Biden’s DHS: Deception Without a Hint of Shame

It was a rare treat to read the rule recently proposed by the Departments of Homeland Security and Justice titled “Circumvention of Lawful Pathways” (For ease of reference, the “CLAP”). For, in giving us the CLAP, the departments have invited readers to attend a masterclass in deception, in dissembling, in deceit. Their work should be required reading, along with classics like How to Lie with Statistics, for all aspiring propagators of disinformation. For the rest of us, it should also be required reading, just to give us a window into the facile and slippery methods the Biden administration utilizes to justify some of its policy decisions in the immigration sphere.

The CLAP

Why did the Biden administration give us the CLAP? As I have written:

[T]he CLAP ... converts the Trump administration’s bar to asylum eligibility [for aliens who travel through one or more third countries en route to the U.S. without applying for asylum in at least one [of those counties] into a “rebuttable presumption” of ineligibility, thereby allowing the Biden administration to exempt huge segments of the population of aliens who would choose to enter the U.S. illegally. How did we get the CLAP’s exceptions and loopholes? I would surmise that the rules’ drafters were told to add them in a deliberate attempt ... to make the CLAP impotent, a Potemkin village of feigned immigration enforcement.

When promulgating regulations, agencies know that reviewing courts will, pursuant to the Administrative Procedure Act (APA), “hold unlawful and set aside agency action ... found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”. As the Supreme Court explained in 1983, “Normally, an agency rule would be arbitrary and capricious if the agency ... entirely failed to consider an important aspect of the problem.” And as the First Circuit explained last year, “When promulgating new regulations, an agency must consider alternatives ‘within the ambit of the existing [policy],’ but it need not ‘consider all policy alternatives in reaching [its] decision.’”

Thus, to make the CLAP more resistant to legal challenge (should it be finalized), the departments explain in the proposed rule that:

[We] have considered several alternative approaches to managing the current and expected surge in migration [once DHS ceases the use of Title 42 expulsions] ... with respect to [our] key goals of (1) providing that migrants, to the extent achievable, have meaningful opportunity to seek protection; (2) disincentivizing the expected surge in migration and preventing severe adverse consequences for the immigration system; (3) achieving core foreign policy goals in the region; and (4) providing individuals the opportunity to schedule a time to arrive at a port of entry to apply for admission and, once present in the United States, to apply for all available forms of relief and protection.

Let us consider the departments’ consideration of two of the most obvious alternatives — the Migrant Protection Protocols (MPP, commonly known as Remain in Mexico) and asylum cooperative agreements (ACA) — in the proposed regulation. DHS and DOJ of course reject both alternatives, but the interesting thing to consider is the public-facing rationales they choose.

The Migrant Protection Protocols

As I have written:

• On December 20, 2018, DHS Secretary Kirstjen Nielsen ... [announced] that:

  Aliens trying to game the system to get into our country illegally will no longer be able to disappear into the United States, where many skip their court dates. Instead, they will wait for an immigration court decision while they are in Mexico. “Catch and release” will be replaced with “catch and return.” In doing so, we will reduce illegal migration by removing one of the key incentives that encourages people [to take] the dangerous journey to the United States in the first place. This will also allow us to focus more attention on those who are actually fleeing persecution.

• [The] MPP ... was wildly successful, in a very real sense being the closest thing we had to a silver bullet to bring the border under control (prior to the arrival of the Covid-19 pandemic [and DHS’s use of border expulsions pursuant to Title 42]). ... [T]he MPP was truly the MVP of border enforcement. ... As federal district court judge Matthew Kacsmaryk concluded ... :

  DHS stated that ... “MPP has been an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system.” ... Specifically, DHS found “[s]ince a recent peak of more than 144,000 in May 2019, total enforcement actions [along the southern border] ... have decreased by 64% through September 2019.” ... Moreover, DHS found “[b]order encounters with Central American families — who were the main driver of the crisis and comprise a majority of MPP-amenable aliens — have decreased by approximately 80%.” and [“]observed a connection between MPP implementation and decreasing enforcement actions at the border — including a rapid and substantial decline in apprehensions in those areas where the most amenable aliens have been processed and returned to Mexico pursuant to MPP.” ... DHS concluded its review of MPP and found it to be a “cornerstone” of ... efforts to restore integrity to the immigration system:

  ...

