“The integrity of the nation’s immigration system should be assessed by whether immigration proceedings achieve fair and just outcomes,” Homeland Security Secretary Alejandro Mayorkas.

As a former immigration prosecutor under Trump’s Department of Homeland Security (DHS), it was impossible to subscribe to the Administration’s idea of restoring integrity to the immigration system. Within months, the immigration court I had known under the Obama Administration became unrecognizable. The turnover of judges was the highest it had ever been since 1997. More than 80 experienced judges resigned or retired. They were replaced by 300 new judges. And, they deported men, women, and children like their jobs depended on it – because it did.

New policy, like Trump’s Migrant Protection Protocols (MPP), commonly referred to as the “Remain in Mexico,” was created. Removal orders skyrocketed, detention space increased, and migrants were sent to Mexico to wait.

This is why the Supreme Court’s decision in Biden v. Texas, seemed inevitable. The case is, undoubtedly, a victory for the Biden administration. It ends Trump’s Migrant Protection Protocols – for now.

Trump’s MPP program was one of his many efforts to remain faithful to his “zero-tolerance” immigration promise. The MPP was based on an expansive reading of one section of immigration law enacted in 1996. Previous presidents had used the law to return Canadian citizens to Canada and Mexican citizens back to Mexico to await their immigration court hearings.

On January 25, 2019, Trump’s DHS used it to send everyone crossing the southwest border to Mexico despite their country of origin. An even more notable departure was that Trump’s MPP program forced asylum seekers, individuals fleeing persecution, to wait in Mexico for court hearings.

“The integrity of the nation’s immigration system should be assessed by whether immigration proceedings achieve fair and just outcomes,” said Homeland Security Secretary Alejandro Mayorkas.

The Biden Administration couldn’t find integrity in sending large numbers of migrants to live in camps in northern Mexico. The camps were crowded. They were unsanitary. They were plagued by violence. And in March 2020, court hearings were suspended due to the COVID-19 pandemic. Immigration hearings for MPP enrollees never resumed. Yet, DHS kept enrolling people into the program. The number of migrants stuck in camps in Mexico kept rising, but none were closer to an immigration decision.

From 2019 until the program’s suspension in January 2021, about 1.5 million individuals were encountered at the southwest border. Only 68,000 were processed through MPP.

Still, Texas and Missouri used Biden’s suspension and subsequent termination as an opportunity to bind Trump’s harsh immigration agenda to future administrations. The U.S. District Court for the Northern District agreed. That decision required the Biden Administration to detain everyone seeking admission or expel migrants to Mexico for however long the immigration process might take.

In the Supreme Court’s 5-4 decision, the majority held that Biden had the authority to rescind Trump’s MPP program. However, it sent the case back to the District Court to review whether the Department’s memoranda terminating the MPP complies with current laws. Justice Kavanaugh’s concurring opinion, combined with the dissenters, may show how this issue will play out in the lower courts.

Justice Brett Kavanaugh wrote: “… [T]his case is the multi-decade inability of the political branches to provide DHS with sufficient facilities to detain noncitizens…pending their immigration proceedings.”

When speaking about detention, the dissenting opinion noted that “no one suggests that DHS must do the impossible.” But, when DHS can’t detain everyone at the border, it must expel them to Mexico to wait.

In December 2019, the immigration court backlog was about one million cases. By December 2021, it grew to over a million and a half. A typical removal case can last about four years, making it hard to ignore the practical human rights considerations of those forced to wait in Mexico. Can a fair result ever be reached by requiring migrants to wait years without stable housing, and exposed to extreme violence and insecurity at the hands of criminal organizations?

This century-old question about how America should treat its newcomers continues. Once again, noncitizens are left in the crosshairs of a political agenda. With America’s historical incidents like Koramatsu condoning Japanese internment camps and Chae Chae Pin allowing the exclusion of all Chinese migrants, America should have more value for human rights. But with immigration laws making it so easy to disregard, this isn’t the last we’ll hear about Trump’s MPP.

Resources:

More Immigration Judges Leaving the Bench (syr.edu) Trac Immigration; More Immigration Judges Leaving the Bench (syr.edu) See Current Immigration Judges Hired by Fiscal Year, https://trac.syr.edu/immigration/reports/617/ Biden v. Texas, 597 U.S. ___ (2022). Immigration and Nationality Act, INA § 235(b)(2)(C); see also USC § 1225(b)(2)(C) as added by IIRIRA. In 1996, the agency charged with immigration enforcement was under the Immigration and Naturalization Service; The INS also issued guidance in 1997 and 1998 contemplating the use of Section 235(b)(2)(C) only as a “last resort” and only when the individual does not claim a fear of persecution related to Canada or Mexico. Mem. from Michael A. Pearson, Executive Assoc. Comm’r, Office of Field Ops., INS, Detention Guidelines Effective October 9, 1998 3 (Oct. 7, 1998); Mem. from Chris Sale, Deputy Comm’r, INS, Implementation of Expedited Removal 4 (Mar. 31, 1997) (same). Secretary Nielsen memorandum entitled Policy Guidance for Implementation of the Migrant Protection Protocols; *ICE-Policy-Memorandum-11088-1.pdf Biden v Texas, 597 U.S. ___ (2022). *Explanation of the Decision to Terminate the Migrant Protection Protocols (dhs.gov) See *Explanation of the Decision to Terminate the Migrant Protection Protocols (dhs.gov); U.S. Customs and Border Protection, “Migrant Protection Protocols FY2021,” https://www,cbp.gov/newsroom/stats/migrant-protection-protocols; U.S. Customs and Border Protection, “Migrant Protection Protocols FY2020,” https://www.cbp.gov/newsroom/stats/migrant-protection-protocols-fy-2020. See “Migrant Protection Protocols Metrics and Measures,” Jan. 21, 2021, available at https://www.dhs.gov/publication/metrics-and-measures. Biden v. Texas Biden v. Texas, Alito, J., dissenting at 2. Biden v. Texas, dissenting opinion at 2. Immigration Court Backlog Now Growing Faster Than Ever, Burying Judges in an Avalanche of Cases (syr.edu) Korematsu v. United States, 323 U.S. 214 (1944) Chae Chan Ping v. United States, 130 U.S. 581 (1889)