Tomorrow, April 26, the Supreme Court will consider whether the Biden administration can rescind the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. Biden hates MPP, and his DHS contends that the program has imposed “substantial and unjustifiable human costs” on aliens returned to Mexico to await removal hearings. A modest proposal: Send illegal migrants caught at the Southwest border to Mexico but place them in U.S. government-funded housing where they could safely await their court dates. It could happen in Monterrey, capital of the Mexican state of Nuevo León.
MPP’s Travels. Remain in Mexico has come a long way in just over three years, and this will be its third journey to the High Court. To begin, the program was implemented by then-DHS Secretary Kirstjen Nielsen in January 2019.
MPP allowed DHS to return “other than Mexican” migrants caught entering illegally or without proper documents back to Mexico — where 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.
Immigrant advocates moved to block the program in February 2019 in federal court in northern California, and a district court judge there enjoined MPP in early April of that year. Shortly thereafter, that injunction was stayed by a three-judge panel of the Ninth Circuit.
The program then got up and running. Under the Trump administration, nearly 70,000 migrants were sent back across the border to await their removal hearings under MPP.
A separate three-judge Ninth Circuit panel considering the government's appeal from the district court’s decision affirmed the injunction of MPP in late February 2020, but stayed that injunction temporarily for aliens apprehended outside of California and Arizona, to allow the government to seek Supreme Court review.
Shortly thereafter, in early March 2020, the Supreme Court stayed that injunction pending the government’s filing of, and the Court’s ruling on, a petition for certiorari on the injunction.
Later that month, removal hearings for aliens sent back to Mexico were put on hold due to the Covid-19 pandemic.
Because illegal migrants were required to be quickly expelled under CDC orders issued pursuant to Title 42 of the U.S. Code in response to that pandemic, and because pandemic shutdowns slowed illegal entries, Remain in Mexico largely became an afterthought, although 6,000 migrants were placed into the program between March 2020 and January 2021.
On January 21, 2021, the Biden administration suspended new enrollments in MPP, but required those in the program to stay in Mexico pending further guidance. That guidance came on February 11, when DHS announced that it would begin admitting the approximately 25,000 aliens who remained in proceedings under the program into the United States, on February 19.
The states of Texas and Missouri challenged DHS’s suspension of MPP in federal district court in Texas, but in June 2021, while that case was pending, DHS Secretary Alejandro Mayorkas issued his first memo terminating MPP. That termination was rolled into the pending case, captioned Texas v. Biden, and on August 13, federal district court Judge Matthew Kacsmaryk enjoined Mayorkas’s termination of MPP.
The federal government asked a three-judge panel of the Fifth Circuit to stay that injunction, which it declined to do in an order dated August 19. The administration next sought a stay of Judge Kacsmaryk’s order from the Supreme Court, which was denied in a brief order from the Court issued on August 24.
Despite the fact that Biden’s DOJ continued to appeal the MPP injunction before the Fifth Circuit, Mayorkas again terminated MPP on October 29, an order to “be implemented as soon as practicable after a final judicial decision to vacate” the injunction was issued.
None of this pleased the Fifth Circuit, which issued a scathing order denying the Biden administration’s appeal in December. DOJ filed a petition for writ of certiorari, and the Supreme Court agreed to consider MPP for a third time, which as noted it will do on April 26.
On the Conduct of MPP by the Biden Administration. Keep in mind that since August 13, when Judge Kacsmaryk issued his injunction, Biden’s DHS has been under a court order to continue utilizing Remain in Mexico. That said, the administration promised that it would comply, stating in September and then in October that MPP was just about to restart. But it was not until December 6 that DHS started placing aliens into the program.
You would expect some pushback when a 12-year-old is told by his mother to clean his room on a sunny Saturday, but such tweenish foot-dragging is rarely the norm when the actors are a nearly 80-year-old president and a federal judge (backed up by the Supreme Court). But that is what has happened.
