The Migrant Protection Protocols can be terminated, according to a June 30 ruling from the Supreme Court of the U.S. in Biden v. Texas.
Chief Justice Roberts delivered the 5-4 majority opinion, which was joined by Justices Breyer, Sotomayor, Kagan and Kavanaugh, with Kavanaugh also filing a concurring opinion.
Two dissenting opinions were filed, one by Justice Alito that was joined by Justices Thomas and Gorsuch, and one field by Justice Barrett that Justices Thomas, Alito and Gorsuch “joined as to all but the first sentence.”
MPP, often referred to as the “remain in Mexico” policy, was announced by the Trump administration in December 2018, and the first removals under the policy began in early 2019.
Following the 2020 election, the Biden administration sought to end the policy, temporarily suspending it in January 2021, with the Secretary of Homeland Security Alejandro N. Mayorkas announcing in June 2021 that MPP would be terminated.
As a Council on Foreign Relations brief explains, Missouri and Texas challenged the termination based on a violation of the Administrative Procedure Act and, in August 2021, “a Texas district court … ruled that the Biden administration failed to properly justify the termination under federal regulations.”
In October 2021, following a detailed review of MPP, Secretary Mayorkas issued a second memorandum explaining further the administration’s rationale for terminating the protocols.
Mayorkas noted in the memorandum that “the Administration remains under a court order requiring it to reimplement MPP in good faith, which it will abide by even as it continues to vigorously contest the ruling” and explained that “the termination of MPP will not take effect until the current injunction is lifted.”
In December 2021 – after both the Fifth Circuit Court of Appeals and SCOTUS declined to issue a temporary stay on the Texas court’s ruling – the Biden Administration reinstituted MPP after reaching an agreement with Mexico, while also petitioning SCOTUS to review the case.
The Department of Homeland Security’s policy guidance for reinstating “Remain in Mexico” expanded the individuals subject to MPP to “nationals of any country in the Western Hemisphere other than Mexico,” a decision faith groups and immigration advocates criticized.
SCOTUS agreed to hear the case, oral arguments were presented in April 2022, and the ruling that Mayorkas’ memorandum did not violate section 1225 of the INA was released on June 30.
That section of the INA reads, in part, “In the case of an alien . . . who is arriving on land … from a foreign territory contiguous to the United States, the [Secretary] may return the alien to that territory pending a proceeding under section 1229a.”
The majority ruled that this section allows for discretion through its use of the word “may,” which “makes clear that contiguous-territory return is a tool that the Secretary ‘has the authority, but not the duty,’ to use.” In addition, “INA expressly authorizes DHS to process applicants for admission under a third option: parole. Thus, the court reversed of the Texas court’s ruling by declaring that “the Government’s rescission of MPP did not violate section 1225 of the INA.”
A number of faith leaders and faith-based organizations offered their response to the ruling via social media or formal statements:
Fellowship Southwest, a collaborative network for churches formed in 2017, tweeted: “Today’s Supreme Court Decision on Texas v. Biden is a relief for the hundreds of faith volunteers who feed, shelter, protect and transport asylum seekers on the U.S-Mexico border. We rejoice with the hundreds of asylum seekers that will be positively affected by this decision.”
“Today’s decision recognizes and preserves the executive branch’s ability to reverse untenable, illegal, and immoral policies, regardless of who is in office. The implementation of MPP has obstructed due process and subjected people to the very dangers that forced them to seek refuge in the United States in the first place. With this ruling, we welcome the end of MPP,” Bishop Mario E. Dorsonville, auxiliary bishop of Washington and chairman of the U.S. Conference of Catholic Bishops’ Committee on Migration, Sister Donna Markham, OP, PhD, president and CEO of CCUSA, and Anna Gallagher, executive director of CLINIC, said in a joint statement on behalf of USCCB.
“While this ruling helps pave the way forward, it does not resolve the ongoing challenges at our country’s southwest border,” they said. “We remain committed to supporting immigration policies that produce more sustainable solutions, respect the God-given dignity of migrants, and better reflect Christ’s call to welcome the stranger.”
Incoming USCCB migration chair Bishop Mark Seitz of El Paso told Crux that “we’ll take whatever small progress that can come our way in the midst of a very broken system,” but a more comprehensive approach is needed. “If we had an orderly system then we wouldn’t have situations such as what we saw in San Antonio this past week with the death of 50 people,” he said. “We can blame the traffickers as much as we want … but we need to have a system in which those types of people aren’t needed anymore and I think that would be possible if we would simply allow people who have a legitimate cause to be able to cross.”
USCCB and two other Catholic organizations filed an amici curiae brief in March 2022 opposing MPP and calling it “immoral and illegal.”
“We welcome the Court’s recognition that the administration can act to put an end to the disastrous Remain in Mexico policy,” Dylan Corbett, executive director of the Hope Border Institute in El Paso, Texas, said in a tweet. “We call for an end to Remain in Mexico and every policy that denies the right to seek asylum at our border, including Title 42. For the wellbeing and safety of vulnerable migrants and asylum seekers and for the moral health of our nation, we must restore asylum at the border now.”
A statement from the Interfaith Immigration Coalition called the ruling “a long-overdue victory” and “a meaningful step towards restoring the U.S. asylum system.” The IIC release provided statements from multiple faith leaders who are part of the coalition, including:
– “Today’s Supreme Court Decision on Texas v. Biden is a relief for the hundreds of faith volunteers who feed, shelter, protect, and transport asylum seekers on the U.S-Mexico border,” said Elket Rodriguez, Cooperative Baptist Fellowship Immigrants and Refugees Advocacy and Missions Team Leader. “Cooperative Baptists rejoice with the hundreds of asylum seekers that will be positively affected by this decision.”
– “We are elated to welcome good news from the Supreme Court on a critical issue of human rights,” said Rabbi Jill Jacobs, CEO of T’ruah: The Rabbinic Call for Human Rights. “The Remain in Mexico policy has been harmful, inhumane, and extreme, and it is a direct affront to our Jewish commitment to welcoming those in need of refuge.”
– “The Sisters and Advocates of NETWORK welcome the Court’s ruling allowing the Biden administration to end the inhumane Remain in Mexico policy,” said Joan F. Neal, Deputy Executive Director and Chief Equity Officer of NETWORK Lobby for Catholic Social Justice. “This is a positive step towards creating the just and dignified immigration system we need in the United States. We hope President Biden will act on his promise to end MPP, and other detrimental policies, to restore the right to asylum.”