Biden Has The Power To End The Border Crisis Without Congress; He Just Doesn’t Want To.
With one stroke of a pen, our commander-in-chief could authorize the return of law and order to our border by shutting it down.With one stroke of a pen, our commander-in-chief could authorize the return of law and order to our border by shutting it down.Biden administration moves to end 'Remain in Mexico' policy after Supreme Court approval
While the FBI raid of Donald Trump's residence at Mar-a-Lago dominated news headlines Monday, the Department of Homeland Security quietly announced it will end the Trump-era "Remain in Mexico" policy and permit thousands of migrants to enter the country at the southern border.
The decision comes after a federal district court lifted an injunction blocking the Biden administration from ending the policy, officially known as Migrant Protection Protocols.
On June 30, the U.S. Supreme Court ruled in a 5-4 decision that the Biden administration had the legal authority to terminate the program. President Joe Biden had campaigned against Migrant Protection Protocols in 2020, arguing it was inhumane, like other Trump immigration policies he has repealed.
Under former President Donald Trump, the DHS required migrants seeking asylum in the U.S. to wait in Mexico for their immigration hearings. This policy was meant to address the widespread problem of migrants coming to the U.S. and disappearing within the country when they are supposed to show up in court. About 70,000 migrants were made to wait in Mexico under the Trump administration.
"As Secretary Mayorkas has said, MPP has endemic flaws, imposes unjustifiable human costs, and pulls resources and personnel away from other priority efforts to secure our border," the DHS said in a statement.
DHS officials said migrants are no longer being enrolled in MPP and individuals currently waiting in Mexico for their asylum claims to be processed will be disenrolled when they return to the U.S. for their court dates.
Biden first tried to repeal MPP in June of last year, arguing the policy was ineffective and inhumane. Immigration activists who strongly opposed the policy reported that migrants waiting in Mexican border cities had been victims of violent assaults, kidnappings, and other crimes. But U.S. District Judge Matthew Kacsmaryk blocked the DHS from repealing "Remain in Mexico" after Republican-led state officials sued claiming federal law required migrants arriving in the U.S. on land from a contiguous territory to be detained and removed.
The Supreme Court disagreed. The majority ruled that Congress has given the executive branch discretion to remove foreign asylum seekers, but that it was not required to do so.
DHS officials said the Biden administration continues to enforce the U.S. Centers for Disease Control and Prevention's Title 42 public health order, which requires asylum seekers to wait outside the U.S. and gives immigration officials power to expedite deportations.
"Individuals encountered at the Southwest Border who cannot establish a legal basis to remain in the United States will be removed or expelled," the DHS said.
Supreme Court hands Biden a win, clears way for repeal of Trump's 'Remain in Mexico' policy
President Joe Biden won a victory at the U.S. Supreme Court on Thursday after the court said he may repeal the Trump administration's "Remain in Mexico" immigration policy.
Under former President Donald Trump, the Department of Homeland Security required migrants seeking asylum in the U.S. to wait in Mexico for their immigration hearings. This policy, known as Migrant Protection Protocols, was meant to address the widespread problem of migrants coming to the U.S. and disappearing within the country when they are supposed to show up in court. About 70,000 migrants were made to wait in Mexico under the Trump administration.
Immigration activists opposed the "Remain in Mexico" policy, accusing it of being inhumane, and Biden sought to repeal it last year as part of his larger effort to reverse his predecessor's immigration policies. But a lower court blocked the administration from doing so.
The question before the Supreme Court was whether repealing the policy would violate federal law that requires migrants to be detained for immigration proceedings and, if that migrant arrives on land from a contiguous territory, gives immigration enforcement the option of removing those migrants.
The relevant statute says that any person applying for admission to the U.S. "shall be detained for a proceeding" unless they are "clearly and beyond a doubt entitled to be admitted." If the migrant came to the U.S. by land from a contiguous territory (Mexico or Canada), then "the Attorney General may return the alien to that territory" while they await their proceeding.
In a 5-4 decision, the court held that repealing Trump's Migrant Protection Protocols did not violate the law.
