In an important decision on Dec. 13, 2021, in Texas v. Biden (Biden II), the U.S. Court of Appeals for the Fifth Circuit rejected the Biden administration’s latest bid to end the “Remain in Mexico” program (otherwise known as the Migrant Protection Protocols, or MPP). On Dec. 30, the U.S. Department of Justice responded with a petition for certiorari to the U.S. Supreme Court. As professors Cristina Rodriguez and Adam Cox noted on Dec. 21, the Fifth Circuit’s decision would preclude exercises of executive discretion that the Immigration and Nationality Act (INA) permits. However, both Rodriguez and Cox and the solicitor general’s certiorari petition go beyond that straightforward point, endorsing a more sweeping view of executive discretion that is also problematic. This post seeks to chart a course between these two extremes.
MPP: Trump Administration’s Fix for the INA’s Expedited Removal Process
The Trump administration, in starting MPP, relied on an INA provision—8 U.S.C. §1225(b)(2)(C)—that allows immigration officials to “return” certain new entrants to a country that is “contiguous” to the United States while those foreign nationals await a full hearing before an immigration judge. From January 2019 to January 2021, officials used MPP to remove almost 70,000 asylum-seekers to Mexico.
The MPP was part of the Trump administration’s campaign to reduce asylum claims, which have increased due to more migration from Central America’s Northern Triangle countries (Guatemala, Honduras and El Salvador). By starting MPP, the Trump administration sought to bypass a detailed statutory process—expedited removal (8 U.S.C. § 1225(b)(1))—that Congress added in 1996 to respond to an increase in immigrants at the southern border. Unfortunately, expedited removal has not acted as Congress planned. As part of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), expedited removal was itself an effort to bypass the then-current default procedure for asylum adjudication, which entailed a full hearing before an immigration judge in the Justice Department. Full hearings often took years to complete, especially if an applicant had been released from immigration detention under the government’s “parole” authority, under 8 U.S.C. § 1182(d)(5), which allowed release for “compelling” reasons in the public interest.
By providing for expedited removal, Congress aimed to establish a more efficient process for removing certain foreign nationals who are inadmissible to the United States under the INA—because they either lack a visa or have presented fraudulent entry documents. Under expedited removal, immigration officials can summarily remove foreign nationals at the border unless these people express a fear of persecution in their home country. If a foreign national at the border expresses this fear, an asylum officer within the Department of Homeland Security (DHS) interviews the subject to find out whether he or she has a “credible fear” of persecution. If the asylum officer finds credible fear, the subject gets a full hearing before an immigration judge. If the asylum officer finds no credible fear, the subject gets a truncated hearing before an immigration judge—often without counsel, since the government need not offer the noncitizen a lawyer and the short notice in expedited removal further limits access to legal representation.
Despite its name, expedited removal often does not work quickly. As the Supreme Court noted in DHS v. Thuraissigiam, the high volume of positive credible fear findings by asylum officers has produced extensive backlogs in immigration court. The backlog now includes 1.5 million cases. The government lacks the detention capacity to accommodate such a large number of noncitizens, often including families with young children. When the government releases a noncitizen who has received a positive credible fear finding, immigration court backlogs prompt long delays in adjudicating the merits of the noncitizen’s asylum claim: A noncitizen released today may not have a final hearing on the merits until 2025.
The Trump administration introduced MPP to replace asylum-seekers’ stay in the United States with a sojourn in Mexico. Under MPP, an asylum-seeker waits in Mexico until U.S. immigration officials summon the individual to a U.S. immigration court hearing. As noted earlier, the Trump administration placed tens of thousands of asylum-seekers in MPP.
