Supreme Court: "Remain in Mexico" policy properly ended

PHOENIX — The Biden administration is free to scrap the Trump-era “Remain in Mexico” policy for asylum seekers, the U.S. Supreme Court ruled Thursday.

Chief Justice John Roberts, writing for the majority, said the section of federal law about returning those who seek asylum to the nearest country if there is no room in federal detention facilities actually gives the administration discretion whether to follow it. And the key, he said, is that the statute uses the word “may.”

“This court has repeatedly observed that the word ‘may’ clearly constitutes discretion,” Roberts wrote for himself and four other justices. “The use of the word ‘may’ in (the statute) thus makes clear that continguous-territory return is a tool that the Secretary (of Homeland Security) has the authority but not the duty to use.”

The ruling drew a stinging dissent from Justice Samuel Alito, writing for himself and three other justices. He said the law at issue here is clear: If someone is not clearly eligible for asylum he or she must be detained except for “urgent humanitarian reasons or a significant public benefit.”

“Due to the huge numbers of aliens who attempt to enter illegally from Mexico, the Department of Homeland Security does not have the capacity to detain all inadmissible aliens encountered at the border,” Alito acknowledged. “And no one suggests that DHS must do the impossible.”

But he said the agency, rather than using the option of returning asylum seekers to Mexico would “simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings.”

“This practice violates the clear terms of the law, but the court looks the other way,” Alito wrote of his colleagues.

The ruling is a defeat for Arizona Attorney General Mark Brnovich who had been among state prosecutors who sought to void the Biden administration action. Brnovich, a Republican candidate for U.S. Senate, argued that allowing the president to permit those seeking asylum to remain in the United States would incentivize people to come here illegally.

“We are disappointed with the court’s decision in this matter,” he said in a prepared statement. “The Biden administration has completely abandoned the rule of law at the border, and officials must be held accountable.”

Cochise County Sheriff Mark Dannels said he respects the opinion of the court on the interpretation of the federal law. But he said that still leaves the problem of a border that has been overrun by migrants.

“Where do we go from here?” he asked. Dannels said that the federal government needs to be “engaged” on the issue.

“And right now that’s not happening with this president when it comes to sheriffs and even our mayors and beyond,” he said. “We have to have Congress engaged, we have to have this administration engaged.”

Gov. Doug Ducey, a frequent critic of Biden, used the ruling as another opportunity to take a verbal swipe as what he called “the far and away the worst president on the border.’’

“For that administration to have lifted the ‘remain in Mexico’ policy just demonstrates another failed border policy by the White House,” he said in an interview with KVOI in Tucson. And Ducey said the deaths of more than 50 migrants in a sealed trailer in Texas “are on the hands of the administration.”

Back to homepage

Subscriber Login

Keep reading with a digital access subscription.

Subscribe now

“It’s a result of them telling desperate people in other countries that our borders are open while they are not,” he said.

At the heart of the legal battle was the decision by Trump in 2018 to implement the Migrant Protection Protocols. The intent was force Homeland Security to either lock up asylum seekers from countries other than Mexico or Canada, as the law requires, or send them to Mexico to await their hearings as the law allows.

He got the Mexican government to agree to accept these non-Mexican citizens. By the end of 2020, the agency had enrolled more than 68,000 in the program.

On Jan. 20, 2021, the day Biden was sworn into office, the agency suspended the program. Five months later it was terminated, with Homeland Security Secretary Alejandro Mayorkas saying the program “does not adequately or sustainably enhance border management in such a way as to justify the program’s extensive operational burdens and other shortfalls.”

And Mayorkas said that the program drew “significant attention” away from other “more central” elements of this country’s relationship with Mexico and was “diverting attention from more productive efforts to fight transnational criminal and smuggling networks and address the root causes of migration.”

A federal trial judge in Texas declared that ending the program “leads to systematic violation” of the law “as aliens are released into the United States.” That decision was upheld by an appellate court and the Biden administration resumed the program while awaiting Supreme Court review.

Roberts did not dispute the law says the government will lock up those whose asylum claims are not obvious. But he said the mandatory nature of that requirement — which was not before the court — does not overrule the discretionary part about deporting migrants to Mexico.

“If Congress had intended (the law) to operate as a mandatory cure of any non-compliance with the government’s detention obligations, it would not have conveyed that intention through an unspoken inference in conflict with the unambiguous, express term ‘may,’ “ Roberts wrote.

“ ‘May return the alien’ means ‘may return the alien,’ “ he continued. And he said none of that is changed by the desire to seek relief for the government’s failure to follow the law about locking up those waiting for asylum hearings.

Roberts also noted that the program applies exclusively to non-Mexican nationals who arrive in the United States. Yet the president cannot, on his own, simply deport migrants from various countries to Mexico.

He said that the protocols interfere with the president’s constitutional authority to conduct foreign relations. And Roberets said that’s why courts have “declined to run interference in the delicate field of international relations without the affirmative intention of the Congress clearly expressed.”

This isn’t the first time a federal court has rejected Brnovich’s efforts to force the Biden administration to follow Trump-era immigration policies.

Earlier this year a federal judge tossed out a bid by Brnovich to use environmental laws to immediately force the administration to resume construction of the border wall. In that case the judge said arguments by Brnovich linking border wall construction and illegal immigration are both legally and factually flawed.

That case is on appeal.