Biden supporters don’t like ‘Trump-lite’ — they’d like the alternative even less

Biden is establishing a safer version of Trump’s Migrant Protection Protocols (MPP) program, commonly is referred to as the “Remain in Mexico” program. According to Human Rights First, a liberal advocacy non-profit, any version of this program would be unlawful, inhumane, and deadly; the group claims it puts asylum seekers into the hands of cartels and corrupt Mexican government agents who kidnap, rape, torture, traffic, and extort them.

Maybe, but Biden had no choice.

The courts forced him to restart Trump’s program — and although he could end it, I don’t think he will.

How we got here

Section 235(b)(2)(C) of the Immigration and Nationality Act (INA) provides that the DHS Secretary may return undocumented aliens who arrive by land to the contiguous country from which they came pending removal proceedings before an immigration judge.

Trump used this statutory authority in January 2019 to create the MPP program to deal with a surge in illegal border crossings by Central American families. The crossings fell sharply after the program was established.

But on June 1, 2021, Biden’s DHS Secretary terminated the program by issuing a memorandum that was promptly challenged in court.

On Aug. 13, 2021, a U.S. District Court Judge in Texas issued a decision holding that Biden’s termination of the program 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 program until he has the capacity and the willingness to comply with these provisions.

The pertinent part of the judge’s order reads as follows:

“Defendants are ORDERED to enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory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. 

“To ensure compliance with this order, starting September 15th, 2021, the Government must file with the Court on the 15th of each month, a report 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) Defendants’ total detention capacity as well as current usage rate; (4) the total monthly number of “applicants for admission” under Section 1225; (5) the total monthly number of “applicants for admission” under Section 1225 paroled into the United States; and (6) the total monthly number of “applicants for admission” under Section 1225 released into the United States, paroled or otherwise.”

Biden’s dilemma

It wouldn’t be difficult for Biden to rescind the program in accordance with the APA requirements, but complying with the detention requirements is another matter. 

Section 1225 includes the following mandatory INA 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 a credible fear, they will be removed from the United States. DHS, however, may parole an alien into the United States for urgent humanitarian reasons or significant public benefit;

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

• 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.

• Section 1225 provides the government with two options for aliens not clearly and beyond a doubt entitled to be admitted who are not put in expedited removal proceedings and arrive on land from a foreign territory contiguous to the United States: (1) detention pending removal proceedings; or (2) return to the contiguous territory pursuant to subparagraph 1225(b)(2)(C) to wait for a hearing before an immigration judge, which is the basis for the MPP program.

Biden is caught between a procedural rock and a political hard place.

Many liberals hated Trump because he tried to secure the border and enforce the immigration laws in the interior of the country. Biden promised to reverse Trump’s policies, which has effectively produced an open border. Now he’s required by the court to follow the law, which offers him two options — both of which run counter to his campaign promises and many of his supporters’ demands.

If Biden continues to employ the Remain in Mexico program, as the court has ordered in the near term, his supporters who care about immigration will be angry and claim that he has failed to keep his campaign promises. But if he takes the “out” offered by the court and complies with the law’s mandatory detention requirements, it will close the border by ending his catch and release practice, which would make those supporters just as angry.

Making the best of the situation

Thus, Biden is making a number of changes in the Remain in Mexico program to make it safer and to ensure that the rights of the aliens involved are protected; these proposed changes include the following:

• Removal Proceedings — DHS will work with the Department of Justice to ensure that the individuals in the program have their cases heard by immigration judges in a timely manner, and DHS will ensure that they have meaningful opportunities to access and meet with counsel. DHS has attempted to enlist the help of pro-bono legal aid organizations to provide legal services, but the organizations have for the most part declined to participate;

• Safety — DHS is committed to reimplementing the program in a way that will enhance protection for the participants in Mexico. It will ensure that they have access to shelters in Mexico, secure transportation to and from ports of entry to these shelters, and safe transit to and from hearings. DHS also will ensure that they are provided temporary legal status in Mexico to be able to work and access services in Mexico;

• Family Unity — Family units will not be separated for MPP purposes; and

• COVID-19 — DHS will comply with COVID-19 guidance from the Centers for Disease Control and Prevention. Also, DHIS will provide COVID-19 vaccinations to the migrants in the program.

These changes are unlikely to satisfy the folks at Human Rights First or others who oppose the program.

These people can continue to complain — or work with Biden to make the program as acceptable as possible. But no matter what they choose to do, the program isn’t going to be terminated unless Biden complies with the mandatory detention provisions, which is extremely unlikely because it would be even more a return to Trump. Not only would it close the open border, it would result in very lengthy detentions, which Biden also promised to end and which the country isn’t equipped to do.

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.