  Since MPP’s termination, the number of enforcement encounters on the southwest border has [indeed] skyrocketed [with] encounters jumping from 75,000 in January 2021, when MPP was suspended, to ... nearly 189,000 ... in June 2021.

DHS enrolled 68,039 aliens in the MPP through December 30, 2020. According to data from the Transactional Records Access Clearinghouse at Syracuse University, 59,221 of these aliens were returned to Mexico pursuant to the MPP through January 2020. And as we can see from the CBP figure below, MPP had a dramatic impact on the number of U.S. Customs and Border Enforcement (CBP) enforcement encounters along the southwest border prior to the Covid public health emergency. (The U.S. Centers for Disease Control and Prevention first declared an emergency as of January 27, 2020, and the Congressional Research Service reports, “In March 2020, DHS suspended all pending MPP hearings in response to the Coronavirus Disease 2019 (COVID-19) pandemic.”)

DHS highlighted another benefit of the MPP:

MPP returnees who do not qualify for relief or protection are being quickly removed from the United States. Moreover, aliens without meritorious claims — which no longer constitute a free ticket into the United States — are beginning to voluntarily return home. According to CBP estimates, approximately 20,000 people are sheltered in northern Mexico, near the U.S. border, awaiting entry to the United States. This number — along with the growing participation in an Assisted Voluntary Return (AVR) program operated by the International Organization for Migration (IOM) ... suggests that a significant proportion of the 55,000+ MPP returnees have chosen to abandon their claims.

Let’s now allow DHS and DOJ to mansplain their rejection of the MPP “alternative” in the proposed regulation:

[We] considered whether returning noncitizens to Mexico ... through the [MPP] ... would have a similar effect to the proposed approach. ... For two reasons, DHS is responding to the current exigency with the approach reflected in this proposed rule rather than attempting to manage the current surge in migration by relying solely on the programmatic use of its contiguous-territory return authority.

First, the resources and infrastructure necessary to use contiguous-territory return authority at scale are not currently available. To employ the contiguous-territory return authority at a scale sufficient to meaningfully address the anticipated migrant flows, the United States would need to redevelop and significantly expand infrastructure for noncitizens to be processed in and out of the United States to attend immigration court hearings throughout the duration of their removal proceedings. This would require, among other things, the construction of substantial additional court capacity along the border. It would also require the reassignment of IJs and ICE attorneys to conduct the hearings and CBP personnel to receive and process those who are coming into and out of the country to attend hearings.

Wait one New York minute! “[T]he resources and infrastructure necessary to use contiguous-territory return authority at scale are not currently available”? “[T]he United States would need to redevelop and significantly expand infrastructure”? DHS had the resources and infrastructure just a few years ago when the MPP was put in place by the Trump administration. President Biden has been seeking to terminate the MPP (and minimize its use and dismantle its infrastructure until termination is permitted by federal courts) for the entire two-plus years of his presidency. And now the Biden administration pleads “Have pity on us, we don’t have the resources and infrastructure”! To borrow from Judge Wetherell’s decision vacating the Biden administration’s unlawful parole+ATD policy, the Biden administration is acting like a child who kills his parents and then seeks pity for being an orphan. It is hard to take the administration seriously when it starves the MPP in anticipation of its hoped-for termination and then claims that it doesn’t have the resources for a robust reimplementation.

Of course, usage of the MPP went down dramatically at the end of the Trump administration because of the availability of Title 42 expulsions during the Covid public health emergency. But President Biden issued an executive order on February 2, 2021, in the first weeks of his presidency, directing “[t]he Secretary of [the Department of Health and Human Services] and the Director of [the U.S. Centers for Disease Control and Prevention], in consultation with the Secretary of Homeland Security” to “promptly review and determine whether termination, rescission, or modification of” the authorities allowing for the use of Title 42 expulsions “is necessary and appropriate”. Could not the Biden administration have spent the intervening two full years preparing to take out of mothballs whatever additional MPP infrastructure was needed and marshalling the necessary resources? After all, the MPP was originally implemented in stages:

The program began in San Diego, with CBP sending the first MPP returnee to Tijuana on January 29, 2019. MPP was next reported in Calexico on March 14, 2019. Shortly after, on March 21, 2019, El Paso implemented the program. On July 9, 2019, MPP expanded to Laredo and then to Brownsville on July 19, 2019. On October 28, 2019, MPP was implemented in Eagle Pass. Finally, on January 2, 2020, the program expanded to Nogales.

