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Can Biden Undo Trump’s “Remain in Mexico” Policy That Forced Asylum Seekers into Dangerous Conditions?

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The U.S. Supreme Court heard oral arguments Tuesday on whether to strike down the Trump-era “Remain in Mexico” policy, which forced tens of thousands of non-Mexican asylum seekers to wait in Mexico while their cases played out in U.S. courts, often in extremely dangerous conditions. Biden suspended the policy, formally known as the Migrant Protection Protocols, shortly after taking office, but Texas and Missouri challenged the move. “This is a pretty outrageous idea that a new president coming into office is not allowed to dismantle his predecessor’s programs that he disagrees with,” says Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council. Still, Reichlin-Melnick says the justices seem torn on their decision and that the Biden administration’s amended version of “Remain in Mexico” still puts asylum seekers at extreme risk of violence. We also hear from asylum seekers about conditions they faced in Mexico under the program.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now! I’m Amy Goodman, with Juan González, as we look now at another U.S. Supreme Court case, one that could have an enormous impact on asylum seekers who come to the United States in search of refuge. On Tuesday, Supreme Court justices heard oral arguments in a Biden administration appeal to a lower court ruling that reinstated the contested Trump-era “Remain in Mexico” policy, formally known as the so-called Migrant Protection Protocols, or MPP.

Between January 2019 to January 2021, some 70,000 non-Mexican asylum seekers were forced to wait in Mexico, often in extremely dangerous conditions, while their cases were resolved in U.S. courts — a process that can take months or even years. President Biden suspended the policy shortly after taking office, but a federal court in Texas last year ordered the administration to restart the program after legal challenges from Texas and Missouri.

During Tuesday’s Supreme Court hearing, Texas Solicitor General Judd Stone tried to argue the Biden administration must reimplement “Remain in Mexico,” saying the U.S. government is either required to jail every asylum seeker at the southern border or return them to Mexico since it does not have the capacity to detain everyone.

JUDD STONE II: MPP, as implemented, reduced the number of violations. It did not fully satisfy the executive mandate, but so far as it went, it complied with the executive’s obligations to return, rather than detain, the aliens enrolled in MPP.

AMY GOODMAN: When questioned, Stone admitted even former President Trump failed to fully detain everyone at the U.S.-Mexico border, even with “Remain in Mexico” in place.

Meanwhile, the Biden administration’s lawyer, Solicitor General Elizabeth Prelogar, argued “Remain in Mexico” was halted because its humanitarian and foreign policy costs outweighed any public benefit of sending tens of thousands of people to Mexico to await their asylum hearings. Justice Brett Kavanaugh questioned her on what the administration meant by “public benefit.”

JUSTICE BRETT KAVANAUGH: There’s no real explanation of how the public is benefited by more people coming into the United States who are not lawfully admitted into the United States, rather than trying, if feasible, for some of those people to remain in Mexico.

AMY GOODMAN: During the oral arguments, Texas Solicitor General Judd Stone claimed the “Remain in Mexico” policy would not require the U.S. to negotiate with Mexico to accept asylum seekers. Justice Elena Kagan interrupted him.

JUSTICE ELENA KAGAN: What do you mean it doesn’t require negotiation with the foreign power? What are we supposed to do? Just drive truckloads of people into Mexico and leave them without negotiating with Mexico?

AMY GOODMAN: In fact, the United States does need the Mexican government’s consent to send asylum seekers there under MPP. Ahead of the hearing yesterday morning, dozens of immigrant justice advocates, lawyers and supporters held a rally outside the U.S. Supreme Court. Several survivors of the “Remain in Mexico” program shared their experiences. This is Ray Rodríguez.

RAY RODRÍGUEZ: I was forced to remain in Mexico for almost a year — about 10 months, to be exact. … So, being asylum in Mexico, it was not easy. Matamoros is a very dangerous region. During my time there, I witnessed a lot of suffering. People were kidnapped and suffer from violence from cartels. We became clear targets for everybody. You’re also vulnerable to extortion and blackmail, not only from the cartels but also from the police. … Seeking asylum is a human right. No human should be forced to remain in danger in Mexico while waiting for the asylum claims. MPP must end now.

AMY GOODMAN: Well, for more, we’re joined in Washington, D.C., by Aaron Reichlin-Melnick. He is senior policy counsel at the American Immigration Council, at yesterday’s rally outside the Supreme Court and tweeting the Supreme Court oral arguments yesterday.

Aaron, can you lay out what’s at the center of the Supreme Court hearing and when can we expect a ruling?

AARON REICHLIN-MELNICK: Yesterday’s Supreme Court hearing was largely about whether or not the Biden administration has the authority to end the “Remain in Mexico” program at all. This is very different than in the DACA case two years ago, where the Trump administration unsuccessfully tried to end that program. In that case, everyone agreed that the Trump administration could end the program if it went through the right protocols for doing so.