The Trump Administration’s Evaluation of MPP
In October 2019, the Trump administration evaluated MPP’s results. The evaluation featured two claims, which were factually accurate but prompted questions about both causation and normative impact: Entries to the United States from Mexico by Central American families had dropped substantially, and in absentia removal orders in immigration court had increased markedly. According to DHS officials, these effects occurred because MPP had reduced the number of baseless asylum claims. The Trump administration’s analysis was stark: By keeping Central American families in Mexico, MPP had cut off aspiring entrants from the prospect of making their way to the U.S. interior, where greater economic well-being beckoned. Those diminished prospects in turn reduced the number of attempted entries. For similar reasons, the uncoupling of asylum adjudication and release within the United States made participation in removal hearings pointless, raising the number of noncitizens who chose not to appear in immigration court at the scheduled date and time. For the Trump administration, MPP had solved problems that had plagued expedited removal since the rise in Central American immigration.
The Biden Administration’s Assessment of MPP Through Supreme Court Review
Two events since the Trump administration’s laudatory 2019 evaluation of MPP have shifted the grounds of debate. First, in its 2020 decision, DHS v. Regents of the University of California, the Supreme Court held that the Trump administration had failed to engage in “reasoned decisionmaking” under the Administrative Procedure Act (APA) when the administration sought to end President Obama’s Deferred Action for Childhood Arrivals (DACA) program. Second, in January 2021, President Joe Biden took office, having as a candidate criticized MPP as unduly harsh.
The Supreme Court and DACA
In Regents, Chief Justice John Roberts wrote for the Court, noting that DACA provided a reprieve and eligibility for a work permit to noncitizens who arrived in the United States as minors accompanying their parents. According to Roberts, Secretary of Homeland Security Elaine Duke’s account of reasons for rescinding DACA had been cursory, relying on a largely unexplained conclusion by then-Attorney General Jeff Sessions that DACA was unlawful. Duke had failed to consider how ending DACA would affect the reliance interests of DACA recipients. In addition, Duke had not discussed whether ending the program would have collateral impacts on U.S. persons and entities with familial, educational and employment relationships with DACA recipients. Nor had Duke estimated the effects of ending DACA on state, local and federal governments, which received billions of dollars in revenue from sales and other taxes that recipients paid. The court had made clear that the Trump administration had discretion to end DACA. But exercising that discretion entailed an adequate discussion of reasons for its use. For Chief Justice Roberts, the Trump administration’s explanation lacked this account of reasons.
Roberts also declined to consider a subsequent memorandum issued in 2018 by Duke’s successor, Kirstjen Nielsen. Nielsen had explained that the Trump administration viewed the prospect of DACA’s continuation or expansion as a “pull factor” that would spur increased immigration outside the visa system. Cristina Rodriguez, a Yale law professor, observed in a recent article that although Nielsen’s arguments were debatable on policy grounds, they formed the kind of reasoned explanation that courts have routinely accepted. Seeing Nielsen’s memorandum in a different light, Chief Justice Roberts in Regents cited an administrative law doctrine that the Supreme Court had announced decades earlier in SEC v. Chenery Corporation, in which the Supreme Court had viewed certain agency explanations following the start of litigation as impermissible post hoc rationalizations concocted to please courts, not reliable guides to the agency’s initial decision-making process.
Viewing Chenery as applying to the case at hand, Roberts declined to consider the Nielsen memorandum. Dissenting, Justice Brett Kavanaugh read Chenery more narrowly, as merely requiring disregard of arguments made to courts by government lawyers that appeared to rewrite the rationale for decisions under review. Kavanaugh viewed Nielsen’s 2018 memorandum differently, as a new decision by a responsible official that courts could consider.
Biden’s Termination of MPP and the Explanations for Ending the Program
The Biden administration sought early on to end MPP. It stated its reasons in two related memoranda issued in June and October, respectively, by Secretary of Homeland Security Alejandro Mayorkas. Mayorkas issued the October 2021 memorandum after the Supreme Court and the Fifth Circuit declined to stay a preliminary injunction by U.S. District Court Judge Matthew J. Kacsmaryk of the Northern District of Texas against the Biden administration’s MPP termination. In December 2021, the Biden administration restarted the MPP program, thus complying with the injunction in place, even as the administration continued its termination effort.
