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Remain in Mexico Policy to Continue Pending SCOTUS Resolution

Back of a border patrol truck driving on a dirt road along the Mexican border in Arizona, with mountains in the background
By Joseph Fawbush, Esq. on March 12, 2020 10:03 AM

The Department of Homeland Security announced the Migrant Protection Protocols in December, 2018, as an alternative to detaining asylum seekers in the U.S. Instead, they are returned to Mexico while their application is processed. A large majority of the asylum seekers processed under MPP (colloquially known as the “remain in Mexico" policy) are not from Mexico, but from other Central American countries such as Guatemala and Honduras. Asylum seekers, displaced by the violence plaguing these countries, cross Mexico to enter the U.S. on the southwest border. MPP was implemented in 2019 and has been used since to process approximately 60,000 asylum seekers, according to the DHS.

Lower Courts Hold MPP Violates U.S., International Law

A federal district court in California issued a nationwide injunction on April 8, 2019, and a federal appeals court upheld that injunction in February of 2020. However, the Ninth Circuit limited the injunction to states in its jurisdiction, namely California and Arizona. According to the Ninth Circuit, the policy causes extreme and irreversible harm to asylum seekers.

The DHS appealed and petitioned the Supreme Court to issue a stay of the injunction, arguing that allowing it to stand (i.e., temporarily invalidating MPP) would result in a “rush on the border" that would require the government to “detain thousands of aliens" or “release them into the interior where many will simply disappear." The injunction was scheduled to take effect on March 12. Further, the DHS argued, “there is more than a fair prospect this Court will vacate the injunction" in any case.

In a short order issued March 11, the justices agreed that the MPP can remain in place until the court issues a decision on the merits or the writ of petition for certiorari is denied. In the unlikely event the justices do deny cert, the order granting a stay will terminate. That would leave the Ninth Circuit decision in place, invalidating MPP.

Only Justice Sotomayor would have denied the petition.

The Roberts Court Isn't a Big Fan of National Injunctions

The order is not particularly surprising. We've noted before some of the Supreme Court justices' views on national injunctions, particularly when those injunctions concern immigration policy. Justice Thomas, particularly, has made clear his objections to the current rate of national injunctions, which are occurring, on average, about once a month during the Trump Administration. The Supreme Court has already prevented a lower court injunction on three previous Trump Administration immigration policy proposals. The Supreme Court also recently allowed the Trump Administration's “public charge rule" to take effect. This rule bars legal permanent residency for immigrants likely to need government assistance.

Proceeding on the Merits

It is widely expected that the Supreme Court will take up the case. Should it do so, the justices will determine whether the policy violates both U.S. law and international norms, as the Ninth Circuit did. Based on previous similar cases, however, it wouldn't appear that invalidating MPP is the likeliest outcome.

Related Resources

The Debate Over National Injunctions Ramping Up (FindLaw's Greedy Associates)

9th Circuit: Law Enforcement Funds Cannot Depend on Immigration Enforcement (FindLaw's 9th Circuit)

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