There have been a flurry of filings in Biden v. Texas — a case brought by plaintiff states to prevent DHS from terminating the Trump-era Migrant Protection Protocols (MPP, better known as “Remain in Mexico”) — since the Supreme Court heard oral argument on April 26. One of those filings reveals major flaws in DHS’s decision to terminate MPP and shows how far detentions of illegal migrants caught at the border have fallen under the Biden administration.
The Detention Mandate and Remain in Mexico. Section 235 of the Immigration and Nationality Act (INA) requires DHS to detain inadmissible arriving aliens, including migrants apprehended entering illegally, from the time that they are encountered by CBP to the point at which they are removed from the United States or alternatively granted status or protection in this country.
As the number of illegal entrants surged during what then-DHS Secretary Kirstjen Nielsen described as the “border emergency” in FY 2019, however, the Trump administration found itself increasingly unable to satisfy that detention mandate. In response, Nielsen implemented “Remain in Mexico”, under which illegal migrants were returned across the border to await their removal hearings.
As DHS determined in its October 2019 assessment of the program, MPP was “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly as related to adult migrants entering illegally with children in “family units” (FMUs).
Asylum cases were expedited under the program, while MPP also removed incentives for aliens to make weak or bogus claims when apprehended. Despite this, the Biden administration suspended enrollments in the program the day after taking office.
The states of Texas and Missouri sued the Biden administration in April 2021 to force DHS to continue MPP in the face of a rising tide of illegal migrants at the Southwest border, but new DHS Secretary Alejandro Mayorkas nonetheless issued a memo attempting to terminate the program less than two months later. That termination decision was rolled into the pending case brought by the states.
On August 13, Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas issued an order enjoining Mayorkas’s termination of MPP. The Biden administration quickly sought a stay of that injunction from the Fifth Circuit (which denied it) and then from the Supreme Court (ditto).
The administration next filed an appeal of Judge Kacsmaryk’s order with the Fifth Circuit. While that appeal was pending (and just days before oral argument in the appeal), Mayorkas issued a second memo terminating MPP on October 29.
The timing of this second termination memo did not go down well with the circuit court panel at oral arguments on November 2. As Law360 reported: “U.S. Circuit Judge Kurt Engelhardt ... called it ‘suspicious and disappointing’ that the Biden administration had issued a new memorandum on Oct. 29, days before the hearing.” Judge Engelhardt continued: “Why is it an Oct. 29 memo and not an Oct. 1 memo or a Sept. 15 memo? The motion comes with some suspicion of gamesmanship.”
In any event, the Fifth Circuit affirmed Judge Kacsmaryk’s injunction on December 13 in a stinging 117-page order that included extended references to “English law’s struggle against royal prerogative” between the English Civil Wars and the “Glorious Revolution”.
“Explanation of the Decision to Terminate” Remain in Mexico. Attached as an appendix to the government’s petition for writ of certiorari was a document issued on the same day as the second MPP termination memo, captioned “Explanation of the Decision to Terminate the Migrant Protection Protocols” (“Explanation”, found at page 265a). The 79-page Explanation provides a more in-depth analysis of the termination decision than the second Mayorkas memo, raising the question of why the administration bothered issuing the documents separately.
There are many points in that Explanation with which I disagree.
For example, it contends that the reentry rate for migrants enrolled in MPP was 33 percent as of June 30, 2021. As an aside, that is an odd timeframe given that enrollments in the program ended in late January 2021 and that the administration began allowing the aliens still enrolled in MPP into the United States in the middle of February.
Continuing that point, however, the Explanation states: “This rate is more than two-and-a-half times higher than the historical average for recidivism (defined as re-encounters within 12 months of initial apprehension) of 14 percent for individuals processed under” the INA.
As I explained recently, that is only the “historical average for recidivism” if one uses a narrow historical aperture. According to a 2017 DHS analysis, the Southwest border recidivism rate was at or above 30 percent from FY 2005 until FY 2009, and only fell below 25 percent in FY 2011. Of course, were the Biden administration really concerned about illegal reentrants, it would prosecute them. It hasn’t.
The Explanation also gives unconscionably short shrift to the concerns of the states and border communities about the termination of MPP and their reliance interests in its continuation (even though it states, “The Secretary takes these concerns seriously.”).
I am particularly taken aback by the line, “The Secretary has ... taken and will continue to take, steps designed to minimize adverse consequences of any policy shifts on border states.” The truth of that statement was seriously undermined by the chaotic events in Del Rio, Texas, in September, when 30,000 migrants crossed the Rio Grande into the small border town, overwhelming Border Patrol and local authorities.
