Late Friday, a federal court ruled the Biden administration acted arbitrarily in ending the Migrant Protection Protocols the Trump administration established to require aliens to remain in Mexico pending immigration proceedings. Not only is the decision a huge victory for the plaintiffs, Texas and Missouri, in their fight to force the federal government to secure the border, the opinion provides a perfect primer for Americans on immigration law and the border crisis.
The court’s analysis also provides a devastating indictment of the Biden administration, establishing the current invasion of the U.S. southern border is a self-inflicted wound. Here are the key highlights.
People Without Documents Should Be Sent Home
In a thorough 53-page opinion, federal Judge Matthew Kacsmaryk, a Donald Trump appointee, began with a summary of the relevant immigration law and the history of the MPP. As Kacsmaryk explained, Section 1225 of U.S. immigration code establishes procedures for the Department of Homeland Security (DHS) to process aliens who are “applicant[s] for admission” to the United States, “whether they arrive at a port of entry or cross the border unlawfully.”
First, an immigration officer must determine whether an alien is entitled to be admitted. If the person is “not clearly and beyond a doubt entitled to be admitted,” then the federal immigration statute provides that the alien “shall be detained” for removal proceedings.
The immigration statute further provides that aliens without valid entry documents, or individuals who misrepresent their identity, “shall” be removed without further proceedings, unless the alien has indicated an intent to apply for asylum or claimed a fear of persecution. Under federal law, such asylum applicants “shall be detained for further consideration of the application for asylum.”
As a matter of statutory interpretation, the word “shall” represents a mandatory command, meaning the DHS must detain aliens. However, as Judge Kacsmaryk explained in his opinion, there are two relevant exceptions to the detention requirement.
First, the DHS retains discretion to “parole,” or release, certain aliens “for urgent humanitarian reasons or significant public benefit.” But such “parole” is available “only on a case-by-case basis,” and is not intended “to replace established refugee processing channels,” the court explained. Accordingly, the court held that “any class-wide parole scheme that paroled aliens into the United States simply because DHS does not have the detention capacity would be a violation of the narrowly prescribed parole scheme” contained in federal immigration code.
Second, rather than detain an alien in the United States, Congress has authorized the DHS to return an alien to the “foreign territory contiguous to the United States” from which the alien arrived, pending removal proceedings.
Remember the Surge in Asylum Fraud
After laying out the above relevant statutory framework, Judge Kacsmaryk provided the factual backdrop to the Trump administration’s adoption of the MPP. In 2018, the United States was experiencing an immigration surge at the southern border, with officials encountering approximately 2,000 inadmissible aliens per day. Many of those requested asylum, claiming they were being persecuted, which prevented federal agents from immediately removing the aliens.
Yet, as the court explained, following further proceedings on their claims, only 14 percent of aliens from the fiscal years 2008 to 2019, had legitimate asylum claims. “With so many ‘fraudulent asylum claims,” “the dramatic increase in illegal migration” was “making it harder for the U.S. to devote appropriate resources to individuals who [were] legitimately fleeing persecution.”
Further, the evidence presented to the court established that many of these individuals “disappeared” in the United States and became “fugitives.” From fiscal year 2008 to 2019, 32 percent of aliens “absconded into the United States,” never appearing for their immigration proceedings, and were then “ordered removed in absentia.”
In response to the 2018 surge on the southern border and these troubling statistics, on December 20, 2018, Trump’s homeland security secretary established the MPP program under which aliens from third-countries who entered the United States from Mexico would be returned to Mexico, pending resolution of the removal and asylum proceedings.
The goal of the MPP, as the Trump administration explained, was to ensure “certain aliens attempting to enter the U.S. illegally or without documentation, including those who claim asylum, will no longer be released into the country, where they often fail to file an asylum application and/or disappear before an immigration judge can determine the merits of any claim.”
This Plan Worked
After the DHS issued guidance for implementing the MPP in January 2019, the agency began using it, first in San Diego and Calexico, California and El Paso, Texas, then nationwide. The Trump administration also obtained Mexico’s cooperation, with Mexico committing to temporarily permit aliens who had entered the United States from Mexico without valid documentation to remain in Mexico pending further proceedings. Later, the DHS constructed temporary structures at the American side of the southern border to hold hearings for noncitizens subject to the MPP, allowing for prompt resolution of those claims.
Less than a year after the MPP program was launched, the DHS concluded it had “demonstrated operational effectiveness” and had “returned more than 55,000 aliens to Mexico under MPP.” The DHS further concluded the MPP proved itself “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system.” The DHS also found that in areas where the most aliens were returned to Mexico pursuant to MPP, there was “a rapid and substantial decline in apprehensions.”
Statistics cited by the court bore out the DHS’s conclusion: “Since a recent peak of more than 144,000 in May 2019, total enforcement actions . . . have decreased by 64% through September 2019.” Additionally, “border 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%.” In total, by December 31, 2020, the DHS had enrolled more than 68,000 aliens in the MPP program.
Additionally, the DHS concluded that the MPP had helped restore integrity to the asylum system, with asylum being granted to those with legitimate claims within months, rather than years. Conversely, because asylum “no longer constitute[d] a free ticket into the United States,” aliens with meritless claims began “to voluntarily return home.”
