The Supreme Court has agreed to hear arguments around the policy forcing asylum-seekers to Mexico to wait for their U.S. immigration cases. The court has also agreed to hear Remain in Mexico on an expedited schedule, meaning a decision could come by the summer, The New York Times reports.
But advocates warn a ruling on Biden v. Texas could stretch far beyond asylum policy. Justices will decide whether an incumbent president even has the ability to legitimately end a predecessor’s flawed policy.
“If allowed to stand, the lower court ruling could leave the Biden administration’s policy moves up to the whims of a single federal district court,” tweeted respected civil rights litigator Karen Tumlin. “In this case, a court in Texas has essentially dictated Biden’s foreign policy agenda—a breathtaking judicial overreach.”
Texas (led by corrupt state Attorney General Ken Paxton) has in particular turned judge shopping into its own kind of art form, taking cases to anti-immigrant judges they know will side with them no matter what.
Recall that when Judge Matthew Kacsmaryk issued his ruling last summer ordering the Biden administration to revive Remain in Mexico, the decision was deemed “bizarre” and “wrong” by experts. Law, shmaw, who cares, it was held up by a conservative court of appeals. Once again, there’s a reason why it’s always Texas leading these cases. Former American Immigration Lawyers Association President David Leopold noted other judges installed by the former president have also stomped on immigration policies issued by the new administration following legal action from Texas and friends. Republicans and their appointees truly believe Democrats shouldn’t be able to govern. Like Leopold has said, and continues to say: Expand the court.
”The lower court ruling is a dangerous 1-shot precedent where presidents have 1 chance to unwind the policies of a prior president,” Tumlin continued in her thread. “Even if you like this result in this case, it’s a be-careful-what-you-wish-for proposition when the presidential administration changes again.”
She further noted that what’s also at stake “is whether a lone district court judge has the ability to command the federal government to negotiate with a foreign government and stand back up a program of the prior president that the current president has deemed faulty.” In order to reinstate Remain in Mexico, the Biden administration had to negotiate with Mexico. "Now the court is saying that a federal judge in Texas appointed by Donald Trump has the power to direct President Joe Biden's foreign policy with Mexico in negotiating the immigration policy," Daily Kos' Joan McCarter noted in August.
The Biden administration again attempted to end Remain in Mexico last fall. “But in December, the Fifth Circuit Court of Appeals upheld Kacsmaryk's ruling,” CBS News reported. “In a scathing opinion, a panel of Republican-appointed judges refused to review DHS' second termination attempt, dismissing the Biden administration's argument that the new memo rendered the case moot.”
Under the policy’s reimplementation—which was expanded by the Biden administration to cover more people, beyond what the court actually required—nearly 600 asylum-seekers have been forced to return to Mexico to wait for their U.S. immigration court dates.
“According to a joint report with Human Rights First, between February 2019 and February 2021, there were at least 1,544 publicly reported cases of murder, rape, torture, kidnapping, and other violent assaults against asylum-seekers and migrants forced to return to Mexico under this program,” Prism’s Alexandra Martinez wrote in December. Hundreds of these cases have targeted children.
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