Fifth Circuit Upholds Remain in Mexico Program, Rebukes Biden Administration’s Border Policies as “Misenforcement”

FAIR Take | December 2021

On Tuesday, December 14, 2021, the Fifth Circuit Court of Appeals rejected the Biden administration’s bid to reverse a district court order requiring the U.S. Department of Homeland Security (“DHS”) reinstate the Migrant Protection Protocols (“MPP”), better known as the Remain in Mexico program. MPP, which was implemented for the first time in 2019 but authorized by statute in 1996, allows DHS to require certain illegal border crossers to wait in Mexico pending their immigration proceedings rather than be detained or released in the United States.

The states of Texas and Missouri challenged the government’s suspension and later termination of MPP in federal court. The program cut off the most significant pull-factor for illegal border crossing and asylum fraud: the likelihood of being released into the United States. Illegal border crossings fell sharply after the Trump administration implemented the policy in 2019.

The Fifth Circuit Court of Appeals agreed that in terminating MPP, DHS violated both the Administrative Procedures Act (“APA”) and violated Congress’s statutory mandates in the Immigration and Nationality Act (“INA”).  As a result, the Court of Appeals preserved the district court order, which prohibits DHS from terminating the program until the government is both able to fully comply with procedures required by federal law and is able to regain control of the border.

Rebuking the Biden administration’s legal arguments, the Court of Appeals determined, “[t]he Government’s position thus boils down to this: We can’t do one thing Congress commanded (detain [inadmissible aliens in the United States pending their immigration hearings as required by federal law]), and we don’t want to do one thing Congress allowed [implement MPP]. Parole does not provide a way out of the box created by DHS’s can’ts-and-don’t-wants.”

Generally, federal law requires DHS to detain illegal border crossers while they are processed through expedited removal proceedings. The historic number of apprehensions of illegal border crossers on the southern border, however, has impeded DHS’s ability to detain even a small fraction of aliens subject to mandatory detention. CBP is on pace to apprehend over two million aliens in calendar year 2021 alone.

The Court of Appeals condemned the administration’s excessive use of parole, referring to the practice as DHS’s “pretended power to parole aliens while ignoring the limitations Congress imposed on the parole power.” The INA only allows DHS to parole aliens on only a case-by-case basis for “urgent humanitarian or significant public benefit” reasons.

Using parole, however, the Biden administration has permitted thousands of inadmissible aliens to be released in the interior of the United States and avoid statutorily-mandated detention. So far, few have appeared for the immigration court hearings. The court concluded that DHS’s use of parole is not a lawful exercise of non-enforcement or prosecutorial discretion. “That’s not nonenforcement; it’s misenforcement, suspension of the INA, or both.” The court went as far as to describe the government’s legal theory to be “as dangerous as it is limitless.”

As a result of the states’ court challenge, DHS restarted MPP in early December and is currently processing amenable aliens for the program through the following ports of entry: San Diego, Calexico, Nogales, El Paso, Eagle Pass, Laredo, and Brownsville. DHS has not announced whether it will appeal the decision to the U.S. Supreme Court. In August, however, the Supreme Court rejected the government’s initial bid to stay the district court order, concluding that the government “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.”