Troubling Signs in Biden Administration’s Recent Efforts to Reimplement Migrant Protection Protocols Program

Last June, the Supreme Court smacked down a Texas district court judge for ordering the Biden administration to engage with Mexico to reimplement a program that forced tens of thousands of non-Mexican asylum seekers to remain in Mexico during the pendency of lengthy removal proceedings in the United States. A 5-4 Court ruled that Judge Matthew Kacsmaryk and the Fifth Circuit Court of Appeals, which had affirmed the district court’s ruling, misinterpreted the statutory authority underlying the Migrant Protection Protocols (MPP) program, to turn a clearly discretionary power granted by Congress to the Secretary of Homeland Security into a mandate that tied the Secretary’s hands. The Court also expressed serious concern that a court would interfere with the executive’s Article II power to conduct foreign relations by “forc[ing] the Executive to the bargaining table with Mexico, over a policy that both countries wish to terminate, and [supervising] its continuing negotiations with Mexico to ensure that they are conducted ‘in good faith.’” With this strong win, why did the Biden administration, following a subsequent lower court ruling (for which DOJ recently noticed an appeal), once more ask Mexico for permission to restart the program? Did it mistakenly believe that it was required to do so – and, if so, what might this clear misapprehension signal for other immigration cases working their way through the courts? The administration’s recent outreach to Mexico regarding MPP became public when the government of Mexico two weeks ago shut the door on working with the Department of Homeland Security (where I worked as Deputy General Counsel from 2021-2022) to reimplement the program. DHS replied to press inquiries about Mexico’s announcement by saying that its ability to implement the program “pursuant to court order” has always depended on Mexico’s willingness to accept people being returned to that country. While true, that is also beside the point: although the district court in August 2021 ordered the administration to reimplement the program, its December 2022 decision following the Supreme Court rebuke simply blocked the Secretary’s termination of the program for a third time, but ordered it to do nothing more. There are three possible reasons why the administration pursued reimplementation of MPP. First, the U.S. government may have reengaged Mexico hoping and expecting that it would do precisely what it did: publicly reaffirm that it has no interest in allowing the United States to reimplement the program. Such a statement may be tactically useful in pending litigation. For instance, as Mexico’s consent and close cooperation is a necessary precondition for the United States using MPP, its public opposition highlights the absurdity of the district court’s seeming obsession with obstructing the administration’s attempts to do exactly what the Supreme Court said it lawfully could do: end the program. Second, the U.S. government may have reengaged Mexico because some in the administration actually want to restart MPP. If so, that is certainly their prerogative, but it would be a concerning development given the strong record the administration itself established to justify its decision to twice terminate the program. In October 2021, DHS Secretary Alejandro Mayorkas described MPP as resource-intensive, distracting from more comprehensive efforts to work with regional partners to manage migration effectively, and inconsistent with the nation’s values. A final possibility is that some in the Biden administration genuinely believe Kacsmaryk’s decision compelled it to take steps to reimplement MPP, including by reengaging with Mexico. If that is the case – and DHS’s press response suggests it might be – alarm bells should be sounding. The district court’s impermissible intrusion into matters of foreign relations entrusted by the Constitution to the executive featured prominently during oral argument in the case before the Supreme Court, and was a core part of the analysis in Chief Justice John Roberts’s majority opinion and Justice Brett Kavanaugh’s concurrence. While Kacsmaryk later preliminarily blocked the administration from taking down the policy architecture undergirding MPP, he stopped well short of ordering the government to work toward reimplementing the program because the Supreme Court clearly admonished him against issuing such an order. In fact, unlike earlier in the case, Texas itself didn’t even seek such an order in the relevant court filings. If some in the administration believe they were under a court order to reengage with Mexico, that could have negative repercussions beyond the immediate case. Late last month, for instance, 20 Republican state attorneys general filed a lawsuit in another cherry-picked Texas courtroom before Judge Drew Tipton to block a series of new measures that will allow up to 30,000 individuals from Cuba, Haiti, Nicaragua, and Venezuela to enter the United States each month through a process called “parole.” The parole processes are legally sound for myriad reasons, but perhaps the most compelling is that Congress entrusted the Secretary with the discretionary authority to determine when to grant individuals parole for significant public benefit, and that determination may be informed by matters of foreign relations entrusted by the Constitution to the executive. That is the case here. The parole processes were developed as part of a broader set of border management and orderly pathway reforms that the administration credits with reducing border encounters of nationals from these four countries by 97 percent, and overall Border Patrol apprehensions by 42 percent. This package of reforms appears to be the result of bilateral negotiations with the governments of Mexico and Cuba, as well as multilateral talks among heads of state throughout the Western Hemisphere. The parole processes advance commitments made by the United States and 20 other countries under the Los Angeles Declaration on Migration and Protection to “expand access to regular pathways for migrants and refugees” and are designed to relieve pressure on the governments of Costa Rica, Guatemala, Honduras, Mexico, and Panama, which are all affected by high levels of irregular migration through their countries. The parole processes also were essential to securing Mexico’s agreement to accept the expulsion, return, or removal of up to 30,000 Cuban, Haitian, Nicaraguan, and Venezuelan nationals each month who likely would not otherwise have been removed from the United States because of significant repatriation challenges. In fact, the U.S. government hopes that the implementation of the Cuban Parole Process will advance ongoing bilateral talks with the government of Cuba to reactivate the Cuba Migration Accords and get the Cuban government to once again accept the repatriation of its nationals from the United States. The Supreme Court even examined the parole authority in the MPP case, and it was in that context that Kavanaugh – the fifth vote in the case – explained in a concurrence that where a Secretary’s decision to exercise their discretionary parole authority to advance a significant public benefit is supported by a “reasonable and reasonably explained” justification involving foreign policy concerns, courts must be deferential. Looking at the statutes at issue in the case, including the statute authorizing the use of parole, Kavanaugh found no basis to believe that “Congress wanted the Federal Judiciary to second-guess the President’s Article II judgment with respect to American foreign policy and foreign relations.” The lengthy and detailed Federal Register Notices accompanying each of the four new parole processes provide just that sort of “reasonable and reasonably explained” justification. The Supreme Court’s MPP decision, with which Justice Amy Coney Barrett concurred on the merits even as she dissented on the judgment, offers a powerful reason why the challenge to the new parole processes must be rejected quickly. And as the plaintiff states have now sought a preliminary injunction to block further implementation of these parole processes, if the district court or the Fifth Circuit do put them temporarily on hold, the Supreme Court must issue a stay to prevent these lower courts from once more erroneously dictating federal policy on matters that are entrusted to the executive, as Kascmaryk already did in the MPP litigation before the Court issued its reversal and as Tipton did more recently in the pending challenge to Mayorkas’s civil immigration enforcement guidelines. Understanding the significance of the Supreme Court’s MPP decision is critical to understanding why the administration would be dead wrong if it believed Kascmaryk’s December ruling ever could have ordered the U.S. government to reengage with Mexico to restart MPP. But understanding the significance of the ruling also will be key for the administration to mount the strongest possible defense for the new parole policies. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.