Supreme Court remands ‘Remain in Mexico’ to lower court

By BETHANY BLANKLEY | THE CENTER SQUARE

The U.S. Supreme Court on Thursday overruled a circuit court’s decision in a case brought by Texas and Missouri over the Biden administration ending the Trump era- Migrant Protection Protocols (MPP), known as the Remain in Mexico policy.

The court remanded the case to the Fifth Circuit Court of Appeals to determine if a Department of Homeland Security memo issued Oct. 29 “was arbitrary and capricious.” Once that ruling is determined, the case can be appealed again. The lower court would decide if DHS is violating federal immigration law by releasing illegal immigrants into the U.S. instead of detaining them.

While many are reporting the ruling ends the program, the court’s ruling remands the case back to the lower court.

In a 5-4 decision, Chief Justice John Roberts delivered the opinion for the majority. Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh joined. Kavanaugh filed a separate concurring opinion.

Justice Samuel Alito filed the dissenting opinion, in which justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett joined.

In a lengthy case with many legal twists and turns, the court heard arguments presented by Texas and Missouri in April. “Missouri and Texas filed suit after the Biden Administration suspended the policy and obtained a permanent injunction in federal court, and then successfully defended that injunction in the 5th Circuit Court of Appeals and the Supreme Court of the United States,” Missouri AG Eric Schmitt told The Center Square at the time.

Last August, U.S. District Judge Matthew J. Kacsmaryk of the Northern District of Texas ordered the administration to reinstate the MPP, ruling that halting it violated the Administrative Procedures Act. The Fifth Circuit Court of Appeals upheld Kacsmaryk’s ruling more than once, determining the administration also violated federal immigration law.

The Department of Homeland Security amended rules it had proposed to circumvent the initial points of the lawsuits brought by the states to make the lawsuits moot, attorneys general who filed briefs in support of Texas’ and Missouri’s lawsuit have argued. The ruling appears to address the technicality of the procedural maneuvers, not the validity of the program.

In Kavanaugh’s separate opinion, he said as much. “The larger policy story behind this case is the multi-decade inability of the political branches to provide DHS with sufficient facilities to detain noncitizens who seek to enter the United States pending their immigration proceedings,” he said. “But this Court has authority to address only the legal issues before us. We do not have authority to end the legislative stalemate or to resolve the underlying policy problems.”

Roberts, writing for the majority, said the Fifth Circuit Court of Appeals “erred,” in several instances, according to the syllabus of the opinion.

The majority opinion also states, “The Government’s rescission of MPP did not violate section 1225 of the [Immigration and Nationality Act], and the October 29 Memoranda did constitute final agency action.”

Justice Samuel Alito, argued the court “is not only wrong to reach the merits of this case, but its analysis of the merits is seriously flawed.”

Alito, Thomas and Barrett argued in their dissent, “In fiscal year 2021, the Border Patrol reported more than 1.7 million encounters with aliens along the Mexican border. When it appears that one of these aliens is not admissible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided? Congress has provided a clear answer to that question, and the answer is no.

“By law, if an alien is ‘not clearly and beyond a doubt entitled to be admitted,’ the alien ‘shall be detained for a [removal] proceeding.’ And if an alien asserts a credible fear of persecution, he or she ‘shall be detained for further consideration of the application for asylum,’ … Those requirements, as we have held, are mandatory.”

Texas Attorney General Ken Paxton said the decision was “an unfortunate one, and I believe it was wrongly decided. Over a year ago, Texas and Missouri sued the Biden Administration for illegally abandoning MPP. I won in district court and then won again on appeal. The Administration dragged its feet and refused to implement this effective program in good faith, allowing hundreds of thousands of illegals to pour over the border month after month.”

“Today’s decision makes the border crisis worse,” he said, but “it’s not the end.”

Paxton vowed to “keep pressing forward and focus on securing the border and keeping our communities safe in the dozen other immigration suits I’m litigating in court.”

“Our Office defeated the Biden Administration‘s first two attempts to terminate the vitally-important ‘Remain in Mexico’ policy,” Schmitt’s press secretary, Chris Nuelle, told The Center Square. “We look forward to defeating their third attempt to terminate the policy in district court. Our fight for border security continues on.”