'Remain in Mexico': Biden should be more cautious what he asks for

They say some people just don’t learn. It appears President BidenJoe BidenPredictions of disaster for Democrats aren't guarantees of midterm failure A review of President Biden's first year on border policy  Vilsack accuses China of breaking commitments in Trump-era trade deal MORE is one of them. The Biden administration — at the end of December — filed a petition asking the Supreme Court to review lower court rulings on the administration’s attempt to end the Trump-era “Remain in Mexico” program.

While this may play well politically — for now — it is likely to bite the administration… hard.

Biden may very well end up stuck with a Supreme Court decision that will end his open border policy and that will serve as precedent for killing his executive branch refusal to do interior enforcement.

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The background

The southern border experienced a surge in illegal crossings in 2018, causing a humanitarian and border security crisis. President TrumpDonald TrumpPredictions of disaster for Democrats aren't guarantees of midterm failure A review of President Biden's first year on border policy  Hannity after Jan. 6 texted McEnany 'no more stolen election talk' in five-point plan for Trump MORE responded by using his authority under INA section 1225(b)(2)(C) to establish the Migrant Protection Protocols (MPP), commonly known as the “Remain in Mexico” program.

The goal of the program was to ensure that aliens attempting to enter the United States illegally or without proper documents would no longer be released into the country, which was thought to be encouraging more aliens to attempt such entries. This included asylum seekers because they frequently failed to file an asylum application and/or disappeared before their asylum claims could be adjudicated.

Aliens who crossed the land border with Mexico illegally or sought admission without proper documentation were returned to Mexico to wait outside of the United States pending removal proceedings before an immigration judge. 

Biden’s unsuccessful attempts to end MPP

On Jan. 20, 2021, the Biden administration issued a statement that suspended new enrollments in the MPP program. On June 1, DHS issued a memorandum terminating the program because it was “not the best strategy for implementing the goals and objectives of the Biden-Harris administration.”

On Aug. 13, a federal district court held in Texas and Missouri v. Biden that the MPP termination was unlawful procedurally because it did not comply with the provisions of the Administrative Procedure Act (APA) and substantively because it caused the administration to systemically violate the mandatory detention provisions in INA section 1225.

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The court ordered a permanent injunction requiring DHS to reinstate and maintain the MPP program until – 

(1) DHS has sufficient detention capacity to detain all aliens subject to mandatory detention without releasing any aliens because of a lack of detention resources and

(2) The program has been terminated lawfully in accordance with the APA requirements.

On Aug. 17, the administration petitioned the U.S. Court of Appeals for a suspension of the district court’s permanent injunction pending the outcome of an appeal of the district court’s decision. In a decision dated Aug. 19, the appellate court denied the administration’s request because it had not established that it was likely to succeed with its appeal.

The following day, on Aug. 20, the administration made an emergency request to the Supreme Court for an order permitting it to cancel the MPP program temporarily while it appealed the district court’s decision. The court denied the request on Aug. 24 in a brief, unsigned order in which it explained that the administration had failed to establish that it was likely to succeed in showing that its decision to end the MPP program was not “arbitrary and capricious,” i.e., that it was reasonable and reasonably explained.

On Oct. 29, the administration issued a new decision to terminate the MPP program with a comprehensive explanation. The court of appeals held that the new decision could not be considered because it had no legal effect.

Instead of dropping its appeal and concentrating on finding an acceptable way to meet the district court’s requirements for properly terminating the MPP program, the administration filed a petition for a writ of certiorari on Dec. 29, asking the Supreme Court to review the court of appeals’ decision.

Biden’s decision to go to SCOTUS

DHS should be able to figure out how to terminate the program in accordance with the APA requirements. The administration’s real problem is providing sufficient detention capacity to comply with the mandatory detention provisions in INA section 1225. 

According to the administration, the court of appeals based its decision on this issue on the following reasoning:

“First, INA section 1225(b)(2)(A) requires DHS to detain applicants for admission who are not clearly admissible pending removal proceedings;

Second, as the district court found and no one disputes, DHS lacks the resources to detain every alien seeking admission to the United States;

Third, the court of appeals stated that the INA’s parole provisions give the agency only limited authority to make selective releases; and

Therefore, DHS must avail itself of the authorized alternative of contiguous-territory returns to avoid violating INA section 1225(b)(2)(A)’s detention mandate.”

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This is contrary to the plain text of  INA section 1225(b)(2)(C), which states that, when DHS encounters an alien attempting to enter the United States who is not clearly entitled to be admitted, and who is arriving on land from Mexico or Canada, DHS “may” return the applicant to Mexico or Canada pending his removal proceedings.

The use of the word “may” unmistakably indicates that contiguous-territory return is a discretionary tool that DHS has permission to use, not one that it is compelled to use.

According to the court of appeals, the district court’s injunction does not require the government to detain every alien subject to INA section 1225’s mandatory detention provisions, or to build or obtain additional detention facilities. It just requires the government to “enforce and implement MPP in good faith … until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention.”

The district court specifically acknowledged that the government has other options, such as paroling them into the United States pursuant to INA Section 1182(d)(5) “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”

What the government cannot do, the district court held, is release aliens subject to mandatory detention en masse into the United States.

According to Florida State Attorney General Ashley Moody, that is what DHS has been doing.  On Sept. 28, she filed a lawsuit to stop the administration’s catch and release policy, which she alleged has resulted in the release of at least 225,000 illegal crossers.

It’s worth noting that if the Biden administration had at least made a half-hearted effort to comply, it likely could have continued — for the most part — its border priorities. 

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But having asked the Supreme Court to weigh in — while catering to the short-sighted advocates who urge a fight to end to Trump program at any cost — the administration risked a precedent-setting decision from a conservative-majority court that could put a stake through the heart of those advocates’ hopes and dreams. 

I will be very surprised if the Supreme Court lets the administration terminate MPP without establishing an acceptable alternative to the en masse release of aliens subject to the INA section 1225 mandatory detention provisions. The circuit court’s analysis is relatively simple — and persuasive; the Supreme Court isn’t at all likely to reverse it.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.