Federal Judge Stays DHS’s Latest Termination of ‘Remain in Mexico’

Proving, once again, that it’s really all about detention

By Andrew R. Arthur on December 23, 2022

Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas issued an order last week in Texas v. Biden, staying two memoranda terminating the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. While MPP may, facially, be the subject of the suit brought by the plaintiff states in that case, it’s really about the Biden administration’s refusal to comply with congressional detention mandates and restrictions on parole, as the court’s order shows.

Remain in Mexico. Directly after Donald Trump was sworn in as president, illegal immigration across the Southwest border plummeted. In FY 2017, agents there apprehended just fewer than 304,000 illegal entrants (the lowest yearly total since the Nixon administration in FY 1971), more than half of whom (168,000-plus) entered prior to February 2017, Trump’s first full month in office.

That decline was likely due to what my colleague Todd Bensman referred to as the “Trump effect”, a reaction to candidate Donald Trump’s campaign-trail rhetoric, which dissuaded many would-be illicit entrants.

Apprehensions at the Southwest border began to rise within a few months, however, as would-be illegal migrants (and, more importantly, their smugglers) realized Trump’s words were hollow without congressional action to plug the loopholes both smugglers and aliens had begun exploiting in recent years.

By FY 2018, yearly apprehension totals neared 400,000, and in February 2019 monthly apprehension totals approached 67,000. In response, then-DHS Secretary Kirstjen Nielsen declared a “border emergency” at the end of March 2019, a month in which agents caught almost 93,000 illegal migrants at the Southwest border.

By that point, the Trump administration had begun planning policies to address this surge — most notably MPP, which Nielsen set in motion in January 2019.

MPP allowed DHS to return certain “other than Mexican” (OTM) migrants caught entering illegally or without proper documents back to Mexico — where, under Trump, the Mexican government agreed to provide them with protection for the duration of their stays — to await removal hearings. They were then paroled into the United States long enough to apply for asylum.

Trump was slow to implement MPP, largely because the program was subject to various injunctions and required the cooperation of the Mexican government. By middle to late summer, however, it was up and running. Illegal migration plummeted, and by September 2019, Southwest border apprehensions fell to just over 40,500 — an almost 62 percent decline from May of that year.

They continued to fall, and by February 2020, the last month before the Covid-19 pandemic was declared, there were fewer than 31,000 Border Patrol apprehensions at the U.S.-Mexico line.

Of course, everything changed once that pandemic was declared. In response, CDC issued the first of its orders under Title 42 of the U.S. Code directing the immediate expulsion of illegal migrants at the land borders in late March 2020. More than 87 percent of illegal migrants at the Southwest border thereafter under Trump were expelled, and apprehensions bottomed out at fewer than 16,200 in April 2020.

In its October 2019 assessment of the program, DHS determined that 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 alien migrant families. Asylum cases were expedited under the program, and MPP removed incentives for aliens to make weak or bogus claims when apprehended.

Despite its success, Biden denounced MPP on the campaign trail, and one of his first acts as president was to suspend new enrollments in the program.

Texas v. Biden. That prompted the states of Texas and Missouri to file suit in federal court in Texas in April 2021 to force reinstatement of Remain in Mexico in April, where it was assigned to Judge Kacsmaryk. Despite the pendency of that suit, DHS Secretary Alejandro Mayorkas terminated MPP on June 1, 2021.

Judge Kacsmaryk enjoined that termination of MPP in August 2021. The administration quickly sought a stay of that injunction, first from the Fifth Circuit and then the Supreme Court. Both courts rejected the government’s respective stay applications.

The government then went back and appealed Judge Kacsmaryk’s injunction to the Fifth Circuit. While that appeal was pending (and just days before oral argument), Mayorkas issued a second memo terminating MPP on October 29.

The timing of Mayorkas’ second MPP termination did not sit well with the three-judge panel of the Fifth Circuit hearing the case, which denied that appeal in a lengthy December 2021 decision. The administration then sought Supreme Court review.

The justices issued their opinion on the last day of the Court’s term, June 30. It held — five years too late for the Trump administration — that section 242(f)(1) of the Immigration and Nationality Act (INA) deprives lower courts of authority to enjoin most executive branch immigration decisions.

The justices further held that the Fifth Circuit had erred in treating the second MPP termination memo as a post hoc rationalization for the secretary’s June 1 termination of the program. Accordingly, it returned the matter back to the lower courts for consideration of that second memo.

Judge Kacsmaryk’s Latest Order. Which brings me back to Judge Kacsmaryk’s latest order.

In that order, the court addressed not only Mayorkas’ October 29 memo terminating MPP (captioned “Termination of the Migrant Protection Protocols”), but also a separate (and much longer) memo issued the same day captioned “Explanation of the Decision to Terminate the Migrant Protection Protocols”.

