WASHINGTON – The Supreme Court said on Tuesday that the Biden administration likely violated federal law by trying to end a Trump-era program that forces people to wait in Mexico while seeking asylum in the United States

With three dissenting liberal judges, the High Court refused to block a lower court ruling ordering the administration to reinstate the program informally known as Remain in Mexico.

It is not known how many people will be affected and how quickly. Under the lower court ruling, the administration must make a “good faith effort” to restart the program.

There is also nothing preventing the administration from trying again to terminate the program, officially called Migrant Protection Protocols.

A federal judge in Texas had already ordered the reinstatement of the program last week. He and the 5th U.S. Circuit Court of Appeals both denied the administration’s request to stay the decision.

Judge Samuel Alito has ordered a short delay to allow the entire court to consider the administration’s appeal in order to keep the ruling on hold while the case continues to make its way through the courts.

The 5th Circuit ordered the expedited review of the administration’s appeal.

The court provided little explanation for its action, although it cited its opinion from last year dismissing the Trump administration’s efforts to end another immigration program, Deferred Action for arrivals of children. In that case, the court ruled that the decision to end DACA was “arbitrary and capricious”, in violation of federal law.

The administration has “not shown a likelihood of success on the claim that the memorandum abrogating migrant protection protocols was not arbitrary and capricious,” the court wrote in an unsigned order on Tuesday.

The three dissenting judges, Stephen Breyer, Elena Kagan and Sonia Sotomayor, did not write an opinion expressing their views on the case.

In a statement, the Department of Homeland Security said it regretted the High Court refused to issue a stay. The department said it would continue to challenge the district court order.

The American Civil Liberties Union called on the administration to present a more comprehensive justification for ending the stay in Mexico that could withstand judicial scrutiny.

“The government must take all available measures to end this illegal program completely, including ending it with a fuller explanation. What he must not do is use this decision as a cover to abandon his commitment to restore a just asylum system, ”said Omar Jadwat, director of the ACLU Immigrant Rights Project.

Under President Donald Trump, the policy has forced tens of thousands of migrants seeking asylum in the United States to return to Mexico. It was intended to deter asylum seekers, but critics said it denied people the legal right to seek protection in the United States and made them wait in dangerous Mexican border towns.

The judge, U.S. District Judge Matthew J. Kacsmaryk in Amarillo, Texas, ordered the reinstatement of the program in response to a lawsuit filed by the states of Texas and Missouri, whose governors have sought to restore some of the anti-immigration policies of the Trump administration.

The Biden administration has argued in submissions that the president has “clear authority to determine immigration policy” and that Homeland Security Secretary Alejandro Mayorkas has the discretion to decide whether or not to remove the applicants. asylum in Mexico.

The policy has been dormant for more than a year, and the administration has argued that its abrupt recovery “would damage the United States’ relations with vital regional partners, seriously disrupt its southern border operations and threaten to create a diplomatic and humanitarian crisis. “

The Trump administration largely stopped using the ‘stay in Mexico’ policy at the start of the pandemic, when it began to turn back virtually anyone crossing the southwest border under a different protocol – an order health policy which remains in effect.

President Joe Biden suspended the program on the first day of his term in office and the Department of Homeland Security ended it in June.

Kacsmaryk was appointed to the federal bench by Trump. The 5th Circuit panel that ruled Thursday night included two people appointed by Trump, Andrew Oldham and Cory Wilson, as well as Jennifer Walker Elrod, appointed to the appeals court by President George W. Bush.

In the High Court, at least five of six Tory judges, including three appointed by Trump, voted to restart the program. Under the court’s opaque treatment of emergency appeals, judges don’t always say publicly how they voted.


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