The two related Mayorkas memoranda agreed that expedited removal had not worked as Congress had planned and, instead, had become a pull factor contributing to immigration flows outside the visa system, beyond the scale reasonably expected from meritorious asylum claims. However, starting with the June 2021 memo and continuing with refinements in the October 2021 memo, Mayorkas explained in detail that the Trump administration had oversold the benefits of MPP and ignored its risks.
MPP’s Effect on Immigration Flows
As I noted in an earlier post, Mayorkas in June 2021 should have discussed in greater depth how much weight to accord the Trump administration’s assertion that immigration arrests were down substantially during the period of MPP’s operation. The secretary’s observation in June 2021 that, “[o]ver the course of the program, border encounters [between immigration officers and noncitizens seeking to enter the United States] increased during certain periods and decreased during others” was unduly casual. While it is true that border apprehensions often fluctuate to some degree from month to month, the trend line during MPP’s operation formed a clear downward slope. If the Regents reasoned-explanation holding has any application to ending MPP, Mayorkas should have analyzed this issue more methodically.
In his October memorandum, Mayorkas elaborated on his earlier analysis, accepting that MPP’s operation coincided with lower border arrests, but questioning MPP’s causal role. For example, Mayorkas in his October memorandum argued that Mexico had ramped up its immigration enforcement efforts at the Guatemalan border. Moreover, in amplifying the point in the June memorandum that the relationship between border flows and MPP is uncertain, the October memorandum noted that even at MPP’s height, U.S. immigration officials handled 80 percent of prospective entrants under non-MPP programs. For Mayorkas, the prevalence of non-MPP programs suggested that other factors besides MPP helped to reduce attempted border-crossing during that period.
MPP’s Effect on Asylum Adjudication
Each of Mayorkas’s MPP memoranda made the normative point that the program materially interfered with the orderly adjudication of asylum claims, including meritorious applications. As University of Texas border expert Stephanie Leutert wrote here and here, the border regions of Mexico, where MPP enrollees often remained in improvised encampments, were fertile ground for criminal gangs that engaged in kidnapping and other violence. Journeys to the border for transportation to U.S. temporary hearing facilities were dangerous. In other cases, claimants stranded in Mexico could find not a lawyer or assemble documentation to support their claims.
In his June memorandum, Mayorkas found that the obstacles faced by MPP enrollees, including legitimate concerns about their safety, appear to have triggered “abandonment of potentially meritorious protection claims.” Mayorkas cited a statistic stressed by the Trump administration: the high percentage—44 percent—of in absentia removal orders. While the Trump administration had interpreted this statistic as indicating that enrollees abandoned unfounded claims, Mayorkas viewed this reading as unduly stark. Mayorkas expressed concern that while noncitizens walking away from dubious claims surely account for some in absentia orders, the high in absentia rate included claims that were either colorable or manifestly worthy of a grant of asylum.
Mayorkas added more detail to this point in his October memorandum. Citing new empirical research by immigration scholars Ingrid Eagly and Steven Shafer, Mayorkas concluded that the MPP in absentia removal order rate was disproportionately high—60 percent higher than the non-MPP rate. Eagly and Shafer’s analysis found that the statistical comparison of annual in absentia removal orders to total annual completed cases in immigration court reports was insufficiently precise. That immigration court statistic produced in absentia removal order rates for non-MPP cases that were similar to MPP rates. However, Eagly and Shafer showed that the immigration court’s comparison failed to consider the huge backlog of cases that continued to wend their way through immigration court each year, with hearings or other activity short of a final order.
