Supreme Court: Biden Can End Trump-Era Asylum Policy

FILE - A man from Nicaragua sits at a shelter for migrants, April 21, 2022, in Tijuana, Mexico. The Supreme Court has ruled that the Biden administration properly ended a Trump-era policy forcing some U.S. asylum-seekers to wait in Mexico. The justices’ 5-4 decision for the administration came in a case about the “Remain in Mexico” policy under President Donald Trump. (AP Photo/Gregory Bull, File)

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The Supreme Court said Thursday the Biden administration can scrap a Trump-era immigration policy that was at the center of efforts to deter asylum-seekers, forcing some to wait in Mexico. Two conservative justices joined their three liberal colleagues in siding with the White House.

The justices’ decision came in a case involving former President Donald Trump’s “Remain in Mexico” policy, formally know as Migrant Protection Protocols, which enrolled about 70,000 people after it was launched in 2019.

President Joe Biden suspended the program on his first day in office in January 2021. But lower courts ordered it reinstated in response to a lawsuit from Republican-led Texas and Missouri. The current administration has sent far fewer people back to Mexico than did the Trump administration.

The ruling was released on the same day that the court dealt the administration a blow in an important environmental case about the nation’s main anti-air pollution law. That ruling could complicate the administration’s plans to combat climate change.

The heart of the legal fight in the immigration case was about whether U.S. immigration authorities, with far less detention capacity than needed, had to send people to Mexico or whether those authorities had the discretion under federal law to release asylum-seekers into the United States while they awaited their hearings.

After Biden’s suspension of the program, Homeland Security Secretary Alejandro Mayorkas ended it in June 2021. In October, the department produced additional justifications for the policy’s demise, but that was to no avail in the courts.

Chief Justice John Roberts wrote that an appeals court “erred in holding that the” federal Immigration and Nationality Act “required the Government to continue implementing MPP.” Joining the majority opinion was fellow conservative Brett Kavanaugh, a Trump-appointee, as well as liberal justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Kavanaugh also wrote separately and noted that in general, when there is insufficient detention capacity, both releasing asylum-seekers into the United States and sending them back to Mexico “are legally permissible options under the immigration statutes.”

Cornell University law professor Stephen Yale-Loehr, an immigration expert, said the Biden administration does not need to take any further action to end the policy, but that Texas and Missouri can pursue a challenge over whether the administration followed appropriate procedure in ending the program.

Texas Attorney General Ken Paxton said in a statement that the decision was “unfortunate.” He argued it would make “the border crisis worse. But it’s not the end. I’ll keep pressing forward and focus on securing the border and keeping our communities safe in the dozen other immigration suits I’m litigating in court.”

Because of lower court decisions MPP resumed in December, but the administration has registered only 7,259 migrants in the program, about 6 of every 10 of them Nicaraguans. The administration has said it would apply the policy to nationalities that are less likely to be subject to pandemic-era asylum limits. Strained diplomatic relations with Nicaragua makes it extremely difficult for the U.S. to expel people back to their homeland under the pandemic rule, known as Title 42 authority.

U.S. authorities stopped migrants 1.2 million times on the Mexico border from December through May, illustrating the limited impact that “Remain in Mexico” has had under Biden.

Democratic-led states and progressive groups were on the administration’s side in the case. Republican-run states and conservative groups sided with Texas and Missouri.

The case is Biden v. Texas, 21-954.



  1. Given that the United States has a serious labor shortage (which is driving up wages, which drives up inflation), and a real possibility that the US needs to substantial increase the number of people employed (as soldiers or contractors or suppliers) in the defense sector, they should welcome immigrants and help them get jobs. They tend to be young and hard working, and just the sort of people the US needs to keeps its economy growing and to hold down wage inflation.

  2. Akuperma, this isn’t about immigrants. It’s about ILLEGAL immigrants, people who show their contempt for US law by committing a crime the moment they break into the country, and are breaking the law every moment they stay here; they then show further contempt for the law by repeating a cock-and-bull story they’ve been trained to say in order to “claim asylum” and thus be entitled to a hearing, pending which they expect to be released into the USA, where they can disappear. What is your basis for claiming that THIS population are “young and hard working, and just the sort of people we need”?

    The evidence is that illegal immigrants are overrepresented among criminals arrested in the border states. And this makes sense because as Trump once expressed himself, Mexico is not sending us their best and brightest, it is sending us its scum, the people it doesn’t want. And yes, many of these people are being sent by the Mexican government, which encourages them to invade the USA.