Supreme Court Rules Against President Biden On Immigration
Just saw this. By a 6-3 majority, the Supreme Court denied the Biden’s Administration emergency appeal for a stay of execution of a District Court order reinstating the Migrant Protection Protocols (commonly known as the Remain in Mexico policy). Under this policy, illegal migrants crossing the southern boarder claiming asylum had to remain in Mexico until their cases were heard by an immigration judge. The entire order:
What does this mean? In the short term that Biden must enforce Trump’s Remain in Mexico policy.1 Longer term, looks like maybe more litigation.
The ACLU and others are calling for the Biden Administration to reinstate the policy, but with stronger and clearer wording as to why they are doing so. I am not so sure this will do anything more then result in additional litigation ending with the same result.
The law governing illegal immigration from Mexico and Canada is 8 USC §1225, which is clear that illegal immigrants must be removed, or detained until they are removed, unless they claim asylum. If they claim asylum they must be detained pending final determination of their claim. To complicate matters, in 1997 the Clinton Administration entered into an agreement to settle litigation with immigrant activists regarding the detention of children (the Flores agreement)2. Since then the courts, as they often do, expanded this agreement to hold that children can only be detained for a limited time, I believe 20 days but am not sure, regardless of whether they arrived alone or with a parent.3
The large number of illegal immigrants, including minors, filing meritless asylum claims made it impossible to comply with the detention requirements of 8 USC §1225 and the time limit for detaining minors under Flores. ICE simply lacks the detention facilities to detain all illegal immigrants until their asylum claims are decided. Even if they had enough detention facilities, they do not have enough immigration judges to decide the asylum claims filed by minors within the time limits of Flores. Trump implemented the Remain in Mexico policy in order to comply with both the law and Flores.
By revoking the Remain in Mexico policy Biden knew he would be releasing illegal migrants in violation 8 USC §1225. Judge Kacsmaryk recognized this when he ordered the reinstatement of the Remain in Mexico policy, by stating that it was necessary “to prevent the continued systemic violation of” the detention requirement in section 18 USC §1225.
It is hard to see how the Biden Administration can again revoke the Remain in Mexico policy no matter how clear or strong the wording of a new executive order is regarding the reasons - they will still be in violation of 8 USC §1225 by releasing illegal immigrants into the U.S. before their asylum hearings are finished. Unless Congress amends the law.
I am sure Biden and his base are not liking the music the Supremes are playing right now. Bet on how long before we start hearing calls to pack the court again?
Goose-Gander thingy. The case cited above is the case that prevented Trump from voiding Obama’s DACA policy. Court precedent applies to all similar cases - it becomes the law. People on the left were ecstatic when the Supreme Court held that Trump could not do away with the Dreamer policy. But they sort of overlooked that it is precedent…which seems to have come back to bite Biden.
Flores is to much to go into here, but for those who are interested a very good and detailed explanation read the explanation at the Center for Immigration Studies.
Flores and the courts expansion of it is to a large extent what is driving the influx of minors crossing the boarder illegally.