The Supreme Court has issued an order effectively requiring the Biden administration to reinstate the Trump administration’s “Remain in Mexico” policy. It requires many asylum seekers to wait in Mexico while they await hearings on their requests for safe haven in the U.S.

The high court’s order, issued on Tuesday evening over the dissent of the court’s three Democratic appointees, rejected the Justice Department’s request for a stay.

In a brief order, the court declined to intervene after a lower court revived the policy, which requires asylum-seekers at the southern border to stay in Mexico while their applications are processed.

Three of the court’s more liberal justices – Justices Kagan, Sotomayor, and Breyer – would have accepted the application for a stay. 

Justice Samuel Alito wrote that the administration had failed to show it was likely to ultimately prevail in defending the lawfulness of its decision to rescind the Trump measure, officially called the Migrant Protection Protocols (MPP).

The Department of Homeland Security released a statement criticizing the ruling.

“The Department of Homeland Security respectfully disagrees with the district court’s decision and regrets that the Supreme Court declined to issue a stay,” the statement said. “DHS has appealed the district court’s order and will continue to vigorously challenge it.  As the appeal process continues, however, DHS will comply with the order in good faith.  Alongside interagency partners, DHS has begun to engage with the Government of Mexico in diplomatic discussions surrounding the Migrant Protection Protocols (MPP).”

The statement continued: “DHS remains committed to building a safe, orderly, and humane immigration system that upholds our laws and values.  DHS continues to process individuals in accordance with U.S. law and our mission.  Pursuant to the CDC’s Title 42 public health order, DHS continues to expel single adults and families encountered at the Southwest Border.”

On August 13, U.S. District Court Judge Matthew Kacsmaryk ordered the Biden administration to reinstate the policy within seven days. The judge accepted arguments from the Republican attorneys general of Texas and Missouri that the Biden administration had violated legal requirements by failing to consider all relevant factors before halting the Trump-era policy.

The court’s move comes after a federal judge in Texas ordered the Biden administration to reinstate the program in response to a lawsuit by the attorneys general of Texas and Missouri. A three-judge panel of the U.S. Court of Appeals for the 5th Circuit let stand that ruling, prompting the Biden administration’s emergency request to the justices.

Former President Trump’s policy, implemented in 2019, blocked migrants at the Mexican border from entering the U.S. to apply for asylum. More than 60,000 asylum-seekers were returned to Mexico under the MPP.

The Biden administration sought to formally end the Trump-era policy in June, which was spelled out in a memorandum by Homeland Security Secretary Alejandro Mayorkas.

But earlier this month, Texas-based U.S. District Judge Matthew Kacsmaryk ruled that the Biden administration had failed to provide a legally adequate rationale for its rescission and ordered that the policy would have to remain in place.