When your professional life has been devoted to immigration law and policy for a long period of time (in my case, for more than a quarter-century), you eventually realize that it can take many years, if not an eternity, for legislative achievements to see actual implementation. It is not as if Congress is Pharaoh and gets to say "So let it be written; so let it be done."
Two examples readily come to mind from the first major immigration bill that I worked on after becoming a counsel on the House Judiciary Committee in 1995 — legislation that was enacted the following year as the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). This omnibus immigration enforcement legislation was a monumental achievement by its two authors, U.S. Rep. Lamar Smith (R-Texas) and U.S. Sen. Alan Simpson (R-Wyo.), who at the time chaired, respectively, the House and Senate Judiciary Committees’ immigration subcommittees.
The first provision mandated the creation — within two years — of an entry and exit control system to “collect a record of departure for every alien departing the United States [in order to] enable the [federal government] to identify lawfully admitted nonimmigrants who remain in the United States beyond the period authorized.” Seventeen years later, in 2013, we felt the need to hold a hearing on its stalled implementation, titled “Implementation of an Entry-Exit System: Still Waiting After All These Years” (thanks, Paul Simon!).
As Judiciary Committee Chairman Bob Goodlatte (R-Va.) said at the hearing:
IIRIRA first required the creation ... of an automated system to track the entry and exit of all travelers to and from the United States. Since that time, Congress has reiterated and expanded on this requirement over half a dozen times, mandating an exit monitoring system at all air, land, and sea ports of entry. ... Yet despite numerous pieces of legislation enacted by Congress, these statutorily mandated requirements have never been implemented by either present or past Administrations.
An additional eight years have gone by, and still, no entry-exit system. But that is a story for another day. What I want to focus on is a little-noticed (at the time) provision in IIRIRA titled “Treatment of Aliens Arriving from Contiguous Territory”, a provision that laid the statutory foundation for the Migrant Protection Protocols (MPP), colloquially known as the Remain in Mexico program. The provision — at § 235(b)(2)(C) of the Immigration and Nationality Act (INA) — provides that DHS may return aliens to the country from which they entered the U.S. (Mexico or Canada) pending their removal proceedings if they crossed the northern or southern border illegally or showed up at land border ports of entry and were not clearly and beyond a doubt entitled to be admitted. An implementing regulation was promptly promulgated (at 8 C.F.R. sec. 235.3(d)). However, for many years the “return to territory” provision was never utilized on a wide scale, and when it was used, it was mostly along the Canadian border.
Crisis at the Border. Fast-forward two decades. It was 2018 and I was serving as a political appointee in the Trump administration as a deputy general counsel at the Department of Homeland Security (DHS). Despite enforcement of our immigration laws being a signature theme of President Trump’s electoral campaign, our southern border was in a state of crisis. As DHS and the Department of Justice (DOJ) described in the Federal Register:
In recent weeks, United States officials have each day encountered an average of approximately 2,000 inadmissible aliens at the southern border. At the same time, large caravans of thousands of aliens, primarily from Central America, are attempting to make their way to the United States, with the apparent intent of seeking asylum after entering the United States unlawfully or without proper documentation.
Unfortunately, the tools that DHS had available to curtail the influx of illegal aliens were woefully inadequate (in large measure having been neutered by federal courts over the years). As DHS and DOJ explained:
When the expedited [removal] procedures [also created by IIRIRA] were first implemented ... relatively few aliens [apprehended at the border] ... asserted an intent to apply for asylum or a fear of persecution. Rather, most aliens ... were single [Mexican] adults who were immediately repatriated. ... [A]liens could be processed and removed more quickly, without requiring detention or lengthy court proceedings.