Adding those cases in progress, which number in the hundreds of thousands, to the denominator of total cases lowers the in absentia removal order rate in non-MPP cases. That conclusion is important for assessing the Trump administration’s earlier claims in announcing MPP that in absentia removal order rates in standard immigration court cases showed an overwhelming trend toward asylum applicants failing to appear for their hearings. While applicants’ failure to appear is a genuine problem, the Trump administration overstated its frequency. Mayorkas endorsed Eagly and Shafer’s more comprehensive methodology in his October 2021 memorandum. Since MPP cases are processed far more quickly, Mayorkas accepted the Trump administration’s MPP estimated rate for in absentia removal orders with only a modest modification; the result was the October memorandum’s finding that MPP rates were markedly higher than those in ordinary immigration court cases.
In the October 2021 memorandum, Mayorkas also observed that the rates of immigration judges in MPP for asylum approvals were substantially lower than the grant rates in non-MPP cases. This statistic suggested that the program had created false negatives—asylum applicants wrongly determined to lack a well-founded fear of persecution. Based on such errors, U.S. officials may have returned asylum applicants to their countries of origin to face arrest, torture or death. Because, as the Supreme Court found in INS v. Cardoza-Fonseca, Congress crafted the asylum standard to avoid this risk of false negatives, continuing a program that yielded such outcomes to a disproportionate degree would have disrupted Congress’s plan. Mayorkas’s judgment in the October memorandum was that MPP caused both the high in absentia and low grant rates.
Reliance Interests and Collateral Impacts
The June 2021 Mayorkas memorandum discussed the collateral impact that ending MPP might have on U.S. “border communities” and officials in those communities. In the short term, ending MPP would result in the release of asylum-seekers into border communities, although from there the persons released could move anywhere in the United States. According to the June memorandum, the most effective way to address any adverse impact on border communities from additional persons who might need municipal services was collaboration with government and nonprofit groups to “connect migrants with short-term supports that … facilitated their onward movement to final destinations away from the border.”
While the June 2021 memorandum did not expressly address state governments or state budgets, the discussion above overlapped substantially with legitimate areas of state concern. Local governments that the June 21 memorandum cited are subdivisions of the state; each state provides financial assistance to local governments and often must authorize certain programs, such as local taxes and creation of public housing. States issue driver’s licenses that affect local traffic and exercise supervisory power over public education and public health. In addition, each state runs a prison system and collaborates with localities on law enforcement. These areas of interest closely tracked the areas mentioned in a now-discontinued agreement linked with certain states in the waning hours of the Trump administration—many of the same states, such as Texas, that challenged the Biden administration’s termination of MPP.
The October 2021 Mayorkas memorandum made these connections between state and local interests expressly clear. It mentioned costs that states might incur regarding driver’s licenses, education, health care and law enforcement. Mayorkas wrote that DHS had collaborated with state, local and tribal officials on addressing those projected impacts. In particular, Mayorkas mentioned substantial federal coronavirus testing efforts and federal aid to the placement of released noncitizens and their families at locations in the U.S. interior. Moreover, Mayorkas discussed extensive federal law enforcement aid on drug trafficking and transnational crime. Focusing on drug trafficking, Mayorkas noted that MPP had not appeared to affect trafficking in controlled substances, which either showed a long-term decline (in the case of marijuana) or, with hard drugs such as cocaine and fentanyl, occurred through designated ports of entry, not the undesignated points preferred by MPP enrollees.
Indeed, if Mayorkas gave short shrift to any collateral impacts on states of ending MPP, it was positive impacts. As this useful piece described and the Supreme Court observed in Regents, noncitizens in the United States, including those without a formal legal status such as DACA recipients, pay billions of dollars annually in state and local taxes, including sales tax. In his fine book, “Free to Move,” George Mason professor Ilya Somin documented the economic benefits that immigrants provide. That favorable impact of ending MPP was the biggest gap in Mayorkas’s explanation.
