Almost immediately after President Joe Biden took office, his administration started to roll back his predecessor Donald Trump’s “Remain in Mexico” policy, which required many asylum seekers who arrive at the United States’ southern border to stay in Mexico while they await a hearing on their asylum claim.
In a memo outlining why the Biden administration abandoned “Remain in Mexico,” Secretary of Homeland Security Alejandro Mayorkas argued that the program drained limited border security resources, required diplomatic negotiations with Mexican officials that “draws away from other elements that necessarily must be more central to the bilateral relationship,” and forced many migrants to live in squalid conditions without “stable access to housing, income, and safety.”
On Friday, however, a Trump-appointed judge to a federal court in Texas effectively ordered the federal government to reinstate this Trump-era policy — which is officially known as the Migrant Protection Protocols (MPP) — permanently. Judge Matthew Kacsmaryk’s opinion in Texas v. Biden makes the implausible argument that a federal immigration law enacted by Congress in 1996 makes the Remain in Mexico policy mandatory, unless the federal government detains every asylum seeker who is not sent back to Mexico.
Trump’s Remain in Mexico policy was not implemented until early 2019. So the upshot of Kacsmaryk’s opinion is that the federal government was in violation of this 1996 statute for half of the Clinton administration, the entire George W. Bush administration, the entire Obama administration, and most of the Trump administration.
In reality, that 1996 federal law is part of a web of statutes and constitutional doctrines giving immigration officials multiple options when an asylum seeker arrives at the US-Mexico border. One provision of federal immigration law provides that most of these asylum seekers “shall be detained” while they await a hearing.
Option two is the one implemented by Trump’s Remain in Mexico policy. When an asylum seeker arrives by land from Mexico, the government may “return” that asylum seeker to Mexico while the potential immigrant awaits a hearing.
But another federal law enacted that same year, gives federal officials a third option. The government may “parole into the United States” an immigrant seeking admission to this country “for urgent humanitarian reasons or significant public benefit.” Thus, if the appropriate officials determine that there are adequate reasons to do so, an immigrant may remain in the United States without being detained prior to their hearing.
The federal government created special parole programs for certain categories of immigrants, including Haitians and Cubans with family in the United States, and children and family members of children from Central America. Other immigrants may request parole on an individual basis.
Kacsmaryk’s opinion largely ignores this third option. He claims that federal immigration law only “provides the government two options vis-à-vis aliens seeking asylum: (1) mandatory detention; or (2) return to a contiguous territory.” Then, after effectively erasing the government’s ability to grant parole to asylum seekers, Kacsmaryk orders the Biden administration to reinstate the Remain in Mexico policy “until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention ... without releasing any aliens because of a lack of detention resources.”
Additionally, courts and federal immigration officials have long recognized that the government has discretion not to bring enforcement actions against individual immigrants under a doctrine known as “prosecutorial discretion.”
All of which is a long way of saying that Kacsmaryk’s opinion is dead wrong. It ignores a key provision of federal law, as well as broader principles that have long guided immigration enforcement. But Kacsmaryk’s opinion is not an isolated attack on Biden’s immigration policy and the rule of law. Almost immediately after Biden took office, conservative federal judges started sabotaging the new president’s immigration policies.
Kacsmaryk’s decision, moreover, is expected to be appealed to the Fifth Circuit Court of Appeals, one of the most conservative courts in the country — and then potentially to a Supreme Court where Republican appointees have a 6-3 supermajority.
So, while Kacsmaryk’s opinion is wrong on the law, there is no guarantee that it will be reversed by a higher court.
Kacsmaryk would require the government to jump through impossible hoops before it can change Trump’s border policy
Kacsmaryk offers two interlocking reasons for reinstating Trump’s border policy. The first is his erroneous claim that the government only has two options when an asylum seeker arrives at the southern border. The second is that Kacsmaryk claims that the Biden administration failed to jump through the proper procedural hoops when it implemented a new policy.
As a general rule, federal agencies must offer a “reasoned analysis” explaining why they decided to implement a new policy before that policy can go into effect. And this requirement does occasionally require courts to strike down a policy because the government did not adequately explain itself.