Biden Knew MPP Was Effective And Still Canceled It
Yet on its first day in office, the Biden administration immediately suspended new enrollments in the MPP, pending further review. Judge Kacsmaryk found the incoming Biden administration had suspended the program even though it knew the DHS had found the MPP effective as a matter of policy and had received warnings about the consequences of repeal from career employees.
Texas and Missouri responded by suing the Biden administration, alleging that in its suspension the federal government had acted arbitrarily and capriciously in violation of the Administrative Procedure Act, or APA. It also allegedly violated Section 1225 of the immigration code, which mandates aliens be held pending removal. Finally, the complaint alleged Biden violated the U.S. Constitution’s mandate that the president “take Care that the Laws be faithfully executed.”
On June 1, the Biden administration, after purportedly finishing a review of the MPP program, announced it was terminating the program. Thereafter, the states amended their complaint, alleging the final June ruling also violated the APA.
Canceling MPP Helped Ruin the Border
In its decision last Friday, the court noted that the Biden administration’s termination of MPP “necessarily increases the number of aliens present in the United States” and that without the program, the federal government is “forced to release and parole aliens into the United States because Defendants simply do not have the resources to detain aliens as mandated by statute.”
The court further stressed that “the termination of MPP has contributed to the current border surge,” explaining that the DHS had previously confirmed that the “MPP implementation contribute[d] to decreasing the volume of inadmissible aliens arriving in the United States on land from Mexico.” Even defense counsel for the Biden administration acknowledged that “it’s fair to say that [MPP] probably deterred some individuals from coming to the United States.”
Indeed, federal data shows that since the Biden administration ended the MPP in January 2021, the number of border encounters jumped from 75,000 to 173,000 in April 2021, and to nearly 189,000 in June 2021. July’s figures, which the court did not mention, are even worse, exceeding 212,000 Southern border encounters.
Texas and Missouri suffer as a result of these increased numbers, incurring higher costs related to the issuance of driver’s licenses, providing public education to students—from $9,000 to $11,000 in Texas—and providing taxpayer-funded health services. Aliens who would have been enrolled in MPP are now released into the United States and committing crimes in Texas and Missouri. Texas already spends more than $100 million a year to house nearly 9,000 illegal aliens in its criminal justice system.
These facts led the court to conclude the states had standing to sue the Biden administration, and the judge found in favor of Texas and Missouri on their APA claims.
Actually, Presidents Can’t Act Like Tyrants
Among other things, the APA prohibits agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” In other words, federal agencies “must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.”
The court in Texas v. Biden concluded the Biden administration acted arbitrarily by ignoring critical factors in deciding to discontinue the MPP. First, the administration ignored the DHS’s previous finding that aliens without meritorious claims were “beginning to voluntarily return home.” Also ignored was the DHS’ earlier conclusion that the MPP addressed the “perverse incentives” created by allowing “those with non-meritorious claims . . . to remain in the country for lengthy periods of time.”
“The June 1 Memorandum never once mentions these benefits,” Judge Kacsmaryk noted. The memo also failed to address the DHS’ previous finding that 9 out of 10 asylum cases from the “Northern Triangle countries” of Guatemala, Honduras, and El Salvador are ultimately found meritless, and that the MPP discouraged aliens with non-meritorious claims from traveling and attempting to cross the border in the first place.
Second, the court concluded that the Biden administration improperly ignored warnings from career DHS personnel that “the suspension of the MPP, along with other policies, would lead to a resurgence of illegal aliens attempting to illegally cross the border.” From the time the DHS suspended the program in January until June 1, the number of border encounters increased substantially, as career staff had predicted.
Biden Didn’t Care about the Law or Costs
Third, Judge Kacsmaryk explained, the DHS secretary failed to consider “at all” the costs to the states flowing from ending the MPP. The Biden administration’s DHS did more than ignore these factors, the court wrote; the DHS also acted arbitrarily in terminating the MPP based on “questions” it had about the high number of “in abstentia removals.”
The problem, here, is that the DHS assumed—without evidence—that the 44 percent of individuals who failed to appear for immigration hearings presented legitimate asylum cases, as opposed to were individuals with meritless claims who removed themselves once they were denied access to the United States.
The federal court further found that the Biden administration failed to consider the impact ending the MPP had on the DHS’s statutory obligation to detain aliens. “Not once did the June 1 Memorandum discuss DHS’s mandatory-detention obligation,” the court wrote. For all of these reasons, the court found the Biden administration acted arbitrarily and capriciously, and thus in violation of the APA, by terminating the MPP.
Finally, Judge Kacsmaryk considered the appropriate remedy for Texas and Missouri, concluding vacatur of the June 1 memorandum was appropriate. He then issued an injunction ordering the defendants “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 determination capacity to detain all aliens subject to mandatory detentions.”
To ensure compliance, the court directed the government to file monthly reports stating the total number of encounters, the total number of aliens expelled, the government’s total detention capacity and current detention-usage rate, and the number of aliens paroled into the United States. The court entered this injunction on a nationwide basis, then delayed the effective date for seven days to allow the Biden administration to file an emergency appeal with the Fifth Circuit Court of Appeals.
The Biden administration is certain to appeal, but there is just no way the president can win. Yes, he may prevail in the court of appeals, but Biden will still lose in the court of public opinion. That’s because the district court’s opinion exposed the dirty truth behind the border crisis—it was entirely preventable and the foreseeable result of the Biden administration’s reversal of Trump’s immigration policies.
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