Biden asks Supreme Court to block order reinstating ‘Remain in Mexico’ policy

The Biden administration asked the Supreme Court on Friday to overturn a lower court’s order that it revive the Trump-era policy requiring asylum-seekers at the southern border to stay in Mexico while their applications are processed.

The Department of Justice filed an application for an immediate stay of a judge’s order to reinstate the “Remain in Mexico” policy. The order is set to go into effect after midnight Saturday.

“It requires the government to abruptly reinstate a broad and controversial immigration enforcement program that has been formally suspended for seven months and largely dormant for nearly nine months before that,” the department said in its brief on Friday.

Last week, a federal judge in Texas ordered the Biden administration to reinstate the program after Texas and Missouri sued over the administration’s decision to end it.

U.S. District Court Judge Matthew Kacsmaryk ruled that the policy would have to remain in place until the administration undergoes a lengthy administrative procedure to overturn it.

The 5th Circuit Court of Appeals this week then rejected the administration’s request for an emergency stay of Kacsmaryk’s order.

Former President Trump’s policy, implemented in 2019, blocked migrants at the Mexican border from entering the U.S. to apply for asylum, leaving what the Biden administration estimates is now around 25,000 people awaiting their fate in Mexico.

More than 60,000 asylum-seekers were returned to Mexico under the so-called Migrant Protection Protocols (MPP), a departure from previous practice of allowing those fleeing violence to cross the border and apply for asylum within the U.S.

The Supreme Court in February granted the Biden administration’s request to cancel a hearing challenging Trump’s use of the policy. 

The Justice Department argued in its brief on Friday that the judge’s order would unnecessarily upset the status quo in immigration enforcement and pointed out that the Supreme Court frequently granted such stays during the Trump administration.

“In recent years, this Court has repeatedly stayed broad lower-court injunctions against Executive Branch policies addressing matters of immigration, foreign policy, and migration management,” the brief reads.

In denying the government a stay on Thursday, the Fifth Circuit noted that the Biden administration would have some leeway in how to respond to Kacsmaryk’s ruling.

“The district court did not order the government to restore MPP’s infrastructure overnight. It ordered that, once the injunction takes effect on August 21, DHS must ‘enforce and implement MPP in good faith,’” a three-judge panel wrote in the decision.