All that pales, however, in comparison to the following:
[T]he fact that some [aliens] might reside in the United States rather than being returned to Mexico and thus access certain services or impose law enforcement costs is not, in the Secretary’s view, a sufficiently sound reason to continue MPP. ... In this case, the Secretary has made the judgment that any marginal costs that might have been inflicted on the States as a result of the termination of MPP are outweighed by the other considerations and policy concerns.
Respectfully, all costs are “marginal” when you aren’t paying them. The price that the small towns and communities across the Southwest border are paying for the Biden administration’s failure to gain operational control of the Southwest border (in part due to the termination of MPP) are, to the contrary, “significant”.
The “Errata Page”. Even the Biden administration has subsequently determined that some of the facts contained in the Explanation were in error. For example, to show that detention has been sporadic at best in the past, that document states:
From Fiscal Years 2013 to 2019, nearly three-quarters of single adult and family unit members who were encountered at the [Southwest border] were either never placed in or released from detention during the pendency of their proceedings — more than 1.1 million (41 percent) were never booked into ICE detention and nearly 900,000 (33 percent) were booked in for a period of time but released prior to the conclusion of their removal proceedings.
That is powerful evidence, which on its face would undermine claims made by many (including me) that Biden is detaining fewer illegal migrants at the Southwest border than prior administrations had. The problem is that those statistics are not accurate, as the DOJ had to admit in an “errata page” it filed with the Court on June 6. The “nearly three-quarters of single and family unit members” who “were either never placed in or released from detention”? It is actually 43 percent.
The “more than 1.1 million (41 percent) were never booked into ICE detention and nearly 900,000 (33 percent) were booked in for a period of time but released”? That should be “almost 750,000 (21 percent) were never booked into ICE detention, and more than 770,000 (22 percent) were booked in for a period of time but released”.
Flores and FMU Entries. Of course, adding aliens in FMUs who were encountered at the border and released or never detained with the single adults is disingenuous, because since August 2015, the law has all-but mandated that they be released, as I have explained at length in the past.
That was when U.S. district court Judge Dolly Gee issued her order in Flores v. Lynch, directing DHS to release kids in FMUs after 20 days. Not surprisingly, to avoid “family separation”, the department usually releases their parents, too. In fact, Biden made the brief period such separation occurred under the Trump administration a cornerstone of his campaign, so the White House is aware of the issue.
Flores is also part of the reason why there is so little detention space for FMUs. Because it could not hold families for more than 20 days, DHS never asked for an expansion in FMU beds, and Congress never appropriated for more than 2,500 beds.
Significantly, a bipartisan panel examining illegal FMU migration in April 2019 named “grossly inadequate detention space for family units” as a main driver of the then-“massive increase in illegal crossings of our borders, almost entirely driven by the increase in FMU migration from Central America”. If anything, that situation has simply gotten worse in the interim.
Brace yourself for a surprise: DOJ never cites Flores in its petition to the Supreme Court and mentions it only in passing in the 447-page appendix (in the declaration of David Shahoulian, assistant secretary for border security, at page 391) attached thereto. In my opinion, that is a shameful omission.
Again, with all due respect, it is impossible to discuss the current disaster at the border, the FY 2019 “border emergency” (when 55.6 percent of the more than 851,500 illegal migrants were apprehended at the Southwest border), or the importance of MPP without examining and understanding Flores and the effect it had on illegal FMU entries.
Here are the facts: The Explanation admits that DHS did not even plan to expand MPP across the “entire” Southwest border until June 2019. One month prior, in May, Border Patrol apprehended nearly 84,500 aliens in FMUs at that border. By September, with MPP in full effect, FMU apprehensions fell to 15,824 — a 73 percent decrease in just four months.
Apprehensions: The Appendix in the Appendix to the Explanation, and Its Errata Page. Attached as an appendix to the Explanation (itself an appendix to DOJ’s Supreme Court petition) is a chart comparing the number of single adults and aliens in FMUs encountered by CBP at the Southwest border (combined) with the number who were detained throughout their proceedings, the number who were detained but released, and the number who were never detained.
Again, mixing single adults with aliens in FMUs in this context is disingenuous, at best, for the reasons explained above. Still, the numbers are themselves pretty damning — and not in a good way for the Biden administration.
That chart merited its own errata page in DOJ’s June 6 submission, and I will skip the original (wildly) erroneous version for now. It starts in FY 2013, and of the nearly 448,500 aliens encountered that fiscal year, 82 percent remained in detention throughout their proceedings, 9 percent were detained but released, and 9 percent were never detained.