In recent years, the United States has seen a large increase in the number and proportion of inadmissible aliens subject to expedited removal who assert an intent to apply for asylum or a fear of persecution ... and are subsequently placed into removal proceedings in immigration court. Most of those aliens unlawfully enter the country between ports of entry along the southern border. Over the past decade, the overall percentage of aliens subject to expedited removal and [who assert a fear and receive a] credible-fear interview jumped from approximately 5% to above 40%, and the total number of credible-fear referrals for interviews increased from about 5,000 a year in ... 2008 to about 97,000 in ... 2018. ... In FY 2018 ... positive credible-fear determinations [by asylum officers, preventing the expedited removal of the aliens and sending them to immigration court] climbed to about 89% of all cases. [Yet] significant proportions of aliens who receive a positive credible fear determination never file an application for asylum or [abscond and must be] ordered removed in absentia. In FY 2018, a total of [only] about 6,000 aliens who passed through credible-fear screening ([only] 17% of all completed cases ...) established that they should be granted asylum.
IIRIRA mandated that aliens receiving positive credible fear determinations (i.e., there being a significant possibility that they can establish eligibility for asylum) pending the adjudication of their asylum claims (INA § 235(b)(1)(B)(ii)). However, Congress’s command has been disregarded by every administration through misuse of the parole power. As the Federal Fifth Circuit Court of Appeals recently concluded:
DHS has the power to parole certain aliens “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” ... DHS cannot use that power to parole aliens en masse; that was the whole point of the “case-by-case” requirement that Congress added in IIRIRA. … So the Government’s ... parole [of] every alien it cannot detain is the opposite of the “case-by-case basis” determinations required by law.
While that is yet another story for another day, the result is that the vast majority of aliens receiving positive credible fear determinations are released into the United States, with work authorization provided by DHS, asked to “wait” years for their removal proceedings to commence, and to then show up in court. The average wait time has now reached over 900 days. I put “wait” in quotation marks because many of these aliens simply abscond, never showing up for their proceedings.
Word Spreads about Claiming Fear of Return. Around the world, word got out that a claim of fear of persecution upon apprehension at the border represented a virtual free pass into the U.S. — often trumpeted by alien smugglers seeking new business. And the smugglers weren’t engaging in puffery — they were accurately describing the situation. This was the primary reason why the number of credible fear claims was skyrocketing and the border was in crisis. As DHS elaborated:
Historically, illegal aliens to the U.S. were predominantly single adult males from Mexico [and] generally removed within 48 hours ..; now over 60% are family units and unaccompanied children and 60% are non-Mexican. ... Misguided court decisions and outdated laws have made it easier for illegal aliens to enter and remain in the U.S. if they are adults who arrive with children, unaccompanied alien children, or individuals who fraudulently claim asylum. As a result, DHS continues to see huge numbers of illegal migrants and a dramatic shift in the demographics of aliens traveling to the border, both in terms of nationality and type of aliens — from a demographic who could be quickly removed when they had no legal right to stay to one that cannot be detained and timely removed. ... [T]he U.S. immigration system [is overwhelmed], leading to a “system” that enables smugglers and traffickers to flourish and often leaves aliens in limbo for years. This has been a prime cause of our near-800,000 case backlog in immigration courts and delivers no consequences to aliens who have entered illegally. [M]any of these individuals have disappeared into the country before a judge denies their claim and simply become fugitives.
It is my understanding that thought was given even in the Obama administration to utilizing “return to territory” to deal with the worsening border situation. Nolan Rappaport, who used to be my Democrat counterpart on the House immigration subcommittee, has recently urged that the Biden administration curb alien smuggling by “find[ing] a way to restrict the processing of asylum applications to locations outside of the United States, like the United Kingdom’s plan to send migrants to a third country to have their asylum claims processed.” It is easy to see why — returning aliens to Mexico to await their removal hearings takes away the ultimate incentive for coming illegally to the U.S. — release into the U.S. by the U.S. government itself. Many of those returned to Mexico might simply return to their home country as they were not really seeking refuge from persecution, but rather access to the U.S. labor market. And many aliens contemplating the dangerous, illicit journey to the United States might decide it isn’t worth the risk if it is transformed into a dangerous illicit journey to Mexico.