The Biden administration could have reimplemented it in stages, and without having to start from scratch.

Of course, the Biden administration did not do these things because it is implacably opposed to the MPP. Did I mention that the Biden administration is implacably opposed to the MPP? Funny, DHS and DOJ neglected to mention this fact during their “consideration” of the MPP in their proposed regulation.

In the “Biden Plan for Securing Our Values as a Nation of Immigrants”, the Biden-Harris campaign wrote that:

• The Statue of Liberty has long been a beacon to people “yearning to breathe free” around the world — including asylum-seekers and refugees. But the Trump Administration has worked against this tradition to drastically restrict access to asylum in the U.S. ... Biden will end these policies, starting with Trump’s [MPP], and restore our asylum laws so that they do what they should be designed to do — protect people fleeing persecution and who cannot return home safely.

• [T]hrough his [MPP] policies, Trump has effectively closed our country to asylum seekers, forcing them instead to choose between waiting in dangerous situations ... or taking a risk to try crossing between the ports of entry.

Was candidate Biden simply throwing red meat to his base before the election? Apparently not. The incoming Biden administration refused to listen to the pleas of both outgoing Trump administration and career DHS officials. As Chad Wolf, acting secretary of Homeland Security at the end of the Trump administration, recalled:

[Wolf] said he and his career staff held multiple briefings with the incoming Biden transition team to outline the challenges. ... [and] his staff at [CBP] warned the Biden team that it would risk another [border] crisis if it removed ... programs [such as the MPP]. "CBP would tell them and, in a sense, warn them, 'If you remove this ... this is the consequence for that. We will see a significant uptick,'" he said.

Federal district court judge Matthew Kacsmaryk corroborated Chad Wolf’s recollections:

During the latter half of 2020, the Biden transition team met with career staff from DHS [who “]fully briefed the[m] on the importance of MPP and the consequences that would follow a suspension ... [including] a resurgence of illegal aliens attempting to illegally enter our [southwest border] ... [and] smuggling organizations ... exploit[ing] the rescission and convinc[ing] migrants the U.S. borders are open. They were warned the increased volume was predictable and would overwhelm Border Patrol’s capacity and facilities.”

But the Biden administration failed to heed DHS’s pleas. On December 2, 2021, Robert Silvers, DHS’s undersecretary for the Office of Strategy, Policy, and Plans, issued “Guidance Regarding the Court-Ordered Reimplementation of the Migrant Protection Protocols”, which states that:

Within weeks after taking office, President Biden issued an Executive Order directing the Secretary of Homeland Security to review and assess whether to terminate or modify MPP. After a thorough review, Secretary Alejandro Mayorkas concluded that MPP should be terminated, and on June 1, 2021, issued a memorandum to that effect. On August 13, 2021, however, the U.S. District Court for the Northern District of Texas determined that the June 1, 2021 memorandum was not issued in compliance with the [APA]. The Court remanded it to the Department for further consideration, enjoined the termination of MPP, and ordered DHS to "enforce and implement MPP in good faith.”

After further and more extensive review, including a robust consideration of the benefits and costs of MPP, Secretary Mayorkas announced his decision to terminate MPP and to rescind all prior memoranda relating to MPP. ... The Department is appealing the district court ruling and injunction requiring good faith enforcement and re-implementation of MPP, and the termination of MPP will be implemented as soon as practicable in the event of a final judicial decision to vacate the district court injunction. In the interim, the Department is complying with the district court injunction to reimplement MPP in good faith.

So, the Biden administration had already decided to terminate the MPP “as soon as [permissible and] practicable”. I’m sure that this fact was so immaterial to the departments’ consideration of the utility of the MPP in the proposed rule that they didn’t even feel the need to mention it.

DHS and DOJ float another reason why the MPP didn’t fare well in their “consideration”:

Second, programmatic implementation of contiguous-territory return authority requires Mexico’s concurrence and support. When DHS was previously under an injunction requiring it to re-implement MPP, the Government of Mexico would only accept the return of MPP enrollees consistent with available shelter capacity in specific regions, and indeed had to pause the process at times due to shelter constraints. Notably, Mexico’s shelter network is already strained from the high volume of northbound irregular migration we are seeing today. ... Any potential re-starting of returns under MPP ... would require the Government of Mexico to make an independent decision to accept noncitizens who would be returned under this authority and to date the Government of Mexico has made clear that it will not accept such returns.