"If Congress had intended section 1225(b)(2)(C) to operate as a mandatory cure of any noncompliance with the Government's detention obligations, it would not have conveyed that intention through an unspoken inference in conflict with the unambiguous, express term 'may.' It would surely instead have coupled that grant of discretion with some indication of its sometimes-mandatory nature — perhaps by providing that the Secretary 'may return' certain aliens to Mexico, 'unless the government fails to comply with its detention obligations, in which case the Secretary must return them,'" Chief Justice John Roberts wrote for the majority.
"The statutory grant of discretion here contains no such caveat, and we will not rewrite it to include one," Roberts declared.
Roberts was joined by Justices Stephen Breyer, Elena Kagan, Brett Kavanaugh, and Sonia Sotomayor.
Justice Samuel Alito dissented and was joined by Justices Clarence Thomas and Neil Gorsuch. He argued that the government does not have the authority to release migrants into the U.S. if it appears that they are not admissible under the law.
"In fiscal year 2021, the Border Patrol reported more than 1.7 million encounters with aliens along the Mexican border. When it appears that one of these aliens is not admissible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided?" Alito wrote.
"Congress has provided a clear answer to that question, and the answer is no," he asserted, citing federal law that says an alien "shall be detained" for deportation if they have no legal right to enter the U.S.
Pointing out that the DHS "does not have the capacity to detain all inadmissible aliens encountered at the border," Alito said that the Biden administration's decision to release migrants into the U.S. ignores the solution federal law provides of having those migrants remain in Mexico.
"Rather than avail itself of Congress’s clear statutory alternative to return inadmissible aliens to Mexico while they await proceedings in this country, DHS has concluded that it may forgo that option altogether and instead simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings," Alito wrote.
"This practice violates the clear terms of the law, but the Court looks the other way," he said.
Exclusive: GOP Lawmakers Demand Details About U.S. Funding Of Migrant Shelters In Mexico
U.S. tax dollars are funding migrant shelters inside Mexico, but the Biden administration won’t release any details.5th Circuit sharply rebukes Biden administration for illegally ending 'Remain in Mexico' policy
The Biden administration has suffered yet another legal defeat in its bid to end the Trump-era "Remain in Mexico" immigration policy, this time in the Fifth Circuit Court of Appeals.
A panel of federal judges on Monday upheld a lower court decision that found the Department of Homeland Security unlawfully terminated the Migrant Protection Protocols created by the Trump administration, dubbed the "Remain in Mexico" policy for asylum seekers.
NEW: The 5th Circuit Court of Appeals denies the Biden administration\u2019s appeal of a judge\u2019s order that required the restart of the \u201cRemain in Mexico\u201d policy. \n\nThe ruling is quite\u2026direct. \n\nH/t @ZoeTillmanpic.twitter.com/kfHVIx2w1y— Hamed Aleaziz (@Hamed Aleaziz) 1639451921
First implemented in 2019 under President Donald Trump, Migrant Protection Protocols require migrants seeking asylum in the U.S. to wait in Mexico for their U.S. court hearings. The policy was intended to reduce instances of "catch and release" — when asylum seekers gain entry into the U.S. and then disappear before their court hearings to dodge the possibility of deportation.
As a presidential candidate, Joe Biden described the policy as inhumane because of the dangers migrants may face while waiting in Mexico. Reversing Migrant Protection Protocols, along with several more Trump immigration policies, was among Biden's first acts as president.
However, a federal court ruled in October that Biden improperly ended the policy and ordered the DHS to restart the program. Monday's ruling by a panel of three Republican-appointed judges affirmed that lower court decision after the Biden administration asked the Fifth Circuit to end the lower court's order. The court rejected an argument from the DHS that the case is moot and that courts cannot review the administration's actions.
"DHS’s proposed approach is as unlawful as it is illogical," Judge Andrew Oldham wrote.
"DHS claims the power to implement a massive policy reversal — affecting billions of dollars and countless people — simply by typing out a new Word document and posting it on the internet. No input from Congress, no ordinary rulemaking procedures, and no judicial review," he said.
"We address and reject each of the Government’s reviewability arguments and determine that DHS has come nowhere close to shouldering its heavy burden to show that it can make law in a vacuum," he added.
Oldham made a point of sharply rebuking the government for skirting the administrative procedures enacted by Congress that the executive branch must follow to create or terminate policy.
