Biden goes ‘all in’ on a bad bet before a conservative Supreme Court

President Biden walks over to address reporters after a Democratic caucus luncheon at the Senate Russell Office building to discuss voting rights and filibuster reform on Thursday, January 13, 2022.
Greg Nash

Opponents of the Migrant Protection Protocols (MPP), commonly known as the “Remain in Mexico” program, say, “It forces asylum-seekers to wait in Mexico until their cases are resolved here, putting migrants at risk of kidnapping, forced gang recruitment, rape, and murder on the other side of the border.”

But they aren’t asking DHS to make waiting in Mexico safer.

And many of the nation’s nonprofits that provide legal service to asylum-seekers are refusing to provide their services to the migrants in the MPP. They claim that the program doesn’t just put the immigrants in danger, it also endangers the attorneys and humanitarian groups that help them. But the government can — and should — make arrangements with the Mexican government to protect the MPP participants and the people who provide legal services for them. If nothing else, it should be possible to arrange for assistance to be provided with video conferencing.

There’s very little chance that the MPP will be terminated in the foreseeable future.

Attempts to end the MPP 

On Jan. 20, 2021, DHS issued a statement that suspended new enrollments in the MPP. Four months later, it issued a memorandum terminating the program.

On Aug. 13, 2021, 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 in the Administrative Procedure Act (APA) and substantively because it caused the administration to systemically violate the mandatory detention provisions in INA section 1225.

The court issued a nationwide injunction ordering the administration to:

“enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under Section 1255 without releasing any aliens because of a lack of detention resources.” 

The government appealed to a U.S. Court of Appeals for the Fifth Circuit, but the circuit court affirmed the district court’s decision on Dec. 13.

Then, the administration filed a petition for a writ of certiorari asking the Supreme Court to review the case. That is not likely to end well.

The government’s arguments to the Supreme Court

According to the government, Supreme Court review is warranted because the circuit court relied on novel and erroneous interpretations of the INA to compel DHS to indefinitely maintain a discretionary program that it has twice determined to be contrary to the interests of the United Sates. 

Novel perhaps, but the circuit court just followed what the provisions say.

The government argues that the circuit court’s decision will severely impair the executive branch’s constitutional and statutory authority to manage the border and conduct the nation’s foreign policy.

The government’s “management” of the border has resulted in record breaking illegal crossings.

The government argues that the provision in the law authorizing the government to return aliens to Mexico is discretionary. It says that DHS “may return” aliens seeking admission to Mexico pending removal proceedings. The circuit court nevertheless held that it becomes mandatory whenever DHS lacks the capacity to comply with INS section 1225’s detention mandate.

The government also claims the circuit court erred in finding that DHS can’t manage its limited detention capacity by releasing inadmissible applicants for admission on parole or otherwise. But that’s not what the circuit court held. The court said DHS cannot manage its detention capacity by releasing inadmissible applicants without a legal basis for the releases. DHS is not using its parole authority properly, and there is no legal basis for its “or otherwise” releases.

The government argues that the circuit court’s conclusion that DHS is “violating” the detention mandate in INA Section 1225(b)(2)(A), can, at most, support an order requiring DHS to detain more people — not an order compelling DHS to use the discretionary return to Mexico provision.

The district court ordered DHS to make a good faith effort to enforce and implement MPP.  That leaves open the question of how many aliens will have to be returned to Mexico.

Also, the government says that the ability to comply with the injunction depends on circumstances beyond its control — that Congress has not provided adequate funding for detention and the ability to return inadmissible aliens to Mexico requires cooperation from the Mexican government.

The government is right in anticipating a problem with getting cooperation from the Mexican government. There is a limit to how far Mexico will go in cooperating with the MPP if the number of migrants in the program and the length of the wait for a hearing continue to increase, which is very likely.

The administration is trying a “dedicated docket” program to make hearings available sooner, but that program has failed in the past and immigrant advocacy groups are objecting to renewing it. Human Rights First claims that the “rocket dockets” in previous administrations led to high rates of in absentia removals, mistaken decisions, and increased backlogs.

It’s just a matter of time before the government gives up on this idea again.

It might be better for Biden to withdraw the petition to the Supreme Court and concentrate instead on improving the MPP program. A good faith effort to comply with the injunction isn’t likely to result in major changes in the administration’s border policies.

The Supreme Court isn’t likely to rule in the government’s favor. Moreover, it might decide that DHS can’t ignore the law because it doesn’t have adequate detention facilities and stop DHS from letting inadmissible immigrants into the country at all. DHS recently set a precedent for doing this with the Haitians. It blocked some from crossing the border and flew many others back to Haiti. Neither required the use of the MPP.

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

Tags Biden immigration policy Border crossings Immigration detention Immigration policy of Donald Trump Joe Biden Remain in Mexico Supreme Court of the United States U.S.-Mexico border crisis

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