On August 1, the Supreme Court issued its final judgment in Biden v. Texas, a challenge by the states of Texas and Missouri to the Biden administration’s efforts to suspend — and then terminate — the Trump-era Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. Few things are ever final in immigration (except “’Temporary’ Protected Status”), but the Court’s ministerial act raises the question of where Remain in Mexico goes from here — and whether it matters.
Remain in Mexico. MPP was implemented by then-DHS Secretary Kirstjen Nielsen in January 2019, and allowed DHS to return “other than Mexican” migrants (OTMs) caught entering illegally or without proper documents back to Mexico to await their removal hearings.
The statutory basis for MPP is section 235(b)(2)(C) of the Immigration and Nationality Act (INA), which permits DHS to return inadmissible aliens (including illegal entrants) “arriving on land ... from a foreign territory contiguous to the United States” back over the line to await their removal hearings.
MPP under Trump was subject to various attempts by immigrant advocates to block the program. While none of them were ultimately successful, they did delay full implementation of Remain in Mexico until mid-summer 2019.
Nearly 70,000 OTMs were sent back across the border under the Trump administration. When their hearing dates arrived, MPP enrollees were escorted into the United States to appear before immigration judges at “tent courts” at the ports of entry. If they were granted asylum, they were allowed to remain in the United States; if asylum was denied, they were removed.
In its October 2019 assessment of the program, DHS described MPP as “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, while MPP also removed incentives for aliens to make weak or bogus claims when apprehended.
Biden Administration Efforts. Candidate Joe Biden criticized Remain in Mexico, and in late January 2021, Biden’s DHS suspended new enrollments in the program. Three weeks later, DHS announced that it would begin admitting the approximately 25,000 aliens who remained in proceedings under MPP into the United States.
On April 13, the plaintiff states filed suit challenging the Biden administration’s suspension of MPP, which was assigned to Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas.
At its core, the states’ argument was that DHS is required to detain illegal migrants but was improperly releasing them into the United States because the administration had taken Return to Mexico off the table.
On June 1, while the case was pending, DHS Secretary Alejandro Mayorkas issued a memo terminating MPP, an action that was rolled into the pending case brought by the states.
After considering the evidence and arguments from both sides, Judge Kacsmaryk issued an order enjoining Mayorkas’s termination of MPP on August 13.
The government appealed that decision and asked a three-judge panel of the Fifth Circuit to stay the injunction, which it declined to do in an order dated August 19. That prompted the administration to file an application for a stay of Judge Kacsmaryk’s order with the Supreme Court, which was denied in a brief order from the Court issued on August 24.
While the underlying circuit court appeal of the merits of Judge Kacsmaryk’s order was pending before a different panel of the Fifth Circuit, Mayorkas issued a new memo terminating MPP on October 29. That termination was to “be implemented as soon as practicable after a final judicial decision to vacate” Judge Kacsmaryk’s injunction was issued, and contained a slightly new rationale for terminating MPP.
On December 13, the Fifth Circuit issued a decision dismissing the Biden administration’s appeal of Judge Kacsmaryk’s injunction, based largely on Mayorkas’ initial termination decision (it largely ignored the second one), which thus teed up the matter for Supreme Court review.
Despite the court’s order, the Biden administration was slow and reluctant to return illegal migrants back to Mexico. It was only in December that the first 191 migrants were sent back under section 235(b)(2)(C) of the INA, and through the end of June, just 5,733 migrants have been returned pursuant to that provision and the court’s order.
Speaking of the end of June, the Supreme Court issued its opinion on June 30, and its decision was a narrow one. It held that the Fifth Circuit had erred in not considering Mayorkas’ second termination order, that DHS has discretion to apply section 235(b)(2)(C) of the INA (or not), and that lower courts lack the authority to enjoin certain immigration actions (including halting cross-border returns).
Where Does Remain in Mexico Go from Here? Aside from those three questions, the Court ducked the other major ones in Texas, including whether the Biden administration is required to detain illegal migrants, and whether DHS’s current policy of releasing thousands of aliens apprehended at the border on a narrow authority known as “parole” is legal.
The Court’s issuance of its judgment on August 1 officially guts Judge Kacsmaryk’s order, but it also sends the matter back to the Fifth Circuit, which will almost definitely return it to his court to determine whether Mayorkas’ October 29 memo terminating MPP violates the INA and the Administrative Procedure Act (APA), which guides agency rulemaking.
The secretary’s analysis in the October 29 directive is much more robust (and better reasoned) than his rationale in the June 1 version, but the states will likely argue that Mayorkas still failed to solicit the opinions of effected parties (namely them), which may or may not have been required under the APA.
They are also sure to contend again that the Biden administration is improperly releasing illegal migrants it is by law required to detain, in violation of section 235(b) of the INA.
Given that the administration has released more than 1.29 million aliens encountered by CBP at the Southwest border into the United States (not counting an estimated half-million counting “got-aways” thus far in FY 2022 alone and tens of thousands of unaccompanied alien children), and that the president is nonetheless requesting 9,000 fewer detention beds (a 25 percent decrease) in his FY 2023 budget, a final court ruling that detention is mandatory (which it is) could be momentous.
That said, even the Supreme Court cannot force DHS to arrest, detain, or remove any alien — and it has already held that Judge Kacsmaryk cannot force the department to send illegal migrants back to Mexico.
Congress can, though, use the “power of the purse” to withhold funding unless and until Mayorkas fulfills his statutory obligation to gain “operational control” of the Southwest border. I was one of the few (if there were any others) who initially raised this legislative mandate, but it has now become a key talking point for Republicans in the House and Senate.
The current 117th Congress, which is controlled (exceptionally narrowly) by the president’s fellow partisans, is unlikely to force such constraints on the secretary, at least at present. If the Biden administration is successful in lifting an injunction on its termination of CDC orders directing DHS to expel illegal entrants, issued under Title 42 of the U.S. Code, however, that could change.
Why? DHS expects up to 18,000 foreign nationals to enter the United States each day once Title 42 ends, compared to a daily rate of just under 6,400 in June. Biden’s handling of immigration already polls extremely poorly with the electorate; if illegal entries nearly triple post-Title 42, even a largely simpatico press will not be able to hide the humanitarian catastrophe at the Southwest border.
That could push current hot-button issues (abortion and gun control) favoring Democrats off the front pages and out of the voters’ minds, and portend a GOP rout of congressional Democrats in the November mid-term elections. The uncertain political prospects of Sen. Mark Kelly (D-Ariz.) have already likely forced Biden to break his promise not to construct “another foot of wall” at the Yuma Gap.
The so-called “misery index” of economic issues is already plenty for the president’s fellow partisans on the other side of Pennsylvania Avenue to handle. More than half a million illegal entrants monthly would make the administration look even more feckless at the U.S.-Mexico line than it already is, possibly spurring endangered Democratic centrists to take immediate action to staunch the flow.
Of course, that also means that the president may be dealing with a more pro-enforcement GOP in control during the 118th Congress, which will convene in January.
If Biden thinks that Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) are tough nuts to crack, wait until he gets a load of Jim Jordan (R-Ohio) at the helm of the powerful House Judiciary Committee. If Republicans win the House in November, Mayorkas will be spending plenty of time with the new Buckeye state chairman — unless the secretary ducks out of office beforehand.
As Biden’s limited use of DHS’s Remain in Mexico reveals, that program is just a tool that Congress has given DHS to gain operational control of the Southwest border, not a silver bullet that will ensure that happens.
The border will only be secure once the Biden administration finds the will and the desire to secure it — but will and desire are two emotions no court can order. The voters, however, are a different story.