The state plaintiffs asked the court to stay those memoranda pending a final determination on whether the memoranda “satisfy reasoned decisionmaking under” the Administrative Procedure Act (APA). Specifically, 5 U.S.C. § 706(a) of the act, which directs reviewing courts to “hold unlawful and set aside agency action, findings, and conclusions found to be — arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”.

With respect to that provision, the state plaintiffs alleged that Mayorkas failed to adequately consider five separate issues in terminating Remain in Mexico.

Two are directly relevant to detention: (1) How using the contiguous-territory return authority in section 235(b)(2)(C) of the INA — the statutory basis for MPP — "would allow” DHS “to avoid violations of the INA’s clear detention mandate”; and (2) whether Mayorkas’ rescission of Remain in Mexico “is causing DHS to violate the limits on its parole authority”.

Congressional Detention Mandate. Section 235(b) of the INA contains three separate provisions that mandate the detention of arriving aliens who are “applicants for admission” to the United States, a designation that includes aliens who have entered the United States illegally.

Two relate to aliens in expedited removal proceedings. The first, in section 235(b)(1)(B)(iii)(IV) of the INA, states: “Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.”

The second, at section 235(b)(1)(B)(ii), provides: “If the officer determines at the time of the interview that an alien has a credible fear of persecution the alien shall be detained for further consideration of the application for asylum.”

Thus, any alien in expedited removal proceedings is to be detained, from the time of apprehension until the alien is removed or, alternatively, granted asylum.

The third provision, at section 235(b)(2) of the INA, relates to all other applicants for admission who are not subject to expedited removal. It states, in pertinent part:

[I]n the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal] proceeding under section 240 [of the INA].

Illegal migrants are removable under two separate provisions in the INA; section 212(a)(6)(A) (“Aliens present without admission or parole”); and section 212(a)(7) (immigrant not in possession of an immigrant document).

Only aliens charged with inadmissibility under section 212(a)(7) of the INA are subject to expedited removal, however, evidencing Congress’ determination that DHS gets a choice in processing aliens pursuant to that special provision (section 235(b)(1) of the INA), or like all other applicants for admission (under section 235(b)(2) of the INA).

Regardless, however, those aliens are subject to mandatory detention. In his order, Judge Kacsmaryk noted that DHS concluded — erroneously — that section 235 of the INA “does not impose a near-universal detention mandate”.

That’s a big deal, the court held, because Mayorkas had to consider the effect that termination of MPP would have on DHS’s ability to satisfy that congressional detention mandate, and because terminating MPP “lessened” DHS’s “ability to detain all arriving aliens, as mandated by Congress”.

Therefore, the court concluded, the government “appear[s] to base the renewed termination of MPP on arbitrary and capricious grounds by denying that [section 235 of the INA] creates a detention mandate”, in violation of the APA.

Parole Authority. As my colleague George Fishman has exhaustively explained, Congress in section 212(d)(5)(A) of the INA provided DHS with authority to allow otherwise inadmissible aliens to enter the United States, on an authority known as “parole”. Congress has narrowly cabined that authority, but successive administrations over nearly seven decades have stretched its bounds.

The pertinent language of that provision reveals how restrictive that statutory grant of parole authority is, allowing DHS to parole aliens “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.

Despite those statutory strictures, Border Patrol released more than 378,000 illegal migrants at the Southwest border on parole in FY 2022 (a figure that exceeds Border Patrol’s yearly total apprehensions under the Obama-Biden administration in FY 2011, FY 2012, and FY 2015).

The Supreme Court considered the language of section 212(d)(5)(A) in its decision in this matter, finding that DHS’s parole authority “is not unbounded”, and that, under the APA, the department’s “exercise of discretion within that statutory framework must be reasonable and reasonably explained”.

Judge Kacsmaryk found that DHS, in the October 29 memoranda, failed “to consider how terminating MPP — combined with” DHS’s “inability to detain all arriving aliens — leads to increased violations of limits on [its] parole authority as [it releases] aliens into the United States”.

What Texas Is — and Isn’t. It’s important to understand what’s at issue in Texas, and what isn’t. What’s not at issue is whether the Biden administration is violating either the congressional detention mandate or the limits on DHS’s parole authority (though it is in both instances, by my lights). What is at issue is whether Mayorkas failed to consider those violations in terminating Remain in Mexico.

That said, Mayorkas’ misinterpretation (deliberate or otherwise) of DHS’s obligations to detain illegal migrants and of the restrictions on the department’s ability to parole aliens en masse is why he concluded that MPP was dispensable. That placed a cloud on his ultimate termination decision for purposes of the APA.

The reason there’s an unfathomable humanitarian disaster at the Southwest border is that Biden doesn’t want to detain illegal entrants, and doesn’t want to send them back to Mexico, either. The law restricts the former choice, and for the time being, Judge Kacsmaryk has limited the second one, as well. Whether that decision stands, however, will be up to the Fifth Circuit, and inevitably the Supreme Court (again).