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Biden administration asks Supreme Court to intervene in Remain-in-Mexico legal battle

The Justice Department on Wednesday asked the Supreme Court to intervene in a lawsuit that required U.S. border officials to resurrect a Trump administration program that requires migrants to wait in Mexico for their asylum hearings.

Citing "erroneous" decisions by lower courts that mandated the border policy's revival, government lawyers representing the Biden administration said the case should be quickly reviewed by the Supreme Court, urging the conservative-leaning high court to hold oral arguments in April. 

At the center of the Justice Department's request are two lower court rulings against the Biden administration's attempts to terminate the so-called Remain-in-Mexico policy, officially called the Migrant Protection Protocols, or MPP.

In August, Republican officials in Texas and Missouri convinced a federal judge to order the Department of Homeland Security to reinstate the Remain-in-Mexico protocols, which were suspended hours after President Biden took office in January.

U.S. Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, ruled that Homeland Security Secretary Alejandro Mayorkas did not adequately explain the policy's termination. He also concluded the termination led the U.S. to violate a law that governs the detention of some migrants. 

The Biden administration quickly appealed the ruling and in late October, Mayorkas issued a new, more comprehensive termination memo, arguing that the policy's "unjustifiable human costs" on asylum-seekers stuck in dangerous Mexican border towns outweighed its role in deterring migrants from heading to the U.S.

But the Fifth Circuit Court of Appeals earlier this month rejected the Biden administration's appeal and upheld Kacsmaryk's ruling. In a scathing opinion, a panel of Republican-appointed judges refused to review Mayorkas' second termination attempt, dismissing the administration's argument that the new memo rendered the case moot.

To comply with the court orders, the Biden administration restarted a version of the Remain-in-Mexico rules in El Paso, Texas, earlier this month. U.S. officials have so far returned 200 adult asylum-seekers to Mexico under the revived program, according to the International Organization for Migration, which is processing the migrants.

On Wednesday, Justice Department lawyers said the lower court rulings, if left in place, would require the administration to continue the Remain-in-Mexico policy until the Mexican government stops cooperating or Congress allocates enough funds to detain most migrants who reach the U.S. border.  

"In short, the lower courts have commanded DHS to implement and enforce the short-lived and controversial MPP program in perpetuity," the government lawyers wrote.

The Biden administration asked the Supreme Court to review the Fifth Circuit's interpretation of a law governing the detention of migrants, as well as its decision to not consider Mayorkas' second termination memo.

After launching the MPP in 2019, the Trump administration returned 70,000 migrants to Mexico, where many found themselves waiting for their U.S. court hearings in squalid camps or places plagued by crime and cartel violence. Hundreds reported being assaulted, kidnapped or otherwise victimized while waiting in Mexico.

While Mr. Biden and progressive advocates strongly criticized the policy, the Trump administration argued the program effectively reduced border apprehensions by deterring migrants who did not qualify for U.S. asylum from journeying north.

The Biden administration has so far limited returns under the revived Remain-in-Mexico rules to Ciudad Juárez, Mexico, but the policy is expected to be expanded across the southern border in the coming weeks.

Haitian families cross the Rio Bravo river
Haitian families cross the Rio Bravo river illegally to surrender to the American authorities at the border of Mexico's Ciudad Juarez with El Paso, Texas. Christian Torres/Anadolu Agency via Getty Images

To address concerns raised by the Mexican government, the Biden administration made several changes to the protocols before restarting them during the first week of December, including expanding the categories of at-risk asylum-seekers who can't be returned to Mexico

U.S. officials are also offering migrants vaccination against COVID-19 and asking them whether they fear being harmed in Mexico before sending them there.

While the revival of the Remain-in-Mexico rules was court-ordered, the Biden administration has retained another Trump-era border restriction that allows the U.S. to swiftly expel migrant adults and families to Mexico or their homelands without screening them for asylum.

The Biden administration has argued the pandemic-era policy, known as Title 42, is needed to prevent coronavirus outbreaks inside migrant holding facilities along the U.S.-Mexico border. 

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