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The Biden administration may end 'Remain in Mexico' policy, Supreme Court rules


All right. Now, to dig into the ruling on the Biden vs. Texas case over the administration's decision to roll back the Trump-era migrant protection protocol that's also known as Remain in Mexico policy, I'm joined by NPR correspondent Joel Rose, who covers immigration. Joel, quickly reset for us the Remain in Mexico policy.

JOEL ROSE, BYLINE: Sure. This policy forces some migrants to wait outside of the U.S. for their hearings in immigration courts. It was created by the Trump administration, and about 17,000 migrants in all were sent back under former President Trump. Immigrant advocates said that the policy put many of those asylum-seekers in danger in border towns and squalid camps. President Biden called the policy inhumane, and his administration tried to end Remain in Mexico. But the states of Texas and Missouri sued to block that from happening. With a record number of border apprehensions last year, they argued it was necessary to deter migrants from coming. And a judge in Texas, you know, who was appointed by former President Trump, sided with the states, ordered the Biden administration to reinstate the policy. The Biden administration's Department of Homeland Security says it is implementing the policy in good faith, although on a much smaller scale than the Trump administration did.

MARTÍNEZ: OK. And what did the court rule here?

ROSE: A majority of the justices said the Biden administration is within its rights - was within its rights when it ended Remain in Mexico. The 5-4 opinion written for the majority by Chief Justice John Roberts, joined by the court's three liberals and Justice Brett Kavanaugh - the majority here rejected the argument that was made by the states of Texas and Missouri. Those states had argued that because the Biden administration does not have enough detention capacity to detain all of the migrants who were crossing the border, that it should therefore be required to return some of them to Mexico, instead of releasing them into the U.S. to wait for their immigration court hearings inside the U.S.

And the Biden administration said, look, no previous administration had enough detention capacity to detain all migrants crossing the border, and none of them had interpreted the law this way, not even the Trump administration. You know, the Biden Justice Department argued that states in this case were essentially meddling in foreign policy by forcing the administration to negotiate with the government of Mexico to restart the Remain in Mexico program. And the majority of the Supreme Court said basically that that interpretation is wrong, that the administration can - sorry - the administration may return migrants to other countries, but it is not required to do that.

MARTÍNEZ: What about the dissent? What does it say?

ROSE: Justice Samuel Alito wrote one dissent, joined by Justices Thomas and Gorsuch, and they made clear that they really sided with the states' interpretation here. They argue that Congress really did intend for all migrants to be detained pending their immigration proceedings or else return to Mexico. They, you know, made very clear that they would have, you know, sided with the states on this.

MARTÍNEZ: Joel, I know that President Biden tried to end Remain in Mexico pretty early on in his administration or in his term. Is he going to be able to end it right away?

ROSE: No, it's not going to be instant. The case has been sent back to the federal court judge in the northern district of Texas for further proceedings, which likely means a lot of further litigation around some of the details before this injunction is actually lifted. So, you know, it could be weeks. It could even be months before the Biden administration can, you know, formally end Remain in Mexico again.

MARTÍNEZ: Technically, though, it's a win for President Biden, Joel. He is facing lots of other legal challenges to his immigration policies. What does this case now mean for them?

ROSE: Well, I think the administration and immigrant advocates hope, you know, that the legal reasoning in this majority opinion will help them in these other cases. You know, Texas and other conservative states have brought a number of legal challenges to Biden's immigration policies, you know, and they've won in federal courts. And, you know, maybe this decision, they hope - the Biden administration hopes will allow them to revisit some of those decisions.

MARTÍNEZ: NPR's Joel Rose and Nina Totenberg. Thanks, you two.

ROSE: You bet. Transcript provided by NPR, Copyright NPR.

A Martínez
A Martínez is one of the hosts of Morning Edition and Up First. He came to NPR in 2021 and is based out of NPR West.
Joel Rose is a correspondent on NPR's National Desk. He covers immigration and breaking news.