Justices Should Reject Biden’s Appeal, Let “Remain in Mexico” Policy Stand to Curb Bogus Asylum Claims

COMMENTARY Immigration

Justices Should Reject Biden’s Appeal, Let “Remain in Mexico” Policy Stand to Curb Bogus Asylum Claims

Mar 7th, 2022 5 min read
COMMENTARY BY
Hans A. von Spakovsky

Election Law Reform Initiative and Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.
In 2021, DHS Secretary Alejandro Mayorkas permanently ended the Migrant Protection Protocols, ignoring the ongoing surge of illegal aliens flooding across the border. Anna Moneymaker / Getty Images

Key Takeaways

The appeal seeks to end a policy that’s essential to deterring fraudulent asylum claims by aliens. 

Biden suspended enrollments in the protocols with a two-sentence, three-line memorandum that didn’t offer a single explanation for doing so.

It appears that the Biden administration is adamant on releasing illegal aliens into the country in spite of an ongoing immigration crisis.

The U.S. Supreme Court has agreed to hear arguments in Biden v. Texas, an appeal filed by President Joe Biden’s Justice Department of a lower court ruling in favor of Texas and Missouri.

The appeal seeks to end a policy that’s essential to deterring fraudulent asylum claims by aliens. 

It involves former President Donald Trump’s Migrant Protection Protocols—better known as the “Remain in Mexico” policy—and whether it will continue under a hostile Biden administration that has sought to terminate it.

Implemented by the Department of Homeland Security in January 2019, the policy returned to Mexico tens of thousands of aliens (who were not Mexican)—who claimed they were entitled to asylum after they crossed the southern border—while their claims were being investigated. 

The alternative was releasing them inside the U.S., where they often disappeared into the vast interior of the country, never showing up for their immigration hearings and remaining here indefinitely, breaking the law and evading removal.

Trump’s effort to actually enforce our immigration laws were in sharp contrast to the current administration, which has taken the opposite approach. The latter has resulted in an unprecedented crisis at the border, with more than 2 million encounters by DHS with illegal aliens in 2021 and at least an additional 600,000 “got-aways,” aliens who evaded the Border Patrol. 

The policies the Trump’s administration implemented, such as the Migrant Protection Protocols, mitigated the flow of aliens into the U.S., particularly those making fraudulent asylum claims as a way to avoid immediate deportation.

With the Migrant Protection Protocols in place, the benefits were twofold: Fewer illegal aliens were released into the U.S., and illegal immigration itself was deterred. 

The DHS found that after the Migrant Protection Protocols were implemented, total border encounters decreased by 64%, while border encounters with illegal aliens from the Northern Triangle (Guatemala, Honduras, and El Salvador) decreased by 80%.

It would be an understatement to say that the Migrant Protection Protocols have been an overwhelmingly successful policy.

Data compiled following the Migrant Protection Protocols’ implementation also revealed that of the nearly 42,500 completed cases under the protocols, only 650 aliens had legitimate asylum claims, while 32,638 received an order for removal, and the remaining 9,206 cases were terminated for other reasons.

This means that only 1.5% of asylum-seekers had a meritorious asylum claim, while at least 77% of asylum-seekers had no basis for admission whatsoever and were deported instead of being allowed to roam within the country.

As Texas and Missouri point out in their Supreme Court brief, despite DHS officials warning the Biden transition team that suspending the Migrant Protection Protocols would lead to a resurgence of illegal aliens entering the country and overwhelm the Border Patrol’s capacity and facilities, Biden suspended enrollments in the protocols on his first day in office. 

It was done with a two-sentence, three-line memorandum that didn’t offer a single explanation for doing so.

Thus was a major change made in federal immigration enforcement policy—or, more accurately, nonenforcement policy. Not surprisingly, total border encounters skyrocketed from 75,000 in January 2021 to almost 173,000 in April, and then jumped again to 189,000 in June.

The alarming crisis at the southern border and the Biden administration’s reckless actions led Missouri and Texas to file suit in federal court in April challenging the January suspension of the Migrant Protection Protocols and asking for an injunction to reinstitute the policy.

They argued that the decision to suspend the policy was arbitrary and capricious, violating the Administrative Procedure Act; that the suspension failed to consider the states’ reliance interests (the injuries suffered by the states when the policy was suspended); and that it violated the mandatory detention obligations of the DHS secretary under 8 U.S.C. § 1225.   

That statute mandates that an alien “shall be detained” if it cannot be clearly determined whether he or she is entitled to be admitted, and that the secretary “may return the alien” to a contiguous foreign territory pending a proceeding if resources are lacking to detain all such individuals.

So, how did the Biden administration respond to the unprecedented border crisis? On June 1, DHS Secretary Alejandro Mayorkas permanently ended the Migrant Protection Protocols, ignoring the ongoing surge of illegal aliens flooding across the border that by the end of the year had resulted in the highest recorded number of illegal aliens to ever cross our border.  

The district court ruled in favor of the states, enjoining the Biden administration’s actions and reinstating the protocols. The administration requested a stay of that ruling, which was rejected, and then tried again with the Supreme Court, which also rejected the stay request on the basis that the administration was unlikely to be able to demonstrate that its decision was not arbitrary and capricious.

The government then appealed to the 5th Circuit Court of Appeals. While that appeal was pending, DHS released additional memos that again terminated the Migrant Protection Protocols  with some additional justification.

The 5th U.S. Circuit Court of Appeals concluded that these new memos had no legal effect and affirmed the district court’s injunction in December. After that loss, the administration appealed to the Supreme Court, which accepted the case at the end of February.

So, what exactly are the administration’s arguments for permanently terminating the Migrant Protection Protocols? It amounts to this—that the word “may” in “may return the alien” under §1225 gives the DHS secretary the discretion to not remove the asylum-seeker, and that the word “shall” in “shall detain the alien” also means the same as “may,” thereby giving the secretary the same discretion to release the alien into the interior of our country.

It’s no wonder that the government has continually lost this case in the lower courts. Not only are such arguments absurd, but they are also directly contradicted by previous decisions of the Supreme Court, such as Jennings v. Rodriguez (2018), which rejected the discretionary interpretation of the word “shall” in this very statute.

As Texas and Missouri say, since the Border Patrol lacks the capacity to detain all of the aliens as it is required to do under the law, returning them to Mexico “is the only way DHS can avoid violating its detention obligations.” 

When “one has both a duty and an optional method of fulfilling the duty,” argue the states, “and under the circumstances the option is the only way to fulfill that duty, the option becomes obligatory.” 

Above all else, it appears that the Biden administration is adamant on releasing illegal aliens into the country in spite of an ongoing immigration crisis caused by Biden’s de facto open-border policy, the clear factual evidence supporting the efficacy of the protocols, and the total absence of a coherent legal argument justifying the policy’s suspension and termination.

As the states say, the Biden administration is trying to “turn the statute on its head by transforming a mandatory-detention regime into a class-wide release program.” 

To an ordinary American, all of this makes no sense. And it should also make no sense to the justices of the U.S. Supreme Court.  

This piece originally appeared in The Daily Signal