Of course, implementation of the MPP requires Mexico’s concurrence and support as a sovereign nation. But Mexico would likely have provided, and would now provide, its concurrence and support — just as it did during the Trump administration — if the Biden administration itself supported the program. After all, the New Yorker reported that the Mexican government itself warned the incoming Biden administration of the consequences of terminating the MPP:

“It’s not necessarily the case that the Mexican government opposes [the MPP],” a senior official who served in the Biden Administration said. “One of the things that they had consistently told us — when they saw that Biden had won, and obviously saw that there was likely going to be a reversal of some, if not many, of the policies — was, ‘Go slow.’ Because they feared what ultimately ended up happening, which was a large rush of people through their country to reach the United States.”

I also have a sneaking suspicion that the Biden administration may have whispered into the ear of the Mexican government that the U.S. would actually prefer for the Mexicans to resist efforts to reimplement the MPP. But don’t just take my word for it. Tom Jawetz, my former Democratic colleague on the staff of the House Judiciary Committee’s immigration subcommittee, politically appointed deputy general counsel at DHS earlier in the Biden administration, and now a senior fellow at the Center for American Progress, writes that:

[T]he U.S. government may have reengaged Mexico hoping and expecting that it would do precisely what it did: publicly reaffirm that it has no interest in allowing the United States to reimplement the [MPP]. Such a statement may be tactically useful in pending litigation. For instance, as Mexico’s consent and close cooperation is a necessary precondition for the United States using MPP, its public opposition highlights the absurdity of the district court’s seeming obsession with obstructing the administration’s attempts to do exactly what the Supreme Court said it lawfully could do: end the [MPP].

In any event, the “position” of the Mexican government on the MPP is not an immutable characteristic, fixed for all time. The Mexican government, like any other, takes into account its perception of the potential costs and benefits of any course of action, including the impact on its relationship with the United States.

We all remember when President Trump tweeted in May 2019 that:

On June 10th, the United States will impose a 5% Tariff on all goods coming into our Country from Mexico, until such time as illegal migrants coming through Mexico, and into our Country, STOP, The Tariff will gradually increase until the Illegal Immigration problem is remedied … at which time the Tariffs will be removed. Details from the White House to follow.

But let’s go back to late 2018. A report by the Policy Research Project on Mexico’s Migratory Policy at the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin states that:

• In late 2018, the incoming [Mexican] López Obrador administration faced increased U.S. pressure to crack down on Central American migration to the United States. ... [President Trump’s] focus was only increasing in October 2018, as a caravan of Central American migrants traveled through Mexico. ... Trump fired off a series of tweets threatening to close the United States’ southern border if Mexico did not do more to stop Central Americans in its territory. [such as when he tweeted on October 18, 2018, that “I must, in the strongest of terms, ask Mexico to stop this onslaught – and if unable to do so I will call up the U.S. Military and CLOSE OUR SOUTHERN BORDER!”]

  Amid this heightened pressure, in November 2018, a binational group of officials met in a nonpublicized meeting to create a new migration approach. In this meeting, members of the Trump administration, including former Secretary of Homeland Security Kirstjen Nielsen and Secretary of State Mike Pompeo, convened with Mexico’s incoming Foreign Minister Marcelo Ebrard at a hotel in Houston. ... [that] served as the first step toward developing MPP.

  The meeting[] ... resulted in a set of policy guidelines to return asylum-seeking migrants to Mexico after their asylum cases were registered in the United States. ... [where they] would wait for their U.S. hearings.

  ...

  Mexican officials helped negotiate the plan and initially appeared to be supportive. ... President López Obrador’s future Interior Minister ... was quoted as stating that Mexico had agreed to a “Remain in Mexico” policy. However, as news broke about the new migration program, López Obrador’s team walked back the statement, potentially because the incoming team was not yet in office. ... However, Mexico eventually reversed course. In December 2018, the López Obrador administration announced MPP’s roll out.

• During the announcement, both the United States and Mexico appeared to downplay Mexico’s role and responsibility in the program. When DHS announced MPP on December 20, 2018, it framed the new policy protocols as a unilateral decision by the United States. DHS only briefly referenced any conversations with Mexico, aside from saying that it had notified Mexico of the program’s roll out. In its own simultaneous MPP press release, the Mexican government similarly claimed no responsibility in the U.S. decision ... and made no mention of the November 2018 meeting. Instead, Mexico framed its role as focused only on migrants’ wellbeing.

