Special Edition—Oral arguments in SCOTUS MPP case signal broader consideration of detention requirements—05-06-22

Immigration news, in context

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The Big Picture

The news: While the Supreme Court has been in the headlines recently mainly for the leak of a draft opinion overturning Roe v. Wade, that’s not the only thing the justices have been up to. The court also heard oral arguments in Biden v. Texas, the federal case brought by the states of Texas and Missouri to try to force the federal government to preserve the Migrant Protection Protocols, otherwise known as Remain in Mexico. The discussion grapples with some fundamental questions around law and Congress’ requirements of the executive.

What’s happening?

The arguments actually happened last week, on April 26, but we thought they’d be worth revisiting because some of the language being discussed and potential interpretations that the justices might reach could have relatively far-reaching implications for the U.S. immigration enforcement and detention systems.

The case is, generally speaking, about the administration’s attempt to terminate Remain in Mexico, a Trump-era program (as implemented by Stephen Miller, unsurprisingly) that forced asylum seekers to wait in Mexico as their U.S. asylum processes played out in immigration court. MPP essentially required migrants to return to U.S. territory for hearings but otherwise be sent across the border into northern Mexico. Before Title 42 came along, it was the primary vehicle to functionally deny access to asylum altogether, as almost all cases ended with an asylum denial, due in large part to the inability to access legal counsel and the significant dangers that migrants faced while waiting (more on that below).

As a program, MPP is rooted in one particular area of law: 8 USC § 1225(b)(2)(C) which stipulates that the government “may return the alien to that territory pending a proceeding” a person “who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States” and requesting asylum. The Biden administration stopped enrolling people in the program almost immediately and formally terminated it last June, prompting the states to sue. The states alleged that the rescission violated the Administrative Procedure Act by failing to take into account their reliance interests and the costs they would incur from having to accommodate more asylum seekers.

A Trump-appointed federal judge issued an injunction in their favor. In response, Homeland Security Secretary Ali Mayorkas issued a second rescission memo, but the administration decided to observe the injunction anyway until the case had fully played out. It moved to restart the program in early December while appealing up the chain. The Fifth Circuit then affirmed the lower court’s injunction and ruled that the new rescission memo couldn’t be implemented anyway, causing the administration to appeal up again, this time to SCOTUS, which in February agreed to hear the case.

These oral arguments center around a few key issues. The administration contends that the “may” in the statute is a clear indication that Congress intended to allow the government to send people to contiguous territories but never intended to require it or indicate a preference towards that type of program. The injunction functionally forces the administration not only to engage in what was intended as an optional measure, but to engage in active diplomacy with Mexico over it. Mexico must agree to have asylum seekers removed to its territory, and forcing the administration to resume MPP creates an additional demand and burden on the federal government that doesn’t exist in the law. There are also somewhat esoteric questions about jurisdiction, owing to 1252(f)(1), which states that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter,” which includes the operation of a program like MPP.

The most potentially significant exchanges, however, had to do with the issues of detention, bond, and parole, and the extent of the government’s responsibility to detain immigrants. The contiguous territory provision on which MPP is based is fundamentally an exception to 1225(b)(2)(A), which states that “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained” pending immigration proceedings. It has obviously long been the practice that the government doesn’t detain all people who arrive at the southern border to seek asylum, both because of the operational capacity and because of the inherent discretion that the executive has been presumed to enjoy.

In their questioning, though, the justices made it clear that they view the statute as potentially mandating total detention of everyone arriving at the border without documentation, with very limited exceptions. “The ‘shall,’ I think, [Congress sees] as a baseline. And then there's limited discretion to parole or to send-- to do other things. But it seems as though [Congress] think that discretion is consumed by the ‘shall,’” said Justice Thomas. After Solicitor General Elizabeth Prelogar explained that the statute doesn’t force the administration to operate a program like MPP and the lack of available space means most can’t be detained, Chief Justice Roberts said “If you have a situation where you're stuck because there's no way you can comply with the law and deal with the problem there, I guess I'm just wondering why that's our problem? Our problem is to say what the law is.”

As things stand, most people who aren’t immediately deported under expedited removal or expelled under Title 42 are either immediately provided humanitarian parole under 1182(d)(5)(A) or briefly detained and then provided either parole or bond under 1226(a)(2). Several justices questioned whether this was Congress’ intent, with Roberts saying “you can have a phrase in the statute mean what you want it to mean, to accommodate as many people at the border by releasing them as you want, right? There is no limit, as you read the statute, to the  number of people that you can release into the United States, right?” When Prelogar reiterated that the administration is working with the bed capacity it has on hand, Breyer asked “did you ask Congress for more?”

