Biden is establishing a safer version of Trump’s Migrant Protection Protocols (MPP) program, commonly is referred to as the “Remain in Mexico” program. According to Human Rights First, liberal advocacy non-profit, any version of this program would be unlawful, inhumane, and deadly; the group claims it puts asylum seekers into the hands of cartels and corrupt Mexican government agents who kidnap, rape, torture, traffic, and extort them.

Maybe, but Biden had no choice.

The courts forced him to restart Trump’s program — and although he could end it, I don’t think he will.

How we got here

Section 235(b)(2)(C) of the Immigration and Nationality Act (INA) provides that the DHS Secretary may return undocumented aliens who arrive by land to the contiguous country from which they came pending removal proceedings before an immigration judge.

Trump used this statutory authority in January 2019 to create the MPP program to deal with a surge in illegal border crossings by Central American families. The crossings fell sharply after the program was established.

But on June 1, 2021, Biden’s DHS Secretary terminated the program by issuing a memorandum that was promptly challenged in court.

On Aug. 13, 2021, a U.S. District Court Judge in Texas issued a decision holding that Biden’s termination of the program 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 program until he has the capacity and the willingness to comply with these provisions.

The pertinent part of the judge’s order reads as follows:

“Defendants are ORDERED to enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under Section 1255 without releasing any aliens because of a lack of detention resources.

“To ensure compliance with this order, starting September 15th, 2021, the Government must file with the Court on the 15th of each month, a report stating (1) the total monthly number of encounters at the southwest border; (2) the total monthly number of aliens expelled under Title 42, Section 1225, or under any other statute; (3) Defendants’ total detention capacity as well as current usage rate; (4) the total monthly number of “applicants for admission” under Section 1225; (5) the total monthly number of “applicants for admission” under Section 1225 paroled into the United States; and (6) the total monthly number of “applicants for admission” under Section 1225 released into the United States, paroled or otherwise.”

Biden’s dilemma

It wouldn’t be difficult for Biden to rescind the program in accordance with the APA requirements, but complying with the detention requirements is another matter.

Read more at ---

Published originally 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 him at