Biden admin seeks SCOTUS stay of order to reinstate ‘Remain in Mexico’ policy

A federal judge last weekend ordered President Joe Biden’s administration to reinstate the Migrant Protection Protocols (MPP), better known as the “Remain in Mexico” policy that had been implemented under former President Donald Trump but terminated under Biden.

A circuit court panel upheld that ruling on an emergency appeal this week, but with the lower court’s order set to go into effect Saturday night, Biden’s administration sought an emergency stay from the U.S. Supreme Court at the last moment, Axios reported.

Rules violation

A district court judge had ruled that the Biden administration violated certain procedural rules and immigration laws in canceling the MPP, which requires asylum-seekers apprehended at the southern border to wait in Mexico until their claims are processed and adjudicated instead of being released into the U.S. while they wait.

The judge had granted the administration a week’s time to reinstate the program and make a “good faith effort” at enforcing it until it was terminated in the proper manner or the courts ruled otherwise.

According to the filing of the Justice Department’s (DOJ) lawyers, however, the district judge’s ruling “requires the government to abruptly reinstate a broad and controversial immigration enforcement program that has been formally suspended for seven months and largely dormant for nearly nine months before that.”

“Humanitarian crisis”

The Washington Examiner reported that the DOJ attorneys also claimed in the filing that “The district court’s mandate to abruptly reimpose and maintain that program under judicial supervision would … severely disrupt its operations at the southern border, and threaten to create a diplomatic and humanitarian crisis.”

The “Remain in Mexico” policy had first been implemented under Trump in early 2019 and survived legal challenges, only to be immediately suspended by President Biden upon taking office and then terminated altogether in June by Homeland Security Secretary Alejandro Mayorkas — albeit by way of a memo and not through the more lengthy processes as laid out by the Administrative Procedures Act (APA).

The Hill reported that the Biden administration had sought relief from the 5th Circuit Court of Appeals but was unanimously ruled against by a three-judge panel that upheld the lower court’s decision.

Thus, the administration quickly moved on to the Supreme Court and argued that, as frequently occurred during challenges to Trump administration policies, the high court ought to issue a stay to protect the status quo while the merits of the case were fully considered and ruled upon.

Justice Alito steps in

Politico reported that the Biden administration received what it had requested, if only very temporarily, as Justice Samuel Alito issued a late-night stay that would delay the lower court’s deadline for reinstatement by a few days.

The one-page order from Alito stated that the district court’s injunction was stayed until Tuesday night “so that the full Court can consider the application,” and ordered the respondents in the case, the states of Texas and Missouri, to file their response arguing for the program to be reinstated by Tuesday evening.

Given how many times the Trump administration was tripped up and delayed, policywise, by the courts for violations of the APA — and the district court’s ruling makes it abundantly clear that the Biden administration violated the APA — this brief stay has likely only bought Biden a few more days before his administration will be compelled to reinstate the MPP, if only until it can be properly terminated in a lawful manner.

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