Under an unprecedented program launched in 2019, the Department of Homeland Security has sent some non-Mexican citizens who entered the United States back to Mexico – instead of detaining or releasing them to the United States – while their immigration procedures are underway.
Critics call the policy inhumane and say it exposes asylum seekers to credible claims of dangerous and bad conditions. The migrants who are the subject of the program – officially known as the Protocols for the Protection of Migrants – have been in makeshift camps on Mexico’s northern border.
Staying in Mexico is separate from the public health authority, known as Title 42, which allows border guards to return encountered migrants to the border, thus prohibiting them from seeking asylum, as opposed to “staying in Mexico”, which still gives migrants this chance. (Title 42 is the subject of separate legal disputes; a federal judge temporarily blocked it on Monday, ending that power.)
Tuesday’s case and the political repercussions of the Biden administration’s efforts to end Title 42 next month have once again highlighted the White House’s politically precarious situation and the tough battles the White House is facing in court.
While Biden himself promised to end the “Stay in Mexico” program after taking office, he was blocked by federal courts.
The case raises questions not only about immigration law, but also the president’s control over politics and diplomatic relations with neighboring countries.
Biden’s Home Office initially issued a memorandum to end the program last June. But after two states – Texas and Missouri – challenged, a district judge released the note and ordered the policy to be reinstated.
The court said the administration did not adequately explain the decision-making process in an attempt to end the program in violation of the federal Administrative Procedure Act. Going a step further, the court also interpreted immigration law to require DHS to return certain non-citizens to Mexico when there were not enough funds to keep them on American soil, despite years of discretion that allowed authorities to decide who to release. or detain.
DHS tried again last fall, issuing a new note offering a more comprehensive explanation of its decision to terminate the program, but an appeals court eventually upheld the district court’s decision and refused to even consider the reasons set out in the new note, suggesting that it came too late.
“In this case, the lower courts have adopted unprecedented restrictions on the ability of federal agencies to change their policies and issue new decisions in response to unfavorable court decisions,” Andrew J. said in an interview. Pinkus, a lawyer at Mayer Brown LLP.
“If confirmed by the court, they will drastically limit the decision-making of government agencies,” he added.
As of April 17, more than 2,300 migrants had been sent back to Mexico under the Stay in Mexico policy after it was renewed late last year, according to the International Organization for Migration.
Attorney General Elizabeth Prelogar told judges in court documents that lower courts had relied on “new and misinterpretations” of federal law to force DHS to maintain a program that the administration “twice ruled was inconsistent.” with the interests of the United States ”
And she noted that even the Trump administration has not interpreted immigration law so that the government should be able to detain most people who come to its borders.
“According to the Court of Appeals’ interpretation, every presidential administration – including the one that adopted the MPP – is in constant and systematic violation of immigration law,” she wrote. resources, prioritizing which non-citizens to detain and remove, what procedures to use to carry out removal and whom to detain during the removal process. ”
Prelogar said the law offers the government alternative options for processing candidates, noting that some may be admitted “conditionally” and others may be placed in a process of expedited removal. She noted that in fiscal 2021, DHS processed more than 671,000 migrants under traditional immigration protocols, an average of more than 55,000 per month.
She also claims that the opinion of the lower court will have “dramatic consequences for foreign relations”, as it forces the executive to send those from third countries to Mexico – the territory of a foreign sovereign.
Texas Attorney General Ken Paxton, joined by Missouri Attorney General Eric S. Schmidt, called on the Supreme Court to confirm the lower court’s views. He said the Trump administration had launched the program because “tens of thousands of aliens enter the nation’s southern border illegally every month.”
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