The Supreme Court of the United States authorized President Joe Biden on Thursday to end the “Stay in Mexico” program, introduced by Donald Trump and under which asylum seekers are sent back to await the resolution of their cases across the border. By a narrow majority of five to four, the justices ruled that ending this policy does not violate immigration law. The high court agreed with Biden in his intention to bring down the program just three days after a truck was found in San Antonio in which 53 undocumented immigrants died of suffocationa reflection of the dramatic situation that exists on the border with Mexico.
A law that grants discretion
The court ruling is excellent news for Biden’s immigration policy, which was on the ropes, and a little oxygen after various political setbacks due to the latest rulings of the Supreme Court on abortion, carrying weapons or the fight against climate change. The US government asked the Court to review the judicial ruling issued in December by an appeals court that ordered it to maintain the Migrant Protection Protocols (known as Stay in Mexico or MPP) introduced by Trump in 2019.
The President of the Supreme Court, John Robertsalong with conservative Brett Kavanaugh and the three liberal justices ruled that federal immigration law grants discretion to the executive branchthat is to say that it can expel asylum seekers or not.
Roberts, author of the majority opinion, argued that the regulations establish that “in the event that a foreigner” arrives from a territory contiguous to the United States, he “can be returned” while waiting for his immigration procedure to be resolved. This “clearly confers discretionary authority,” Roberts notes, insisting that the Court “has repeatedly noted” that “the word ‘may’ clearly connotes discretion.”
The program was established by Trump in 2019 as part of his zero tolerance policy on immigration., with the collaboration of the government of Andrés Manuel López Obrador in Mexico. With this policy, thousands of people who arrived at the border bridges of the United States were returned to Mexican territory, hindering their access to legal representation and exposing them in many cases to criminal networks in the north of the Latin American country.
As soon as he arrived at the White House, Biden suspended the Stay in Mexico immigration plan but a Texas state court judge ordered that it be reinstated “in good faith.” On December 6, the United States partially reactivated the program after having consulted with Mexico, in order to comply with that order, while continuing with an appeal filed before the court of appeal, which ruled in favor of the district court.
Migrant record
The White House considers that Stay in Mexico is “ineffective and inhumane”. Its critics, including migrant defense associations, believe that the program exposes asylum seekers to dangerous situations at the border and to precarious conditions. “In some cities in Mexico, migrants have been raped, kidnapped and have suffered various forms of violence”denounced Claudia Tristandirector of the migration program of the organization Mamas al Poder.
The flow of migrants through Mexico, mostly Central Americans, has increased under the Biden presidency because of his promises of a “just and humane” immigration policy. According to Customs and Border Protection a new record was broken in may in the number of meetings with irregular migrants on the southern border of the United States239.416), that is, every time one of them arrives and surrenders to an authority or when he tries to cross and is detained.
From the policy’s implementation in January 2019 to its suspension under Biden, nearly 70,000 people were sent back to Mexico, according to the American Immigration Council. During Biden’s tenure, each month more than 200,000 people who tried to enter the country were sent back, invoking the MPP or a public health rule applied since the pandemic that blocks people at the border.
Border crossings for irregular migrants are exposed both to the region’s inhospitable conditions and to the presence of human traffickers. This week at least 53 people died while traveling in an overcrowded trailer without ventilation in San Antonio, Texas. And this Friday a caravan of thousands of migrants that will depart from Tapachula, on the border with Guatemala, asked the Mexican government for groups through a humanitarian corridor that reaches Nuevo León, a state that borders the United States, in order to avoid a new tragedy.
Reactions for and against
As expected, Republicans criticized the Supreme Court ruling. “It will only embolden the open border policies of the Biden administration” that it should “restore and fully enforce” Remain in Mexico “to guarantee security at the border because it is the only humane thing to do,” said the governor of Texas, the Republican Greg Abbott.
The American Civil Liberties Union (ACLU), on the contrary, praised the Court’s ruling. “You are correct in rejecting the spurious argument that this cruel policy is required by law”said Judy Rabinovitz of the Immigrants’ Rights Project of ACLU.
Different organizations defending the rights of migrants expressed their satisfaction, but also called for caution and urged Biden to take action on the matter. “This is very good news, but it is important to note that it is only a legal victory. The Stay in Mexico policy is still in force,” said Claudia Tristan.
Even if MPPs are lifted, Trump’s legacy will live on through Title 42, a health policy established as a result of the covid-19 pandemic that allows undocumented immigrants without the right to request asylum to be automatically deported. The Biden government has also tried to lift Title 42, but so far it collides with justice. “As long as Title 42 stands, thousands of migrants will continue to be deported without access to the asylum process. So many people will not benefit from the Supreme Court’s ruling,” he stressed. Aaron Reichlin-Melnickpolicy director for the American Immigration Council.