Immigration Reform News August 25, 2021/ Qué Pasa En Inmigración

by on August 25, 2021

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The New York Times Supreme Court Allows Revival of Trump-Era ‘Remain in Mexico’ Asylum Policy

By Adam Liptak

August 24, 2021

WASHINGTON — The Supreme Court on Tuesday refused to block a ruling from a federal judge in Texas requiring the Biden administration to reinstate a Trump-era immigration program that forces asylum seekers arriving at the southwestern border to await approval in Mexico.

The court’s brief unsigned order said that the administration had appeared to act arbitrarily and capriciously in rescinding the program, citing a decision last year refusing to let the Trump administration rescind the Obama-era program protecting the young immigrants known as dreamers.

The court’s three more liberal members — Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — said they would have granted a stay of the trial judge’s ruling. They did not give reasons. The case will now be heard by an appeals court and may return to the Supreme Court.

The challenged program, known commonly as Remain in Mexico and formally as the Migrant Protection Protocols, applies to people who left a third country and traveled through Mexico to reach the U.S. border. After the policy was put in place at the beginning of 2019, tens of thousands of people waited for immigration hearings in unsanitary tent encampments exposed to the elements. There have been widespread reports of sexual assault, kidnapping and torture.

President Biden suspended and then ended the program. Texas and Missouri sued, saying they had been injured by the termination by having to provide government services like drivers’ licenses to immigrants allowed into the United States under the program.

On Aug. 13, Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas, in Amarillo, ruled that a federal law required returning noncitizens seeking asylum to Mexico whenever the government lacked the resources to detain them.

That was a novel reading of the law, the acting solicitor general, Brian H. Fletcher, told the justices. That view had “never been accepted by any presidential administration since the statute’s enactment in 1996,” including the Trump administration, he said.

Judge Kacsmaryk suspended his ruling for a week, and the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, refused to give the administration a further stay while it pursued an appeal, prompting an emergency application for a stay in the Supreme Court. On Friday, shortly before the ruling was to go into effect, Justice Samuel A. Alito Jr. issued a short stay to allow the full Supreme Court to consider the matter.

The Supreme Court has had previous encounters with the program. In response to an emergency application from the Trump administration, the court revived the program last year after a federal appeals court blocked it.

The justices later agreed to hear the Trump administration’s appeal from a decision of the U.S. Court of Appeals for the Ninth Circuit, which had blocked the law, saying it was at odds with federal law and international treaties and was causing “extreme and irreversible harm.” But the Supreme Court dismissed the case in June in response to a request from the Biden administration.

Mr. Fletcher urged the justices to give the Biden administration the same deference it had afforded 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,” he wrote. “It should do the same here.”

Omar Jadwat, the director of the A.C.L.U.’s Immigrants’ Rights Project, said the Biden administration had been correct to rescind the Remain in Mexico program.

“The government must take all steps available to fully end this illegal program, including by reterminating it with a fuller explanation,” he said in a statement after the Supreme Court’s ruling. “What it must not do is use this decision as cover for abandoning its commitment to restore a fair asylum system.”

Mr. Fletcher noted that the executive branch had broad authority over immigration. “The district court’s injunction,” he wrote, “effectively dictates the United States’ foreign policy.”

The Washington Post Supreme Court says Biden administration must comply with ruling to restart ‘remain in Mexico’ program for asylum seekers

By Robert Barnes

August 24, 2021

The Supreme Court on Tuesday said the Biden administration must comply with a lower court’s ruling to reinstate President Donald Trump’s policy that required many asylum seekers to wait outside the United States for their cases to be decided.

The administration had asked the court to put on hold a federal judge’s order that the “Remain in Mexico” policy known as Migrant Protection Protocols (MPP) had to be immediately reimplemented. U.S. District Judge Matthew Kacsmaryk ruled earlier this month that the Biden administration did not provide an adequate reason for getting rid of the policy and that its procedures regarding asylum seekers who enter the country were unlawful.

