons such as LGBTQ+ identity or health issues), then they are disenrolled from MPP. Once disenrolled, they are referred to Immigration and Customs Enforcement for a custody determination, where they may be allowed to enter the country and stay with family or another host, or they will be placed in a detention center.
While CBP has not reported the number of people dying across the entire border since 2020, according to The Washington Office on Latin America’s Advocacy for Human Rights in the Americas, there have been 10 drownings in El Paso’s irrigation canals since June 9 alone. Since October 2021, CBP has reported 14,278 “search and rescue efforts,” exceeding the 12,833 efforts in all of fiscal year 2021. CBP has reported encountering more than 1 million migrants at the southwest border since January.
Being returned to Mexico has not been any safer. According to a joint report from 12 human rights organizations, between February 2019 and February 2021, there were at least 1,544 publicly reported cases of murder, rape, torture, kidnapping, and other violent assaults against asylum-seekers and migrants forced to return to Mexico under this program. These attacks include 341 cases of children who were kidnapped or nearly kidnapped in an already backlogged immigration court system, leaving them in the extremely dangerous situations they were trying to escape.
“The ‘Remain in Mexico’ policy was one of many policies put in place by the Trump administration to make it harder for people to exercise their right to asylum,” said Macedo do Nascimento. “This decision by the Supreme Court paves the way for the Biden administration to finally follow through on its promise to end this cruel and horrific policy once and for all.”
Camero said she hopes the immigration system can be more welcoming and actually provide due process to migrants seeking asylum.
“We need a welcoming immigration system that recognizes the humanity of all people,” Camero said. “If the Biden administration continues to illegally turn away migrants and deny their chance to rightfully seek asylum, individuals and families escaping persecution, war, and climate disasters will continue to face violence and death. Creating a just immigration system starts with ending Title 42 and Remain in Mexico.”
The question remains when will the program officially end, and whether the Biden administration will be additionally successful in ending Title 42.