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Justices Debate 'Remain in Mexico,' 'Facts Have ... Overtaken the Law'

The Supreme Court is considering the executive branch’s leeway over immigration policy, hearing the Biden administration’s appeal of lower court orders forcing it to maintain 'Remain in Mexico,' a Trump-era policy it sought to abandon, reports the Wall Street Journal. The program denies U.S. entry to asylum applicants from Central America while their cases are processed. During the coronavirus pandemic, the Trump administration relied on other authorities to deny entry to migrants, particularly public-health orders under a provision known as Title 42. The Biden administration continued that practice, but with the lifting of other COVID health measures officials are now planning to end Title 42 exclusions.

Rather than revive Remain in Mexico, which President Biden says exposes asylum applicants to unsafe conditions, the administration plans other measures, including hiring more asylum adjudicators to cut processing time from several years to about six months. In her arguments Tuesday, U.S. Solicitor General Elizabeth Prelogar said several administrations had found it impossible to comply with the statute’s language. Government lockups lacked enough space and Congress hadn’t provided funding to expand them, she said. Expelling them required the cooperation of Mexico, a nation outside Washington’s control. “You’re in a position where the facts have sort of overtaken the law,” said Chief Justice John Roberts. “But, in that situation, what are we supposed to do? It’s still our job to say what the law is.”


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