The White House publicly stated on September 10, 2019, that:

The Vice President met today with Mexican Secretary of Foreign Affairs Marcelo Ebrard at the White House ... [and] acknowledged the Government of Mexico’s meaningful and unprecedented steps to help curb the flow of illegal immigration to the U.S. border since the launch of the U.S.-Mexico Declaration in Washington on June 7, 2019. ... The leaders agreed that while progress has been made, more work remains in order to further reduce the flow of illegal migrants to the United States.

The Vice President highlighted [DHS’s] efforts to expand implementation of the [MPP] in order to expedite processing of immigration claims, and noted the need to work closely with the Government of Mexico to further expand these efforts. The leaders agreed to implement the [MPP] to the fullest extent possible. [Emphasis added.]

Then comes the Biden administration. The Mexican Ministry of Foreign Affairs has stated that:

After the Biden administration terminated th[e MPP], on August 13, 2021, the District Court of Northern Texas ordered its reimplementation, whereupon the Government of the United States informed the Ministry of Foreign Affairs of its intention to return certain migrants to national territory. The Government of Mexico expressed the need to implement protection and health policies, particularly for vulnerable groups, as well as to collaborate closely with international organizations for adequate attention to migrants and refugees. [Emphasis added.]

Yeah, well, one may question what motivated the government of Mexico to express such a need. In any event, on December 2, 2021, Robert Silvers stated in his “Guidance Regarding the Court-Ordered Reimplementation of the Migrant Protection Protocols” that:

The U.S. Government ... cannot reimplement MPP without the Government of Mexico (GOM) making an independent decision to accept the return of individuals enrolled in the program. The GOM raised a number of concerns about the previous implementation of MPP concerns that are shared by DHS — and made clear that, as a sovereign nation, it would not accept the return of individuals enrolled in the program until its concerns were addressed. The Department has made a number of changes to the previous implementation to address these concerns, and the GOM made its independent decision to accept the return of individuals enrolled in MPP.

Not unexpectedly, many of these changes substantially weakened the MPP. Among them was a new requirement that “all individuals encountered will be affirmatively asked questions by DHS personnel about their potential fear of return to Mexico.” Secretary Nielsen had informed DHS’s immigration components that:

[You] should act consistent with the non-refoulement principles contained in ... the 1951 Convention Relating to the Status of Refugees ... and ... the Convention Against Torture. ... Specifically, a third country national should not be involuntarily returned to Mexico ... if the alien would more likely than not be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion (unless such alien has engaged in criminal, persecutory, or terrorist activity. ...), or would more likely than not be tortured, if so returned pending removal proceedings.

Thus, during the Trump administration, when aliens being considered for return pursuant to the MPP expressed a fear of return to Mexico, they were interviewed by asylum officers to determine whether it was more likely than not that they would be persecuted or tortured. But doing what the Biden administration did, asking each and every potential enrollee whether they have a fear of return to Mexico — a country many of whom never even visited prior to their transit to the U.S. — is likely to prompt questionable “yes” responses. Many aliens will pick up on the fact that merely claiming a fear may allow them to evade return under the MPP.

In any event, I’m sure that GOM was emphatic that DHS must affirmatively ask all potential returnees whether they fear returning to ... Mexico!. I sincerely doubt that the impetus for this change came from south of the border.

The guidance mentions another set of changes:

DHS is working with the Department of State and the GOM to ensure that individuals enrolled in the program have access to shelters in Mexico and secure transportation to and from ports of entry to these shelters, so as to enable safe transit to and from court hearings. Additionally, the GOM has committed to ensuring that individuals enrolled in MPP are provided temporary legal status in Mexico and will, as a result, be able to work and access services in Mexico.

Yes, I am sure (whatever the merits of the changes) that they were generated by the Mexican government.

The guidance also mentions that:

Under the prior implementation of MPP, those with a known physical or mental health issue that affected their fitness for travel were considered not to be subject to MPP because of their specific vulnerabilities. The GOM has expressed concerns, shared by DHS, that this prior vulnerability exception was too narrowly constructed and applied, and has required, as a condition of accepting MPP enrollees, additional measures to protect particularly vulnerable individuals from being enrolled in the program. As a result, the following individuals will be presumed to be exempted from processing under MPP due to their particular vulnerabilities:

• Those with a known mental or physical health issue, including a disability or a medical condition related to pregnancy;
• Those with particular vulnerabilities given their advanced age; and
• Those at increased risk of harm in Mexico due their sexual orientation or gender identity.