“Catch and Release” Replaced with “Catch and Return”. DHS decided to operationalize “return to territory” on a mass scale. On December 20, 2018, DHS Secretary Kirstjen Nielsen proclaimed that “[t]oday we are announcing historic measures to bring the illegal immigration crisis under control.” She further stated that:
Aliens trying to game the system to get into our country illegally will no longer be able to disappear into the United States, where many skip their court dates. Instead, they will wait for an immigration court decision while they are in Mexico. “Catch and release” will be replaced with “catch and return.” In doing so, we will reduce illegal migration by removing one of the key incentives that encourages people [to take] the dangerous journey to the United States in the first place. This will also allow us to focus more attention on those who are actually fleeing persecution.
The following month, she informed the heads of U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS) that they “will begin implementation of Section 235(b)(2)(C) ... on a large-scale basis to address the migration crisis along our southern border.”
As DHS explained, “The MPP will provide a safer and more orderly process that will discourage individuals from attempting illegal entry and making false claims to stay in the U.S., and allow more resources to be dedicated to individuals who legitimately qualify for asylum.”
[Many] aliens claiming credible fear ... know it will give them an opportunity to stay in our country, even if they do not actually have a valid claim to asylum. As a result, the United States has an overwhelming asylum backlog. ... Most of these claims are not meritorious — in fact nine out of ten asylum claims are not granted by a federal immigration judge. However, by the time a judge has ordered them removed from the United States, many have vanished. ... Aliens trying to enter the U.S. to claim asylum will no longer be released into our country, where they often disappear before a court can determine their claim’s merits. [Emphasis in original.]
I had the privilege of helping to conceive the legal structure of the MPP. I am proud that we included safeguards against the possibility (however remote) of returned non-Mexicans being persecuted or tortured in Mexico by requiring asylum officer interviews of prospective returnees who express a fear of return. Secretary Nielsen informed CBP, ICE, and USCIS that:
[You] should act consistent with the non-refoulement principles contained in ... the 1951 Convention Relating to the Status of Refugees ... and ... the Convention Against Torture. ... Specifically, a third country national should not be involuntarily returned to Mexico ... if the alien would more likely than not be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion (unless such alien has engaged in criminal, persecutory, or terrorist activity. ...), or would more likely than not be tortured, if so returned pending removal proceedings.
I must admit that the moniker “Migrant Protection Protocols” might be considered a bit Orwellian. More accurate might be the “(Illegal) Migration Prevention Protocols” or the “Migraine Prevention Protocols” (as in preventing border headaches). I played no role in the program’s naming — we had been referring to the plan as “Remain in Mexico”. However, the claim that the MPP protects prospective migrants is not in and of itself far-fetched. As DHS and DOJ stated in the context of a proposed regulation:
By reducing the incentive for aliens without an urgent or genuine need for asylum to cross the border — in the hope of a lengthy asylum process that will enable them to remain in the United States for years, typically free from detention and with work authorization ... the rule aims to reduce human smuggling and its tragic effects.
And Nolan Rappaport has pointed out that:
In recent years ... the number of women, children and family units being smuggled has increased dramatically. They often find themselves at risk for assault and abuse such as rape, beatings, kidnapping and robbery. And all of the smuggled migrants face the risk of being crammed into windowless storage spaces or forced to sit still in urine, seawater, fuel, feces, or vomit, and of being deprived of food and water. Large smuggling operations are abandoning migrants in dangerous situations at an alarming rate. In fiscal 2021, the Border Patrol rescued 12,877 migrants in the southwest border regions, compared to around 5,000 in previous years.