Impact on Foreign Relations
MPP’s adverse impact on the “important bilateral relationship” with Mexico was a focus of the June 2021 Mayorkas memorandum. MPP entailed removing 70,000 residents of third countries—primarily in Central America—from the United States to Mexico. All parties to the MPP litigation conceded that such a substantial action involving foreign nationals on Mexican territory required Mexico’s consent. As Mayorkas stated in each memorandum, this consent comes at a cost, both active and tacit. On the active side, obtaining consent is a negotiation, in which the United States has to make concessions that would not otherwise be necessary. On the tacit side, a huge program such as MPP tends to distract officials from other work that could be more pressing, such as transnational efforts to end drug smuggling. Dealing with this challenging problem demands “collaborative efforts” between states. The bureaucratic attention devoted to MPP on both sides of the border impaired those efforts.
The October 2021 memorandum presented more detail on the costs to the U.S.-Mexico relationship imposed by MPP. As Mayorkas described, MPP has siphoned off Mexican government resources from combating drug trafficking and human smuggling. Moreover, the need to devote resources and time to MPP had hindered efforts to stand up a workable regional model of asylum adjudication—a model that immigration law expert and former Homeland Security Deputy General Counsel David Martin outlined here.
MPP’s Drain on Enforcement Resources
In each of his memoranda, Mayorkas described the drain on DHS resources and personnel caused by MPP. DHS personnel had to provide transportation for MPP enrollees from the border to the U.S. site for removal hearings. In addition, DHS personnel had to help run the facilities set up for such proceedings. Furthermore, when MPP enrollees became impatient or fearful of criminal gangs that threatened them in Mexico, enrollees would try to enter the United States at undesignated points prior to their hearing date. DHS personnel had to detect and arrest these individuals, eating into the time available for other enforcement tasks.
The Fifth Circuit’s December 2021 Decision
In Biden II, the Fifth Circuit failed to show deference to the Biden administration’s termination decision. The Fifth Circuit had taken this tack earlier and failed to defer to the June 2021 memorandum. Its second decision on MPP’s termination adopted a similar stance. Biden II flowed from a broad reading of the Supreme Court’s Regents decision, which had found a lack of reasoned decision-making for the Trump administration’s DACA rescission. This broad reading of Regents started with the Fifth Circuit’s disregard for Mayorkas’s October 2021 memorandum.
Disregarding the October 2021 Memorandum
Fifth Circuit judge Andrew Oldham, who wrote for the court in Biden II, joined by his colleagues Rhesa Barksdale and Kurt Engelhardt, asserted that the October 2021 Mayorkas memorandum was similarly situated to the Nielsen 2018 DACA memorandum that Chief Justice Roberts declined to consider in Regents. Oldham described the agency actions in the two cases as “strikingly similar.” In each case, Oldham asserted, courts had rebuffed the initial justification that the agency proffered. In response, Oldham stated, the agency had stitched together a new set of reasons, more to placate the court than to accurately depict its own decision-making process. As a result, Oldham described the October 2021 memorandum in the same vein that Roberts had utilized for the Nielsen DACA memorandum: as “impermissible post hoc rationalizations” that seized on any convenient rationale, even if that rationale had “little relationship” to the first explanation that the agency had supplied. Consigned to this lowly realm, the October 2021 memorandum was simply unworthy of consideration.
Faulting the June Memorandum’s Explanation
Oldham also read Regents broadly on the scope and detail that an agency’s explanation had to provide. His opinion faulted the June 2021 memorandum’s handling of state reliance interests, access to asylum adjudication, scope of the parole authority that Congress delegated to the executive branch, and the foreign affairs impact of MPP. The following paragraphs discuss these issues in turn.
For Oldham and his colleagues on the Fifth Circuit, DHS had simply failed to address reliance interests at all. The court noted that the June 2021 memorandum had not expressly mentioned state interests. For Oldham, the June memorandum’s reference to “border communities” did not show “specific, meaningful consideration” of states’ reliance interests. As a result, much like the DACA rescission ordered by Duke, the MPP rescission was “arbitrary and capricious” under the APA.
Discounting Concerns About Access to Asylum and In Absentia Removals
Oldham dismissed DHS’s concern about in absentia removals. According to Oldham, the government’s concern was “irrational” and “nonsensical.” Supporting this view, Oldham cited the district court’s finding that the in absentia order rate for MPP was similar to the “annual case completions” in absentia order rate that the immigration court uses for non-MPP cases. Since those rates were similar, Oldham reasoned, the government had not shown that MPP had a particularly severe impact.