Yes, I am sure (again, whatever the merits of the changes) that it was GOM that was concerned about the risk of harm in to certain returnees because of their sexual orientation or gender identity ... in Mexico. Incidentally, a suspiciously large number of aliens were “disenrolled” from the MPP during the Biden administration due to their classification as LGBTQ+. DHS explains that:

• If an enrollee was found to have a reasonable possibility of persecution or torture in Mexico .., or if an enrollee was found to have a particular vulnerability that made them ineligible for MPP, the individual was disenrolled from MPP.

• Enrollees identified as having particular vulnerabilities — including those associated with ... sexual orientation or gender identity — are not enrolled in MPP. ... Those initially enrolled in MPP who are subsequently identified as having a particular vulnerability will be disenrolled from MPP.

According to DHS data, DHS disenrolled an astonishing 40 percent of those aliens it had initially enrolled in the MPP from December 6, 2021, to August 8, 2022, (5,059 out of 12,564). Additionally, 47 percent of those disenrollments that occurred before aliens were initially returned to Mexico were caused by post-enrollment LGBTQ+ vulnerability determinations, as were 63 percent of those disenrollments that occurred after aliens came back to the U.S. for immigration court proceedings, and 70 percent of those disenrollments that occurred after aliens already returned to Mexico were reapprehended along the border.

It certainly seems that aliens returned to Mexico are quickly being schooled in the benefits of claiming an LGBTQ+ vulnerability. Not even taking into account all those aliens who were not put into the MPP in the first place because of supposed LGBTQ+ vulnerabilities, more than 20 percent of aliens placed into the MPP are later determined to have LGBTQ+ vulnerabilities. It seems highly questionable that one out of every five aliens apprehended along the southern border actually are LGBTQ+, certainly a potential fraud indicator (even assuming that aliens who actually are LGBTQ+ should receive a pass from the MPP).

Putting aside that detour, just last month the Mexican Ministry of Foreign Affairs declared that:

On December 15, 2022, the District Court of North Texas issued a ruling requiring the Biden administration to reinstate the use of [the MPP]. Consequently, the US authorities notified the Ministry of Foreign Affairs of their intention to restart the return of non-Mexican persons so that they can follow up on their asylum request to the United States in national territory.

Faced with an alleged implementation of this policy for the third time, the Government of Mexico, through the Ministry of Foreign Affairs, expresses its rejection of the intention of the United States government to return people processed under said program to national territory. [Emphasis added.]

I wonder whether there was any bi-national coordination going on with that announcement?

Asylum Cooperative Agreements

Section 208 of the Immigration and Nationality Act (INA) provides that:

[An alien may not apply for asylum] if [the Secretary of Homeland Security] determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality ...) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless [the Secretary] finds that it is in the public interest for the alien to receive asylum in the United States.

In 2002, the United States entered into the first of these agreements, known as "safe third country agreements" or "asylum cooperative agreements”, with Canada, which was implemented by regulation in 2004. During the Trump administration, DHS and DOJ promulgated an interim final rule setting the framework for such agreements with countries other than Canada:

• The INA’s ACA provision provides authority to pursue significant policy interests by entering into bilateral or multilateral agreements allowing for burden-sharing between the United States and other countries with respect to refugee-protection claims.

  Consistent with this compelling policy aim, this interim rule is intended to aid the United States in its negotiations with foreign nations on migration issues. Specifically, the rule will aid the United States as it seeks to develop a regional framework with other countries to more equitably distribute the burden of processing the protection claims of the hundreds of thousands of irregular migrants who now seek to enter the United States every year and claim a fear of return.

• To help alleviate those burdens and promote regional migration cooperation, the United States recently signed bilateral ACAs with El Salvador, Guatemala, and Honduras in an effort to share the distribution of asylum claims.

• To the extent that an alien in ER [expedited removal] proceedings is rendered ineligible to apply for asylum by more than one ACA, the immigration officer will assess which agreement is most appropriately applicable to the alien. Immigration officers may exercise discretion in making such determinations. ... To the extent that an alien in section 240 [removal] proceedings is rendered ineligible to apply for asylum by more than one ACA, the immigration judge shall enter alternate orders of removal to each country that is a signatory to an applicable ACA. DHS immigration officers may exercise discretion when selecting from among the alternate orders.

