The Supreme Court declined by a 6-3 ruling Tuesday to issue a stay of a lower court ruling while the Biden administration appeals that judge’s order to reinstate a Department of Homeland Security policy that sent inadmissible migrants to Mexico while their cases worked through the system.
The Migration Protection Protocols, or “Remain in Mexico” policy, were implemented by DHS in 2019 to, according to the department at the time, “help restore a safe and orderly immigration process, decrease the number of those taking advantage of the immigration system, and the ability of smugglers and traffickers to prey on vulnerable populations, and reduce threats to life, national security, and public safety, while ensuring that vulnerable populations receive the protections they need.” Under the policy, those claiming asylum were sent to Mexico to await their hearing date, even though Mexico is not required to receive migrants not from their country. Unaccompanied migrant children were not subject to the policy.
Texas and Missouri challenged President Biden’s decision to end MPP. U.S. District Judge Matthew Kacsmaryk, nominated to the bench by former President Trump and confirmed by the Senate in 2019, said the program was not “lawfully rescinded” and that Homeland Security Secretary Alejandro Mayorkas did not consider the “benefits” of MPP such as a deterrence effect. The judge also stated in his ruling that federal officials needed the capacity to detain all migrants who would otherwise be sent to Mexico if the government intended to rescind the policy.
In February, when about 25,000 migrants had active MPP cases, DHS began processing some of the migrants who had been waiting in Mexico under the previous administration. Mayorkas said the new registration process was essential for “rebuilding a safe, orderly, and humane immigration system” and was “another step in our commitment to reform immigration policies that do not align with our nation’s values.”
In a statement Tuesday, DHS said it “respectfully disagrees with the district court’s decision and regrets that the Supreme Court declined to issue a stay” and “will continue to vigorously challenge” Kacsmaryk’s ruling on appeal.
“As the appeal process continues, however, DHS will comply with the order in good faith,” the department said. “Alongside interagency partners, DHS has begun to engage with the Government of Mexico in diplomatic discussions surrounding the Migrant Protection Protocols (MPP). DHS remains committed to building a safe, orderly, and humane immigration system that upholds our laws and values. DHS continues to process individuals in accordance with U.S. law and our mission. Pursuant to the CDC’s Title 42 public health order, DHS continues to expel single adults and families encountered at the Southwest Border.”
White House press secretary Jen Psaki told reporters on Wednesday that the administration continues to believe MPP “was not implemented in a moral way.”
“It was inefficient. It used CBP resources. It led to a backlog in the system,” she said. “And it is fundamentally a program we have opposed, but we are also abiding by a court order.”
Psaki reiterated that DHS was “engaging in diplomatic discussions with the government of Mexico as part of our efforts to implement the court’s order” as they “continue to vigorously challenge it.” Senior Mexico Foreign Ministry official Roberto Velasco Álvarez tweeted Tuesday that DHS had been in contact with him. “Mexico is not part of the judicial process, which deals with a unilateral US measure,” he said. “Tomorrow we will exchange information on this resolution to define Mexico’s considerations, based on respect for sovereignty and human rights.”
Immigrant advocates argued that reinstatement would put migrants in danger in border communities. Yael Schacher, senior U.S. advocate for Refugees International, encouraged the administration to “submit a new termination memo so that we do not inflict suffering on those seeking safety and restore fair access to asylum at the border.” Catholic Legal Immigration Network Executive Director Anna Gallagher called on Biden to find a way to end “an assault on human rights and U.S. asylum law” through reinstatement of MPP.