Supreme Court will weigh Biden’s bid to scrap Trump-era ‘Remain in Mexico’ policy

The U.S. Supreme Court
The U.S. Supreme Court has agreed to hear the Biden administration’s appeal of court decisions saying it did not have authority to suspend the “Remain in Mexico” policy.
(Kent Nishimura / Los Angeles Times)

The Supreme Court agreed Friday to hear an appeal from President Biden and decide whether he may end the Trump administration’s policy of requiring migrants seeking asylum to wait on the Mexican side of the border until their cases can be heard.

The main issue before the court is whether Biden moved too hastily and without adequate rationale when ending Trump’s “Remain in Mexico” policy.

A secondary issue could be whether current immigration law supports the policy. This will be the first time the justices have ruled on the legal issues on the “Remain in Mexico” policy.


Traditionally, the justices have given the executive branch broad authority in the area of immigration.

Last year the Biden White House was surprised when Judge Matthew Kacsmaryk, a Trump appointee based in Amarillo, Texas, ruled the new administration did not have the lawful authority to suspend Trump’s hard-line policy. He said the administration had not given a satisfactory explanation for its decision to end the policy.

The 5th Circuit Court in New Orleans agreed, and in August, the Supreme Court by a 6-3 vote refused to intervene on an emergency basis.

But the justices will now hear the administration’s appeal in the case of Biden vs. Texas in late April and will presumably hand down a ruling before their summer recess.

Trump’s immigration officials said in 2019 the “Remain in Mexico” policy deterred tens of thousands of Central Americans from coming to the U.S. border. Previously such asylum seekers could enter the country while their claims were being processed.

Due to a huge backlog of such claims, it can take several years for cases to be resolved. And immigration authorities do not have space to detain the influx of new arrivals.


Under Trump, the asylum-seekers were required to wait in Mexico until their cases were heard.

Immigrants rights advocates said Trump’s policy was inhumane since it left thousands of migrants stranded with nowhere to stay, making them vulnerable to abuse and violence.

On his first day in office, Biden suspended the policy. But lawyers for Texas and Missouri filed suit and won rulings that ordered the administration to reinstate Trump’s policy.

In their separate legal briefs, lawyers for the administration and for Texas point to two different and conflicting provisions in immigration law.

One provision says migrants “may” be returned across the border to await their asylum hearing. Trump administration lawyers cited this passage when they announced the policy. Biden administration lawyers say the word “may” means they may opt out of this approach.

A second part of the law, cited by supporters of “Remain in Mexico,” says migrants “shall” be detained until their cases can be heard. Because U.S. officials do not have enough space to detain all of the new arrivals, Texas officials say they must be returned to Mexico.