They say some people just don’t learn. It appears President Biden is one of them. The Biden administration — at the end of December — filed a petition asking the Supreme Court to review lower court rulings on the administration’s attempt to end the Trump-era “Remain in Mexico” program.

While this may play well politically — for now — it is likely to bite the administration… hard.

Biden may very well end up stuck with a Supreme Court decision that will end his open border policy and that will serve as precedent for killing his executive branch refusal to do interior enforcement.

The background

The southern border experienced a surge in illegal crossings in 2018, causing a humanitarian and border security crisis. President Trump responded by using his authority under INA section 1225(b)(2)(C) to establish the Migrant Protection Protocols (MPP), commonly known as the “Remain in Mexico” program.

The goal of the program was to ensure that aliens attempting to enter the United States illegally or without proper documents would no longer be released into the country, which was thought to be encouraging more aliens to attempt such entries. This included asylum seekers because they frequently failed to file an asylum application and/or disappeared before their asylum claims could be adjudicated.

Aliens who crossed the land border with Mexico illegally or sought admission without proper documentation were returned to Mexico to wait outside of the United States pending removal proceedings before an immigration judge.

Biden’s unsuccessful attempts to end MPP

On Jan. 20, 2021, the Biden administration issued a statement that suspended new enrollments in the MPP program. On June 1, DHS issued a memorandum terminating the program because it was “not the best strategy for implementing the goals and objectives of the Biden-Harris administration.”

On Aug. 13, a federal district court held in Texas and Missouri v. Biden that the MPP termination was unlawful procedurally because it did not comply with the provisions of the Administrative Procedure Act (APA) and substantively because it caused the administration to systemically violate the mandatory detention provisions in INA section 1225.

The court ordered a permanent injunction requiring DHS to reinstate and maintain the MPP program until –

(1) DHS has sufficient detention capacity to detain all aliens subject to mandatory detention without releasing any aliens because of a lack of detention resources and

(2) The program has been terminated lawfully in accordance with the APA requirements.

Read more at

https://thehill.com/opinion/immigrat...at-he-asks-for

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 https://nolanrappaport.blogspot.com

They say some people just don’t learn. It appears President Biden is one of them. The Biden administration — at the end of December — filed a petition asking the Supreme Court to review lower court rulings on the administration’s attempt to end the Trump-era “Remain in Mexico” program.

While this may play well politically — for now — it is likely to bite the administration… hard.

Biden may very well end up stuck with a Supreme Court decision that will end his open border policy and that will serve as precedent for killing his executive branch refusal to do interior enforcement.

The background

The southern border experienced a surge in illegal crossings in 2018, causing a humanitarian and border security crisis. President Trump responded by using his authority under INA section 1225(b)(2)(C) to establish the Migrant Protection Protocols (MPP), commonly known as the “Remain in Mexico” program.

The goal of the program was to ensure that aliens attempting to enter the United States illegally or without proper documents would no longer be released into the country, which was thought to be encouraging more aliens to attempt such entries. This included asylum seekers because they frequently failed to file an asylum application and/or disappeared before their asylum claims could be adjudicated.

Aliens who crossed the land border with Mexico illegally or sought admission without proper documentation were returned to Mexico to wait outside of the United States pending removal proceedings before an immigration judge.

Biden’s unsuccessful attempts to end MPP

On Jan. 20, 2021, the Biden administration issued a statement that suspended new enrollments in the MPP program. On June 1, DHS issued a memorandum terminating the program because it was “not the best strategy for implementing the goals and objectives of the Biden-Harris administration.”

On Aug. 13, a federal district court held in Texas and Missouri v. Biden that the MPP termination was unlawful procedurally because it did not comply with the provisions of the Administrative Procedure Act (APA) and substantively because it caused the administration to systemically violate the mandatory detention provisions in INA section 1225.

The court ordered a permanent injunction requiring DHS to reinstate and maintain the MPP program until –

(1) DHS has sufficient detention capacity to detain all aliens subject to mandatory detention without releasing any aliens because of a lack of detention resources and

(2) The program has been terminated lawfully in accordance with the APA requirements.

Read more at

https://thehill.com/opinion/immigrat...at-he-asks-for

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 https://nolanrappaport.blogspot.com