"The Government's position in this case has far-reaching implications for the separation of powers and the rule of law. The government says it has unreviewable and unilateral discretion to create and eliminate entire components of the federal bureaucracy that affect countless people, tax dollars, and sovereign States. The Government also says it has unreviewable and unilateral discretion to ignore statutory limits imposed by Congress and to remake entire titles of the United States Code to suit the preferences of the executive branch. And the Government says it can do all of this by typing up a new 'memo' and posting it on the internet," Oldham wrote.
"If the Government were correct, it would supplant the rule of law with the rule of say-so. We hold the Government is wrong."
Under the ruling, DHS must continue the Remain in Mexico policy, though the Biden administration will likely appeal to the Supreme Court next.
Angered activists storm out of meeting with Biden administration: 'Reached a turning point'
Immigration activists stormed out of a meeting with top Biden administration officials on Saturday, apparently upset that President Joe Biden is breaking yet another campaign promise.
What is the background?
During his campaign, Biden promised to end former President Donald Trump's "remain in Mexico policy," which is officially known as Migrant Protection Protocols. Trump created the policy to end so-called "catch-and-release," where migrants seeking asylum in America are released into the U.S. while their case progresses through the immigration court system.
Biden initially made good on his promise. On his first day in office, Biden suspended the policy. The Biden administration formally ended the policy this summer.
However, the Supreme Court ruled in August that Biden needed to reinstate the policy. The administration announced Friday they would reinstate the policy to comply with federal court rulings.
What happened now?
Immigration activist met virtually with top members of the Biden administration on Saturday, including Homeland Security officials and the White House Domestic Policy Council's Esther Olavarria, Politico reported.
At some point, "dozens" of activists stormed out of the meeting, angry over Biden's broken promises. The activist were reportedly upset that Biden will enforce the "remain in Mexico" policy.
Before leaving the meeting, the activist accused Biden of "playing politics with human lives." The activists reportedly said, "We have sadly reached a turning point."
"I cannot stand one more meeting of them pretending," Ariana Saludares, who attended the meeting, told Politico. "They give us accolades on the outside, but on the inside, we're having to take out the metaphoric knives from our back."
"It's almost like we were bamboozled into thinking that this was going to be the best option, and it isn't. It's actually worse," she added. "It is as if you know that your family is now turning against you and telling you that it's okay. It's not."
Luis Guerra, who also left the meeting, said, "We don't actually believe they're doing everything in their power to actually restore asylum at the border, the way that they say that they're trying to."
How did the Biden admin respond?
The White House attempted to sooth tensions with activists by reaffirming the Biden administration's disagreement with MPP.
"The Biden Administration has been very clear that MPP is not an immigration policy we agree with or support. That's why the Department of Homeland Security immediately appealed the court injunction once it was ordered," a White House official told Politico.
"We are incredibly thankful and appreciative of the work immigration advocates and organizations do around the clock to improve our immigration system," the official added.
Biden to temporarily reinstate 'remain in Mexico' policy per judge's orders
A little over four months after President Joe Biden officially ended his predecessor's "remain in Mexico" policy, his administration is set to put the controversial policy back into effect after a federal judge said Biden's termination of the program violated the law.
Administration officials told the press Friday that Migrant Protection Protocols — a policy requiring migrant asylum seekers to wait in Mexico for their U.S. court hearings — will be temporarily reinstated in mid-November as the administration prepares another attempt to end the program.
Former Republican President Donald Trump implemented the MPP policy in 2019 as a means of ensuring that migrants who traveled to the southern border claiming to seek asylum did not enter the country illegally and then disappear before their court hearings. An estimated 68,000 migrants were returned to Mexico under Trump's policy, according to the Department of Homeland Security.
Biden, a Democrat, campaigned against MPP, claiming it was inhumane. Shortly after he took office in January, Biden paused the program as part of a wider effort to reverse many of Trump's immigration policies.
In April, Missouri and Texas sued the Biden administration, arguing that pausing MPP led to a surge of illegal immigration at the U.S.-Mexico border that inflicted costs on the states. The Department of Homeland Security attempted to officially rescind the policy in June, when DHS Secretary Alejandro Mayorkas said it did not "adequately or sustainably enhance border management."
