The U.S. Supreme Court has agreed to hear arguments from Biden vs. Texasan appeal filed by President Joe Biden’s Justice Department against a lower court ruling in favor of Texas and Missouri.
The appeal seeks to end a key policy to deter fraudulent asylum claims by foreigners.
It involves former President Donald Trump’s migrant protection protocols – better known as the “Remain in Mexico” policy – and whether they will continue under a hostile Biden administration that has sought to end them.
Implemented by the Department of Homeland Security in January 2019, the policy returned tens of thousands of foreigners (who were not Mexican) to Mexico – who claimed they were entitled to asylum after crossing the border south – while their claims were being investigated.
The alternative was to release them inside the United States, where they often disappeared into the vast interior of the country, never showing up for their immigration hearings and remaining here indefinitely, breaking the law and avoiding deportation. .
Trump’s efforts to enforce our immigration laws stood in stark contrast to the current administration, which has taken the opposite approach. The latter has led to an unprecedented crisis at the border, with more than 2 million encounters by DHS with illegal aliens in 2021 and at least 600,000 other “leaks”, aliens who have escaped border patrol.
Policies implemented by the Trump administration, such as migrant protection protocols, have eased the flow of foreigners into the United States, especially those making fraudulent asylum claims in order to avoid immediate deportation. .
With migrant protection protocols in place, the benefits were two-fold: fewer illegal aliens were released into the United States, and illegal immigration itself was discouraged.
DHS found that after the implementation of migrant protection protocols, the total number of border encounters decreased by 64%, while border encounters with illegal aliens from the Northern Triangle (Guatemala, Honduras and El Salvador ) decreased by 80%.
It would be an understatement to say that the Migrant Protection Protocols have been a hugely successful policy.
Data compiled following the implementation of the Migrant Protection Protocols also revealed that of the nearly 42,500 cases settled under the protocols, only 650 foreigners had legitimate asylum claims, while 32,638 received an asylum order. removal and that the remaining 9,206 cases were closed for other reasons.
This means that only 1.5% of asylum seekers had a valid asylum claim, while at least 77% of asylum seekers had no basis for admission and were deported instead of allowed to travel within the country.
As Texas and Missouri point out to their Supreme Courts briefAlthough DHS officials warned Biden’s transition team that suspending migrant protection protocols would lead to a resurgence of illegal aliens entering the country and overwhelm Border Patrol capacity and facilities, Biden suspended protocol registrations from his first day in office.
It was done with a two-sentence, three-line memorandum that offered no explanation for doing so.
Thus, a major change has been made to federal immigration enforcement policy – or, more specifically, non-application Politics. Unsurprisingly, the total number of border encounters rose from 75,000 in January 2021 to nearly 173,000 in April, then jumped again to 189,000 in June.
The alarming crisis on the southern border and reckless actions by the Biden administration led Missouri and Texas to file a lawsuit in federal court in April to challenge the January suspension of migrant protection protocols and seek a injunction to restore the policy.
They argued that the decision to suspend the policy was arbitrary and capricious, violating the Administrative Procedure Law; that the suspension failed to take into account the states’ confidence interests (the harms suffered by the states when the police were suspended); and that he violated the DHS Secretary’s mandatory detention obligations under 8 USC § 1225.
This law states that an alien “shall be detained” if it cannot be clearly determined whether he is entitled to admission, and that the secretary “may remove the alien” to contiguous foreign territory pending a procedure if there are not enough resources to detain all these people.
So, how did the Biden administration respond to the unprecedented border crisis? On June 1, DHS Secretary Alejandro Mayorkas permanently ended migrant protection protocols, ignoring the continued influx of illegal aliens crossing the border that by year’s end had caused the greatest recorded number of illegal aliens to have crossed our border.
the the district court ruled in favor of the states, enjoining the actions of the Biden administration and restoring protocols. The administration requested a suspension of this decision, which was rejected, then tried again with the Supreme Court, which also rejected the stay request on the grounds that it was unlikely that the administration would be able to demonstrate that its decision was not arbitrary and capricious.
The government then appealed to the 5th Circuit Court of Appeals. While this appeal was pending, DHS released additional memos that again terminated migrant protection protocols with additional rationale.
The U.S. 5th Circuit Court of Appeals found that these new memos had no legal effect and affirmed the district court injunction in December. After that loss, the administration appealed to the Supreme Court, which accepted the case in late February.
So what exactly is the advice of the administration arguments for permanently end migrant protection protocols? It boils down to this – that the word “may” in “may remove the alien” under §1225 gives the DHS Secretary discretion not to remove the claimant, and that the word “shall” in “shall hold the foreigner” also means the same thing as “may”, thus giving the secretary the same discretion to release the foreigner inside our country.
No wonder the government has continually lost this case in lower courts. Not only are such arguments absurd, but they are also directly contradicts by previous Supreme Court decisions, such as Jennings v. Rodriguez (2018), who rejected the discretionary interpretation of the word “shall” in this same law.
As Texas and Missouri say, since the Border Patrol does not have the ability to detain all foreigners as it is required to do by law, returning them to Mexico “is the only way for DHS to d ‘avoid violating its detention obligations’.
When “one has both a duty and an optional method of fulfilling the duty”, the states assert, “and in the circumstances the option is the only means of fulfilling that duty, the option becomes obligatory”.
Above all, it appears the Biden administration is insisting on releasing illegal aliens into the country despite an ongoing immigration crisis caused by Biden’s de facto open border policy, the clear factual evidence at hand. support for the effectiveness of the protocols and the total absence of a coherent legal argument justifying the suspension and termination of the contract.
As the states put it, the Biden administration is trying to “overturn the law by turning a mandatory detention regime into a class-wide release program.”
For an ordinary American, all of this makes no sense. And it shouldn’t make sense to the justices of the United States Supreme Court either.
This piece originally appeared in The daily signal