Over the objections of the three liberal justices, the court’s conservative majority agreed that the administration had not done enough to justify changing the policy.

The administration “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 said in a short, unsigned order. In such emergency matters, the court often does not elaborate on its reasoning.

It said Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan would have granted the administration’s request. The three also gave no reason.

The action could be an ominous sign for the new administration. The court is considering a request that it dissolve the pandemic-related evictions moratorium implemented by the Centers for Disease Control and Prevention, about which the court’s most conservative justices have already expressed skepticism.

The court often showed deference to the Trump administration in such emergency matters, including when the MPP was first implemented.

Acting solicitor general Brian H. Fletcher was explicit about that in his brief to the court.

“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,” Fletcher wrote. “It should do the same here.”

But in its order Tuesday night, the court cited a decision from 2020 in which it stopped the Trump administration from dismantling the Obama-era program Deferred Action for Childhood Arrivals, which protected undocumented immigrants who were brought into the country as children.

In that case, Chief Justice John G. Roberts Jr. sided with the court’s liberals in saying the Trump administration had failed to show that ending the program was not arbitrary and capricious.

“We do not decide whether DACA or its rescission are sound policies,” Roberts wrote in the 2020 decision. “The wisdom of those decisions is none of our concern. Here we address only whether the Administration complied with the procedural requirements in the law that insist on ‘a reasoned explanation for its action.’ ”

The difference is that decision was made after full briefing and argument, rather than on an emergency request to maintain the status quo while appeals continue.

Immigration rights groups denounced Tuesday’s Supreme Court order and urged the administration to continue its efforts to rescind the program rather than implement it.

“We are committed to doing everything we can to prevent this egregious policy from harming one more person and will use every tool at our disposal to oppose the Remain in Mexico policy, or any like it,” said Marielena Hincapié, executive director of the National Immigration Law Center. “We urge the Biden administration to do the same.”

It is unclear exactly what effect the ruling will have. The Department of Homeland Security said in a statement that it will continue to challenge the district court ruling. “As the appeal process continues, however, DHS will comply with the order in good faith,” the statement said. “Alongside interagency partners, DHS has begun to engage with the Government of Mexico in diplomatic discussions surrounding the Migrant Protection Protocols (MPP). DHS remains committed to building a safe, orderly, and humane immigration system that upholds our laws and values.”

In his brief to the court, Fletcher said reviving the program would be difficult. “MPP has been rescinded for 2.5 months, suspended for 8 months, and largely dormant for nearly 16 months,” Fletcher wrote.

“The district court’s mandate to abruptly reimpose and maintain that program under judicial supervision 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.”

A panel of the U.S. Court of Appeals for the 5th Circuit had largely sided with Kacsmaryk, refusing the government’s request to stay his ruling. It will expedite its consideration of the merits of the judge’s opinion, and the issue could return to the Supreme Court.

Shortly after taking office in January, President Biden said the administration would not continue enrolling migrants in the MPP and ordered a review of the program. He and immigration rights groups had criticized immigration policies implemented by the Trump administration as counterproductive and at odds with the nation’s historical practices.

“I’m not making new law. I’m eliminating bad policy,” Biden said at the time.

Under the program, more than 60,000 asylum seekers were sent to wait outside U.S. territory while their claims were processed in U.S. immigration courts. The states of Texas and Missouri filed suit against the Biden administration, saying that rescinding the Trump policy would result in a flow of undocumented immigrants into those states.

In their brief to the court, the states’ attorneys general said revoking the MPP “amplified the ongoing border crisis into an outright disaster, emboldening criminal cartels and human traffickers who prey on vulnerable migrants.”

While the litigation was underway, Homeland Security Secretary Alejandro Mayorkas filed a seven-page memorandum on June 1 detailing what he saw as the MPP’s shortcomings and stating why his department was rescinding the policy adopted in late 2018.