Then in August, a federal judge blocked the Biden administration from enacting its plan to end the "remain in Mexico" policy. The Biden administration appealed its case to the U.S. Supreme Court, which refused to take it up in a 6-3 decision, leaving the lower court's ruling in effect.
Now, according to Reuters, the Biden administration is in the tricky position of having to restart the "remain in Mexico" program while also trying to end it:
The administration has said it will comply with Kacsmaryk's ruling "in good faith" while continuing its appeal in the case. The administration also plans to issue a fresh memo to terminate the program in the hopes it will resolve any legal concerns surrounding the previous one, officials said.
"Re-implementation is not something that the administration has wanted to do," a U.S. Department of Homeland Security (DHS) official, speaking on condition of anonymity, said in a call with reporters. "But in the interim we are under this obligation of the court."
In a court filing late on Thursday the administration said that "although MPP is not yet operational," they are taking all the steps necessary to re-implement it by next month.
Those steps include preparing courts, some housed in tents, near the border where asylum hearings could be held. The administration said in the filing that these facilities will take about 30 days to build, costing approximately $14.1 million to erect and $10.5 million per month to operate.
The Biden administration is communicating with Mexico on how to reinstate the policy. Mexico's foreign ministry said in a statement on Thursday that it has a "number of concerns" over MPP, including due process for migrants, legal certainty, access to legal aid, and the safety of migrants.
The DHS added in a statement that Mexico must agree to accept the return of asylum seekers into its custody in order to implement MPP.
"Significantly, Mexico is a sovereign nation that must make an independent decision to accept the return of individuals without status in Mexico as part of any reimplementation of MPP. Discussions with the Government of Mexico concerning when and how MPP will be reimplemented are ongoing," the DHS said.
Against campaign promise, Biden considers watered-down version of Trump-era 'remain in Mexico' policy
Backed into a corner by the Supreme Court, President Joe Biden is reportedly considering enacting a "lite" version of the Trump-era "remain in Mexico" immigration policy.
What is the background?
Former President Donald Trump enacted an immigration policy that forced most asylum-seekers to remain in Mexico while American immigration courts ruled on their claims. The policy, also known as Migrant Protection Protocols, sought to eliminate so-called "catch and release," whereupon migrants are released into the U.S. general public, potentially slipping into the shadows of society, while their case progresses through the immigration court system.
The policy, which proved effective, was overturned by Biden, who campaigned on a promise to end the policy. After announcing a suspension of the policy on his first day in office, the Biden administration formally ended the policy this summer.
The Supreme Court last month upheld a lower court ruling that ordered the Biden administration to reinstate the policy "in good faith until such a time as it has been lawfully rescinded in compliance with the [Administrative Procedure Act]." That federal judge also said Biden "failed to consider several critical factors, including the benefits of the remain in Mexico policy" when canceling the policy.
The Department of Homeland Security said it would "comply with the order in good faith," but said the agency would still seek an appeal.
What is happening now?
To comply with the court's order, the Biden administration is considering a watered-down version of the "remain in Mexico" policy, although it's not clear how a "lite" version would carry out the policy "in good faith" as ordered.
Politico reported:
The new proposal — what some have dubbed "Remain in Mexico lite" — would require a small number of asylum seekers to wait in Mexico for their cases to be processed but give them better living conditions and access to attorneys, according to three people familiar with the discussions.
The administration is starting talks with Mexico in a bid to strike a balance between abiding by a federal court order and making good on the president's campaign promises. A federal judge ruled last month that President Joe Biden's attempt to end the program — a pledge he made on the campaign trail — violated the law.
Immigration advocates, however, are demanding Biden ignore the Supreme Court, much like his administration did with the eviction moratorium.
Michael Tan, deputy director of the ACLU's Immigrants' Rights Project, said restarting MPP, even a watered-down version of the program, is "completely unacceptable."
"What the administration should be doing — and hopefully is already doing — is working on a new memorandum that responds to the concerns of the district judge in Texas, and terminates the program again," Tan said.
Marielena Hincapié, executive director of National Immigration Law Center, agreed.
"One of his campaign promises was to end MPP. He did that. He should stand by that," Hincapié told Politico. "The answer is not to simply find a gentler, kinder MPP 2.0. That completely flies in the face of his promise."
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