Judge Blocks Termination of ‘Remain in Mexico’

Biden’s three choices: Detain illegal migrants, remove or expel them, or send them back across the border to wait

By Andrew R. Arthur on August 17, 2021

On August 13, Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas issued an order enjoining the Biden administration’s termination of the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. The court did not force any DHS officer to return any illegal migrant to Mexico (it admitted it lacked that power), but made clear that the administration had three choices: Detain illegal migrants, remove or expel them, or send them back across the border.

By way of background, MPP was implemented in January 2019 and allowed DHS to return non-Mexican migrants caught entering illegally or without proper documentation back to Mexico to await removal hearings. They were then paroled into the United States long enough to apply for asylum, while the Mexican government agreed to provide them with protection for the duration of their stays there.

The Trump administration implemented MPP in response to what it had termed a “a security and humanitarian crisis on the Southern border”, as it explained in its fact sheet on the program.

Specifically, according to the then-DHS, loopholes in the law I have discussed at length in the past encourage migrants — largely from the Northern Triangle of Central America countries of El Salvador, Guatemala, and Honduras — to enter the United States illegally with weak and/or fraudulent asylum claims, in the expectation that they can remain indefinitely.

The primary loopholes are: (1) incentives for unaccompanied alien children from non-contiguous countries to enter illegally in the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA); (2) a 20-day release requirement for children and adults traveling in “family units” (FMUs) manufactured by a different district court judge in her 2015 decision in Flores v. Lynch; and (3) an unreasonably low burden of proof for aliens apprehended at the border to claim a fear of persecution.

In January 2019, DHS made clear how those loopholes had weakened border security: 90 percent of asylum claims by nationals of those Northern Triangle countries were denied, but 99 percent of the nationals of those countries who had been apprehended in FY 2017 remained in the country.

Their cases nonetheless clogged the immigration court system, making it much more difficult for aliens with valid persecution claims to be granted asylum. Smugglers got rich promising easy passage to the United States, and the migrants themselves (especially the children) faced sexual assault, physical harm, and trauma on the trek to the United States.

MPP responded to that situation by removing the enticement of a quick passage for migrants — again, mainly from the Northern Triangle — to this country in the expectation that they could remain here forever.

Crucial to Judge Kacsmaryk’s decision was a point that I made in June, when DHS Secretary Alejandro Mayorkas terminated MPP: The law requires those aliens to be detained if they are not sent back to Mexico.

Under section 235(b) of the Immigration and Nationality Act (INA), when DHS apprehends aliens entering illegally or without proper documents, it can either place them into expedited removal proceedings (under which they can be quickly removed if they do not claim a fear of harm) or place them into removal proceedings before an immigration judge.

Regardless of which tack DHS opts to take, however, section 235(b) of the INA requires the department to detain those aliens until they are granted asylum or other relief or are removed. That ensures that aliens cannot enter the United States illegally and expect to remain here free of constraint while making an asylum claim, meritorious or not.

The problem that the Trump administration faced in 2019 was that so many aliens — and in particular aliens in family units (FMU) — were entering the United States illegally that it could not comply with that statutory detention requirement.

In FY 2019, Border Patrol apprehended more than 851,000 migrants who had entered illegally along the Southwest border. Almost 56 percent of them (more than 473,000 aliens) were in family units.

Flores made it impossible for DHS to detain those FMU aliens. Because they could only be held under the capricious 20-day limit in that decision, the department never invested in detention space for family units. In the spring of 2019, ICE (which detains the aliens CBP apprehends) only had 2,500 FMU detention spaces.

One bipartisan federal panel in April of that year described th limited space as “woefully inadequate given the surge in FMU migration over the past year”. Plainly, 2,500 beds are not enough to hold almost a half-million adults and children.

Detention is not the only option that DHS has under section 235(b) of the INA, however. Congress, in section 235(b)(2)(C) of the INA, explicitly gave the department the power to send migrants who enter illegally or without proper documents at the Southwest border back to Mexico to await their removal hearings. That was the legal basis for MPP.

As I explained in June: “MPP basically did the same thing that section 235(b)[] of the INA required, except that instead of denying those migrants access to free movement in the United States via detention, it did so by sending them to Mexico to await their hearings.”

Judge Kacsmaryk held that an injunction was necessary in this case “to prevent the continued systemic violation of” the detention requirement in section 235(b) of the INA. He further found (correctly) that the Biden administration had taken away the discretion of line officers to use MPP, authority that, as noted, Congress essentially gave them in section 235(b)(2)(C) of the INA.

The court also dismissed the administration’s contentions that the judge could not enjoin MPP’s termination because sending migrants back to Mexico was dependent on Mexico agreeing to take them.

Judge Kacsmaryk noted that MPP had been originally been unilaterally initiated by the United States under U.S. law, and then implemented through discussions with the Mexican government. Plus, even if Mexico refused to take back aliens who had entered illegally, the United States could still refuse to admit aliens who showed up at the ports and requested asylum; Mexico must take them back.

Both aliens in FMUs and single migrant adults were subject to MPP, but the Biden administration faces a particular problem when it comes to those in family units.

Theoretically, it can still expel FMU migrants under Trump-era orders that were issued by the CDC under Title 42 of the U.S. Code in response to the Covid pandemic, and in March, Mayorkas stated DHS would do so.

Practically, however, it can’t expel them, because Mexico is increasingly reluctant to take back families of certain nationalities or with younger children under Title 42. Of the more than 76,000 aliens in FMUs Border Patrol apprehended at the Southwest border last month, just under 10,000 were expelled, By law, as noted, it has to detain the rest, but lacks the apparent will to do so.

Speaking of statistics, Biden is quickly facing a similar surge in families at the Southwest border that prompted the Trump administration to implement MPP in the first place. The number of aliens in FMUs caught by Border Patrol at the Southwest border has increased every month since May — a period when illegal immigration usually declines.

Of the more than 308,000 migrants in FMUs who have been apprehended at that border this fiscal year, just short of 288,000 of them have come in the six months since the inauguration. If July’s pace continues (or gets worse), the number of aliens in FMUs apprehended at the Southwest border this year will near FY 2019’s horrendous total, if not surpass it.

In any event, Judge Kacsmaryk ordered the Biden administration to enforce MPP “in good faith” until it terminated the program in accordance with the Administrative Procedures Act (which he found it failed it to do back in June) “and” until it “has sufficient detention capacity to detain all aliens subject to mandatory detention under” the INA, “without releasing any aliens because of a lack of detention resources”.

The bolded conjunction “and” above was in bold in the judge’s order, logically so the administration understood its responsibilities (and the court’s intentions).

To ensure that the administration complies, the judge ordered it to provide him, on the 15th of every month, monthly totals of aliens encountered at the Southwest border, the number expelled under Title 42 or the INA, its total detention capacity and usage rate, the total number of applicants for admission, the total number of applicants for admission who were paroled, and the total number of applicants for admission who were released on parole “or otherwise”. (Emphasis in original.)

That said, the judge stayed that injunction for seven days to allow the government to appeal.

There are many more points in that order that merit discussion at some future point. The key takeaway, however, is that the Biden administration faces three choices in dealing with the historically large surge of migrants at the Southwest border: It can expel or remove them; it can detain them as the law requires; or it can send them to Mexico to await their removal hearings.

If Judge Kacsmaryk’s order stands (and it should), the days of “catch, release, and disperse into the interior of the United States” at the Southwest border are numbered. And the migrant surge there will subside, because if they cannot be free in the United States, few migrants will make the trip to begin with.