In Department of Homeland Security v. Regents of the University of California (2020), for example, the Supreme Court held that the Trump administration did not provide an adequate explanation when it tried to rescind the Deferred Action for Childhood Arrivals (DACA) program, which allows hundreds of thousands of undocumented immigrants to work and to remain in the United States.
Generally, though, this “reasoned analysis” requirement is not particularly difficult to overcome. As the Fifth Circuit has explained, a court “may not substitute its own judgment for that of the agency.” Rather, “if the agency’s reasons and policy choices conform to minimal standards of rationality, then its actions are reasonable and must be upheld.”
On June 1, Secretary Mayorkas issued a seven-page memorandum that explains the Biden administration’s reasons for terminating the Remain in Mexico policy in considerable detail.
Among other things, Mayorkas concluded that the Trump era policy diverted limited immigration enforcement resources to “building, managing, staffing, and securing specialized immigration hearing facilities,” and to activities such as transporting asylum seekers from Mexico to their hearings. The policy also burdened immigration officials because many asylum seekers who were told to wait in Mexico made multiple attempts to cross the border. And that the Trump era policy “played an outsized role in the Department’s engagement with the Government of Mexico,” limiting the administration’s ability to pursue other, more effective goals in its diplomatic negotiations with Mexico.
Kacsmaryk claims that the Biden administration failed to offer a sufficiently reasoned explanation for why it changed its policy because the Mayorkas memo did not pay enough attention to certain conservative policy arguments — such as a fear that “‘the suspension of the MPP, along with other policies, would lead to a resurgence of illegal aliens attempting to illegally’ cross the border.”
It should go without saying that a federal agency should not be required to consider every possible argument against a new policy — if it were required to do so, no policy could ever be implemented because someone will always be able to invent a new argument against that policy. In theory, however, the Biden administration could overcome many of Kacsmaryk’s objections to the new policy by writing a more detailed memo.
The bigger problem with Kacsmaryk’s opinion, as noted above, is that the Trump-appointed judge pretends that the government only has two options when confronted with an asylum seeker at the southern border, when in fact the government may allow an asylum seeker to remain in the United States while their case is pending.
Kacsmaryk’s order effectively requires the federal government to leave the Remain in Mexico policy in effect permanently, unless it builds enough detention facilities to house all of the tens of thousands of individuals who arrive at the border seeking asylum.
Kacsmaryk’s opinion is just the latest attempt by a right-wing judge to sabotage Biden’s immigration policy
Kacsmaryk is one of many Trump appointees to the federal bench who appears to have been chosen largely due to his unusually conservative political views. Prior to becoming a judge, Kacsmaryk was deputy general counsel for the First Liberty Institute, a firm that largely litigates on behalf of causes of the religious right. In his past writings, he labeled being transgender a “mental disorder” and claimed that gay people are “disordered.”
As recently as 2015, Kacsmaryk published an article denouncing a “Sexual Revolution” that “sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”
He’s also the third conservative federal judge in Texas to strike down an immigration policy supported by the Biden administration.
On Biden’s first day in office, his administration announced a 100-day pause on deportations. Less than a week later, Judge Drew Tipton, a Trump appointee, blocked this pause on deportations. Tipton’s decision was at odds with a long line of Supreme Court decisions holding that courts should be very reluctant to intervene when the government decides not to take a particular enforcement action.
More recently, Judge Andrew Hanen, a judge whose nativist inclinations are so widely known that anti-immigrant plaintiffs often seek out his courtroom so that they will receive a friendly hearing, struck down the DACA program.
The Supreme Court’s decisions are supposed to give federal officials a great deal of discretion to shape immigration policy — and to afford mercy to individual immigrants. As the Court explained in Arizona v. United States (2012) “a principal feature of the removal system is the broad discretion exercised by immigration officials.”
But judges like Kacsmaryk, Tipton, and Hanen appear eager to strip the Biden administration of that discretion. With a 6-3 conservative Supreme Court overseeing the judiciary, these judges may very well get away with it.