By Bianca Cortez

Less than one month into President Biden’s first term in office, the Supreme Court canceled oral arguments to address two immigration disputes relating to Trump-era immigration policies. Because President Biden plans to implement immigration initiatives designed to undo many of the Trump administration’s immigration policies, the Biden-Harris administration requested that the Supreme Court remove these two cases from its calendar. The Supreme Court, per the Biden-Harris administration’s request, will not hear oral arguments in Innovation Law Lab v. Wolf challenging the “Remain in Mexico” Policy, also known as the Migrant Protection Protocols.

The “Remain in Mexico” Policy (“the Policy”) was implemented on January 25, 2019, as a United States immigration policy instituted by the Trump administration. Pursuant to the Policy, formally known as the Migrant Protection Protocols, at least 60,000 asylum seekers were forced to return to Mexico after reaching the United States. The Policy applies to certain asylum seekers who arrive by land at the U.S./Mexico border including ports of entry and between ports of entry. If the asylum seekers pass a credible fear screening conducted by a U.S. asylum officer, the asylum seekers must return to Mexico until their scheduled asylum hearing in a U.S. immigration court.

Critics of the Policy contend that forcing asylum seekers to wait for hearings in Mexico exposes them to unsafe living conditions, inadequate health services or humanitarian aid, and potential deportation. Also, critics claim the Policy forces asylum seekers with a credible fear of persecution to remain in Mexico where over 98% of asylum seekers are unable to obtain legal representation. The U.S. government through the Department of Homeland Security claims its authority to implement and enforce the Policy rests under § 235(b)(2)(C) of the Immigration and Nationality Act. Section 235(b)(2)(C) “authorizes the Department of Homeland Security to return certain applicants for admission to the contiguous country from which they are arriving on land (whether or not at a designated port of entry), pending removal proceedings under INA § 240.”

Innovation Law Lab v. Wolf was originally brought in the United States District Court for the Northern District of California. Human rights and immigration rights groups requested that the court suspend the enforcement of the Policy and grant a preliminary injunction because, they argued, it likely violated federal and international law. The court held that the Immigration and Nationality Act did not authorize the Department of Homeland Security to return asylum seekers to Mexico under the Policy and that the Policy did not contain adequate safeguards to comply with the Department of Homeland Security’s legal obligation to refrain from returning any alien to a territory where her life or freedom would be threatened. The United States Court of Appeals for the Ninth Circuit upheld the lower court’s preliminary injunction setting aside the Policy.

The Biden-Harris administration has documented its many goals toward reforming the U.S. immigration system. Included in the reforms are a task force to reunify families separated by the Trump administration’s policies, a plan to restore faith in the U.S. by transforming it back into a country open to and welcoming toward migrants, and a plan to make migrants a welcome part of American society by creating a path to citizenship for many migrants already within the U.S. The Biden-Harris administration has also directed the Secretary of Homeland Security to review the Policy, partly contributing to the Supreme Court’s decision to cancel oral argument. Many Trump era policies will or have already come under review by the new administration in the hopes of restoring the U.S. asylum system.

For critics of the Policy, the Supreme Court canceling oral argument in Innovation Law Lab v. Wolf could be good news after all. It is possible, especially with the Biden-Harris administration’s involvement, that the legal challenges to the Policy brought under the Trump administration would no longer be needed if President Biden repealed the Policy altogether. President Biden has already issued an executive order pausing the enforcement of the Policy after the Supreme Court temporarily allowed the Policy to resume after the lower court’s injunction. Within hours of assuming the office of President, President Biden paused the enforcement of the Policy, and it is highly likely oral arguments will never be heard in the two cases. The cancellation of oral argument is a strong sign that the Biden-Harris administration intends to fast track repealing the Policy through its own powers instead of the Supreme Court’s power. If the Biden-Harris administration succeeds in repealing the Policy, asylum seekers will no longer be forced to return to Mexico to await asylum proceedings and will have greater access to legal representation, humanitarian aid, safe living conditions, and adequate health services.

Published by Law Journal for Social Justice at Arizona State University

The Law Journal for Social Justice ("LJSJ") is the first student-run and student-created online journal at Sandra Day O'Connor College of Law. LJSJ aims to edit, publish, and produce notable works through its online website from legal scholars, practitioners and law students. LJSJ also publishes twice a year, featuring articles that focus on important, novel and controversial areas of law. LJSJ will provide a fresh perspective and propose solutions to cornerstone issues that are often not discussed, which may also have the potential to positively impact local communities.