Biden Admin Asks Supreme Court to Cancel Asylum, Border Wall Arguments

The U.S. Supreme Court is seen in Washington on June 13, 2005. Mark Wilson/Getty Images

The Biden administration on Monday asked the Supreme Court to cancel oral arguments in two cases separately challenging former President Donald Trump’s border wall and “remain in Mexico” policies.

The requests come after the administration took action to undo both policies, possibly rendering the challenges moot.

Acting Solicitor General Elizabeth Prelogar asked the nation’s top court in separate court filings to remove the cases from the court’s calendar pending a review of Trump’s policies.

The case challenging the transfer of $2.5 billion in military funding for the border wall construction was originally scheduled for argument on Feb. 22. President Joe Biden, just hours after his inauguration, signed an executive order to terminate the emergency declaration on the southern border and halt border wall construction. The emergency declaration was previously extended by Trump until February 2022.

The order also directs the executive branch to assess “the legality of the funding and contracting methods used to construct the wall.”

“It would therefore be appropriate for the Court to hold further proceedings in this case in abeyance to allow for the completion of the process that the President has directed,” Prelogar argued (pdf).

Meanwhile, the case challenging a policy that would send illegal immigrants entering via the southern border back to Mexico while they wait for a court to process their claims was scheduled for argument on March 1. The Department of Homeland Security (DHS) said on Jan. 20 that it would no longer enroll newly arriving asylum seekers at the southern border into one of Trump’s key immigration policies known as the Migrant Protection Protocols (MPP).

The MPP, more commonly known as the “Remain in Mexico” policy, was enacted in January 2019 in an attempt to curb the flow of illegal immigration into the United States and prevent fraudulent or nonmeritorious cases. It sends asylum seekers back to Mexico while they wait for their cases to be heard. The policy aims to end loopholes in the current “catch and release” policy, under which asylum seekers are allowed to remain in the United States as they await a court hearing, in many cases, never to be seen again.

“Given DHS’s suspension of new enrollments in MPP and its current review of the program, it would be appropriate for the Court to hold further proceedings in this case in abeyance to allow for the completion of that review,” the acting solicitor general wrote (pdf).

Prelogar noted in both requests that the challengers in the cases agreed with the proposal.

Since taking office, Biden has issued a flurry of executive orders, some of which overturn actions taken by Trump. Trump’s border wall and MPP were his signature immigration policies aimed at alleviating the bottleneck of asylum applications and serve as a deterrent for unqualified migrants, often economic migrants, who take their chances for a better life with the long and dangerous journey.

Migrants wait to receive donated food and water outside a temporary shelter set up for members of the migrant caravan in Tijuana, Mexico, on Nov. 28, 2018. Mario Tama/Getty Images

The fourth migrant caravan crossed the Suchiate River into Mexico on Nov. 2, 2018. AP Photo/Oscar Rivera

The flow of migrants arriving at the southern border has dropped significantly following the implementation of these stringent measures.

Biden has also signed orders to revoke a travel ban that Trump had placed on terror-prone countries that had consistently failed to provide “terrorist, criminal, or identity information” for their travelers, ordered the DHS to continue the Deferred Action for Childhood Arrivals, or DACA program, and suspended deportations of illegal aliens for 100 days.

A federal judge has ruled to temporarily block Biden’s order to suspend the deportations.

Charlotte Cuthbertson contributed to this report.