The Closest Thing to a Silver Bullet. Did MPP meet its objectives? It was wildly successful, in a very real sense being the closest thing we had to a silver bullet to bring the border under control (prior to the arrival of the Covid-19 pandemic, at which point DHS carried out its obligations to protect the public health under Title 42 by expelling aliens outside of the strictures of the INA). However, until Covid, the MPP was truly the MVP of border enforcement. It can be so again after our present public health emergency passes if the Biden administration (or a future one) allows it to be. As federal district court judge Matthew Kacsmaryk concluded last August:
DHS stated that “MPP has demonstrated operational effectiveness[,” noting] that it had “returned more than 55,000 aliens to Mexico under MPP” and that “MPP has been an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system.” ... Specifically, DHS found “[s]ince a recent peak of more than 144,000 in May 2019, total enforcement actions [along the southern border] ... have decreased by 64% through September 2019.” ... Moreover, DHS found “[b]order encounters with Central American families — who were the main driver of the crisis and comprise a majority of MPP-amenable aliens — have decreased by approximately 80%.” and [“]observed a connection between MPP implementation and decreasing enforcement actions at the border — including a rapid and substantial decline in apprehensions in those areas where the most amenable aliens have been processed and returned to Mexico pursuant to MPP.” ... “[A]liens without meritorious claims — which no longer constitute a free ticket into the United States — are beginning to voluntarily return home.” ... DHS concluded its review of MPP and found it to be a “cornerstone” of ... efforts to restore integrity to the immigration system:
"MPP is one among several tools DHS has employed effectively to reduce the incentive for aliens to assert claims for relief or protection, many of which may be meritless, as a means to enter the United States to live and work during the pendency of multi-year immigration proceedings."
During the latter half of 2020, the Biden transition team met with career staff from DHS [who “]fully briefed the[m] on the importance of MPP and the consequences that would follow a suspension ... [including] a resurgence of illegal aliens attempting to illegally enter our [southwest border] ... [and] smuggling organizations ... exploit[ing] the rescission and convinc[ing] migrants the U.S. borders are open. They were warned the increased volume was predictable and would overwhelm Border Patrol’s capacity and facilities. ...”
Since MPP’s termination, the number of enforcement encounters on the southwest border has [indeed] skyrocketed [with] encounters jumping from 75,000 in January 2021, when MPP was suspended, to ... nearly 189,000 ... in June 2021.
The New Yorker has recently reported that even the Mexican government warned the Biden administration of the consequences of terminating the MPP:
“It’s not necessarily the case that the Mexican government opposes [the MPP],” a senior official who served in the Biden Administration said. “One of the things that they had consistently told us — when they saw that Biden had won, and obviously saw that there was likely going to be a reversal of some, if not many, of the policies — was, ‘Go slow.’ Because they feared what ultimately ended up happening, which was a large rush of people through their country to reach the United States.”
In any event, the MPP was challenged in federal court, but the Supreme Court stayed an injunction out of the 9th (surprise!) Circuit. 140 S. Ct. 1564 (March 11, 2020). The Biden administration has tried to terminate the MPP on its own on a number of occasions. But just last month, the Fifth Circuit Court of Appeals denied the administration’s request that it overturn Judge Kacsmaryk’s vacateur of DHS’s termination decision and his order that DHS implement the MPP in good faith. The Fifth Circuit dismissed the Biden administration’s contention that the MPP should be considered a failure:
The district court ... pointed to evidence that “the termination of MPP has contributed to the current border surge.” ... (citing DHS’s own previous determinations that MPP had curbed the rate of illegal entries). And it pointed out that the number of “enforcement encounters” — that is, instances where immigration officials encounter immigrants attempting to cross the southern border without documentation — had “skyrocketed” since MPP’s termination. ... [T]he Government denies that DHS ever acknowledged MPP’s effectiveness. ... [and] argues MPP was an ineffective deterrent, and that its termination therefore could not have caused an increase in illegal entries. But the district court made the contrary finding after its own consideration of the record and weighing of the evidence. ... That finding is “plausible in light of the entire record,” ... and we will not disturb it on appeal.
In my mind, calmer heads in the Biden administration are secretly relieved that the district court is forcing DHS to restart the MPP. DHS under the Biden administration has already dramatically scaled back utilization of Title 42 at the border, and they are hoping that the MPP can be used to mitigate the most disastrous consequences of curtailing or totally abandoning the use of Title 42. Now, I’m not certain whether the consequences they are concerned about are a greatly worsened border crisis or, rather, a greatly worsened electoral crisis for Democrats in the congressional midterm elections this coming November, but be that as it may, they are relieved.