August 11, 2022
Center for Homeland Security and Immigration
Supreme Court’s “Remain in Mexico” Decision is Not the Win Open Borders Crowd Think it is
August 11, 2022
The string of conservative victories at the Supreme Court was snapped by the final decision released to close out the current session. In Biden v. Texas, Chief Justice John Roberts and Justice Brett Kavanaugh joined the three liberal justices to rule 5-4 in favor of allowing the Biden Administration to terminate the Trump Administration’s Migrant Protection Protocols (MPP), or “Remain in Mexico” policy. While the ruling is disappointing, the verdict is not the big win that open borders advocates think it is. In exchange for obtaining permission to end MPP, the Biden Administration created the opening for the Supreme Court to legitimize the policy—and for a future conservative administration to resuscitate the policy.
Despite the Trump Administration’s commitment to immigration enforcement, a border security crisis materialized in 2018-2019 because loopholes in U.S. immigration law impeded efforts to enforce our immigration laws. A driving factor of the crisis was that the judicial interpretation for establishing a credible fear of persecution—the first step in the asylum process for illegal aliens apprehended at the border—is far lower than the statutory definition of asylum. While 70 percent of aliens met the initial credible fear threshold, less than 15 percent actually qualified for asylum. Economic migrants, and the cartels and smugglers, figured out that saying the magic words “credible fear” was good enough to be allowed into the country for years before their asylum case would be heard (and in the vast majority of cases denied) by an immigration judge.
To curb this abuse, the Trump Administration utilized statutory authority to require most illegal aliens apprehended at the southern border to wait in Mexico until their immigration court hearing. According to section 235(b)(2)(C) of the Immigration and Nationality Act (INA), the Department of Homeland Security (DHS) Secretary “may return the alien to that [contiguous] territory pending a proceeding under section 1229a of this title.” That section of the code, also referred to as section 240 of the INA, covers removal proceedings. The official Trump Administration policy became best known as “Remain in Mexico” or for shorthand, MPP. Unaccompanied alien children and any alien who claimed a fear of persecution in Mexico were exempt from MPP. Aliens exempt from MPP were either detained in the U.S. or released under “alternatives to detention” while they waited for their immigration court dates.
This policy was an instant success in curbing illegal immigration and disrupting the human smuggling and trafficking networks. While many illegal aliens could still pass the credible fear screening, most were then required to wait in Mexico for court dates that would be months-to-years down the road. The reason it worked to discourage aliens from taking the journey north is that it denied economic migrants their underlying goal of being released into the interior of the country to reunite with family members, who were themselves most likely here unlawfully, or to take American jobs. The policy was widely popular with law enforcement and the American people.
Yet, rather than continuing MPP, the Biden Administration sought to end it on its first day over the objections of career Border Patrol agents. The states of Texas and Missouri sued and the Biden Administration appealed all the way to the Supreme Court after losing at the district court and circuit levels.
While the Supreme Court gave the Biden Administration the green light to end Remain in Mexico, the majority expressly blessed the policy as lawful. The chief justice’s majority opinion succinctly states, “MPP was implemented pursuant to express congressional authorization in the [INA].” At the time of this ruling, only 5,000 illegal aliens were waiting in Mexico compared to the approximately 70,000 turned back during the Trump Administration. So, while the Biden Administration maintained MPP per the lower court order, they exempted most aliens from it.
For the open border advocates who routinely filed lawsuits before similarly-minded judges to delay implementation of Trump Administration immigration policies, that line from Chief Justice Roberts has to sting. It is hard to imagine even the most activist liberal district court judge daring to issue a nationwide injunction to block the resumption of MPP if a subsequent administration committed to border security implemented the policy.
Additionally, the Supreme Court’s ruling is not an endorsement of the Biden Administration’s open borders immigration policies because the majority punted the issue of mandatory detention back to the lower courts rather than ruling on it. In siding with the administration’s right to terminate MPP, the Roberts opinion focuses on the discretionary, rather than mandatory, language used in the authorizing statute. As spelled out above, section 235(b)(2)(C) says the DHS Secretary may return illegal aliens back to Mexico. The Chief Justice writes, “This Court has ‘repeatedly observed’ that ‘the word “may” clearly connotes discretion.’”
No one, including the states involved in the litigation nor the dissenting justices, dispute this point. But, as Justice Samuel Alito explains in his dissenting opinion, it misses the point. That’s because section 235(b)(2)(A) clearly states that “the alien shall be detained for a proceeding under section 240.” (emphasis added). Taken together, Congress has mandated detention of all aliens apprehended at the southern border but allows the Executive Branch the option to return aliens to Mexico instead of detaining them. The Biden Administration is clearly not detaining everyone as required by section 235(b)(2)(A) and obviously does not want to send illegal aliens back to Mexico under section 235(b)(2)(C), which is why they continued the legal fight all the way to the Supreme Court.
There is no third option anywhere else in section 235 or any other section of the INA that allows an administration to mass release illegal aliens into the country. And this could spell trouble for the Biden Administration. The word “may” is discretionary, but the word “shall” is mandatory. When the litigation resumes at the lower courts over the interpretation of section 235(b)(2)(A), the Biden Administration will be hard pressed to explain to the courts why “shall” does not really mean “shall.” The final legacy of Biden v. Texas could be the Supreme Court ruling that the Executive Branch has failed to fulfill its statutory mandate to detain all illegal aliens apprehended at the border. Under this scenario, and given the capacity and logistical issues involved with detaining a large number of illegal aliens, sending them back to wait in Mexico might prove to be the more appealing option.
On August 8, about 5 weeks after the Supreme Court ruling, DHS officially terminated MPP. While the litigation moves to the next stage, we continue to have a historic border security crisis that even large city mayors are calling a humanitarian crisis. The American people have rejected the Biden Administration’s failed policy of more quickly processing these illegal aliens into the country and are demanding a strategy that solves the problem.