A Narrow Reading of Parole Authority Under the INA
While Oldham read Regents broadly, he read the government’s parole authority under 8 U.S.C. § 1182(d)(5) very narrowly. For Oldham, the government only had a tightly cabined authority to release asylum claimants. Oldham’s opinion cited the statutory language that authorized parole only based on “urgent humanitarian reasons” on a “case-by-case basis” and “compelling reasons in the public interest with respect to that particular alien.” While Oldham did not mention a set of facts that would meet these criteria, he asserted that the criteria barred the government from making group parole decisions. Parole that might affect a large cohort of noncitizens exceeded the government’s discretion, according to the court.
Minimizing Foreign Affairs Impacts
Finally, Oldham viewed any impact of the continuation of MPP on relations with Mexico as a “self-inflicted” wound by the government. According to the court, the government had ample notice that states such as Texas would seek to contest the termination of MPP. The government should have informed Mexico that the program would continue during judicial review. While Mexico might have expressed impatience, the U.S. government should have relied on Mexico’s “understanding” of the protracted U.S. process for approving program halts. If the U.S. government failed to elicit an accommodating posture from Mexico, it had only itself to blame.
The Justice Department’s Certiorari Petition
In the Justice Department’s petition to the Supreme Court, Solicitor General Elizabeth Prelogar addressed both the Fifth Circuit’s refusal to consider the October 2021 memorandum and the appellate court’s apparent requirement that the government continue MPP indefinitely. The government’s brief revealed the most serious flaws in the Fifth Circuit’s decision: its broad reading of Regents, stingy interpretation of parole authority, and casual approach to the complexities of foreign affairs. However, in making these arguments, the solicitor general injected needless formalism into Regents and took an unduly expansive view of the parole power that is inconsistent with statutory history and past practice.
A Modest Reading of Regents Is the Best Reading on Considering Sequential Government Reasons
While the government is correct that the Fifth Circuit erred in refusing to consider the October 2021 memorandum, the government’s reading of Regents is needlessly stylized. A straightforward reading is preferable, as I indicate here.
Under Regents, the October memorandum merits consideration because its explanation is reasonably related to the points in the June memorandum. Each component of the October document flows from an element in the earlier explanation. For example, the June mention of impacts on “local officials” and “border communities” encompasses state interests, since local governments are creatures of state law; states are inextricably bound up with local concerns, and vice versa. The October memorandum certainly has a closer functional relationship with its June predecessor than Nielsen’s 2018 statement had with Duke’s earlier justification for DACA’s rescission. The June and October MPP memoranda each hinge on policy issues such as local impacts, foreign affairs trade-offs and practical obstacles to asylum adjudication.
In contrast, while Duke’s 2017 DACA memorandum turned solely on a rote conclusion about DACA’s legality, Nielsen’s 2018 memorandum concentrated on policy. According to Chief Justice Roberts, the policy-laden Nielsen memorandum thus had “little relationship” to the earlier Duke document, which rested on the claim that DACA was unlawful, whatever its policy impact. While Justice Kavanaugh and Cristina Rodriguez may have been correct that Roberts overread the Chenery precedent to rule the Nielsen memorandum out of bounds, one can agree with Roberts in Regents and still find that courts must consider the October 2021 MPP memorandum.
This narrower reading of Regents is the simplest way to accomplish what the government wants, but the solicitor general in her argument refused to take yes for an answer. Instead, the government’s brief insists that the October 2021 memorandum represents an entirely new review of MPP. Admittedly, the brief tracks the October memorandum’s claim that Mayorkas had “considered [MPP] anew” after the Fifth Circuit’s response to the June memorandum. But, whatever its provenance, this stress on the need for a new determination is formalistic and implausible. The values of administrative law such as deliberation and transparency do not require a new determination. They require only a set of reasons that bear a functional relationship to the reasons that the agency originally cited. That is sufficient assurance that the agency is not making things up as it goes along and grabbing any handy rationale to fend off judicial scrutiny. Requiring a spanking new rationale gilds the lily.