The questioning also fixated on the requirement that parole be used for “significant public benefit,” with justices wondering whether the administration was truly applying that standard in undertaking hundreds of thousands of releases. At one point, Justice Alito asked Prelogar if the government’s determination of public benefit was like the security line at a baseball game, where not having weapons or alcohol would qualify someone for entry. “You've got a little checklist and you're going, you know, boom, boom, boom,

and that's how you can process. Maybe you're right, but that's what you think Congress meant by a case-by-case determination?”

The administration is hurt here by the 2018 decision in Jennings v. Rodriguez, in which ironically the executive branch, then under Trump, took the opposite stance on the detention mandate, arguing that the “shall detain” provision meant detained migrants did not have a right to periodic bond hearings, with the court ultimately agreeing.

This MPP case isn’t even necessarily about these detention provisions per se, beyond the fact that they intersect with the statute allowing for migrants to be sent to contiguous territories. Yet the plaintiffs are very clear about their posture to the “shall detain” provision, with Texas Solicitor General saying “no administration, no executive has fully complied with their detention obligations. That certainly doesn't prove that past administrations assumed that those obligations could be essentially -- could be shirked.” If the justices ultimately agree with this line of thinking, they’re saying that the federal government will basically have to detain or send back asylum seekers in almost all cases, with very limited exceptions.

How we got here

Mass immigration detention is a relatively recent phenomenon in the U.S. In the 1980s, the Reagan administration began detaining Cuban and Haitian migrants en masse. The Immigration and Naturalization Service—the precursor to the Department of Homeland Security and its component agencies—opened a detention facility in Dade County, Florida in 1981. The Haitian and Cuban migrants incarcerated there were held in unsanitary conditions. After a legal challenge, a federal judge in Miami ruled that the Reagan administration’s detention policy violated the Administrative Procedure Act (longtime B/L readers will recognize this as the basis for pretty much every immigration policy-related lawsuit). But the administration remedied that by providing adequate notice of its detention policy, and by 1985 Congress had allocated funds for the construction of a permanent INS detention center. (For a detailed history of the origins of today’s immigrant detention system, we recommend historian Smita Ghosh’s 2019 piece for the Washington Post.)

The Reagan administration was also detaining asylum seekers from Central America, who were largely fleeing civil conflicts and repressive regimes backed by the U.S. In 1985, a coalition of human rights organizations filed a lawsuit on behalf of Jenny Flores, a 15-year-old Salvadoran girl who was detained in an INS facility for adults. That lawsuit ultimately resulted in the Flores settlement, a 1997 court order that defines and clarifies the protections afforded to unaccompanied migrant children in federal custody.

Two pieces of legislation led to a huge increase in the number of people in immigrant detention facilities: the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), and the Antiterrorism and Effective Death Penalty Act (AEDPA), both signed into law in 1996. AEDPA mandated detention for all non-citizens convicted of certain crimes, including drug offenses; IIRIRA further expanded the list of offenses that make non-citizens subject to mandatory detention and also expanded the categories of deportable immigrants. (The term “mandatory detention” is a bit misleading, since ICE still has the authority to release whoever it wants to on certain humanitarian grounds.) The “shall detain” provision related to border arrivals that we discuss above was enacted as part of IIRIRA. The average daily population in INS detention grew from approximately 7,000 in 1994 to around 19,000 in 2001, according to federal data analyzed by Detention Watch Network. The number of people incarcerated in ICE facilities varies from day to day; as of April 24, it stands at 19,502. Almost 70 percent of the people currently in ICE custody have no criminal record, according to federal data analyzed by TRAC.

Immigrant detention isn’t supposed to be punitive. Its stated purpose is to ensure that people show up to their court hearings. Nonetheless, ICE facilities are nearly indistinguishable from prisons or jails. Some of them are former prisons run by for-profit companies, such as CoreCivic or the GEO Group. ICE also has contracts with local governments to detain immigrants in jails and prisons.

