Customs and Border Protection recorded 197,043 expulsions in the fiscal year that ended on Sept. 30, but in 37 percent of the cases, the agents rapidly returned a migrant who had previously crossed the border.
The administration’s brief said the original program — formally called the Migrant Protection Protocols, or M.P.P., and administered by the Department of Homeland Security — had been successful.
“During the 14 months that M.P.P. has been in operation, it has been enormously effective: It has enabled D.H.S. to avoid detaining or releasing into the interior more than 60,000 migrants during removal proceedings, and has dramatically curtailed the number of aliens approaching or attempting to cross the southwest border,” the brief said.
Asylum seekers and legal groups, represented by the American Civil Liberties Union, responded in July that the dispute was, for now, academic, as the administration, citing the pandemic, had in effect closed the border to asylum seekers. They urged the court to deny review in the case, Wolf v. Innovation Law Lab, No. 19-1212.
In a second brief, the administration said the pandemic did not make the case less urgent.
“The current suspension on introducing certain aliens is a temporary response to the pandemic,” the brief said. “The decisions below impose severe constraints” on the government, the brief said, “and those constraints will endure long past the present emergency.”
After the Supreme Court agreed to hear the case, Judy Rabinovitz, a lawyer with the A.C.L.U., said she hoped the justices would protect her clients.
“Asylum seekers face grave danger every day this illegal and depraved policy is in effect,” she said. “The courts have repeatedly ruled against it, and the Supreme Court should as well.”