Northeastern immigration expert says Supreme Court’s ‘Remain in Mexico’ ruling way too close

Although the “Remain in Mexico” program is on the chopping block, School of Law professor Hemanth Gundavaram says other harmful policies like Title 42, a policy that the government has used to turn away immigrants because of the COVID-19 pandemic, present additional obstacles for asylum seekers. Photo by Carlos Moreno/(Sipa via AP Images

The Supreme Court ruled on Thursday that President Biden could end the controversial Trump-era immigration policy known as “Remain in Mexico.” 

Formally known as the Migration Protection Protocols, the policy forced unauthorized immigrants and asylum seekers to return to Mexico, sometimes for months, to wait for the review of their cases to even start.

The ruling comes at the tail end of a series of controversial Supreme Court decisions, including the court’s decision to overturn Roe v. Wade and scale back the regulatory powers of the Environmental Protection Agency. Although the decision is a promising development for immigration rights advocates, Hemanth Gundavaram, clinical professor in Northeastern’s School of Law, said the 5-4 ruling was too close to be a cause for celebration.

Hemanth Gundavaram, clinical professor in the School of Law and director of the Immigrant Justice Clinic. Photo by Ruby Wallau/Northeastern University

“As opposed to something like Dobbs [v. Jackson Women’s Health Organization] where there was a leaked opinion and the writing was on the wall, I was more hopeful with this case. But it’s concerning that it was 5-4 because this should not even be a close call [issue].”

Gundavaram hopes that the Supreme Court’s decision means that the country will be able to hold on to “what our international treaties and also our statutes say about seeking asylum and coming to the border.”

Rachel Rosenbloom, a Northeastern professor of law who specializes in immigration law and policy, said the court’s decision is not one “that announced a new approach or a change in direction” but it did bear some significance in light of the court’s recent actions.

“In a previous era I would have considered this an easy case, and would not have had any doubts about what the outcome would be,” Rosenbloom said. “However, we’ve recently been seeing the extreme positions that this Court is willing to take, so it is significant that Justice Roberts and Justice Kavanaugh joined the three liberal justices to form the majority in this case.”

The program’s winding path to the Supreme Court started last year when Biden attempted to end “Remain in Mexico” but was challenged by a group of states led by Texas and Missouri that claimed the Biden administration’s attempt to end the policy was in violation of immigration law. A federal court officially rebuffed the administration’s efforts in December, sending the case to the Supreme Court and allowing for the continuation of the program.

Since the program was first implemented in 2019, immigration and human rights advocates have argued the policy presents a genuine threat to migrants and asylum-seekers, many of whom are fleeing violence in Central and South America. With few resources, many people have been forced to live in squalid, dangerous conditions in tent cities along the Mexican border.

“I can’t tell you the number of clients that we have currently or have had previously who, while being forced to wait in Mexico, have been assaulted, robbed, raped, trafficked, kidnapped,” said Gundavaram, who runs the School of Law’s Immigrant Justice Clinic. “We’re taking people who are already vulnerable and putting them in an even more vulnerable situation.”

According to University of San Diego report based on responses from more than 600 asylum seekers, 89.5% of the people interviewed by U.S. immigration officials said they were afraid of returning to Mexico. About a quarter of respondents said they had been threatened with physical violence while they were in Mexico waiting for their court date. More than half of those who were threatened with physical violence reported those threats turning into beatings, robberies and other forms of violence.

The report also found that the risk of violence goes up the longer someone waits in Mexico.

“Some people have been waiting months or even years,” Gundavaram said. “This is merely to enter the United States to wait even longer to get their case started. Once they get their case started, it could be another few years, given our long backlogs, but at least they’ll be able to do that in the relative safety of the United States.”

As far as the immediate impact of the court’s decision, once the Biden administration officially ends the “Remain in Mexico” program, Gundavaram said migrants and asylum seekers­­ will find some measure of safety while waiting for their case to be heard in the U.S.

“That’s the part that I feel a little relieved about because people have been getting harmed daily for these years,” Gundavaram said.

But even without the “Remain in Mexico” program, the road into the U.S. is full of obstacles for migrants and asylum seekers.

In light of the recent death of 53 people in San Antonio, Texas, there have been calls to repeal Title 42, a public health order that allows the government to prevent people from entering the country due to the COVID-19 pandemic. The Biden administration previously announced plans to end the policy in May, but 24 state attorney generals sued, a federal judge blocked it and the policy still remains in place. Gundavaram said another common anti-immigration practice called metering, “which is essentially making people take a number and wait,” needs to be reviewed as well.

Outside specific policies, Gundavaram said there are legal challenges that immigrants face as they try to navigate the process. Notably, immigrants are not guaranteed legal representation by the government, and they can be held in detention centers for as long as six months while waiting for a bond hearing. The latter is due to the recent Supreme Court decision in Johnson v. Arteaga-Martinez.

“The part that is so concerning about these recent Supreme Court cases is that it’s a sad day when the immigration system looks with longing toward the criminal justice system for its protections,” Gundavaram said.

However, Rosenbloom said this case provides a glimmer of hope.

“The case clarifies that the lower courts cannot issue injunctions blocking the government from carrying out immigration policies; this ruling might put a damper on lawsuits by conservative states seeking to block the Biden Administration’s immigration policies,” Rosenbloom.

But “Remain in Mexico,” Title 42 and metering are all symptoms of a broader anti-immigrant policy framework that Gundavaram said is changing, albeit slowly. Even with “Remain in Mexico” on the chopping block, he said, progress is never guaranteed.

“All of these policies are ultimately designed to keep people away, to keep people from not even attempting to come here,” Gundavaram said. “‘Remain in Mexico,’ prolonged detention, some of the other abuses at the border, all these things are based on that.”

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