Victory! Supreme Court Keeps Wait in Mexico Policy in Force

August 25, 2021

High Court refuses to lift order reinstating program

WASHINGTON—Last night, in a major victory, the U.S. Supreme Court declined a request by the Biden administration to suspend an order that a Texas federal district court had issued resuming the key Trump immigration policy of returning asylum seekers to Mexico to wait for their asylum hearings in that country, rather than in the United States. In so ruling, the Supreme Court agreed with a friend-of-the-court brief the Immigration Reform Law Institute (IRLI) had filed with the Court opposing the administration’s suspension request.

In its brief, IRLI showed that the administration was very unlikely to win on the merits of its appeal, because the administration had not given any rational explanation for rescinding the wait in Mexico policy, making that rescission arbitrary and capricious. Last night a majority of the justices agreed, stating that the administration had “failed to show a likelihood of success on the claim that the memorandum rescinding the [wait in Mexico policy] was not arbitrary and capricious.”

The effect of the Court’s ruling is that the wait in Mexico policy will continue pending the administration’s appeal—which will probably be unsuccessful. Following the Court’s decision, the Department of Homeland Security stated that it will implement the wait in Mexico policy “in good faith.”

“This ruling is hugely important, both because it means that the administration’s attempt to delay the restoration of the wait in Mexico policy has failed and because it shows that the administration most likely will lose its appeal of the district court’s order,” said Dale L. Wilcox, executive director and general counsel of IRLI. “And under that district court order, the wait in Mexico policy is back in force until the border is under control. For these reasons we are very pleased with the Supreme Court’s decision, and remain dedicated to reversing all of the administration’s other unlawful policies that, by design, have created the crisis at the border.”

The case is Biden v. State of Texas, State of Missouri, No. 21A21 (Supreme Court).