In FY 2014, when FMU apprehensions surged for the first time, of the more than 497,000 single adults and aliens in FMUs encountered at the Southwest border, 70 percent were detained through the process, 17 percent were detained but released, and 13 percent were never detained.
Detentions fell even further in FY 2015 but were still high: Of the fewer than 401,000 aliens encountered (single adults and in FMUs), 66 percent remained detained, 19 percent were detained and released, and 14 percent were never detained. In FY 2016, when there were more than 492,600 encounters and these figures (respectively) were: 57 percent detained and not released, 25 percent detained and released, and 18 percent never detained.
The end of the Obama era and the advent of Trump saw fewer detentions. In FY 2017, there were more than 366,500 aliens encountered at the Southwest border, 56 percent of whom were detained throughout the process, 23 percent of whom were detained and released, and 20 percent of whom were never detained.
In FY 2018, of the 460,000-plus single adults and aliens in FMUs encountered at the Southwest border, 54 percent were detained, 29 percent were detained and released, and 18 percent were never detained.
As noted, more than 55 percent of all aliens apprehended at the Southwest border in FY 2019 were in FMUs, which, coupled with Flores, skewed the figures for that year: 33 percent detained throughout the process, 26 percent detained and released, and 40 percent never detained.
By FY 2020, MPP was fully implemented, and travel restrictions associated with the Covid-19 pandemic (declared at the end of March 2020) and the implementation of exclusion orders under Title 42 kept the number of encounters at the Southwest border in the latter half of the fiscal year low: Of the more than 210,600 aliens encountered at the border that year, 66 percent were detained, 13 percent were detained and released, and 21 percent were never detained.
Biden replaced Trump midway through FY 2021, and according to the errata page, that year just fewer than 525,200 aliens were apprehended at the Southwest border and processed under the INA (as opposed to being expelled under Title 42). In FY 2021, just 10 percent of those aliens remained detained throughout the process, 26 percent were released, and a whopping 64 percent were never detained.
It should be noted that CBP’s Nationwide Encounters webpage shows that there were actually 528,432 single adult aliens and aliens in FMUs encountered in FY 2021 at the Southwest border who were processed under the INA, a slight discrepancy from DOJ’s numbers. That said, 502,274 of them (95 percent) were processed under the INA beginning in February — that is after Biden took office — meaning that the low rate of detentions DOJ is spotlighting resulted from the current administration’s own policies.
What Does It All Mean? I have no idea what point DOJ thinks it is making by presenting these statistics, but a few things are clear.
First, and no matter how the administration spins it, border detentions have plummeted under the current president. That in part has to do with Flores — a decision for which Biden bears little responsibility (though it was issued under the Obama-Biden administration, which chose not to appeal it to the Supreme Court) — but the president has no plan to fix it, nor does his administration appear to recognize it is a problem.
Second, although then-candidate Biden wailed that “Trump has waged an unrelenting assault on our values and our history as a nation of immigrants”, at the border at least the 45th president was much more lenient than his predecessor when it came to detention.
Third, the second (and most recent) memo terminating MPP was based on seriously erroneous statistics. As the errata page reveals, the Explanation justifying MPP’s termination erred by a huge degree in the number and percentage of aliens encountered at the Southwest border who had been detained in prior years.
In total, 57 percent of all single adults and aliens in FMUs encountered at the Southwest border between FY 2013 and FY 2019 were detained through their proceedings, not 26 percent as the appendix to the Explanation — again, the basis for terminating MPP — showed, meaning it was off by 119 percent. In real numbers, it omitted nearly 1.29 million aliens who were detained in those years. That’s no scrivener’s error — that’s a botch job.
Fourth, and in that vein, the Explanation (again, the very document explaining why MPP should be terminated) failed to consider — at all — the significant effect Flores has had on DHS’s ability to detain aliens in FMUs from August 2015 on. You cannot address a problem unless and until you know that you have one.
And it is only by giving the Biden administration and DOJ the benefit of the doubt that allows you to conclude this is simple ignorance, and not an attempt to elide salient facts in eliminating a policy that is the subject of ongoing litigation. Of course, the errata pages don’t mention Flores, either.
Given the significant errors in the document justifying DHS’s second attempt to terminate Remain in Mexico, Mayorkas should simply admit he was wrong and try again (or better yet not try again). In any event, the administration’s disclosures in Texas reveal that, unlike his predecessors, Joe Biden is not making any serious attempts to gain operational control of the Southwest border by detaining aliens.