On Aug. 13, Kacsmaryk, a Trump-nominee who took the bench in 2019, ruled for the states. He vacated Mayorkas’s decision and issued a nationwide permanent injunction, to take effect in seven days. He required the Department of Homeland Security to “enforce and implement MPP in good faith” until Mayorkas provided additional explanation for his decision and until the department has “sufficient detention capacity to detain all aliens” arriving at the border without authority to enter.

Kacsmaryk said the law gave the administration only two options for migrants seeking asylum: “mandatory detention or a return to a contiguous territory.”

At the Supreme Court, the Biden administration said that was an “egregious” misreading of the law. The law gives the executive branch discretion, the administration argued, and said such a reading of the law “has never been accepted by any presidential administration since the statute’s enactment in 1996, including while MPP was operational.”

It defended Mayorkas’s decision-making but said that even if it was insufficient, the solution would be to require additional reasoning, not to reimplement a program that requires delicate negotiations with Mexican officials and others.

While Biden pledged during the campaign to end the Trump-era program, he has continued the prior administration’s policy of expelling migrants from the southern border on the grounds of preventing further spread of the coronavirus.

Thousands of single adult migrants are still being expelled, although in recent months, the Biden administration has admitted most migrant families and unaccompanied minors to seek refuge in the United States.

Omar Jadwat, director of the Immigrants’ Rights Project at the American Civil Liberties Union, said the Biden administration “must take all steps available to fully end this illegal program, including by re-terminating it with a fuller explanation.”

The case is Biden v. Texas.

The Wall Street Journal Supreme Court Reinstates ‘Remain in Mexico’ Policy for Asylum Applicants

By Jess Bravin

August 24, 2021

WASHINGTON—The Supreme Court on Tuesday reinstated a Trump-era policy that requires asylum applicants to wait in Mexico while their claims are evaluated by U.S. authorities. The three liberal justices dissented.

President Biden canceled the Trump administration Migrant Protection Protocols, commonly called the Remain in Mexico policy, responding to criticism that it forced vulnerable migrants to wait out their cases in violent border cities. Lower courts found the administration failed to follow proper procedures in ending the policy and that the alternative of paroling into the U.S. asylum applicants en masse may violate federal law.

The Biden administration asked the Supreme Court to let it cancel Remain in Mexico while it appealed, but in a brief order Tuesday evening, the justices said the government was unlikely to prevail.

The administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious,” the unsigned order said. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan indicated they would have granted the government’s application.

“The Department of Homeland Security respectfully disagrees with the district court’s decision and regrets that the Supreme Court declined to issue a stay,” the department said in a statement, adding that the administration was in discussions with Mexico over an agreement to re-implement the program.

A representative for the Mexican foreign ministry didn’t immediately respond to a request for comment.

As a practical matter, Remain in Mexico hasn’t been in use since 2019. Since the start of the Covid-19 pandemic last year, U.S. officials under both the Trump and Biden administrations have been turning back migrants under public-health orders issued by the Centers for Disease Control and Prevention.

Nevertheless, at the request of two Republican-controlled states, Texas and Missouri, lower federal courts ordered the Department of Homeland Security to reinstate the Migrant Protection Protocols. In August, U.S. District Judge Matthew Kacsmaryk, in Amarillo, Texas, issued a nationwide order requiring the government to reinstate Remain in Mexico.

Judge Kacsmaryk, a 2019 Trump appointee, found termination of the program to be arbitrary and capricious, and said the Department of Homeland Security hadn’t properly considered the benefits of denying entry to noncitizens claiming to be persecuted in their homelands.

Texas and Missouri argued that Remain in Mexico reduced burdens for their taxpayers, such as the cost of processing driver’s license applications for noncitizens who are allowed to move in while their asylum cases are pending. It can take months or years to resolve such claims before U.S. immigration courts.

After the Fifth U.S. Circuit Court of Appeals, in New Orleans, declined to block Judge Kacsmaryk’s order, the administration asked the Supreme Court to intervene.

