Return to Trump: Federal judge orders Biden to return border policy to way it was

A U.S. District Court Judge in Texas has issued a decision ordering President Biden to implement and enforce former President Donald Trump’s Migrant Protection Protocols (MPP) in good faith. The MPP is also known as the “Remain in Mexico” program.

Biden had suspended new enrollments in the MPP program on Jan. 20, 2021, and then permanently terminated the program on June 1.  The judge held that the termination was unlawful procedurally because it did not comply with the provisions of the Administrative Procedure Act (APA).

The judge also held that the termination was unlawful substantively because it caused the administration to systemically violate the mandatory detention provisions in Section 1225 of the Immigration and Nationality Act (INA). Biden cannot lawfully terminate the MPP program until he has the capacity and the willingness to comply with those detention provisions.

The surge

The need for more detention facilities if aliens are not returned to Mexico under the MPP program was caused by the surge in illegal crossings that has occurred since Biden became president. The number of Border Patrol encounters with illegal crossers at the Southwest border has risen steadily from 101,098 in February, Biden’s first full month in office, to 212,672 in July, which is a 21-year high.

I haven’t been able to find statistics on how many of these illegal crossers were subject to mandatory detention, but I was able to learn that the Border Patrol stations and central processing centers along that border can only hold around 4,750 aliens.

Biden’s dilemma

It wouldn’t be difficult for Biden to rescind the MPP program in accordance with the APA requirements, but complying with the detention requirements in the order is another matter. He would have to break immigration campaign promises to do that.

His plan for “securing our values as a nation of immigrants” was supposed to end prolonged detentions and develop alternatives to detention generally.

Objective of the MPP program

The judge found that the objective of the MPP program is to ensure that certain aliens attempting to enter the U.S. illegally or without documentation, including asylum seekers, will not be released into the country before their immigration claims have been processed. Such aliens often fail to file an asylum application and/or just disappear when they are released.

The MPP, however, does not apply to every undocumented alien who seeks to enter without proper documentation or by making an illegal entry. For instance, unaccompanied alien children are excluded.

The MPP program was successful in achieving these objectives. Aliens without meritorious persecution claims — which no longer constituted a free ticket into the United States — were beginning to voluntarily return home, and others were discouraged from coming here in the first place.

Mandatory detention provisions

The judge’s summary of the mandatory detention provisions:

• Aliens who make an illegal entry into the United States or seek admission without proper documents are subject to mandatory detention in expedited removal proceedings. If they express a fear of persecution, they will be given an opportunity to establish a credible fear of persecution. If found not to have such a fear, they will be removed from the United States.

• An alien subject to expedited removal who establishes a credible fear of persecution shall be detained for consideration of an asylum application. 

• An alien seeking admission who is not subject to expedited removal, whom an examining immigration officer determines is not clearly and beyond a doubt entitled to be admitted, shall be detained for removal proceedings before an immigration judge.

[They can be released on parole, on bond, or on their own recognizance, but they would have to be detained until a decision can be made on whether such a release is warranted, which can take a long time when there are a lot of detained aliens who are asking to be released.]

• Section 1225 provides the government with two options for aliens who are not subject to expedited removal and arrive on land from a foreign territory contiguous to the United States: (1) mandatory detention; or (2) return to the contiguous territory pursuant to subparagraph 1225(b)(2)(C), which is the basis for the MPP program.

Monitoring Biden’s compliance with the order

The fourth paragraph of the judge’s order requires Biden to file a report with the court on the 15th of each month stating — 

(1) The total monthly number of encounters at the southwest border;

(2) The total monthly number of aliens expelled under Title 42, Section 1225, or under any other statute;

(3) The total detention capacity as well as the current usage rate;

(4) The total monthly number of applicants for admission under Section 1225; and

(5) The total monthly number of applicants for admission under Section 1225 who were released into the United States by parole or otherwise.

This is a serious setback for Biden. It puts the situation at the border back to the way it was when Trump was president. And there doesn’t appear to be any easy way out of it. Even an appeal to a higher court will take time and is unlikely to succeed when it reaches the Supreme Court, which denied an attempt to stop implementation of the MPP policy under Trump.

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.