With this series of weekly updates, WOLA seeks to cover the most important developments at the U.S.-Mexico border. See past weekly updates here.
- The Supreme Court upheld the Biden administration’s cancellation of the “Remain in Mexico” program. By a 5-4 vote, judges determined that lower courts could not compel the administration to re-start the Trump-era program, as it had by sending about 5,000 asylum seekers back to Mexican border cities since December.
- A horrific tragedy in San Antonio, Texas—the death of 53 migrants smuggled in a stifling hot tractor-trailer—drew attention to the dangers faced by those unable to access legal asylum and migration channels, during a year that appears likely to see record-breaking numbers of deaths near the U.S.-Mexico border.
- The House Appropriations Committee drafted its 2023 Homeland Security budget bill. It includes a Republican amendment that, if made law, would preserve the Title 42 pandemic expulsions policy, potentially for years.
Supreme Court allows Biden administration to terminate “Remain in Mexico”
With a 5-4 decision on June 30, the U.S. Supreme Court decided that the Biden administration did not violate immigration law when it ended the controversial Trump-era Migrant Protection Protocols (MPP) or “Remain in Mexico” program. The Department of Homeland Security (DHS) may now proceed with its plan to stop sending asylum seekers to await their U.S. hearings in Mexico.
The Trump administration, which began implementing Remain in Mexico in January 2019, sent 71,076 asylum-seeking migrants back into Mexico until their next immigration court dates. At least 1,544 of them suffered “murder, rape, torture, kidnapping, and other violent assaults” in Mexico , Human Rights First has reported.
Fulfilling a campaign promise, the Biden administration began shutting down the program with a February 2021 executive order and a June 2021 memorandum, bringing many of the asylum seekers into the United States. That process was halted in August 2021 when Amarillo, Texas federal judge Matthew Kacsmaryk ruled—in a suit brought by the Republican attorneys-general of Texas and Missouri—that the Biden administration had not properly terminated Remain in Mexico. Kacsmaryk ordered the program to restart, and the Biden administration appealed, issuing a new termination memorandum in October 2021. In December, the 5th Circuit blocked the administration’s attempt to end the program. The Supreme Court heard arguments in April.
Since its court-ordered restart of the program got underway in December, the Biden administration sent more than 4,300 (or 5,114, or at least 5,600) asylum seekers, primarily from Cuba, Nicaragua, and Venezuela, back to Mexico to await hearings.
Chief Justice John Roberts and Justice Brett Kavanaugh joined the court’s three liberal members in agreeing that the renewed “Remain in Mexico 2.0” may now come to an end. “The Government’s rescission of MPP did not violate section 1225 of the INA [Immigration and Nationality Act], and the October 29 Memoranda constituted final agency action,” the court’s decision reads.
While the Republican state attorneys-general may persist with their litigation before Judge Kacsmaryk, it appears that he and other lower-court judges are now unable to force DHS to revive the program while litigation proceeds through lower courts.
Should a challenge to Remain in Mexico’s termination make its way back up to the Supreme Court, the justices’ decision indicates that they might strike it down. The majority found that Remain in Mexico was a discretionary program: something that the Biden administration “may” continue carrying out, but was not required to. The court noted that the law also allows DHS other options, including detention (which Congress doesn’t fund fully enough to detain all asylum seekers) or parole into the U.S. interior, which is increasingly being used.
The Court also found that Remain in Mexico carries too many “foreign affairs consequences” for it to be mandatory. Forcing the administration to negotiate with Mexico to accept other countries’ asylum-seeking migrants “imposes a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico, one that Congress likely did not intend section 1225(b)(2)(C) to impose,” the decision reads.
The count obtained by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) project (which is higher than DHS’s publicly reported count) shows that as of May 31, the court-ordered revival of Remain in Mexico had sent 5,114 asylum seekers to Mexican border cities. 1,109 of whom have had their cases decided or closed, with the rest still pending. It is not yet clear whether the remaining 4,000 will now have an opportunity to re-enter the United States to continue pursuing their cases.
Meanwhile, the Title 42 pandemic expulsions policy, prolonged by a Louisiana judge in May under other litigation from Republican state attorneys-general, remains in effect. While DHS returned 1,460 migrants to Mexico under the Remain in Mexico program in May, DHS expelled migrants 100,699 times under Title 42 that same month, usually into Mexico and always without a U.S. hearing date.
Tragedy in San Antonio highlights alarming increase in border deaths
In the late afternoon on June 27, a very hot day in San Antonio, Texas, a worker encountered a horrible scene along a road on the city’s outskirts. A refrigerated tractor trailer with no air conditioning unit had been left with its doors partially open. People inside were crying for help, but too weak to leave. Inside, as PBS reported it, were “people piled on top of each other. Bodies were also found strewn along the road near the scene.”