The district court decision “imposes a severe and unwarranted burden on Executive authority over immigration policy and foreign affairs by ordering the government to precipitously re-implement a discretionary program that the Secretary [of Homeland Security] has determined was critically flawed,” the Justice Department filing said.

The administration said the order effectively required the Remain in Mexico policy to operate indefinitely, because it would terminate only when the government had capacity to detain all asylum applicants in the U.S. That is a practical impossibility, the government said, because Congress never has provided adequate funding for such a detention program.

Late Friday, Justice Samuel Alito, who oversees the Fifth Circuit that includes Texas, issued a temporary stay granting the government’s request through midnight Wednesday so that the full court could consider the matter.

In their response brief, Texas and Missouri argued that Remain in Mexico was a necessary response to a flood of migrants at the border, and noted that more than 80% of asylum claims ultimately were rejected.

“By eliminating the ‘free ticket into the United States,’ MPP served to discourage such futile and dangerous journeys [and] thus [is] an ‘indispensable tool in addressing the ongoing crisis at the southern border,’” the states said, citing previous court papers.

In a separate case, immigrant advocates had challenged Remain in Mexico, prevailing before a federal appeals court in San Francisco, which ordered a halt to the policy. Last year, at the Trump administration’s request, the Supreme Court reinstated the policy while the litigation proceeded, and scheduled arguments for March 2021. The justices canceled that hearing after the new administration dropped the policy and joined plaintiffs in seeking to end the case.

Federal courts stymied several Trump administration initiatives on similar grounds to Tuesday’s order, namely that agencies had acted in violation of the Administrative Procedure Act, which is intended to promote reasoned, transparent decision-making by the executive branch.

In June 2020, for instance, the Supreme Court by a 5-4 vote blocked Mr. Trump’s effort to cancel Deferred Action for Childhood Arrivals, an Obama-era program providing legal protections and work permits to unauthorized immigrants who came to the U.S. as children. Chief Justice John Roberts, joined by the court’s then-four member liberal wing, wrote that the Trump administration terminated the program without considering such matters as “what if anything to do about the hardship to DACA recipients.”

Tuesday’s order cited that opinion as authority for denying permission to cancel Remain in Mexico.

The Hill Supreme Court rebuffs Biden over Trump-era ‘Remain in Mexico’ policy

By John Kruzel

August 24, 2021

The Supreme Court on Tuesday rebuffed the Biden administration’s effort to halt the reinstatement of a controversial Trump-era immigration measure known as the “Remain in Mexico” policy.

In a brief order that broke along familiar ideological lines, the conservative-majority court declined to intervene after a lower court revived the policy, which requires asylum-seekers at the southern border to stay in Mexico while their applications are processed.

Justice Samuel Alito wrote that the administration had failed to show it was likely to ultimately prevail in defending the lawfulness of its decision to rescind the Trump measure, officially called the Migrant Protection Protocols (MPP).

Alito, who handles emergency requests from Texas, referred the matter to the court. None of his fellow conservative justices commented on the matter, though the court’s three liberals indicated they would have granted the administration’s request.

The court’s move comes after a federal judge in Texas ordered the Biden administration to reinstate the program in response to a lawsuit by the attorneys general of Texas and Missouri. A three-judge panel of the U.S. Court of Appeals for the 5th Circuit let stand that ruling, prompting the Biden administration’s emergency request to the justices.

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 fates in Mexico.

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

The Biden administration sought to formally end the Trump-era policy in June, which was spelled out in a memorandum by Homeland Security Secretary Alejandro Mayorkas.

But earlier this month, Texas-based U.S. District Judge Matthew Kacsmaryk, a Trump appointee, ruled that the Biden administration had failed to provide a legally adequate rationale for its rescission and ordered that the policy would have to remain in place until the administration undergoes a lengthy administrative procedure to overturn it.

