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Prof. Peter Margulies, Sept. 3, 2021
"The Supreme Court on Aug. 24 declined to stay an injunction by Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas against the Biden administration’s termination of the “Remain in Mexico” program, formally known as the Migrant Protection Protocols (MPP). The U.S. Court of Appeals for the Fifth Circuit had earlier also declined to stay the injunction. The courts’ decisions failed to accord appropriate deference to executive decisions about foreign affairs and resource allocation in immigration enforcement. However, given the Fifth Circuit’s broad reading of the Supreme Court’s decision in Department of Homeland Security v. Regents of the University of California, faulting the Trump administration’s stated reasoning for rescinding Deferred Action for Childhood Arrivals (DACA), the administration’s wisest approach may be a fresh, more comprehensive explanation of its reasons for ending MPP. ...
While judicial decisions in this matter have departed markedly from precedent, the simplest course of action for Mayorkas may be to start from scratch, resume MPP in some form and issue a new memorandum. In this new memo, Mayorkas could mention the Texas agreement, although that agreement has now been officially terminated. Mayorkas could also discuss the Trump administration’s October 2019 memo on MPP and more concretely address MPP’s impact on border arrests. In addition, a new memo could provide more detail on in absentia removals, without addressing matters that would be unduly embarrassing for Mexican officials.
A new memo could also discuss an important August asylum initiative undertaken by Mayorkas and Attorney General Merrick Garland. This proposed rule flowed from an earlier proposal by former Immigration and National Service (ICE predecessor) Commissioner Doris Meissner. The Mayorkas asylum plan called for asylum officers to take over more of the adjudication currently done by immigration judges. The explanation for the rule suggests that this plan will accelerate adjudication by using the more informal asylum officer approach. Asylum officers also have the training to understand refugee claims and sort out well-founded from unfounded allegations. The program promises to reduce the backlog of far more than 1.3 million cases in immigration court and streamline enforcement of the Immigration and Nationality Act, while maintaining or even raising the rate of accurate asylum decisions. This program was not part of the record for the district court or the Fifth Circuit, but it will be part of the record in any future court cases if Homeland Security decides to go “back to the drawing board” and issue a new memo on ending MPP.
A new explanation of reasons for halting MPP would discuss both the new asylum adjudication proposed rule and the possibility of a pilot program involving asylum adjudication in Mexico. This last measure would show a concrete commitment to regional asylum adjudication mechanisms, which would be an important step forward.
In sum, the courts’ response to the Biden administration’s decision to terminate MPP has conflicted with established precedent on judicial deference in the arena of foreign affairs. This pivot may be part of a “new normal” that has deleterious consequences for the separation of powers. As the Biden administration waits to see how the courts respond, it needs to be proactive. A new memo on MPP would demonstrate that the Biden administration is making the appropriate adjustments to the policymaking process."