WASHINGTON — The Justice Department on Friday asked the Supreme Court to overturn a judge’s order to restart a Trump-era program that would allow migrants crossing the southern border to seek asylum from their cases. in Mexico had to wait, often in life-threatening situations.
The move came in response to one of two court rulings this week that set back President Biden’s efforts to reverse his predecessor’s harsh immigration policies.
On Thursday, a federal appeals panel in Texas denied the Biden administration’s attempt to overturn a court order prohibiting reinstatement of the controversial Migrant Protection Protocols program, also known as the “Stay in Mexico” asylum policy, which was introduced during the Trump administration. The order was to take effect on Saturday.
And in another case, a federal judge in Texas temporarily blocked the Biden administration’s short-term strategy to limit the arrests of undocumented immigrants by prioritizing those who posed the greatest threat to national security and public safety. A Justice Department spokeswoman said the agency was reviewing the 160-page ruling by Judge Drew B. Tipton of the U.S. District Court for the Southern District of Texas, and lawyers are weighing next steps.
Taken together, the legal proceedings threaten two of the Biden administration’s first attempts to reform the country’s immigration system. Another blow came in July, when a federal judge ruled that an Obama-era program that has protected hundreds of thousands of undocumented young adults from deportation was illegal.
The judges’ decisions and the government’s appeal to the Supreme Court on Friday underscored the courts’ role as the primary place for shaping polarizing immigration policies, one legal challenge at a time — a strategy immigration advocates have tightened during the Trump administration.
“Those who oppose the Biden administration’s immigration agenda take every opportunity to ask policy questions and have them answered before favorable courts,” Tom K. Wong, the director of the U.S. Immigration Policy Center at the University of California, San Diego, said.
The order requiring the Biden administration to reinstate Trump policies that forced asylum seekers to wait in Mexico while their cases were heard in the United States came from Judge Matthew J. Kacsmaryk, of the U.S. District Court for the Northern District of Texas.
He and Judge Tipton were both appointed by President Donald J. Trump. Of the three Fifth Circuit Court of Appeals judges who rejected the administration’s request to stop Thursday’s “Stay in Mexico” ruling, two had been appointed by Trump; the third was appointed by President George W. Bush.
In their appeal to the Supreme Court, government lawyers said restoring asylum policies on Saturday would be “almost impossible” and would cause “irreparable damage”. Critics said it would place asylum seekers in dangerous gathering environments at a time when the highly contagious Delta variant fueled a surge in coronavirus cases.
It was not immediately clear what exactly would be triggered on Saturday as a result of the order, or whether Mexico would allow the program to be reinstated.
The program was also litigated during the Trump administration.
“You will likely see, with future policy from the Biden administration, that the opponents will use the courts to impede further progress, only adding to the importance of congressional action,” said Mr. Wong.
The most recent example is the attempt to prevent the government from prioritizing the arrest of undocumented immigrants.
In February, the Biden administration issued its temporary arrest priorities for immigration and customs enforcement, a sweeping change from the Trump administration’s policy of arresting undocumented immigrants for any immigration violations. The Biden team ordered ICE officers to prioritize the arrest of undocumented migrants who pose a risk to national security and public safety, as well as those who have recently illegally crossed the border. The Obama administration has set similar enforcement priorities.
Texas Attorney General Ken Paxton celebrated the temporary ban on Mr Biden’s arrest priorities, calling it “another win in Texas against Biden.”
Texas is a party to both, and has suffered the most this year from the unusually high rate of illegal border crossings, with many migrant families and children from Central America arriving in the state’s Rio Grande Valley and overwhelming border officials. The state has taken several measures to challenge the Biden government’s immigration policies; Earlier this summer, Governor Greg Abbott, a Republican, ordered state law enforcement to begin arresting migrants for violating illegal immigration — because, he saidnot the Biden administration.
Alejandro N. Mayorkas, the Secretary of Homeland Security, has been working to establish permanent arrest priorities for ICE, which would replace the temporary priorities currently being challenged. It was not immediately clear whether the judge’s ruling would also apply to any final arrest priorities the administration imposed.
If the Biden administration is unable to continue its immigration detention strategy, the shift is likely to put further strain on an immigration detention system that is already nearly full. According to immigration statistics, the number of arrests by ICE has fallen by more than half this year compared to the same period in 2020, in part because of pandemic-driven regulations about limiting the number of people in gathering environments and temporary arrest priorities.
Mr. Wong said that even if Republicans managed to challenge arrest priorities, it would not change the reality that there was not enough detention space.
“And so the ‘en masse enforcement’ policy does not take into account the finite resources,” he said, “including limited detention capacity.”
The administration is also waiting for a judge to rule in a lawsuit that would prevent it from continuing a public health rule that the Trump administration introduced early in the pandemic to reject many asylum-seeking families arriving at the border. Immigration advocates filed the lawsuit last year, and Vice President Kamala Harris, then a California senator and presidential candidate, opposed the rule at the time.
Lawyers for the plaintiffs hoped a settlement could be reached with the Biden administration. But discussions fell apart last month when the White House decided not to lift the public health rule any time soon due to the overwhelming number of migrants arriving at the southern border and the risk of more Covid-19 infections.
If the courts eventually order the administration to lift the public health rule, it will stretch the federal government’s enforcement capabilities even more.
Charlie Savage reporting contributed.
