On Tuesday, the Supreme Court held a hearing for the Biden Administration’s attempt to end the Trump-era “Remain in Mexico” policy. This policy requires asylum seekers to stay in Mexico as they wait for their cases to be heard in court.
Some of the Supreme Court’s conservative Justices sided with the Texas lawmakers as well as with Trump-appointed judges, who had previously ruled that migrants should not be allowed to enter the U.S. or to be released pending their court hearings. They pointed to a provision in the law that says asylum seekers “shall be detained” until a decision on their case is made.
Solicitor General, Elizabeth B. Prelogar, who represents the Biden administration, argued that it is unlikely that the government had the capacity to detain all asylum seekers for months or even years. She cited a report that said there were 220,000 migrants apprehended at or near the border in March 2022, but there were only 32,000 beds in detention facilities.
“No one disputes that the Department of Homeland Security does not have sufficient detention capacity to hold all the migrants, “she said.
Justice Brett M. Kavanaugh doubted whether that is what Congress intended. He questioned whether the U.S should admit thousands of migrants who were not “lawfully” admitted because there is not enough capacity to detain them. Chief Justice, John G. Roberts Jr., sided with him, worried that an unlimited number of migrants could be admitted to the U.S.
In 2019, the Trump administration took a different route and sent thousands of migrants back to Mexico. Immigrant rights advocates have argued that it forced migrants who fled violence and persecution in their countries to live in dangerous, neglectful conditions subjecting them to more violence and abuse.
In August 2021, by a 6-3 vote, the Justices rejected an emergency appeal seeking to overturn the order. Traditionally, the Supreme Court provides the executive branch authority to enforce immigration laws, including reversing the policies of past administrations.
Prelogar concluded that it would be a radical departure for the court to say the new administration must maintain policies put in place by the previous administration. Before 2019, no administration or Congress had claimed that immigration law required the government to detain every migrant with a pending asylum claim.
A decision from the Supreme Court can be expected by late June 2022.
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