Biden can end ‘Remain in Mexico,’ SCOTUS says. What that means for asylum-seekers across the border

President Joe Biden can now end a highly contested Trump-era immigration policy that forced thousands asking for asylum in the U.S. to await their cases from Mexico, the U.S. Supreme Court ruled Thursday. 

Those thousands of asylum-seekers include more than 600 currently enrolled in the Migrant Protection Protocols program – also known as MPP or “Remain in Mexico” – in San Diego, according to immigration court data from the Transactional Records Access Clearinghouse at Syracuse University. 

What exactly will happen to those cases remained unclear as of Friday. 

The Department of Homeland Security released a statement Thursday applauding the court’s decision and vowing “continue our efforts to terminate the program as soon as legally permissible.” 

The White House press office did not return a request for comment.

Immigration aid and humanitarian groups have lambasted MPP for forcing asylum-seekers from mostly Central and South American countries to wait in Mexican border cities while their cases are pending in U.S. courts. 

Normally, asylum-seekers would pursue their cases from within the U.S, either on parole, bond or from a detention center, instead of outside the country. 

The Trump-era policy changed that by ordering non-Mexican nationals to wait in Mexican cities just south of the U.S. border, and enter the U.S. only for hearings before an immigration judge. 

More than 12,000 people were enrolled into the program in San Diego under the Trump administration. 

DHS issued a memo officially ending the program last year. Shortly after, Texas and Missouri sued the federal government, arguing President Biden violated federal immigration law and did not go through the proper channels to end the program. 

The Biden administration was then forced through a court-ordered injunction to reinstate MPP, but made changes that expanded the eligible countries as well as exemptions for those with vulnerabilities including medical conditions and membership in the LGBTQ+ community.

Since the MPP’s restart in January, more than 800 asylum-seekers have been enrolled into the San Diego operation, according to data from the Department of Homeland Security. 

The Biden administration nor DHS has released information on what will happen in the immediate future to the more than 600 asylum-seekers waiting across the border with pending cases in San Diego courts. 

When the Biden administration first terminated MPP in 2021, the Department of Homeland Security brought asylum-seekers enrolled in the program into the U.S. to continue their cases. 

That process, which halted after the legal challenge from Texas and Missouri, should be a starting point for the winding down of the program, according to Monika Langarica, a staff attorney with the UCLA Center for Immigration Law and Policy. 

Thursday’s ruling means “the ball is in the Biden administration’s court,” Langarica said.

The Supreme Court ruled that Biden’s termination of MPP did not violate immigration law, but Biden still must act to officially end the program “as soon as possible and provide relief for people who are currently in the program,” Langarica said. 

But there still could be challenges ahead for terminating the program. 

In its decision, the Supreme Court tossed the case back to a lower court to decide whether a DHS memo outlining the reasons for terminating the program violates administrative law. 

That means there’s an opportunity for the courts to reinstate MPP down the line, Langarica said, and the Biden administration will likely need to “vigorously defend” its termination of MPP before the lower courts.

Less than 2% of MPP cases completed between October and the end of May ended in relief, according to TRAC. That means out of 156 complete cases in San Diego in that time frame, only three people were granted permission to live in the U.S. 

Critics say the program endangered vulnerable asylum-seekers with little access to food, shelter, safety and medical attention in Mexico. Human Rights First documented more than 1,500 “publicly reported cases of murder, rape, torture, kidnapping, and other violent assaults” among MPP enrollees in Mexico in a two year span between 2019 and 2021.

Langarica said the program “eviscerated due process” for asylum-seekers by creating barriers to securing legal counsel and evidence to help their case. 

Immigration advocates and aid organizations celebrated the Supreme Court ruling, but they’re also pushing for the Biden administration to roll back Title 42. 

Title 42, a blanket health policy implemented by the Trump administration, has been used nearly 2 million times to turn away asylum-seekers at the border who would normally have a right to ask for protection in the U.S.

The policy has essentially shut off the asylum process at the border since the beginning of the pandemic. 

“Title 42 continues to completely block access to asylum at the southern border on a much larger scale than MPP does,” Langarica said.