Moreover, instead of promoting transparency, touting a new action does the opposite. An administrator’s rationale for starting or ending a program rarely undergoes a complete transformation. Today’s reasons inevitably benefit from yesterday’s process. Viewed in this light, the government’s “newness” test is both unnecessary and undesirable.
A Middle Course on Parole
On parole, as well, the government’s petition to the Supreme Court went further than it needed to in this case. The solicitor general did not provide any intelligible limiting principle for the parole power, arguing that its exercise is a matter of absolute executive discretion, wholly immune from judicial review. That position conflicts with the INA and with past practice.
Here, as with touting the October memorandum as a new action, the government’s position is unnecessary to decide the dispute that the solicitor general asked the Supreme Court to resolve. As the solicitor general’s brief asserted, parole decisions by each presidential administration since 1997—including President Trump’s—have in fact been “case-by-case.” That history belies the broader formulation of executive discretion at the start of the brief’s parole argument.
The statutory history shows that Congress sought to limit the president’s wielding of the parole power. As I’ve written, Congress enacted the current language of 8 U.S.C. § 1182(d)(5), with its requirement of “compelling” and “urgent humanitarian” justifications for parole, precisely because Congress wished to curtail the president’s parole authority. Moreover, past practice was more cabined than the solicitor general acknowledges. Consider an episode that academic proponents of a sweeping parole power cite: President Eisenhower’s parole of thousands of refugees from the failed 1956 Hungarian Revolution against Communist rule. Cox and Rodriguez, in their book “The President and Immigration Law,” asserted that the use of the parole power to aid the Hungarian refugees shows the unlimited range of parole authority. However, the reality was far more nuanced.
As the historian Stephen Porter explained in his comprehensive study, “Benevolent Empire,” the Hungarian refugee episode reflected a complex collaboration between the president and Congress. Soon after the Soviet Union crushed the uprising, members of Congress urged Eisenhower to help address the plight of refugees. For example, a leading immigration restrictionist, Democratic Rep. Francis Walter of Pennsylvania, advocated for the resettlement of Hungarians who faced retaliation by the Soviets for their role. Within a year, Walter started urging a retrenchment in refugee assistance, and the administration followed suit. While Eisenhower’s effort was noteworthy, dialogue with Congress heavily influenced the contours of the president’s initiative. Subsequent uses of the parole power, including efforts to aid Cubans after the Castro Revolution, followed the same pattern of partnership with the legislative branch. A sweeping interpretation of the parole power would not fit historical practice; as Josh Blackman has suggested regarding President Obama’s never-implemented Deferred Action for Parents of Americans (DAPA) program, such expansive readings lead to executive overreach.
Fortunately, that expansive reading is not necessary to remedy the flaws in the Fifth Circuit’s reasoning in Biden II. Recall that the Fifth Circuit relied on the criterion in 8 U.S.C. § 1182(d)(5)(A) that officials decide parole on a case-by-case basis. Parole typically involves case-by-case findings. An asylum officer’s favorable credible fear decision flows from a review of an asylum-seeker’s account of persecution based on specific grounds, including race, religion, nationality, political opinion, or membership in a particular social group. Other determinations, such as decisions about whether a noncitizen poses a danger or constitutes a flight risk, also result from individualized consideration. Of course, the accounts of certain groups of refugees possess unifying characteristics. For example, the Hungarian freedom fighters were all Hungarians who had contested Russia’s control. If some of the putative refugees turned out to be Bulgarians or Czechs, that individual difference would have undermined the merits of their claims to refugee status. Some use of categorical judgments is both necessary and desirable in asylum law and parole determinations. That use of categories informs individualized decisions. In ignoring this necessary relationship between categorical and individual judgments on the merits and on parole, the Fifth Circuit needlessly stifled government discretion that is entirely consistent with the INA.
