WASHINGTON — The Supreme Court on Thursday ruled that the Biden administration may rescind a Trump-era immigration program that forces certain asylum-seekers arriving at the southwestern border to await approval in Mexico.
Chief Justice John Roberts, writing for the majority in the 5-4 ruling, said an immigration law gave the president discretion to return migrants arriving by land to the country from which they came. But that discretion, he continued, did not amount to an obligation.
The key provision, the chief justice wrote, used the word “may” rather than “shall.” That provision, he wrote, “means what it says: ‘May’ means ‘may.’ ”
Roberts added that making removal mandatory would require ordering the president to negotiate with Mexico. Judges should not lightly interfere with the president’s ability to conduct foreign policy, he wrote, in a holding welcomed by human rights lawyers.
“For a court to insert itself in the diplomatic relationship between the United States and a foreign nation was clearly something the Supreme Court was rightfully uncomfortable with,” said Robyn Barnard, a lawyer at Human Rights First.
The decision was a victory for the Biden administration, which has faced multiple legal challenges and setbacks to its immigration policies. But it will have little practical impact on the number of people allowed to stay in the country to apply for asylum, because the administration has been sending very few to wait out their cases in Mexico. An emergency public health rule that has been in place since the beginning of the pandemic has had a far bigger effect, preventing many asylum-seekers from staying in the United States to request protection.
The Supreme Court returned the case to the lower courts on the question of whether the administration properly terminated it.
Justices Brett Kavanaugh, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined Roberts’ opinion. Justice Amy Coney Barrett agreed with much of the chief justice’s analysis but nonetheless dissented, saying she questioned whether the lower courts had jurisdiction in the case.
Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, dissented. Alito wrote that the Department of Homeland Security was required to use its discretion to return migrants when there was no lawful alternative.
“Rather than avail itself of Congress’ clear statutory alternative to return inadmissible aliens to Mexico while they await proceedings in this country,” Alito wrote, “DHS has concluded that it may forgo that option altogether and instead simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings. This practice violates the clear terms of the law, but the court looks the other way.”
The challenged program, known commonly as Remain in Mexico and formally as the Migrant Protection Protocols, applies to people who left a third country and traveled through Mexico to reach the U.S. border. After the policy was put in place at the beginning of 2019, tens of thousands of people waited in unsanitary tent encampments for immigration hearings. There have been widespread reports of sexual assault, kidnapping and torture.
Soon after he took office, President Joe Biden sought to end the program.
Texas and Missouri sued, and lower courts reinstated it, ruling that federal immigration laws require returning immigrants who arrive by land and who cannot be detained while their cases are heard.
Since the Biden administration restarted the program in December, far fewer migrants have been enrolled than during the Trump era, a change that has galled many Republicans who have characterized Biden as weak on border security. The reduction is in part because the United States agreed to take additional steps to meet certain demands from Mexico, including that migrants be sent back under the program only if there was sufficient shelter space and if they had improved access to legal assistance.
Between December and the end of May, the Biden administration had enrolled into the program more than 4,300 migrants who were returned to Mexico, mainly people who could not be expelled under the public health rule. Most of those enrolled in recent months are men from Cuba, Nicaragua and Venezuela. Without the program in place, more single adults from those countries will be permitted to enter and remain in the United States while their asylum cases wind through the court.
Even with Remain in Mexico and the emergency public health rule in place, more than 800,000 migrants have been released into the country since Biden took office to wait out their immigration cases, which can take years.
From January 2019, when the Trump administration started the program, to the end of 2020, nearly 70,000 migrants were sent back to Mexico to wait for their court hearings.
The case before the Supreme Court, Biden v. Texas, No. 21-954, was unusually complex, involving three statutory provisions pointing in different directions.
One provision said the federal government generally “shall detain” immigrants while they await consideration of their immigration proceedings. But Congress has never allocated enough money to detain the number of people affected.
The second provision said the government “may return” migrants who arrive by land to the country from which they came.
The third provision allowed the government to release migrants into the United States while they await their hearings “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”
Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas, in Amarillo, ruled last year that immigration laws required returning noncitizens seeking asylum to Mexico whenever the federal government lacked the resources to detain them.
The Biden administration promptly asked the Supreme Court to intervene, but it refused to block Kacsmaryk’s ruling, which required the administration to restart the program. The three more liberal justices dissented.
The court’s brief, unsigned order at the time said the administration had appeared to have acted arbitrarily and capriciously in ending the program, citing a 2020 decision that had refused to let the Trump administration immediately rescind an Obama-era program protecting the young immigrants known as “Dreamers.”
The Biden administration then took steps to restart the program even as it issued new justifications for ending it. Administration officials, responding to criticism that they had acted hastily, released a 38-page memorandum setting out their reasoning.
They concluded that the program’s costs outweighed its benefits. Among those costs, the memo said, were the dangerous conditions in Mexico, the difficulty immigrants faced in conferring with lawyers across the border and the ways in which the program undermined the administration’s foreign policy objectives and domestic policy initiatives.
A three-judge panel of the 5th U.S. Circuit Court of Appeals, in New Orleans, rejected the administration’s plan to shut down the program.
“The government says it has unreviewable and unilateral discretion to create and to eliminate entire components of the federal bureaucracy that affect countless people, tax dollars and sovereign states,” Judge Andrew S. Oldham wrote for the panel. “The government also says it has unreviewable and unilateral discretion to ignore statutory limits imposed by Congress.”
“And the government says it can do all of this by typing up a new ‘memo’ and posting it on the internet,” he added. “If the government were correct, it would supplant the rule of law with the rule of say-so. We hold the government is wrong.”
In the past year, a record number of undocumented migrants have sought entry into the United States.
But the emergency public health rule introduced by the Trump administration at the beginning of the pandemic and known as Title 42, has resulted in tens of thousands of asylum-seekers being turned back by border officials without a chance to express their fear of persecution or being returned to Mexico. The Biden administration had planned to lift the rule in late May, but a federal judge blocked it from doing so.
“Despite this decision from the Supreme Court, Title 42 remains in place, which means that the border is still shut to those seeking asylum,” said Barnard, of Human Rights First.
When the Biden administration suspended the Remain in Mexico policy, there were 27,000 people with pending cases out of the 70,000 originally enrolled by the Trump administration. By August 2021, when the court ordered the program’s reinstatement, some 13,000 of them had been processed into the United States. Thousands more were still waiting.
Oscar Chacón, the executive director of the advocacy group Alianza Americas, said the ruling made it possible for the Biden administration to find “a more common-sense and humane approach to the asylum at the U.S.-Mexico border.”
But, he said, other administration policies intended to achieve that goal are being blocked by courts, as well.
Theresa Cardinal Brown, the director of immigration and cross-border policy at the Bipartisan Policy Center, said the only way to slow the court interference in immigration policies was for Congress to pass laws, instead of leaving the White House to set policy by executive orders.
“The ultimate responsibility in these matters falls on Congress, which has repeatedly failed to work together on legislation that could provide clarity to increasingly incoherent and oppositional judicial decisions,” Cardinal Brown said.
Congress has not agreed on changes to the immigration laws since 1986.