As the number of immigrants in detention rose, so too did “alternatives” to detention. ICE initiated its Intensive Supervision Appearance Program in 2004 as a pilot in eight cities across the country. In 2006, Congress appropriated $28 million for alternatives to detention; in 2016, that figure was $114 million. But these “alternatives” didn’t lead to a decrease in detention—instead, it let the government detain more immigrants and monitor others through ISAP. 

ICE’s average daily population peaked under Trump, surpassing 52,000 in 2019. At the same time that it was detaining more immigrants than ever before, the Trump administration was also enrolling people in MPP. The administration’s justified MPP by claiming it was a necessary measure to ensure that asylum seekers showed up to their court hearings. Officials falsely claimed that the majority of asylum seekers released into the U.S. had no intention of attending their hearings and used their asylum claims to “disappear” into the interior. The administration said that keeping migrants in Mexico would weed out anyone with a non-meritorious asylum claim.

In reality, MPP made it much more difficult for asylum seekers to attend their hearings. Government data analyzed by TRAC found that 40 percent of MPP cases were decided in absentia, meaning migrants weren’t present at their hearings when the decision was issued. Compare this to an absentia rate of 20 percent for newly arrived, non-detained asylum seeking families released into the U.S. between September 2018 and May 2019. Safety—or really, a lack thereof—was a major factor behind the high absentia rates on the MPP docket. Migrants forced to wait in Mexico for their hearings faced significant dangers and were subjected to extortions, threats, and violence from cartels and gangs. A Human Rights Watch report found at least 32 instances of kidnapping or attempted kidnapping of migrants in the Mexican state of Tamaulipas between November 2019 and January 2020 alone. In 2019, VICE News’s Emily Green reported on an asylum seeker who was kidnapped just hours after being sent back to Mexico. It was so common for migrants to miss asylum hearings because of the dangers they faced in Mexico that in June 2021, the Biden administration announced that it would reopen cases for some asylum seekers who had their MPP cases closed in absentia.

Before Biden took office and attempted to end MPP, the program was effectively put on hold by Covid-19. The Trump administration didn’t stop enrolling people in MPP altogether, but it no longer had to use the policy to keep asylum seekers out of the U.S.—it could just use expulsions instead. Meanwhile, the tens of thousands of migrants on the MPP docket were denied entry into the U.S., and forced to wait in Mexico for even longer than they had expected. Their hearings were put on hold, which revealed some curious legal maneuvering behind the program. At the onset of the pandemic, the Executive Office for Immigration Review halted all hearings for non-detained people; hearings for people in ICE custody continued. MPP hearings were also put on hold, albeit in the least logical way possible. For the first few months of the pandemic, asylum seekers on the MPP docket were told to present at ports of entry on the date of their hearings to get a “tear sheet” with information about their next hearing date. As it became clear that the pandemic wouldn’t end anytime soon, the hearings were postponed indefinitely. But EOIR considered migrants on the MPP docket “detained” for administrative purposes, meaning their cases were adjudicated on timelines similar to those of immigrants in detention facilities in the interior.

What’s next?

It can be easy to overblow things when trying to read the tea leaves of Supreme Court arguments. All this may end up being part of the vigorous discussion that is supposed to precede consequential decisions and have no bearing on an ultimate ruling. In any case, this ruling is supposed to be discretely about MPP, not necessarily the government’s entire approach to detention and release.

Nonetheless, the sheer amount of interchange about 1225(b)(2)(A) suggests that the justices are seriously weighing the question of whether the statutory scheme is basically requiring the administration to either detain or send to third countries the majority of asylum seekers. Their questions suggested they thought that, if the government somehow could have the resources to detain 200,000 or 300,000 people, that they should do that, or send most of them to Mexico.

There is, of course, no conceivable scenario where that kind of detention capacity would exist, and there is no way that the government of Mexico would accept those kinds of numbers, which leaves something of an open question to what the court would consider to be an adequate remedy in that event. Solicitor General Prelogar said at one point, “I think that to the extent the Court interpreted the provisions along the lines you're suggesting, that that could, at most, support a judicial order that we need to detain more people or we need to change how we're releasing people,” but it’s unclear exactly what this would look like.

In any case, a finding in favor of the states’ argument would almost certainly take parole off the table as a tool of widespread availability to release migrants in active asylum processes. The court might mandate some sort of more rigorous examination of potential parole grants in a way that would massively delay release, or compel the administration to attempt MPP implementation indefinitely so long as they are unable to detain everyone seeking asylum. In almost all cases, it would be an enormous blow to the ability to seek asylum, and to due process.