Los Angeles Times Supreme Court rules Biden may not end Trump’s ‘Remain in Mexico’ policy

By David G. Savage

August 24, 2021

WASHINGTON — The Supreme Court’s conservative majority on Tuesday upheld a Texas judge’s order that would require the Biden administration to follow President Trump’s so-called Remain in Mexico policy.

That program sought to deter Central American migrants from seeking asylum in the United States by requiring them to stay in Mexico until their cases were heard in the U.S.

The justices by a 6-3 vote rejected an appeal from Biden’s lawyers who said the Texas ruling conflicted with the principle that the executive branch has leeway on how best to enforce the immigration laws.

The case was seen as an early test of whether the court’s conservatives — including three appointed by Trump — would allow a lower court judge to challenge the president’s authority on a matter that the Supreme Court has historically given the executive branch wide latitude to control.

In a brief order, the justices said the Biden administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols [Remain in Mexico] was not arbitrary and capricious.”

The order cited last year’s 5-4 decision that blocked Trump from repealing the Obama-era immigration program that shielded immigrants who were brought to this country as children and lived here illegally.

Chief Justice John G. Roberts Jr., joined by the liberals, said the proposed repeal was “arbitrary and capricious” because Trump’s advisors had not given a clear or convincing explanation for the change in policy.

Dissenting from Tuesday’s order were the court’s three remaining liberals: Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. They said they would have granted the administration’s appeal and put the judge’s order on hold.

Throughout Trump’s term, immigrant rights lawyers went to court, often in California, seeking rulings that put the administration’s immigration policies on hold. That in turn spurred Trump’s lawyers to go directly to the Supreme Court in search of relief.

Now, Texas state lawyers are fighting Biden’s policies by suing before conservative judges in Texas.

Tuesday’s decision was lauded by conservatives there and beyond. The number of apprehensions at the border has increased dramatically this year.

“This halts Biden’s skirting of immigration laws and will reduce the record number of migrants entering,” Texas Gov. Greg Abbott tweeted Tuesday evening.

Don McLaughlin, the mayor of Uvalde, about 70 miles north of the border with Mexico, said he was “ecstatic about the ruling.”

“I hope it gives law enforcement a breather,” he said. “It will help border communities, but it won’t change things overnight.”

The ruling is a sharp setback for immigrant rights advocates who believed the new administration could reverse most of Trump’s strict enforcement policies.

The National Immigration Law Center in Los Angeles said it was “deeply disappointed” in the court’s action. “We are committed to doing everything we can to prevent this egregious policy from harming one more person and will use every tool at our disposal to oppose the Remain in Mexico policy, or any like it, and we urge the Biden administration to do the same,” said Marielena Hincapié, the center’s executive director.

Paola Luisi, director of the immigrant advocacy group Families Belong Together, called the decision unacceptable.

“Children and families were given no choice but to live in tent camps without access to clean water, medical care or schools,” Luisi said. “Many people waiting in Mexico for their asylum cases have been kidnapped, raped and even killed as a direct result of this policy. They came to our doorstep with a belief in America — and our government sent them into danger.”

The Biden administration can still seek a fuller appeal of the Texas judge’s order from the 5th Circuit Court based in New Orleans, and the Department of Homeland Security released a statement saying it would do just that.

In the meantime, however, the Biden administration must continue to follow Trump’s policy while that case makes its way through the courts.

At issue is whether the migrants who arrive at the southern border may enter the United States to present their pleas for asylum and stay in the country while their cases move through immigration courts.

In 2019, the Trump administration changed that practice and adopted the Remain in Mexico policy — known formally as Migrant Protection Protocols. It required tens of thousands of migrants from Central America to wait on the Mexican side of the border until their cases could be heard.

Defending the change, Trump administration’s officials said migrants with weak claims would no longer have “a free ticket into the United States” and, as a result, they “were beginning to voluntarily return home.”

But immigrant rights lawyers told the court the policy was “a humanitarian catastrophe: asylum seekers were murdered, raped, kidnapped, extorted, and compelled to live in squalid conditions where they faced significant procedural barriers to meaningfully presenting their protection claims.”