But here, Texas has gone even further. They actually got a court order saying not only did the Biden administration go about the wrong way in ending the program, they actually can’t end it and legally would have to keep it in place permanently, for the rest of U.S. history, until Congress either gives enough funding to the agency to do something it’s never been able to do, which is detain every person crossing the border, or if Congress got rid of the entire statutory authority for the program in the first place.

This is a pretty outrageous idea, that a new president coming into office is not allowed to dismantle his predecessor’s programs that he disagrees with. And that is largely what was at stake yesterday. Importantly, the case that was heard yesterday was not about whether “Remain in Mexico” was legal or even whether or not the program was a good idea. It’s solely about whether or not a new president has the authority to ever end his predecessor’s programs. And if the Supreme Court says yes, what that means is that the case is likely going to go back to a lower court for months more legal wrangling.

We can expect a decision in June, because this case is being argued very late in the term, and it will probably be one of the last cases we get out of the Supreme Court before they go on recess this summer.

JUAN GONZÁLEZ: And, Aaron, I know it’s hard to tell from the justices’ questioning how they’re standing, but what was your sense of how the justices were aligning on this case?

AARON REICHLIN-MELNICK: We found that the — you know, I think the justices were torn. For the questioning for Solicitor General Prelogar, there was a lot of concern from the justices about what it means for the government to admit that it can’t do what Congress asked it to do. Since 1903, Congress has told the government that they are required to detain certain individuals. But for that last century, there hasn’t been enough money that Congress has given for that to be possible. So the government has, for over a century, released some individuals because there isn’t enough detention capacity. Several of the conservative justices seemed very concerned by this, suggesting that they were worried about what it would mean to endorse a program that did lead to potentially fewer people being locked in detention centers.

On the other hand, the conservative justices were also very concerned about what it would mean to basically say that every single presidential administration since 1996 has been violating a law without anybody noticing, as Texas was essentially arguing. And even Justice Thomas, one of the court’s most conservative members, suggested that Texas’s idea that it was illegal to end the MPP program was ridiculous, because it would mean even the Trump administration had violated the law. Justice Roberts questioned Texas on this, saying, “How does it make any sense if what you’re asking us to do is have a single judge in Texas simply order the government to stop violating the law only slightly less, rather than ordering them to not violate the law at all?” — which suggests that he doesn’t think that Texas is right that ending MPP is illegal.

AMY GOODMAN: I want to go to the testimony from Gloria, an LGBTQ+ asylum seeker from Honduras placed in the “Remain in Mexico” program. They’ve been forced to wait in the border city of Matamoros for two-and-a-half years.

GLORIA: [translated] I slept by the river, under some tents. I saw how narcos or murderers, people of that sort, they were just called “la maña” — they would go and find women to rape them, children. I saw people dying. When you don’t pay a kidnapper or you don’t pay a so-called rent, what happens is they pour acid on you. … So, if I’m escaping from a country where I will be killed, and then they sent me to another country where I will also be killed for any reason, they are not helping us.

AMY GOODMAN: We felt it was critical to play this, because so often in these cases, stripped of the humanity, to hear the voices of the people who were affected by the policy. As we wrap up, Aaron, can you describe how MPP works? I mean, you have people waiting in Mexico and facing violence, etc., and then, when there’s a U.S. court hearing, they must come over the border again?

AARON REICHLIN-MELNICK: That’s right. And, in fact, under the first version of MPP, there were some people who were forced to wait years just to get a court hearing. And we know that when people are in northern Mexico, they are at extreme risk of violence. And there are some people who literally had to run a gauntlet of kidnappers just to get to the border for a court hearing. We know that there are many people, potentially hundreds, who were ordered deported for missing a court hearing because they were in the hands of kidnappers and being ransomed at the time of their court hearing. Unfortunately, the Supreme Court didn’t get into any of the humanity of this program, and it was very discouraging to hear multiple conservative justices suggesting that they thought the program was good because it was reducing the number of people allowed to seek asylum inside the United States.

But we know that the “Remain in Mexico” program was a sham. Less than 1% of people put into the program who were forced to have their cases heard at the border ever won, ever won their case, compared to 15 to 20% of people inside the United States. Only 7% of people ever managed to get a lawyer, because it’s basically impossible to get a lawyer when you’re stuck in a refugee camp in northern Mexico, constantly being harassed by the cartels and worried that if you turn around the wrong corner at night or even during the day, somebody is going to pick you up, kidnap you and extort you for ransom — extort you and your family for ransom.

And even the Biden administration’s renewed “Remain in Mexico” program, while it does have slightly better exemptions for certain vulnerable individuals, still puts people into that basic problem that they are in northern Mexico, away from the lawyers, away from legal assistance and away from any real ability to have their case heard while they are safe. No person should be forced to go through the most important interview and experience of their life while they are constantly looking over their shoulder and worrying that they’re going to be picked up by a cartel, tortured and killed.

AMY GOODMAN: Aaron Reichlin-Melnick, we will certainly continue to cover this. And, as you said, the decision is expected in June. Senior policy counsel at the American Immigration Council.

Next up, “How to End the War in Ukraine: A Solution Beyond Sanctions.” Stay with us.

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