• [T]his rule will establish a screening mechanism to evaluate whether an alien who would otherwise be removable to a third country under an ACA ... can establish that it is more likely than not that he or she would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion, or would be tortured in that third country.

• Prior to implementation of an ACA, the Attorney General and the Secretary [of Homeland Security] ... [shall] make a categorical determination whether a country to which aliens would be removed under such an agreement provides “access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.”

The Trump administration signed ACAs with the governments of Guatemala (July 26, 2019), El Salvador (September 20, 2019), and Honduras (September 25, 2019). On December 29, 2020, DHS announced that:

• Guatemala, El Salvador and Honduras have all signed [an ACA] and all three ACAs have entered into force. This is a historic milestone for the Trump Administration, Central America, and the American people.

• Acting Secretary Chad F. Wolf [stated that] “Implementation of the agreements will further strengthen the overall asylum capabilities in the Northern Triangle countries and across the region and will allow asylum seekers to access protection closer to their home. I want to thank our partners in Guatemala, El Salvador and Honduras for their hard work and leadership to get these agreements across the finish line.”

  Now that all three ACAs have entered into force and implementation accords have been concluded, the United States, in coordination with the appropriate participating country, will be able to remove certain eligible migrants seeking humanitarian protection to each of the ACA countries.

The State Department reports that “Transfers under the U.S.-Guatemala [ACA] had been paused since mid-March 2020 due to COVID-19, and the Agreements with El Salvador and Honduras were never implemented.” A report by the Senate Foreign Relations Committee’s Democratic staff notes that, according to the U.N. High Commissioner for Refugee’s Guatemala office, from November 19, 2020, through March 2021, the U.S. sent 945 aliens to Guatemala pursuant to the ACA.

President Biden’s executive order of February 2, 2021, provided that:

The Attorney General and the Secretary of Homeland Security shall promptly review and determine whether to rescind the interim final rule [setting the framework for ACA agreements with countries other than Canada] ... as well as any agency memoranda or guidance issued in reliance on that rule. In the interim, the Secretary of State shall promptly consider whether to notify the governments of the Northern Triangle [Guatemala, El Salvador and Honduras] that, as efforts to establish a cooperative, mutually respectful approach to managing migration across the region begin, the United States intends to suspend and terminate the [three ACAs]. [Emphasis added.]

Four days later, Secretary of State Antony Blinken announced that:

The United States has suspended and initiated the process to terminate the [ACAs] with the Governments of El Salvador, Guatemala, and Honduras as the first concrete steps on the path to greater partnership and collaboration in the region laid out by President Biden. The termination of these Agreements is effective after the notice period stipulated .., but their suspension is immediate.

Oh, he threw in that:

[T]he United States is taking this action as efforts to establish a cooperative, mutually respectful approach to managing migration across the region begin. To be clear, these actions do not mean that the U.S. border is open. ... [T]he United States is a country with borders and laws that must be enforced.

Now, let’s go back to DHS’s and DOJ’s explanation in the proposed rule for why they rejected the ACA alternative:

The Departments considered whether to ... negotiate[e] ... asylum cooperative agreements. Negotiating such agreements, however, is a lengthy and complicated process that depends on the agreement of other nations. Although the time between publication of a [notice of proposed rulemaking] and promulgation of a final rule can be substantial, the time it takes to negotiate and finalize [such] agreements remains even more protracted since they involve not only diplomatic and operational negotiations, but also, in many countries, approval of any such agreement by their respective legislatures.

Wait another New York minute! “Negotiating such agreements ... is a lengthy and complicated process that depends on the agreement of other nations.” It sure is. Nevertheless, the Trump administration made the effort to do so and was successful. And the Biden administration has suspended and is terminating the agreements! And now it has the chutzpah to whine about the “lengthy and complicated process”? Did the departments note in their explanation that the U.S. already had ACA’s in place that the Biden administration trashed because it seems to be implacably opposed to them? Did I mention the orphan?

