Central American Immigration Affairs After Biden v. Texas

The Migrant Protection Protocols (MPP), more commonly known as the “Remain in Mexico” policy, was an immigration program implemented in January 2019 under President Donald Trump’s administration. Over 70,000 migrants were enrolled in the program until Secretary of Homeland Security (DHS) Alejandro Mayorkas issued a memorandum on June 1, 2021 under the Biden administration. Texas and Missouri consequently brought suit against Mayorkas in the Northern District of Texas, claiming in part that the termination of MPP violated the Immigration and Nationality Act (INA). The District Court ruled in favor of Texas and Missouri, requiring a nationwide effort to maintain MPP goals “in good faith.” Mayorkas and the Biden administration appealed, yet the Fifth Circuit Court of Appeals affirmed the decision below in full. The United States Supreme Court then granted certiorari for the Biden administration, commencing Biden v. Texas. The Court ruled in favor of the petitioners in a 5–4 vote, reversing the lower courts’ decisions and allowing Biden to officially end the policy. 

The Court’s reversal stems from a precedential rule of construction around the wording of the INA. The act provides two options for the federal government to manage noncitizens entering the country: According to 8 U. S. C. §1225(b)(2)(A), “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 for a proceeding,” or, according to 8 U. S. C. §1225(b)(2)(C), “[in] the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding.” 

The key word: “may.” In no way does the INA necessitate deportation. According to the majority opinion by Chief Justice Roberts, it also does not necessitate detention.

Now that the Biden administration has completely abandoned MPP, how is it dealing with noncitizens? Although the detention of migrants is one option at the government’s disposal, it has become well-known that the United States does not have sufficient capacity to detain all noncitizens entering the country—this was one of the principal elements that led to the enactment of MPP. While detainment is still utilized, many noncitizens are let into the country on parole. In his concurring opinion, Justice Kavanaugh pointed out that all presidential administrations since President Clinton have employed this option that, according to 8 U. S. C. §1182(d)(5)(A), permits DHS to grant parole on a case-by-case basis where there are “urgent humanitarian reasons or a significant public benefit” and, pursuant to 8 CFR §212.5(d) (2020), there are “reasonable assurances” that they “will appear at all hearings.” This alternative means that noncitizens are not required to be deported.

Justice Alito and Justice Barrett each wrote separate dissenting opinions in which they allude to the crisis of immigration and the lack of detention facilities. Their arguments rightfully highlight the use of “shall” in section 1225, which indicates that the government does have a duty to detain all noncitizens, else deport or parole. Given the high volume of noncitizens released into the country on parole, the justices rely on the “case-by-case basis” wording in section 1182. 

Regardless of how each judge decided on the matter, the opinion of the Court has overtones of concern, suggesting there may be an immigration crisis.

And there certainly is. If outlets like NBC News, The New Yorker, and the Texas Tribune having web sections designated for covering the immigration crisis is not convincing enough, the stories within should be. Texas is the most common point of entry for noncitizens, and Governor Greg Abbott has had enough, especially in light of criticism he and his state receive regarding immigration policy. Abbott has started sending bus loads of noncitizens to sanctuary cities across the country, forcing them to put their money where their mouth is when it comes to providing noncitizens with protection via government-funded (and by proxy, taxpayer-funded) projects. It may be an effective political and economic tool for Abbott, but it is increasingly clear that the destinations of these buses are deeply unprepared.

New York City Mayor Eric Adams declared a state of emergency after accepting thousands of migrants into the city, with no signs of slowing down soon. The city’s homeless shelters are overwhelmed and resources pinched—overall, housing these noncitizens could cost the city nearly $1 billion, according to Adams. After having hundreds of migrants dropped off in Washington, DC—including several busloads being sent directly to Vice President Kamala Harris’ DC doorstep courtesy of Abbott and Florida Governor Ron DeSantis—Mayor Muriel Bowser has also declared a public emergency. Bowser is investing $10 million into an Office of Migrant Services that offers “reception, respite, meals, temporary accommodations, urgent medical needs, transportation to final destinations, connection to resettlement services, translation services” among other resources. Illinois Governor J.B. Pritzker is being forced to make preparations after seeing the disastrous intake efforts of New York City and Washington, deploying 75 National Guard members and establishing a Unified Area Command center after his statewide disaster proclamation. 

Given the burden the immigration crisis has placed on Texas, other southern-border states, and now northern sanctuary cities, it must be asked: What exactly is the “significant public benefit” achieved from shipping tens of thousands of noncitizens around the country?

Some economists claim that the increase in immigration under the Biden administration could alleviate inflation, close the labor gap, and overall loosen recessionary tensions. Labor shortages are a primary cause of rising prices, and with over 10 million job openings in the United States currently but under 6 million workers to fill them, analysts see this as an opportunity to close that gap and, in turn, bring down prices. Deepak Bhargava and Rich Stolz, both fellows at the Roosevelt Institute, recently published “The Statue of Liberty Plan” arguing that Americans should welcome immigration as a way to stimulate economic, social, and political growth. 

So perhaps there is some “significant public benefit” to be had from the allowance of parole-granted noncitizens and the dismissal of MPP will work best under  the Biden administration. Well, not so fast. Although Biden has worked relatively diligently to create pathways for citizenship for apprehended noncitizens, in response to the outcry from struggling sanctuary cities, he has already begun implementing policy that would send apprehended Venezuelans back to Mexico—a very clear reversion to Trump’s “Remain in Mexico” policy he and his administration fought to discontinue. Since February 2021, Biden’s administration has apprehended approximately 2.5 million migrants at the southern border. More than half of them—about 1.3 million—were immediately deported under Title 42, a law frequently cited by Trump that grants public health emergency powers to the surgeon general in accordance with the president’s approval. Because of this backtracking, the Biden v. Texas outcome is practically moot as Biden and his administration look for ways to extinguish the flames of the immigration crisis.

Byline: Connor Wayne Kraska is a Senior at Brown University studying Economics and International and Public Affairs. He currently serves as a Staff Writer for the Brown Undergraduate Law Review and can be contacted at connor_kraska@brown.edu.