Supreme Court Unwisely Lets Biden End Program Making Illegal Aliens Remain in Mexico

COMMENTARY Border Security

Supreme Court Unwisely Lets Biden End Program Making Illegal Aliens Remain in Mexico

Jul 1, 2022 4 min read

Commentary By

Lora Ries @lora_ries

Director, Border Security and Immigration Center

Hans A. von Spakovsky @HvonSpakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Johnson's chart illustrates how effective the Trump-era Remain in Mexico policy was. MANDEL NGAN / Contributor / Getty Images

Key Takeaways

The decision will further aggravate a dire border crisis, created by the administration’s open-border policies.

A number of  justices, including Kagan, questioned whether the government was paroling aliens en masse rather than on a case-by-case basis, per the law.  

Once again, Americans—including legal immigrants—are on the losing end.

As the U.S. southern border is being overrun with record numbers of illegal aliens month after month, the U.S. Supreme Court on Thursday approved the Biden administration’s termination of the successful Remain in Mexico program in a 5-4 decision by Chief Justice John Roberts and joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh.

The decision will further aggravate a dire border crisis, created by the administration’s open-border policies.

The Remain in Mexico program (formally known as the Migration Protection Protocols) was implemented by the Trump administration in early 2019 to stop the caravans of illegal aliens who were coming to our border, claiming a fear of returning to their home country, and getting released into the U.S., often never to be seen again. 

The Trump administration was the first to use the 1996 congressional authority that permits the Department of Homeland Security to return non-Mexican aliens arriving by land from Mexico to Mexico while their claims for asylum or eligibility to be in the U.S. were determined.

The program worked.

The caravans stopped, and illegal alien encounters declined when human smugglers and would-be illegal aliens learned that saying they were entitled to asylum was no longer the golden ticket into the U.S. This was particularly important because the overwhelming majority of such claims have proven to be fraudulent.

Determined to end every Trump immigration policy and enforcement program and throw open the border, the Biden administration stopped enrolling illegal aliens in the Remain in Mexico program as soon as Biden took office, and then suspended the program under a June 1, 2021, DHS memorandum. 

Texas and Missouri sued the administration, claiming that the suspension violated the provision in the Immigration and Nationality Act that mandates that illegal aliens be detained and was woefully inadequate in its rationale under the Administrative Procedure Act.

After the district court issued an injunction, ordering the government to maintain the program, the Biden administration issued a second, longer memo to justify terminating the program. Nonetheless, the 5th Circuit Court of Appeals affirmed the lower court’s decision.  

In oral arguments before the Supreme Court, the government disingenuously blamed Congress for not providing enough detention resources for the administration to comply with the mandatory detention statute.

But the open-borders left that controls this White House doesn’t want to detain illegal aliens. The Biden administration does not use all the detention space it has, eliminated family detention centerscut the Immigration and Customs Enforcement’s budget, and relies on ineffective alternatives to detention that allow aliens to disappear into the anonymity of our vast nation.

Further, the government argued it could not implement the Remain in Mexico policy because it would be too difficult to negotiate an agreement with Mexico.

This cop-out ignores the fact that international negotiations are a regular function of the executive branch and that the last administration had no problem reaching an agreement with the government of Mexico to allow these aliens to remain there.

The difference is that the Trump administration was willing to use America’s incredible leverage to get concessions and cooperation from Mexico (and Central American countries) on immigration matters, something this administration has no interest in doing.

Third, the government argued that, instead of returning illegal aliens to Mexico, it has no other choice but to parole illegal aliens into the U.S.

Under the law, parole can only be granted on a case-by-case basis for urgent humanitarian reasons or a significant public benefit. The government made the ridiculous argument that it met the significant public benefit requirement because parole ensures that DHS doesn’t run out of detention space to house future aliens who might be higher priorities because of their criminal records or flight risk.

A number of  justices, including Kagan, questioned whether the government was paroling aliens en masse rather than on a case-by-case basis, per the law.  

Despite the government’s weak arguments, the court majority ruled that because returning aliens to Mexico is discretionary, not mandatory, the Biden administration did not act unlawfully in ending the program. Congress didn’t state that the Remain in Mexico policy becomes mandatory if the government cannot comply with mandatory detention, the court explained.

With respect to Mexico, the court stated that it won’t direct the executive branch to conduct foreign affairs. Rather, that’s Congress’ job. Finally, the majority gave the government a pass on the issue of mass parole in seeming violation of the statute, concluding that DHS can exercise parole.

In his dissent, Justice Samuel Alito called the majority out on this point, writing that the number of aliens paroled each month—more than 27,000 in April alone—is a strong indication that the government is not making parole decisions on case-by-case basis.

The parole statute cannot justify the release of tens of thousands of inadmissible aliens, Alito wrote. He added, “rather than avail itself of Congress’s clear statutory alternative to return inadmissible aliens to Mexico while they await proceedings in this country, DHS has concluded that it may forgo that option altogether and instead simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings.”

This practice violates the clear terms of the law, but the court looks the other way.

This Supreme Court decision emboldens the Biden administration to continue to allow an unlimited number of illegal aliens to flood our communities in violation of federal immigration law and encouraging asylum fraud.  

Meanwhile, the dangerous Mexican drug cartels that control the smuggling and human trafficking across our southern border were the clear winners with this decision.

And once again, Americans—including legal immigrants—are on the losing end.

This piece originally appeared in The Daily Signal