A U.S. District Court Judge in Texas has issued a decision ordering President Biden to implement and enforce former President Donald Trump’s Migrant Protection Protocols (MPP) in good faith. The MPP is also known as the “Remain in Mexico” program.

Biden had suspended new enrollments in the MPP program on Jan. 20, 2021, and then permanently terminated the program on June 1. The judge held that the termination was unlawful procedurally because it did not comply with the provisions of the Administrative Procedure Act (APA).

The judge also held that the termination was unlawful substantively because it caused the administration to systemically violate the mandatory detention provisions in Section 1225 of the Immigration and Nationality Act (INA). Biden cannot lawfully terminate the MPP program until he has the capacity and the willingness to comply with those detention provisions.

The surge

The need for more detention facilities if aliens are not returned to Mexico under the MPP program was caused by the surge in illegal crossings that has occurred since Biden became president. The number of Border Patrol encounters with illegal crossers at the Southwest border has risen steadily from 101,098 in February, Biden’s first full month in office, to 212,672 in July, which is a 21-year high.

I haven’t been able to find statistics on how many of these illegal crossers were subject to mandatory detention, but I was able to learn that the Border Patrol stations and central processing centers along that border can only hold around 4,750 aliens.

Biden’s dilemma

It wouldn’t be difficult for Biden to rescind the MPP program in accordance with the APA requirements, but complying with the detention requirements in the order is another matter. He would have to break immigration campaign promises to do that.

His plan for “securing our values as a nation of immigrants” was supposed to end prolonged detentions and develop alternatives to detention generally.

Objective of the MPP program

Read more at https://thehill.com/opinion/immigrat...-policy-to-way

Published initially on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.