As the Washington Post described the situation on February 4, “‘Remain in Mexico’ is back under Biden, with little resemblance to the Trump version”. By that date, just 410 migrants had been sent back across the border under MPP, compared to 300 to 400 per day under Trump.
Thanks to the onerous paperwork that CBP officials are required to complete to send a single migrant back, enrollment in the program now takes about eight hours, and even then, the migrant is given a 24-hour period to consult with a lawyer (also provided) to ensure that the alien will not face any harm south of the border.
Recent news reports indicate that of the 221,303 aliens CBP encountered at the Southwest border in March, just 199 of them were returned to Mexico under MPP — a .09 percent compliance rate.
The problem is that even the Supreme Court lacks the authority to make the executive branch arrest and detain any given alien, let alone to force it to send large numbers of them back across the border. The Biden administration does not want to send a lawyer to the well of the Marble Palace while it is in open defiance of court orders, but it does not have to try that hard, either.
Here is what the Supreme Court can (and should) do, however: It can bar the administration from releasing the illegal migrants that CBP apprehends.
I explained in-depth in October why “DHS Can’t Just Release Illegal Migrants at the Border”, but in brief, section 235 of the Immigration and Nationality Act (INA) requires the department to detain aliens who have entered illegally, from the moment that they are caught until the time that they are removed or granted permanent status in the United States.
DHS does have authority to release illegal migrants under power Congress has granted it called “parole”, but the legislative branch, which had seen how parole had been abused by various administrations, placed very tight limits on that power in 1996.
Texas actually has more to do with abuse of the parole power by the Biden administration than it does with MPP. Simply put, DHS can detain illegal migrants, release them under the tight constraints of its limited parole authority, or send them back across the border to await their hearings. It cannot let them go en masse (as it has been doing since Biden took office), which means it can’t take MPP off the table.
If the Supreme Court refuses to allow the administration to release those migrants (which it could and should do), and the president keeps doing so anyway, it will set up a constitutional crisis of the likes of which this nation has not seen in more than a century. Worse, from the perspective of the White House, that crisis could trigger a wipeout of Democrats in Congress come the November midterm elections.
An Argument Against Abolishing Remain in Mexico. I will take the administration at its word when it complains that Remain in Mexico posed a risk to at least a few of the migrants who were returned under the program. Of course, those foreign nationals availed themselves of Mexico in making their way to the United States and knew those risks when they came.
The biggest issue and most stubborn fact that the Biden administration must deal with is that MPP worked. 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 families. Asylum cases were expedited under the program, and MPP removed incentives for aliens to make weak or bogus claims when apprehended.
The Trump administration knew it lacked the detention space to hold all the migrants coming illegally as the INA mandates, and so it chose the second-best option: Return to Mexico.
There is, however, a way both to protect those aliens and to comply with Congress’s dictates in the INA: Establish safe U.S. government-funded housing on the other side of the border, and the place to do it is in Monterrey.
Why Monterrey? Many reasons.
It’s the 11th largest city in Mexico, with a population of more than 1.135 million. And it is relatively safe, safer than my erstwhile hometown of Baltimore, and such migrant destinations as Los Angeles, Houston, and Chicago.
And while there is some level of violent crime in parts of the city, providing the necessary security required to address any concerns is simply a matter of money.
Taking into account the needs of aliens’ lawyers and U.S. government officials, Monterrey benefits from proximity to the U.S. border. It is a three-hour drive to Hidalgo, Texas, in the heart of the Rio Grande Valley (RGV), and two hours and 45 minutes to Laredo, Texas, where DHS under Trump erected a port court. And a roundtrip bus ticket from McAllen, Texas, to Monterrey is $43.
Plus, two airports service the city, one of which — Monterrey International Airport — is the nation’s fourth busiest and the busiest in northern Mexico.
The governor of Nuevo Leon, Samuel Alejandro Garcia Sepulveda, has already shown a willingness to work with his Texas counterpart, Governor Greg Abbott (R) on cross-border issues (as my colleague Todd Bensman has explained), and Sepulveda would also definitely welcome the sort of money that would flow to his state if DHS were to erect and run migrant housing there.
