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The Supreme Court Ruled That Biden Must Restart Trump's "Remain In Mexico" Program

The Trump-era program forced more than 71,000 immigrants and asylum-seekers to wait in dangerous areas in Mexico while a US judge ruled on their case.

Last updated on August 24, 2021, at 9:49 p.m. ET

Posted on August 24, 2021, at 8:01 p.m. ET

Veronica G. Cardenas / Reuters

Asylum-seeking children in 2020 play around the immigrant camp where they live in Matamoros, Mexico.

The Supreme Court on Tuesday ruled that the Biden administration must restart a Trump-era program that forced thousands of asylum-seekers to wait in Mexico.

The “Remain in Mexico” program, more formally known as the Migrant Protection Protocols (MPP), forced more than 71,000 immigrants and asylum-seekers to wait in Mexico while a US judge ruled on their case. Immigrants, some of whom lived in apartments, shelters, or squalid camps, were forced to wait in dangerous Mexican border cities where they were easy targets for cartels and criminals. Human Rights First counted at least 1,544 public reports of murder, rape, and other attacks committed against people in MPP.

In a statement, the Department of Homeland Security said it regretted the Supreme Court's decision and would continue to challenge a lower court's order requiring the reinstatement of the program.

"As the appeal process continues, however, DHS will comply with the order in good faith," the agency said. "Alongside interagency partners, DHS has begun to engage with the Government of Mexico in diplomatic discussions surrounding the Migrant Protection Protocols."

In an order, the Supreme Court refused to block a lower court's ruling that required the government to restart the Remain in Mexico policy. The Biden administration had asked the Supreme Court to put the ruling on hold while it appealed US District Judge Matthew J. Kacsmaryk's order that the program be reinstated on Aug 13.

The Biden administration appealed the decision, but the 5th Circuit denied the government's request to stay the order on Thursday.

The government then turned to the Supreme Court and asked for a stay, which Justice Samuel Alito granted on Friday while the court decided what to do with the Biden request.

"It 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," the Biden administration said in its filing.

But the Supreme Court on Tuesday said the administration "failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious."

It's unclear how reinstating Remain in Mexico would play out on the ground. The Trump administration, which launched the policy in January 2019, stopped enrolling people in the program in favor of quickly expelling immigrants at the border without the chance to even ask for asylum last March. The administration cited the pandemic when it invoked an obscure public health law, Title 42, to quickly send back immigrants to Mexico or their home countries.

Asylum officers received an email on Tuesday evening saying that the agency was taking steps to reimplement and enforce MPP in good faith. It also said the agency was working with the State Department and the Mexican government is to ensure the “expeditious reimplementation” of Remain in Mexico.

“As with initial implementation of the program, the reimplementation is predicated on concurrence from the Government of Mexico and the reestablishment of appropriate infrastructure, processes and related systems and capabilities,” the email from Andrew Davidson, head of asylum at the US Citizenship and Immigration Services, states. Once those are met, DHS will coordinate and resume the process of returning people enrolled in MPP to Mexico, the email added.

As of Wednesday, DHS must also stop processing people who were previously in MPP, according to the email.

President Joe Biden upset immigrant advocates when he decided to also cite the pandemic and extend the Trump-era border expulsion policy on Aug. 2. The government, though, has not been using Title 42 on children who cross the border without their parents.

On the campaign trail, Biden promised to end the Remain in Mexico policy; as president, he started to allow immigrants previously in the program to enter the US.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.