In 6-3 ruling, SCOTUS refuses to stay lower court injunction reinstating the Trump policy, Breyer, Sotomayor, and Kagan would have granted a stay.
When the Supreme Court ruled Tuesday night on the “Remain in Mexico” policy, I was in transit. But it’s an important ruling and throws back in Democrats’ face their successful litigation to keep DACA in place despite Republican attempts to end that illegal Obama policy.
A group opposed to the policy provides this explanation of the policy:
(1) What is the “Remain in Mexico” policy?
After publicly announcing on December 20th  that it was working on such a policy, the U.S. government, through the Department of Homeland Security (DHS), issued its new Migrant Protection Protocols, or the “Remain in Mexico” policy via memorandum on January 25th. The new policy and its guidance outline procedures under which the U.S. government will return certain asylum-seekers to Mexico to wait through the duration of their cases pending in the U.S. immigration court system.
(2) What happens to people under this policy?
The Remain in Mexico policy requires certain asylum seekers arriving by land at the U.S./Mexico border (both at and between official ports of entry (POEs)) who pass a credible fear screening with a U.S. asylum officer (a first step in the process for requesting asylum) to return to Mexico to await their asylum hearing in U.S. immigration court.
(5) Who is not subject to the Remain in Mexico policy?
• Those who arrived at the U.S./Mexico border and were placed into removal proceedings prior to the policy’s implementation (i.e., it is not retroactive);
• Unaccompanied children;
• Mexican citizens or nationals;
• Individuals who are processed for expedited removal;
• Any person who is determined by DHS to be more likely than not to face persecution or torture if returned to Mexico;
• Individuals with known mental or medical health issues;
• Individuals of interest to the U.S. or Mexican government or those with a criminal history or history of violence; and
• Lawful permanent residents returning to the U.S. or individuals with advanced parole.
You can read the lower court Orders here. The 5th Circuit ruled:
This case concerns the Migrant Protection Protocols (“MPP”) created by the Secretary of the Department of Homeland Security on December 20, 2018, and purportedly rescinded by DHS in a memorandum on June 1, 2021 (“June 1 Memorandum”).1 After a full bench trial and 53 pages of findings of fact and conclusions of law, the district court concluded that DHS’s purported rescission of MPP violated, inter alia, the Administrative Procedure Act (“APA”). DHS seeks a stay pending appeal. After carefully considering full briefing from the parties, we hold DHS failed to satisfy the four stay factors. See Nken v. Holder, 556 U.S. 418 (2009). The motion is denied.
The Supreme Court Order refused to stay the lower court orders, so the original district court ruling was to be enforced:
ORDER IN PENDING CASE
21A21 BIDEN, PRESIDENT OF U.S., ET AL. V. TEXAS, ET AL.
The application for a stay presented to Justice Alito and by him referred to the Court is denied. The applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious. See Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___ (2020) (slip op., at 9-12, 17-26). Our order denying the Government’s request for a stay of the District Court injunction should not be read as affecting the construction of that injunction by the Court of Appeals.
Justice Breyer, Justice Sotomayor, and Justice Kagan would grant the application.
The DHS case cited was the DACA case, where SCOTUS ruled:
In the summer of 2012, the Department of Homeland Security (DHS) announced an immigration program known as Deferred Action for Childhood Arrivals, or DACA. That program allows certain unauthorized aliens who entered the United States as children to apply for a two-year forbearance of removal. Those granted such relief are also eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity.
Five years later, the Attorney General advised DHS to rescind DACA, based on his conclusion that it was unlawful. The Department’s Acting Secretary issued a memorandum terminating the program on that basis. The termination was challenged by affected individuals and third parties who alleged, among other things, that the Acting Secretary had violated the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on her decision. For the reasons that follow, we conclude that the Acting Secretary did violate the APA, and that the rescission must be vacated.
DACA us still here. Remain In Mexico will be back. Executive actions and policies of a prior administration are hard to rescind, and removing policies a new administration believes are unlawful, needs to be done carefully. That’s the principle being pursued by SCOTUS.DONATE
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