SCOTUS Decision to Bring Back “Remain in Mexico” is a “Devastating Setback”

By UUSC Staff on August 25, 2021

Late on Tuesday, August 24, the U.S. Supreme Court denied the Biden administration’s request for a stay in litigation concerning the defunct “Remain in Mexico” program. By allowing a lower court injunction to take effect, the court effectively ordered the Biden administration to restore some version of the Trump-era policy, which forcibly returned asylum-seekers to dangerous conditions in Mexico pending court hearings in the U.S.

In response, UUSC’s President Rev. Mary Katherine Morn issued the following statement:

“The court’s decision is a devastating setback for human rights. Any version of the ‘Remain in Mexico’ program—just like the Title 42 program that President Biden has continued to enforce—is impossible to reconcile with U.S. legal and moral obligations to people seeking asylum. Anyone who expresses fear of persecution has a baseline right to a hearing of their asylum case on U.S. soil with full due process protections.

Remain in Mexico deports people to a neighboring country without this full assessment of their needs or a meaningful chance to request protection. Similarly, Title 42 expels people across the border, but with even less due process. Both programs therefore violate core human rights principles, specifically the tenet of non-refoulement* that is at the heart of international refugee law and U.S. asylum law. The court’s decision Tuesday shows a contempt for these principles and the human rights of people in migration.

I am also dismayed by the rank partisanship of the court’s action in this case. Time and again, during the Trump presidency, the Supreme Court deferred to the executive branch’s most lawless actions targeting immigrants, religious minorities, and asylum-seekers. Now, they perform an about-face, and allow a district court judge to require the President of the United States to temporarily implement a cruel and unlawful policy that he should have the discretion to end.

Even as we stagger from this latest blow to asylum rights, however, one thing is clear: the Biden administration’s hands are not completely tied. The appellate court’s construction of the injunction narrowed its interpretation in significant ways, and the President can and should find ways to mitigate its impact in practice. The Biden administration must also end the Title 42 asylum blockade at the border, and keep their promises to create a humane and dignified U.S. asylum system.”

*Non-refoulement refers to a government’s obligation not to deport or expel people, in the words of the U.S. Code, to a country where their “life or freedom would be threatened […] because of the[ir] race, religion, nationality, membership in a particular social group, or political opinion.” In 2020, the U.S. Ninth Circuit Court of Appeals found that it is “very clear” the Remain in Mexico program “violates” this section of U.S. law by removing people to a foreign country (Mexico) without a full screening of their protection needs.

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About UUSC: Guided by the belief that all people have inherent worth and dignity, UUSC advances human rights globally by partnering with affected communities who are confronting injustice, mobilizing to challenge oppressive systems, and inspiring and sustaining spiritually grounded activism for justice. We invite you to join us in this journey toward realizing a better future!

Image Credit: iStock – Kachura Oleg