However, even before Biden was elected, the Remain in Mexico policy had been overtaken by the pandemic. The Trump administration barred immigrants from entering the country based on a health directive designed to stem the spread of infectious diseases, and the Biden administration maintained that rule. So the practical effect of Tuesday’s action will be limited for now.

But even amid the pandemic-related restrictions, Biden’s top immigration advisors decided to suspend and then formally repeal the Remain in Mexico policy. They said it had achieved mixed results, but had proved to be costly and difficult to coordinate. They said a significant percentage of the asylum seekers were not present when their cases were heard by an immigration judge.

Lawyers for Texas and Missouri sued in a federal court in Amarillo, Texas, and argued the Trump policy must be maintained. They said the repeal had triggered a surge of new migrants at the southern border, and if allowed to cross into the United States, they would prove a costly burden for Texas and its taxpayers.

U.S. District Judge Matthew Kacsmaryk, a Trump appointee, agreed with the Texas lawyers, and on Aug. 13 he issued a nationwide order that requires enforcement of the Remain in Mexico policy. He said Biden’s repeal of Trump’s policy was “arbitrary and capricious,” and violated federal procedural law.

A week later, the U.S. 5th Circuit Court of Appeals refused to block the judge’s order.

The administration then went to the Supreme Court to seek a temporary stay of the judge’s order. It cited several of its previous emergency orders that set aside rulings from judges in California and elsewhere that blocked Trump’s policies.

“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. It should do the same here,” acting Solicitor Gen. Brian H. Fletcher wrote.

The case was Biden vs. State of Texas, 21A21.

Roll Call Supreme Court denies Biden’s attempt to end ‘Remain in Mexico’

By Caroline Simon

August 24, 2021

The Supreme Court on Tuesday ruled against the Biden administration in its attempt to end a controversial Trump-era border policy in a major blow to the president’s efforts to undo the hardline policies of his predecessor.

The court denied, 6-3, the Biden administration’s application to block an Aug. 13 order by a Texas federal judge to reinstate the policy, formally known as Migrant Protection Protocols, or MPP, which required asylum seekers to wait in Mexico while their claims were adjudicated in the United States.

The one-page ruling said the Biden administration had failed to show that rescinding MPP was not “arbitrary and capricious.” Justices Sonia Sotomayor, Elena Kagan and Stephen G. Breyer noted their dissent.

Texas and Missouri, which had filed suit to preserve the policy, said in briefs filed to the high court late Tuesday that the government’s argument — that the lower court ruling dictates U.S. foreign policy — “proves too much.”

Those states wrote that “implementing virtually any significant immigration policy may have collateral consequences for foreign relations. But the Government may not use such foreign-policy implications as a blank check to avoid complying with” immigration laws.

Soon after his inauguration, President Joe Biden moved to undo many of former President Donald Trump’s immigration policies through executive orders, including MPP. The Trump administration argued MPP discouraged asylum seekers, but immigration advocates said the policy denied people a legal right to seek protection in the U.S. and forced them to wait in dangerous Mexican border cities.

In June, the Department of Homeland Security formally ended the policy.

If allowed to stand, the court ruling maintaining the policy “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 Justice Department said in its request for a stay Friday to the Supreme Court.

It also argued the Aug. 13 order issued by U.S. District Judge Matthew J. Kacsmaryk of the Northern District of Texas, a 2019 Trump appointee, “imposes a severe and unwarranted burden on Executive authority over immigration policy and foreign affairs.”

Immigrant advocacy groups, who have pushed for the policy’s end, said they would continue their efforts.

The National Immigration Law Center expressed disappointment with the Supreme Court action.

“We are committed to doing everything we can to prevent this egregious policy from harming one more person and will use every tool at our disposal to oppose the Remain in Mexico policy, or any like it, and we urge the Biden administration to do the same,” said Marielena Hincapié, the group’s executive director, in a statement.

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