The Migrant Protection Protocols (MPP), better known as “Remain in Mexico”, are over—for now—as U.S. district court Judge Matthew Kacsmaryk issued a brief order on August 8, lifting an injunction he had imposed to prevent the Biden administration from terminating the Trump-era policy. The Biden administration moved quickly to suspend MPP, even though the FBI director stated that the situation at the Southwest border is handing CBP “a heck of a challenge” and poses “a significant security issue”.
We Knew This Was Coming. Judge Kacsmaryk’s latest order was preordained by a June 30 Supreme Court opinion holding that DHS had discretion not to utilize section 235(b)(2)(C) of the Immigration and Nationality Act (INA)—the statutory basis for MPP; that Congress had barred courts from enjoining actions related to that provision; and that the Fifth Circuit had erred in failing to consider DHS’s second attempt to terminate MPP, issued days before oral argument in the government’s appeal of that injunction.
There was a slight delay in implementing that opinion, however, due to Supreme Court procedure governing the entry of judgments from the Court’s decisions. It entered judgment in the case on August 1, clearing the way for the administration to seek an order lifting the injunction in the case, captioned Biden v. Texas.
The Case in Brief. As the caption suggests, Texas was brought by Texas (and Missouri) in an effort to force the Biden administration to continue Remain in Mexico. The president had suspended the program directly after taking office (prompting the states to sue), and then DHS Secretary Alejandro Mayorkas terminated MPP on June 1 while that challenge was proceeding.
It was that DHS June 1 termination that Judge Kacsmaryk enjoined, and the administration had initially sought to have that injunction stayed first by the Fifth Circuit and then by the Supreme Court. When those stays were denied, the government appealed the district court’s order to the circuit. As noted, it was while that appeal was pending that DHS attempted to terminate MPP again, on October 29.
That appeal was dismissed by the circuit court in December, which teed the matter up for the high court’s review and ultimate judgment.
The justices’ opinion sent the matter back to the Fifth Circuit, where it was remanded back to Judge Kacsmaryk. His focus will now likely shift to the legal validity of the second, October 29 termination of Remain in Mexico, also issued by Mayorkas.
Biden Administration's Response. While the administration had—reluctantly—reinstated MPP pursuant to Judge Kacsmaryk’s injunction, its efforts were half-hearted, at best.
Between December, when DHS began sending migrants back across the border pursuant to section 235(b)(2)(C) of the INA to July 6, just 5,674 aliens (mostly Nicaraguan, Cuban, and Colombian nationals) were sent back to Mexico. By comparison, nearly 70,000 migrants were across the border pursuant to MPP under the Trump administration, nearly all of them before the Covid-19 pandemic was declared in late March 2020.
The Biden administration has made short work of shutting down MPP, with DHS eagerly asserting that it “is committed to ending the court-ordered implementation of MPP in a quick, and orderly, manner”. As per the department’s statement:
Individuals are no longer being newly enrolled into MPP, and individuals currently in MPP in Mexico will be disenrolled when they return for their next scheduled court date. Individuals disenrolled from MPP will continue their removal proceedings in the United States.
If only the department would show such commitment and dispatch in securing the border, as Congress has mandated it to do.
Testimony of FBI Director Christopher Wray. The importance of such border security was underscored by FBI Director Christopher Wray’s testimony before the Senate Judiciary Committee on August 4.
Sen. John Cornyn (R-Tex.) asked Wray whether he agreed with Mayorkas’ assessment that the border is secure. In response, Wray was folksy, but initially somewhat evasive:
Well, boy, I guess I'm hesitant to substitute my judgment for the Secretary of Homeland Security, but I will tell you that I have spent a lot of time with our field offices that have border responsibility. I have been to ports of entry, including, not that long ago, with CBP officers walking me through it, so I could really see firsthand what they're up against. And all I can say is, boy, they got a heck of a challenge . . . .
Given the fact that fewer than 17,000 Border Patrol agents at the U.S.-Mexico line had to apprehend, process, detain, and care for nearly 192,000 illegal entrants in June, I would concur that “they got a heck of a challenge”, indeed.
Cornyn pushed back, though, telling Wray, “I've always thought of you as a straight shooter, but you won't answer that question?”
That prompted Wray to acknowledge that he thought “the border presents significant security issues. There's a wide array of criminal threats that we encounter down at the border . . . . ”
Questioning next turned to the wide variety migrants entering illegally, and concerns that they may pose a “public security threat”. As Cornyn explained, “I certainly know that it is an eclectic mix of nationalities and the volume is just staggering”.
That’s an understatement. Nearly 40 percent of the migrants apprehended at the Southwest border thus far in FY 2022 (more than 644,500 individuals) aren’t from Mexico or the “Northern Triangle” countries of El Salvador, Guatemala, or Honduras. They are “long-distance” migrants who have gone to great trouble and expense to enter illegally, and thousands are from countries like Russia and China with interests inimical to the United States.
Wray explained that the illegal entry of such aliens “represents a significant security issue” with “a wide array of criminal threats that flow out of it”. As FBI director, he should know.
In that vein, Sen. Lindsey Graham (R-S.C.) asked the director: “How easy would it be for a group of terrorists to intermingle themselves in this wave of illegal immigrants and be able to sneak into our country to kill a bunch of us?”
While Wray explained that he didn’t want to give such malefactors “a road map”, he admitted that “it’s certainly something we’re concerned about”. As we all should be.
An Unconscionable Vulnerability. Joe Biden’s policies have ushered in the largest increase in illegal migration in history. Border Patrol has already set a new record for migrant apprehensions at the Southwest border in FY 2021, but that record will fall (with two reporting months yet to go) when July’s apprehension numbers are published in mid-August.
That “staggering” volume of illegal entrants poses an unconscionable vulnerability for our homeland and its institutions, as Wray’s testimony demonstrates. The only way the Biden administration can stem that wave is by returning to the successful policies—such as and including Remain in Mexico-- his predecessor implemented.
The administration’s efforts to rapidly undo the Potemkin-village MPP it was forced to erect reveals it’s oblivious to the national-security dangers posed by a wildly insecure border. It’s questionable whether the courts can prod the president into changing course, so let’s hope Biden has a change of heart on border security before the threats the FBI director described become reality. I’m pessimistic.