U.S. Supreme Court to hear arguments seeking reinstatement of Remain in Mexico policy

Texas Attorney General Ken Paxton and Missouri Attorney General Eric Schmitt are leading lawsuit pending before nation's nine justices.

Updated: April 25, 2022 - 11:33pm

Texas Attorney General Ken Paxton and Missouri Attorney General Eric Schmitt are heading to the U.S. Supreme Court again on Tuesday, arguing the Biden administration must follow federal law and fully reinstate the Migrant Protection Protocols, otherwise known as the Remain in Mexico policy.

It’s the second time they’ve argued before the court in a lawsuit they filed against the administration since last April. Last August, the Supreme Court rejected the administration’s request to stay a lower court’s ruling requiring it to reinstate the MPP.

“Missouri and Texas filed suit after the Biden Administration suspended the policy and obtained a permanent injunction in federal court, and then successfully defended that injunction in the 5th Circuit Court of Appeals and the Supreme Court of the United States," Schmitt told The Center Square. "We look forward to presenting our arguments in front of the Supreme Court and continuing our winning streak against the Biden Administration,"

Last August, U.S. District Judge Matthew J. Kacsmaryk of the Northern District of Texas ordered the administration to reinstate the MPP, ruling that halting it violated the Administrative Procedures Act. The Fifth Circuit Court of Appeals upheld Kacsmaryk’s ruling more than once, determining the administration also violated federal immigration law.

The administration argues the MPP is inhumane and has fought the AGs in court even after the Supreme Court’s decision. In its most recent filing with the Supreme Court, it argues that courts ordering the Department of Homeland Security to reinstate the MPP is “unprecedented.”

The MPP, enacted in 2019, applies “to aliens who have no legal entitlement to enter the United States but who depart from a third country and transit through Mexico to reach the United States land border.” It requires those seeking to enter the U.S. to remain in Mexico while their immigration applications are considered, which can take years.

On President Joe Biden’s first day in office, DHS announced it was no longer enrolling illegal immigrants into the MPP effective Jan. 21, 2021. Last February, DHS began processing MPP enrollees in Mexico and releasing them into the U.S.

Doing so, it said, was “to reform immigration policies that do not align with our nation’s values.” This was also part of a “first step in a phased approach to restore safe and orderly processing at the Southwest Border,” it said.

But the administration’s approach isn’t safe or orderly, it’s created chaos, the Schmitt and Paxton argue.

“Before the Migrant Protection Protocols, illegal immigrants were released into the interior with a court date, never to be seen again,” Schmitt told The Center Square. “The Migrant Protection Protocols were a successful tool for curtailing the influx of illegal immigrants and securing the border.

“Because of the Biden Administration’s lax border policies, illegal drugs like fentanyl are streaming across our border and human traffickers are thriving,” he said, endangering and killing Americans in the process.

In addition to leading increased criminal activity, Biden's border policies are draining resources, Paxton said.

“President Biden could immediately remedy the influx of crime pouring across our border by reinstating the Migrant Protection Protocols,” Paxton argued when he filed the lawsuit. “Dangerous criminals are taking advantage of the lapse in law enforcement and it’s resulting in human trafficking, smuggling, a plethora of violent crimes, and a massive, unprecedented burden on state and federal programs for which taxpayers must foot the bill. We cannot allow this lawlessness to destroy our communities any longer.”

By last June, DHS expanded its criteria for MPP enrollees to be processed and released into the U.S. DHS Secretary Alejandro Mayorkas also implemented a wide range of policy changes to effectively halt most deportations and directed CBP and Border Patrol agents to release illegal immigrants into the U.S. en masse.

Most of the 15,000 Haitians who initially arrived in Del Rio, Texas, last September and many of the two million illegal immigrants encountered or apprehended by Border Patrol during Biden’s first year in office, for example, wouldn’t have been released into the U.S. if the administration had complied with Judge Kacsmaryk’s order, the AGs argue.

Under the Biden administration, enforcement mechanisms don’t exist to ensure that illegal immigrants attend immigration hearings once they’re in the U.S., the AGs argue, and those with deportation orders aren’t being deported.

Last year, the administration acknowledged that more than 50,000 people released into the U.S. failed to report to their deportation proceedings and that court information was missing for 40,000 people in just a five month period last year.

According to court filings, more than 1.2 million people with court orders for deportation were still living in the U.S. as of last February.

With the administration estimating that roughly 18,000 people a day will enter U.S. custody once Title 42 is repealed in May, the AGs argue forcing the administration to follow the law is imperative for the safety of Americans. Both Paxton and Schmitt have sued separately to keep Title 42, a public health authority that enables federal agents to quickly expel illegal immigrants during a public health emergency, in place. They’ve both called for Mayorkas’ resignation.

DHS announced it was reinstating the MPP in “good faith” last December but also argued that DHS has the authority to parole illegal immigrants, allowing them to stay in the U.S. while their cases progress.

The Fifth Circuit rejected the administration’s arguments.

Judge Andrew Oldham argued federal immigration law “… requires DHS to detain aliens, pending removal proceedings, who unlawfully enter the United States and seek permission to stay.”

Because DHS lacks the physical capacity to hold the volume of people entering the U.S. illegally, the MPP was implemented. The statute directs the government to return individuals to contiguous countries while their cases are pending, Oldham explained.

“That safety valve was the statutory basis for the protocols,” Oldham argued. “DHS’s termination decision was a refusal to use the statute’s safety valve. That refusal, combined with DHS’s lack of detention capacity, means DHS is not detaining the aliens that Congress required it to detain.

“The idea seems to be that DHS can simply parole every alien it lacks the capacity to detain. But that solves nothing: The statute allows only case-by-case parole. Deciding to parole aliens en masse is the opposite of case-by-case decision making,” Oldham argued.

The administration's stance would have implications for the separation of powers, Oldham said.

“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. If the Government were correct, it would supplant the rule of law with the rule of say-so.

“We hold the Government is wrong.”

The AGs are hoping the Supreme Court agrees with Oldham and upholds Kacsmaryk’s ruling.

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