Supreme Court orders ‘Remain in Mexico’ policy reinstated
The Supreme Court on Tuesday said the Biden administration likely violated federal law in trying to end a Trump-era program that forces people to wait in Mexico while seeking asylum in the U.S. With three liberal justices in dissent, the high court refused to block a lower court ruling ordering the administration to reinstate the program informally known as Remain in Mexico. It’s not clear 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 also is nothing preventing the administration from trying again to end the program, formally called Migrant Protection Protocols. A federal judge in Texas had previously ordered that the program be reinstated last week. Both he and the 5th U.S. Circuit Court of Appeals refused the administration’s request to put the ruling on hold. Justice Samuel Alito ordered a brief delay to allow the full court time to consider the administration’s appeal to keep the ruling on hold while the case continues to make its way through the courts. The 5th Circuit ordered expedited consideration of the administration’s appeal. The court offered little explanation for its action, although it cited its opinion from last year rejecting the Trump administration’s effort to end another immigration program, Deferred Action for Childhood Arrivals. In that case, the court held that the decision to end DACA was “arbitrary and capricious,” in violation of federal law. The administration has “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious,” the court wrote Tuesday in an unsigned order. The three dissenting justices, Stephen Breyer, Elena Kagan, and Sonia Sotomayor, did not write an opinion expressing their views of the case. In a statement, the Department of Homeland Security said it regrets that the high court declined to issue a stay. The department said it would continue to challenge the district court’s order. The American Civil Liberties Union called on the administration to present a fuller rationale for ending Remain in Mexico that could withstand court scrutiny. “The government must take all steps available to fully end this illegal program, including by re-terminating it with a fuller explanation. What it must not do is use this decision as cover for abandoning its commitment to restore a fair asylum system,” said Omar Jadwat, director of the ACLU’s immigrant rights project. During Donald Trump’s presidency, the policy required tens of thousands of migrants seeking asylum in the U.S. to turn back to Mexico. It was meant to discourage asylum seekers, but critics said it denied people the legal right to seek protection in the U.S. and forced them to wait in dangerous Mexican border cities. The judge, U.S. District Judge Matthew J. Kacsmaryk in Amarillo, Texas, ordered that the program be reinstated in response to a lawsuit filed by the states of Texas and Missouri, whose governors have been seeking to reinstate some of the hard-line anti-immigration policies of the Trump administration. The Biden administration argued in briefs that the president has “clear authority to determine immigration policy” and that Homeland Security Secretary Alejandro Mayorkas had discretion in deciding whether to return asylum seekers to Mexico. The policy has been dormant for more than a year, and the administration argued that abruptly reinstating it “would prejudice the United States’ relations with vital regional partners, severely disrupt its operations at the southern border, and threaten to create a diplomatic and humanitarian crisis.” The Trump administration largely stopped using the “Remain in Mexico” policy at the start of the pandemic, at which point it began turning back virtually everyone crossing the Southwest border under a different protocol — a public health order that remains in effect. President Joe Biden suspended the program on his first day of office, and the Homeland Security Department ended it in June. Kacsmaryk was nominated to the federal bench by Trump. The 5th Circuit panel that ruled Thursday night included two Trump appointees, Andrew Oldham and Cory Wilson, along with Jennifer Walker Elrod, nominated to the appeals court by President George W. Bush. At the high court, at least five of the six conservative justices, including three Trump appointees, voted for the restart of the program. Under the court’s opaque treatment of emergency appeals, the justices don’t always say publicly how they voted. Republished with the permission of the Associated Press.
Trump administration moves to detain migrant families longer
The Trump administration on Thursday moved to abandon a longstanding court settlement that limits how long immigrant children can be kept locked up, proposing new regulations that would allow the government to detain families until their immigration cases are decided. Homeland Security officials said that ending the so-called Flores agreement of 1997 will speed up the handling of asylum requests while also deterring people from illegally crossing the Mexican border. The move angered immigrant rights advocates and is all but certain to trigger a court battle. “It is sickening to see the United States government looking for ways to jail more children for longer,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project. “And it’s yet another example of the Trump administration’s hostility toward immigrants resulting in a policy incompatible with the most basic human values.” Vehicles leave the Port Isabel Detention Center, June 26, 2018, which holds detainees of the U.S. Immigration and Customs Enforcement in Los Fresnos, Texas. [Photo Credit: AP Photo/David J. Phillip, file] The Flores agreement requires the government to keep children in the least restrictive setting possible and to release them generally after 20 days in detention. For decades, because of those restrictions, many parents and children caught trying to slip into the country have been released into the U.S. while their asylum requests wind their way through the courts — a practice President Donald Trump has decried as “catch-and-release.” Such cases can drag on for years, and some immigrants stop showing up to court when it becomes clear their asylum requests are going to be denied. The newly proposed rules would allow the government to hold families in detention until their cases are completed. Homeland Security did not say how long it expects families to be kept locked up. But immigration officials say asylum cases involving detained families move much more quickly, taking months instead of years to resolve, in part because there are none of the delays that result when immigrants set free in the U.S. fail to show up for a hearing. “Today, legal loopholes significantly hinder the department’s ability to appropriately detain and promptly remove family units that have no legal basis to remain in the country,” said Homeland Security Secretary Kirstjen Nielsen. “This rule addresses one of the primary pull factors for illegal immigration and allows the federal government to enforce immigration laws as passed by Congress.” Earlier this summer, a federal judge in California rejected a request by the administration to modify Flores to allow for longer family detention. Administration officials say they have the authority to terminate the agreement, but that is likely to be tested in court. “They’re essentially trying to accomplish through regulation what the court has not permitted,” said Peter Schey, an attorney representing immigrant children under the settlement and president of the Center for Human Rights and Constitutional Law. Schey said he will oppose any effort to end Flores unless the government proposes acceptable regulations for the safe and humane treatment of youngsters. “Refugee children should not be made to suffer inhumane treatment and prolonged and unnecessary detention just to satisfy President Trump’s zero-tolerance approach to refugees seeking safety in the United States from the violence and lawlessness spreading throughout Central America,” Schey said. The Flores agreement became an issue last spring when the Trump administration adopted a policy of prosecuting anyone caught crossing illegally. More than 2,900 children were separated from their parents, prompting international outrage. Trump eventually backed down and stopped the separation of families. A federal judge ordered parents and children reunited; the government has said it has done so in as many cases as it could. But hundreds of parents were deported without their children, while others had criminal records or were not parents as they claimed to be, officials said. Because under Flores children cannot be kept in criminal custody with their parents or held for an extended period in immigration detention, the administration has limited options when dealing with families. The government operates three family detention centers that can hold a total of about 3,000 people, and they are at or near capacity. Homeland Security and the Pentagon have been working to line up as many as 12,000 beds for family members at Fort Bliss in El Paso, Texas. Another request for up to 20,000 beds for youngsters who arrive without parents is also pending. The ACLU’s Jadwat accused the administration of “trying to expand the trauma it is inflicting on these children in order to deter other people from coming to the country.” Rachel Prandini, staff attorney at the Immigrant Legal Resource Center, said the erosion of Flores’ protections would subject children to worsening conditions. “The Trump administration’s decision to exacerbate the suffering of kids, by imposing the cruel policy of family separation earlier this summer and now with this rule change to vastly expand detention of children, is horrifying,” she said. The regulations will be published in the Federal Register and will be subject to a 60-day public comment period starting Friday. Republished with the permission of the Associated Press.
