The Courts Restore the ‘Remain in Mexico’ Program: An End to Judicial Deference?


The Supreme Court on Aug. 24 declined to stay an injunction by Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas against the Biden administration’s termination of the “Remain in Mexico” program, formally known as the Migrant Protection Protocols (MPP). The U.S. Court of Appeals for the Fifth Circuit had earlier also declined to stay the injunction. The courts’ decisions failed to accord appropriate deference to executive decisions about foreign affairs and resource allocation in immigration enforcement. However, given the Fifth Circuit’s broad reading of the Supreme Court’s decision in Department of Homeland Security v. Regents of the University of California, faulting the Trump administration’s stated reasoning for rescinding Deferred Action for Childhood Arrivals (DACA), the administration’s wisest approach may be a fresh, more comprehensive explanation of its reasons for ending MPP. 


The MPP’s Operation and the Trump Administration’s Assessment 

The MPP, a signature initiative of the Trump administration, relied on a little used Immigration and Nationality Act provision—8 U.S.C. §1225(b)(2)(C)—that allows immigration officials to “return” certain new entrants to a country that is “contiguous” (bordering on) the United States while those foreign nationals await a full hearing before an immigration judge. From January 2019 to January 2021, officials implementing MPP removed almost 70,000 asylum-seekers to Mexico. But as the U.S. Court of Appeals for the Ninth Circuit noted in 2020 in upholding an injunction against MPP, the program exposed asylum-seekers to substantial risks. For example, while waiting for months for removal hearings, asylum-seekers struggled to obtain housing and evade criminal gangs. Journeys to the border for transportation to U.S. temporary hearing facilities were fraught with peril, as Stephanie Leutert wrote here. In addition, access to counsel was far more difficult from Mexico than it is in the United States, where accessing counsel is difficult enough. According to Human Rights First, less than 10 percent of MPP enrollees had legal representation. Moreover, because of safety issues, many subjects did not show up for their hearings and received in absentia removal orders. In some cases, according to Human Rights First, MPP enrollees were kidnapped, making attendance at hearings impossible unless their captors had a soft spot for immigration adjudication. 

The Trump administration in October 2019 provided its own analysis of MPP’s results. It cited two descriptively true facts, although their causation and normative implications are less clear: First, entries to the United States from Mexico by Central American families had dropped sharply, and second, in absentia removal orders were way up. According to Department of Homeland Security officials, both results occurred because MPP had reduced the number of noncitizens asserting baseless asylum claims. 


Grading the Trump Administration’s MPP Analysis

Upon closer examination, the October 2019 memo’s conclusions rate a mixed grade. Statistics from U.S. Customs and Border Protection (CBP) demonstrate a significant reduction in apprehensions of Central American families at the border during operation of MPP, although these reductions had just started at the time of the October 2019 memo. Compare CBP statistics for fiscal 2020 to statistics for fiscal 2019. Numbers for October 2019 to February 2020 (that is, before the coronavirus had an impact) reflect a median drop of approximately 60 percent during this period. 

The October 2019 memo is less persuasive on the causes of in absentia removals. The memo implies, but does not state expressly, that the principal cause of a noncitizen’s failure to appear is her claim’s lack of merit. On page 3, the memo refers to the substantial percentage of people who returned to their home country rather than continue in MPP. According to the memo, this data point suggested that “a significant proportion” of MPP enrollees had “chosen to abandon their claims.” The memo implies that enrollees with well-founded claims would stay the course. But the memo does not explore other reasons that at least some enrollees would leave the program. 

Those other reasons would include both the safety issues mentioned earlier and concerns about whether MPP would in fact provide a meritorious claimant with a fair hearing. The October 2019 memo’s analysis of the latter issue is oblique and insufficiently concrete. On page 3, the memo states that U.S. immigration judges—part of the Department of Justice’s Executive Office for Immigration Review (EOIR)—had granted a “small subset” of MPP subjects’ asylum claims. But the memo does not provide more specific information, although presumably the government had access to data on case outcomes. According to Human Rights First, the grant rate in MPP was 4.1 percent. That would suggest, at least in comparison with non-MPP immigration judge hearings, that immigration judges in MPP were granting asylum claims at lower rates than usual, based on statistics about claims of applicants within the United States. According to EOIR, in groups of asylum-seekers that asylum officers determine have a credible fear of persecution—about 50 percent of the total—the grant rate is 15 percent. (See the account in Justice Samuel Alito’s opinion for the Supreme Court on page 8 in Department of Homeland Security v. Thuraissigiam.) In an unscreened group such as MPP enrollees, the grant rate should be half that: 7.5 percent. The Human Rights First’s estimate of the grant rate—4.1 percent—is below that threshold. Of course, samples vary. But the Trump administration should have at least provided a specific figure. Without that specificity, it is difficult to evaluate the administration’s claim. 


The Texas-U.S. Agreement in the Trump Administration’s Final Days

The Trump administration took another step to reinforce MPP. Just before President Biden took office, the Department of Homeland Security signed an unprecedented agreement with Texas to consult with that state prior to any change in policy. But the validity of this agreement was in doubt from the start. First, the department’s signatory to the agreement, Ken Cuccinelli, had not been confirmed by the Senate and could not legally assume the position of deputy secretary of homeland security or even acting deputy secretary. That is why the memo identified Cuccinelli as the “Senior Official Performing the Duties of the Deputy Secretary.” It is not clear that under the law Cuccinelli even had the authority to act on the department’s behalf in executing the agreement. Moreover, Texas did not provide what contract law calls “consideration”—something of value—in exchange for the benefits that it received under the agreement. Under contract law, that lack of…


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