In Blow to Texas Republicans, Supreme Court Says Biden Can Scrap 'Remain in Mexico' Policy

Texas Gov. Greg Abbott is in a political row with the Biden administration over border issues.
Texas Gov. Greg Abbott is in a political row with the Biden administration over border issues. U.S. Customs and Border Protection, Public domain, via Wikimedia Commons
Last week, Texas Gov. Greg Abbott and other Republicans across the state applauded the U.S. Supreme Court’s decision to overturn Roe v. Wade and return abortion-related decisions to states. Now, Abbott and his conservative crew aren’t so happy with the highest justices in the land.

With a 5-4 vote on Thursday, the Supreme Court said President Joe Biden’s administration could scrap the so-called “Remain in Mexico” policy, which started under former President Donald Trump.

As part of that policy, which is also known as the Migrant Protection Protocol, some migrants and asylum seekers were forced to wait in Mexico while their applications moved at a funeral’s pace through the U.S. legal system. In some cases, those waiting in third countries endured violence, kidnapping, threats and decrepit living conditions in tent camps south of the U.S.-Mexico border.

In the court’s majority opinion, Chief Justice John Roberts wrote that the Trump-era policy “plainly confers a discretionary authority to return aliens to Mexico during the pendency of their immigration proceedings.”

“The use of the word ‘may’ makes clear that contiguous-territory return is a tool that the (DHS) Secretary 'has the authority, but not the duty,' to use,” Roberts went on.

In other words, the Biden administration can return migrants to Mexico, but it’s not required to do so. "The decision by the majority is pretty narrow," said Omar Ochoa, a lawyer based in the Rio Grande Valley, explaining that he expects "we will see challenges in the future."

Filed by Texas and Missouri, the original lawsuit, in part, argued that migrants waiting for an asylum decision should either be detained or left to wait in Mexico until a decision was made.

But Thursday's decision, Ochoa added, effectively said that there "is a third option: that those individuals can be paroled under certain conditions and allowed to remain in the United States pending their immigration proceedings."

The move comes at a time when Texas Republicans, including Abbott, are ramping up border policy criticisms and anti-immigrant rhetoric as November’s midterm elections approach. Abbott recently warned of a “caravan” headed toward the southern border, rhetoric advocacy groups have likened to a scare tactic.

Abbott didn’t take the news all that well. In a statement Thursday, he claimed the Supreme Court’s ruling “will only embolden the Biden Administration’s open border policies.”

"This is an important step toward treating all people at our borders with dignity, regardless of their race or background." - Erin Thorn, Texas Civil Rights Project

tweet this
Abbott pointed to the recent discovery of at least 53 migrants dead in the back of a trailer in San Antonio as evidence of the risk the court’s decision posed.

“Reinstating and fully enforcing Remain-in-Mexico would deter thousands more migrants from making that deadly trek,” the governor said in the statement, “and President Biden should take that simple step to secure the border because it is the only humane thing to do.”

U.S. Sen. Ted Cruz wrote on Twitter that he was "disappointed" with the Supreme Court's decision. "I pray [Biden] makes the right decision and keeps the policy, given our unprecedented border crisis," he said, adding: "South Texas is seeing the impact of an open border already."

Also on Thursday, Texas Attorney General Ken Paxton joined ultra-conservative activist Charlie Kirk on his online talk show and said he was “disappointed” in the court’s decision.

Paxton said the Remain in Mexico policy stopped migrants and their lawyers from using a “loophole” to stay in the country by claiming asylum. (Allowing people to apply for asylum is a requirement under international law.)

Paxton added, “The Trump administration used this law to stop it, and the Biden administration said, ‘No, we like the loophole. We want these people coming. We want to get as many of them here as fast as possible.’ So, they basically started telling people, ‘You’re invited. Come. Claim asylum. You’re perfectly welcome to do that, and we’ll just let you go.’”

As of June 19, more than 23,000 migrants were held in U.S. detention centers, according to Immigration and Customs Enforcement’s data. Nearly 71% had no criminal record.

On Twitter, Paxton vowed to continuing fighting “to secure our border [and] hold Biden accountable in my dozen other border-security suits in federal court.”

Rights groups and other border watchdogs have celebrated the Supreme Court’s latest ruling.

"The Biden administration rightfully recognized that this violent policy should not continue and decided to end it, and we welcome the Court’s decision today to rightly affirm that decision," Erin Thorn, a senior attorney at the Texas Civil Rights Project, said in a statement.

"This is an important step toward treating all people at our borders with dignity, regardless of their race or background," Thorn added.

"This is an important step toward treating all people at our borders with dignity, regardless of their race or background." - Erin Thorn, Texas Civil Rights Project

tweet this
Consisting of borderland mayors, county judges and economic development commissions, the Texas Border Coalition said in a statement that the Remain in Mexico policy was never “the best solution for problems with the asylum process or border security.”

“Border security cannot be achieved until our immigration laws are finally updated to meet the needs of this century,” the coalition’s statement added. “This includes providing sufficient resources to clear backlogs and humanely and efficiently process visa and immigration requests.”

Since March 2020, Abbott has continually expanded Operation Lone Star, a controversial border clampdown that has seen Texas National Guard and Department of Public Safety officers deployed to the southern frontier.

Meanwhile, Abbott has also amped up his anti-immigrant rhetoric, at one point urging the Biden administration to stop providing formula to migrant families in U.S. detention facilities amid a shortage of the product.

The Supreme Court may have ruled against Republican wishes, but that doesn't mean putting a final stop to the Remain in Mexico policy would be easy, said Southern Methodist University professor Cal Jillson.

"Although the Biden administration and Democrats in Congress have called for this to happen, they are aware that it will be difficult for them politically," he explained. "In this case, the Republicans have the advantage of a simpler message." 
KEEP THE DALLAS OBSERVER FREE... Since we started the Dallas Observer, it has been defined as the free, independent voice of Dallas, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Patrick Strickland is the news editor at the Dallas Observer. He's a former senior reporter at Al Jazeera English and has reported for the New York Review of Books, The Guardian, Politico EU and The New Republic, among others.