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Why the Remain in Mexico policy, recently upheld by the Supreme Court, can still be trumped

The Biden administration is appealing a ruling reinstating former president Donald Trump's Remain in Mexico immigration policy. AP Photo/Eric Gay

One of President Biden’s first official acts when he moved into the White House in January was the suspension of former president Donald Trump’s immigration policy for asylum-seekers. Eight months later, Biden is still trying to end the program after the Supreme Court stepped in to keep it alive.

The Migrant Protection Protocols (MPP) mostly affects Central Americans who fled persecution in their countries and arrived at the U.S. border via Mexico. They are required to stay in Mexico while their cases are processed, potentially exposing them to dangerous conditions, warns Northeastern’s Hemanth Gundavaram, who teaches immigration and administrative law.

The Supreme Court’s order ties the Biden administration’s hands until it creates a new, more carefully crafted rule, says Dan Urman, who teaches constitutional law and the Supreme Court. Photo by Matthew Modoono/Northeastern University

“The reason you make the long and difficult journey to the U.S. border for asylum is to seek safety from persecution. The law is designed to provide that protection so long as you pass a credible fear interview,” says Gundavaram, who co-founded Northeastern’s Immigrant Justice Clinic, where law students represent non-U.S. citizens on immigration matters pro bono.

“I’ve had clients who have been kidnapped, extorted, assaulted, robbed, and raped in Mexico while being forced by the U.S. government to wait there,” he adds.

But a Supreme Court order issued on Aug. 24 requires the Biden administration to restart the so-called Remain in Mexico effort, appearing on the surface, at least, to deal a legal blow to the White House’s attempts to end it once and for all.

Northeastern professors with expertise in immigration law and the Supreme Court say MPP may not necessarily remain the law of the land even after the high court said that the White House had “failed to show a likelihood of success on the claim that the memorandum rescinding” Remain in Mexico “was not arbitrary and capricious.”

“To put that into plain English, the court told the Biden administration that they did not provide an adequate justification for the change in policy,” explains Dan Urman, who teaches constitutional law and the Supreme Court. The decision essentially ties the Biden administration’s hands until it creates a new, more carefully justified rule, he adds.

“They have to do additional homework,” Urman says.

Some news coverage of the high court’s order made it appear as if the program was now permanent, but Urman says that is not the case. 

‘Every administration, be it Democrat or Republican, can score some points by saying they have a strong border and are not just letting everyone in,’ says Hemanth Gundavaram, who teaches immigration and administrative law. Photo by Ruby Wallau/Northeastern University

The administration must now make a “good faith effort” to restart the program, but there is nothing preventing government lawyers from eventually making another attempt to get rid of it. “They can even slow walk it,” says Urman.

Gundavaram explains that there are basically two ways to obtain asylum in the United States. One legal route can take up to two or three years to resolve in immigration court if the U.S. government is trying to remove someone from the country.

The other way impacts people who are already in the United States and applying to U.S. Citizenship and Immigration Services. Their cases could take as long or drag out even longer.

“I have clients who we assisted in applying for asylum with USCIS from when we first opened the clinic in 2017 who have still not received their asylum interview,” Gundavaram says. “They are caught in limbo.”

At some point the underlying dispute will make its way through the lower courts and could very well return to the Supreme Court, where “all eyes are going to be on Roberts and Kavanaugh,” says Urman, referring to Chief Justice John Roberts and Justice Brett Kavanaugh, both conservative-leaning but willing to vote with their liberal-leaning colleagues.

Votes by the seven other justices “are pretty much set, so you need Roberts and Kavanaugh,” Urman says. “There are very good lawyers working for the Biden administration. The question is can they flip those two votes? It’s basically a coin toss at this point.”

At the same time that the White House is allowing some migrants into the country to wait out their asylum cases, the Biden administration is also keeping out single adults by invoking a pandemic public health statute known as Title 42. More than 1 million immigrants have been turned away from the border through this policy.

So on one hand, the administration has received kudos in some quarters for allowing asylum applicants into the United States, thus avoiding safety threats. But at the same time it is garnering criticism from Amnesty International, Doctors Without Borders, and other groups for continuing to invoke the Trump-era border policy that permits the immediate expulsion of migrants at the U.S.-Mexico border, Northeastern’s experts point out.

Gundavaram says politics is often at play behind whom to let in.

“Every administration, be it Democrat or Republican, can score some points by saying they have a strong border and are not just letting everyone in,” he says.

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