This would also benefit the Mexican federal government. Illegal migration feeds crime and corruption on the other side of the Rio Grande, as smugglers illicitly pay both government officials and cartels to move their human “loads” through the country.
By and large, Mexico is not a dangerous place, but cartel violence and the mordida culture there destabilize the country and make it difficult for the authorities in Mexico City to establish order, build the economy, and provide for the neediest in its population.
And once would-be illegal migrants realize that an asylum claim will not be a quick or sure ticket to life and employment in the United States, their numbers will plummet. That is what happened with MPP.
Follow the timeline above. Because of the first MPP injunction, the Trump administration couldn’t fully implement Remain in Mexico until the early summer of 2019. In May 2019, Border Patrol apprehended nearly 133,000 illegal migrants at the Southwest border, including almost 84,500 adults and children travelling in “family units” (FMUs).
By September — four months later — MPP was up and running. Total apprehensions that month fell more than 68 percent to just over 40,500, while FMU apprehensions plummeted 81 percent to 15,824. The children in those FMUs are both traumatized and endangered by that journey (which they didn’t sign up for) and preventing such harms to the most vulnerable should be a key focus of U.S. immigration policy.
And for those like me interested in the public fisc, housing migrants in Monterrey would be a bargain. As I explained in February, ICE pays about $152 per day to detain each alien, while FMU detention costs just over $161 per alien per day. Can you imagine how much lower those costs would be in Monterrey, where the typical salary is $22,000 per year?
The Biden administration touts ineffective “alternatives to detention” (ATD) in lieu of detention, but after analyzing those costs in February, I determined that ATD, while cheaper per day, costs more per case because non-detained cases stretch out longer than detained ones.
Removal proceedings under a “Remain in Monterrey” plan could be completed more quickly than a non-detained case on an expedited docket.
Under MPP, aliens received their first hearing in two to four months, whereas the average delay for a non-detained case now is 2.34 years. And as DHS noted in its October 2019 assessment of MPP: “aliens without meritorious claims — which no longer constitute a free ticket into the United States — are beginning to voluntarily return home.” That means that aliens with valid asylum claims receive status more quickly.
And note that if the U.S. government even proposed this plan, cities across northern Mexico would likely get into a bidding war looking for their cut of the action.
Medical and dental care would be much cheaper, as any “medical tourist” who has ever crossed the border for glasses and implants knows, and the providers would all be fluent in Spanish. DHS could impose safety standards to ensure that the quality of care was equal to if not better than what the migrants would receive in the United States.
Children could be educated by native Spanish-speakers in both Spanish and English. Migrant children — few if any of whom speak English — would no longer be sent directly to schools in the United States without English proficiency, at a cost to the states and their fellow students whom they would be holding back while learning the language.
Frankly, the question is not “why house migrants awaiting removal hearings in Monterrey”, but why the Biden administration has not considered the option sooner. Again, taking the president and his advisors at their word, there are risks associated with simply sending migrants back across the border to await removal hearings.
Those risks would not only be minimized if migrants were housed in Monterrey, they would be negated. Mexico would likely give the U.S. government free rein to set up whatever sort of housing it wanted and to staff it however it wanted. Whatever level of security Washington demanded, Mexico City would provide, if for no other reason than to cut down on the illegality that comes with smuggling and to provide employment to its nationals.
A Proposal for Correcting, Improving, and Ascertaining Border Security. In his State of the Union address, President Biden explained that “if we are to advance liberty and justice, we need to secure the Border”. Unstated but self-evident is the fact that the United States must first curtail illegal migration if it is to achieve border security.
Housing illegal migrants safely and humanely on the other side of the border would remove the main incentive drawing those migrants: the lure of living and working in the United States indefinitely while their asylum claims (many bogus, weak, and/or fraudulent) are heard. It could happen in Monterey, and the Biden administration should begin doing so, swiftly.