Further, the receptiveness of any foreign government to entering into an ACA is influenced by its calculation of the potential costs and benefits, including the impact on its relationship with the United States — just as was Mexico’s receptiveness to cooperate with the MPP. The report by the Senate Foreign Relations Committee’s Democratic staff, though filled with purple prose, provides some interesting context:

President Trump ... intensified his coercive tactics, tweeting on July 23 that Guatemala “has decided to break the deal they had with us on signing a necessary Safe Third [sic] Agreement. … Now we are looking at the “BAN,”… Tariffs, Remittance Fees, or all of the above.” Then-president Jimmy Morales approved the agreement and his Interior Minister Enrique Degenhart signed the ACA on July 26, 2019. The Guatemalan government released a statement explaining that the agreement was signed “with the objective of preventing serious economic and social repercussions.”

The lesson was clear for the leaders of Honduras and El Salvador: sign the ACAs or face bullying directly from the U.S. President. Honduran foreign ministry officials expressed misgivings that their government was bowing to pressure from Washington. Nevertheless, two months later, the foreign ministers of El Salvador and Honduras each signed ACAs with the United States that are modeled on the Guatemala ACA.

Nicole Narea writes at Vox that:

While the terms of the deal with Honduras has not been made public, the US government may have some leverage over its government, as Honduran President Juan Orlando Hernández face[d] prosecution in the US for allegedly accepting campaign contributions from drug traffickers.

It’s not clear what advantages other countries might derive from signing a safe third country agreement. [Ursela] Ojeda [a migrant rights and justice policy adviser at the Women’s Refugee Commission] says that they may just be afraid of going against the wishes of a major economic power that has given them substantial, much-needed aid.

“What we have here is the United States being a bully,” she said.

Let’s return to DHS and DOJ splainin’ of their rejection of the ACA alternative:

[I]t would be particularly difficult (if possible at all) to negotiate a safe-third-country agreement that would provide the, humanitarian protections, among other things, provided for by this proposed rule. ... This proposed rule ... would continue to allow noncitizens to pursue asylum and other protection in the United States, and, while it would create a rebuttable presumption, it specifies circumstances in which that presumption is necessarily rebutted and other exceptions. Even if the safe-third-country provision could be used to achieve similar results, it could not do so without protracted bilateral or multilateral negotiations with foreign counterparts.

As I have written, the proposed regulation was crafted to “allow[] the Biden administration to exempt huge segments of the population of aliens who would choose to enter the U.S. illegally”. But, even assuming the propriety of this result, I don’t see why it would be difficult at all for the U.S. government to simply propose to the foreign governments with which it is negotiating (or renegotiating) ACAs that all such exempted classes of aliens not be subject to the ACAs. If one were to believe the Senate Foreign Relations Committee Democratic staff report, the foreign governments might even welcome such a proposal!

DHS and DOJ continue:

[ACAs] would likely have limited short-term operational benefit as compared to this proposed rule and are not something that can be achieved within the time frame needed without significant bilateral efforts, particularly given partner countries’ resistance to entering into such agreements.

“[P]articularly given partner countries’ resistance to entering into such agreements”! Guatemala, El Salvador, and Honduras had already signed such agreements. All the Biden administration had to do was not suspend them! And, if it wanted to make changes (however ill-advised), it could have initiated negotiations way back in February 2021 when it indicated its intention to terminate DHS’s use of Title 42 authority.

Conclusion

DHS and DOJ could easily have come up with rationales (justifying their rejection of the MPP and ACA as alternatives to their proposed rule) that were not so blatantly misleading and self-serving. Why didn’t they? After all, the proposed rule is likely to be challenged in federal court as arbitrary and capricious. Do the departments really believe that they can so easily blow smoke in the faces of federal judges? The rationales are also likely to be the subject of ridicule.

It is possible that the Biden administration’s public embrace of these rationales is simply an example of the echo chamber — “an insular communication space where everyone agrees with the information and no outside input is allowed” — in action. However, there is another possibility. Clinical psychologist Mark Zaslav writes that:

The key to shame-related psychopathology such as we see in narcissistic personality disorders is the relative vulnerability of the individual to mental states associated with shame, along with the corresponding degree to which the entire personality structure is organized around defending against shameful experiences. ... When I see a patient who seems to operate in a state of oblivious immersion in grandiose fantasies, I see a personality organized around the need to neutralize or negate entrance into shameful states of mind. For people on the narcissistic spectrum, contact with the shame experience is rigidly held at arm’s length. ... The narcissist has learned to withdraw from contact with feelings of inadequacy as from the touch of a hot stove.

Hmmm.