The solicitor general’s brief is even more persuasive in addressing the impact of the Fifth Circuit’s decision on the United States’ relationship with Mexico. Here, the brief addressed an important question of statutory interpretation: how courts infer the meaning of congressional silence. When Congress enacts a statute but provides no express language on an issue with significant practical consequences, courts will usually conclude that Congress wished to preserve the status quo. This judicial view of congressional silence flows from basic premises about human behavior: If we intend to make a big change in our routine, we first deliberate about that change and announce our intentions, rather than pivoting on a whim without prior notice. As Justice Antonin Scalia wryly commented in 2001 in an aphorism that the solicitor general quoted, Congress does not usually put “elephants in mouseholes.”
The solicitor general applied this logic to the impact on foreign relations of a judicial order requiring the United States to continue a program that placed 70,000 non-Mexican nationals within Mexican territory, making those persons Mexico’s responsibility. As the solicitor general noted, the INA does not require this weighty move. Indeed, the brief “contiguous territory” subparagraph in the INA—8 U.S.C. § 1225(b)(2)(C)—takes up a few sparse lines in a section that devotes more than 50 lines to expedited removal. Moreover, the statutory history of the contiguous-territory provision suggests that Congress merely wanted to continue the status quo that an administrative tribunal, the Board of Immigration Appeals, had altered in a 1996 decision, Matter of Sanchez-Avila.
Restoring that status quo had a modest impact: It allowed immigration officials to continue the “ad hoc practice of returning selected noncitizens to Mexico or Canada” pending completion of a removal proceeding. Sanchez-Avila was a good example of the practice; he was a Mexican national and U.S. lawful permanent resident who lived in Mexico and commuted to the United States for work. Returning Sanchez-Avila to Mexico did not cause a major change in U.S. enforcement; it merely altered Sanchez-Avila’s commute. As the solicitor general put it, it would be “startling” if Congress casually inserted in this terse provision a hidden “mandate to overhaul the Executive’s border-management policies and dictate its foreign policy.” The more sensible construction of Congress’s plan for the contiguous-territory provision, the solicitor general suggested, would entail a greater degree of judicial deference to executive reasons for ending programs such as MPP that departed from longtime practice.
Resources and In Absentia Removal Orders
The solicitor general did not directly address the concern in both the June and October 2021 memoranda that MPP consumed scarce departmental resources and hindered adjudication of meritorious asylum claims. Instead, the government’s brief noted only that Secretary Mayorkas had chosen to end MPP for a range of reasons, including concerns about the program’s “operation and effectiveness” and the availability of alternatives that were “more effective and humane.” Perhaps the solicitor general could have discussed in greater detail the sound basis for Mayorkas’s view that the MPP in absentia removal-order and asylum-denial rates impaired the adjudication of meritorious asylum applications. The importance of sound asylum adjudication and the avoidance of false-negative errors to the statutory scheme would have been a worthy topic. But the solicitor general had already made powerful points about the Fifth Circuit’s troubling interference with executive discretion and how that disruption adversely affected Congress’s plan.
What Comes Next
A grant of certiorari from the Supreme Court would set the stage for clarification of the uncertainty caused by the Fifth Circuit’s ruling. If the court takes the case, a simple remand to the district court to consider the effect of Mayorkas’s October 2021 memorandum would accomplish much. A remand would allow for full consideration of Mayorkas’s reasons for ending MPP. The Supreme Court would further clarify immigration law by staying the district court injunction against ending MPP. That would permit termination of the program, with the understanding that the administration could always seek an agreement with Mexico to resume MPP if courts found even the October 2021 memorandum to be an insufficient basis for ending the program. This two-pronged approach would restore judicial deference to agency discretion, without endorsing the open-ended discretion on the parole power that the solicitor general needlessly urged in an otherwise convincing brief.