Mayorkas Terminates ‘Remain in Mexico’ — Again

Friday news dumps are the opposite of accountability

By Andrew R. Arthur on November 1, 2021

On Friday, October 29, DHS released the most recent pronouncement from Secretary Alejandro Mayorkas on whether to “maintain, terminate, or modify” the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. Not to ruin the ending, but he decided to terminate the program (again), pending a final decision in ongoing litigation over MPP in Texas v. Biden.

By way of background, MPP was implemented in January 2019, and allowed DHS to return “other than Mexican” (OTM) 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.

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 alien families. Asylum cases were expedited under the program, and MPP removed incentives for aliens to make weak or bogus claims when apprehended.

“Indispensable” is defined as “absolutely necessary” or “not subject to being set aside or neglected”, but Mayorkas poo-poohed DHS’s own conclusions about MPP as mere “claims”. That’s not likely to sit well with federal district court Judge Matthew Kacsmaryk, who is hearing Texas v. Biden and who thought enough of the assessment to make it a cornerstone of his decision.

Mayorkas presumed for the sake of argument, however, that “MPP resulted in a significant decrease in irregular border crossings and persons approaching the U.S. border to pursue non-meritorious asylum claims”.

Nonetheless, he concluded that MPP “impos[ed] substantial and unjustifiable human costs on the individuals who were exposed to harm while waiting in Mexico” and detracted from regional efforts “to address the root causes that drive migrants to leave their countries and to tackle this challenge before it arrives at our border.”

He further found that assigning personnel to screen and process MPP enrollees, manage their cases, and “ensure they are not returned to persecution or torture in Mexico” would pull resources from other “priority efforts, including the ongoing efforts to implement effective, fair, and durable asylum reforms that reduce adjudication delays and tackle the immigration court backlog”.

By that latter point, I assume that he means a pending administrative proposal to expand release on parole to the point that DHS could move any illegal migrant it wanted into the interior of the United States, and to water down the asylum process to the point that it could grant all of them permanent presence in the United States (you can read what the Center really thinks about that proposal in its comment on it).

To the degree that aliens enrolled in MPP were subject to any harm in Mexico, the fault for that lies with the Mexican government — which, after all, was responsible for the well-being of those migrants.

That said, the OTMs who were subject to MPP voluntarily entered Mexico to traverse that country on their way to the United States, and thus at least tacitly accepted the risks associated with an extended stay there. No one wants migrants to suffer any harm, but the best way to prevent such harm is to remove the incentives that draw them to make the dangerous trek to the United States to begin with. MPP did that.

As for the administration’s efforts “to address the root causes that drive migrants to leave their countries” and enter the United States illegally, that argument is (1) specious on its face because those “root causes” (crime, corruption, poverty, and violence) are endemic in the countries in question (El Salvador, Guatemala, and Honduras); and (2) an increasing number of illegal migrants are not from those countries, or Mexico, either.

As I explained on October 26, 22 percent of all aliens apprehended by Border Patrol at the Southwest border in FY 2021 were not OTMs or from the Northern Triangle countries (ONTs). They came from further abroad.

The illegal entry of OTM/ONTs has spiked under the Biden administration. In January, OTM/ONT apprehensions totaled fewer than 9,500. That rose to almost 40,000 in May, topped 57,000 in July, and reached 67,531 in September — a 600 percent increase in just eight months.

Their numbers included more than 96,000 Ecuadorans, almost 57,000 Brazilians, more than 50,000 Nicaraguans, 48,000 Venezuelans, 47,000-plus Haitians, nearly 38,700 Cubans, more than 4,100 Russians, 1,409 Turkish nationals, 676 Ukrainians, and 450 nationals of the People’s Republic of China.

What is the Biden administration doing to address the “root causes” of migration from any of those countries? Answer: Nothing. In fact, the Biden administration appears to have no plan, whatsoever, to address illegal immigration into the United States, aside from shoveling vast sums of money to Mexico and the Northern Triangle countries.

MPP is better than nothing, and nothing is what the president and DHS are doing right now to address the humanitarian, national-security, and law-enforcement disaster at the Southwest border.

How, then, did Mayorkas reach his decision to end Remain in Mexico? By limiting the “stakeholders” from whom he solicited opinions on whether MPP should be “maintained, terminated, or modified”.

These included “officials from across the federal government working on border management” (as if they would disagree with the boss), unnamed “state and local elected officials from across the border region, border sheriffs and other local law enforcement officials”, and unidentified “representatives from nonprofit organizations providing legal access and humanitarian aid across the southwest border”.

There are several “stakeholders” who were apparently not consulted.

These include former DHS officials not beholden to Secretary Mayorkas for their jobs, the attorneys general (AGs) of Texas and Missouri (the plaintiffs in Texas v. Biden), and others from farther afield, such as the AG of West Virginia who is also suing Mayorkas in federal court over the effects that his original termination of MPP has had on the fentanyl problem in his state.

Respectfully, this is like assessing whether Mercedes are as safe as F-150s by asking the opinions of Ford Motor Company executives while at the same time not consulting anyone from Stuttgart or the Federal Highway Traffic Safety Administration. I have no reason to believe that Mayorkas did consult the Texas and Missouri AGs, but if he did, he should have included their comments and addressed their concerns.

Mayorkas should also have published his proposal to terminate MPP in the Federal Register for notice and comment, so all “stakeholders” could have their says. That way, he could have received a wide range of views (the Center would have provided its opinions and facts), and the process would have been more transparent (to the degree that it is now transparent at all).

Judge Kacsmaryk, the judge hearing the West Virginia case (West Virginia v. DHS), or any number of other judges may find that Mayorkas’s termination of MPP violated the Administrative Procedure Act (APA).

In denying the Biden administration’s request for a stay of Judge Kacsmaryk’s order, the Supreme Court signaled that it believed that Mayorkas’s original termination of MPP (on June 1) did violate the APA, stating: “The applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” (Emphasis added.)

The highlighted language comes directly from 5 U.S.C. § 706(2)(a), the “scope of review” provision under the APA. And the Court thereafter referenced the section of its decision in DHS v. Regents (the DACA case), where it held: “The APA ‘sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.’ ... It requires agencies to engage in ‘reasoned decisionmaking.’”

Respectfully, there is little in the way of “reasoned decisionmaking” in Mayorkas’s latest memorandum terminating Remain in Mexico.

As noted, if the “state and local elected officials from across the border region, border sheriffs and other local law enforcement officials” Mayorkas consulted with disagreed with ending MPP, their positions are not addressed therein.

Further, one could hardly expect “representatives from nonprofit organizations providing legal access and humanitarian aid across the southwest border” to favor the program’s reimplementation, or even its modification.

The release of that memorandum on a Friday also smacks of a lack of accountability. As I noted in a recent post, “it’s common for bureaucrats to release bad news just before the weekend”, and the timing of this one is just par for the course.

If the secretary truly wanted to conserve “limited resources” (a common trope Biden’s DHS uses to excuse immigration non-enforcement), he would have solicited public comment from those who saw value in the program, in addition to those who opposed it, and weighed the pros and cons more fully in reaching his decision. As is, Mayorkas is just inviting more litigation.