Will Supreme Court Keep Remain in Mexico in Force?

Press Releases

April 15, 2022

IRLI shows administration dropped the program unlawfully

WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in the Supreme Court urging the Court to affirm a Fifth Circuit Court of Appeals decision upholding a district court order that restored the Trump Remain in Mexico policy of returning asylum seekers to Mexico to wait for their asylum hearings in that country, rather than in the United States.

Not only did the district court order Remain in Mexico restored, it also ordered the Biden administration to keep the program in force until the border was enough under control that the administration could detain all of the asylum seekers it did not return to Mexico. The administration argues before the Supreme Court that this order wrongfully made Remain in Mexico a mandatory program, when in fact the statute merely says that the administration “may” return asylum seekers to Mexico.

In its brief, IRLI shows the flaw in this argument. Because the administration now lacks the resources to detain more than a small fraction of the flood of illegal border crossers its policies have created, and because the law requires the detention of all illegal border crossers who are not returned to Mexico (except for a few who may be given humanitarian parole), when the administration terminated Remain in Mexico, it forced itself to violate the detention requirement. A court may properly order a party before it not to take an action that forces it to break the law.

“This case shows once again that, whereas Trump worked to accomplish the purposes of immigration law, including operational control of the border, Biden is at war with the law,” said Dale L. Wilcox, executive director and general counsel of IRLI. “By ending the only lawful alternative to detaining asylum seekers—returning them to Mexico—the administration deliberately forced itself to release them into this country, in violation of the law. We hope the Supreme Court sees through this strategic ploy, and refuses to overturn an injunction that put a stop to the administration’s massive, deliberate lawbreaking.”

The case is Biden v. Texas, No. 21-954 (Supreme Court).

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