FAQ: Differences between Title 42 and Remain in Mexico

Immigration

FILE – A pair of migrant families from Brazil seeking asylum, walk through a gap in the border wall to reach the United States after crossing from Mexico to Yuma, Ariz., June 10, 2021. (AP Photo/Eugene Garcia, File)

(NewsNation) — The Supreme Court ruled the Biden administration can terminate the Trump-era Remain in Mexico program, but a different border policy enacted during the previous administration, Title 42, is still in place.

The Trump administration’s Migrant Protection Protocols, also known as the Remain in Mexico policy, required asylum seekers at the U.S. border to wait in Mexico while their cases are processed. Title 42, on the other hand, was enacted during the COVID-19 pandemic and allows Customs and Border Patrol agents to turn away migrants for public health reasons.

How many people did each policy affect?

The scope of Title 42 went much further than the Migration Protection Program.

About 70,000 people were enrolled in the Remain in Mexico program after President Donald Trump launched it in 2019. Meanwhile, as of May 2022, there have been 1.8 million expulsions out of the U.S under Title 42, according to the American Immigration Council. The council notes, however, that half of these expulsions were of the same people being apprehended and sent back to Mexico multiple times.

According to the Associated Press, the Biden administration has sent far fewer people back to Mexico than its predecessor.

What is the current status of each policy?

Biden suspended Remain in Mexico on his first day in office, Jan. 20, 2021. But lower courts reinstated it after Texas and Missouri filed lawsuits that April. It was restarted in December 2021 because of the lower court decisions, though with far fewer migrants than the Trump administration.

Now, with the Supreme Court’s ruling on Thursday, Politico said it clears the way for officials to stop sending migrants back to Mexico for the time being. However, the decision did not rule out the possibility of other legal challenges as the Biden administration tries to end the program, Politico noted. The Texas Tribune reported that it is still unclear whether the Biden administration will try to end the program immediately or wait for the lower court’s decision.

Meanwhile, Title 42 is still in place after a federal judge in Louisiana temporarily stopped the Biden administration from ending it in May. A U.S. District Court granted a preliminary injunction to GOP state attorneys general who challenged Title 42’s possible end. The judge, appointed by Trump, ruled that the policy cannot be rolled back while broader legal challenges play out in court.

What does the lifting of Remain in Mexico mean for migrants?

Thousands of migrants will be affected by Thursday’s ruling, Kevin Johnson, of the  University of California, Davis Law School, told NPR.

With the Remain in Mexico policy, he said, tens thousands of asylum-seekers had been in poor conditions in the country, waiting indefinitely for a decision on their claims.

The New York Times stated that migrants faced unsanitary tent encampments, as well as widespread reports of sexual assault, kidnapping and torture.

But now that the Remain in Mexico can end, according to NPR, the Biden administration has a plan that would delegate asylum claims to specially trained customs and border officers, instead of immigration courts, where there are hundreds of thousands of pending cases on the docket.

What did the Supreme Court decide about the Return to Mexico case?

The justices voted 5-4 to allow the federal government to drop the Remain in Mexico policy. Chief Justice John Roberts, who wrote the decision, said an appeals court “erred in holding” that the federal Immigration and Nationality Act “required the Government to continue implementing MPP.” He was joined by fellow conservative Justice Brett Kavanaugh and the court’s three liberal justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan — in his opinion.

Kavanaugh, writing separately, said in general, when there is insufficient detention capacity, both letting asylum-seekers in the United States and sending them back to Mexico are legally permissible.

FILE – A migrant waits on the Mexican side of the border after United States Customs and Border Protection officers detained a couple of migrants crossing the US-Mexico border on the beach in Tijuana, Mexico, Jan. 26, 2022. (AP Photo/Marco Ugarte, File)

Part of the decision that came down was that as a state, Texas didn’t exactly prove that it was harmed enough, and also that it can’t be dictating the foreign policy decisions of the Biden administration.

What are the arguments for/against each policy?

Many of those arguing against Return to Mexico, such as Justice for Immigrants, say it will make already vulnerable people wait in dangerous and unsafe circumstances, and even put their lives at risk. “They may not be able to access health services and humanitarian aid, and they may face deportation,” according to the organization’s website. “This policy impacts those people who have shown that they have a credible fear of persecution; nonetheless, the policy will make them wait in Mexico without access to family, legal, or social support.”

Advocacy groups said Title 42 would also subject migrants to inhumane conditions. And both advocacy groups and the Centers for Disease Control, under Biden, argued that it wasn’t needed because of a lowered risk of COVID-19 transmission at the time and an “increased availability of tools” to fight the highly-contagious coronavirus.

However, others argue that stricter border policies are needed, and that repealing either will cause more issues for Border Patrol agents who have been “overwhelmed” with the influx of migrants trying to cross the U.S.-Mexico border. In March, there were more than 225,000 encounters with migrants at the border, the highest figure in two decades.

“Public health experts outside the CDC have continued to agree, arguing that while international borders largely remain open to other travelers, there is no need to turn away refugees and expel them to their home countries or Mexico,” the American Immigration Council said. Texas Attorney General Ken Paxton said in a statement following the Return to Mexico Supreme Court decision that the decision was “unfortunate” and would make what he called the “border crisis” worse. Paxton vowed in the statement to keep “pressing forward” with the dozen other immigration suits he is fighting in court.

The Associated Press contributed to this report.

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