Judges challenge Biden administration’s capture and release policy

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The Supreme Court flagged problems for the administration’s capture-and-release border policies on Tuesday, with justices questioning the legal basis Homeland Security uses to parole thousands of illegal immigrants in the United States. each day.

The justices have clashed repeatedly with President Biden’s attorney over the massive number of releases underway right now and the administration’s failure to take concrete action to deter or detain more newcomers.


“You kind of make it even harder to do anything other than release people you meet at the border to the United States,” Chief Justice John G. Roberts Jr. told Solicitor General Elizabeth Prelogar.

Ms Prelogar was in court defending the administration’s bid to end the Trump administration’s “Stay in Mexico” policy that sent illegal immigrants back to the southern border in Mexico to await the outcome of their immigration proceedings. immigration.

Texas sued, arguing that the unilateral cancellation of the policy, officially known as the Migrant Protection Protocols or MPPs, violated administrative law. The lower courts agreed with Texas and ordered Homeland Security to restart the program.

The justices presented the case on Tuesday as a broader test of the administration’s border policies at a time when illegal immigration is already setting records and Homeland Security warns the number of border crossings could triple.


SEE ALSO: DHS releases 20-page border plan, promises ‘aggressive’ consequences for illegal immigrants


Ms Prelogar suggested the administration has limited options. He can detain them or release them on bail, although the ability to do so is limited. He can also send them back across the border or “release them on parole” in the country.

It was the latter power that Homeland Security Secretary Alejandro Mayorkas wielded, freeing tens of thousands of migrants each month under his parole authority.

The law states that parole should be granted on a case-by-case basis, and only when there is a “significant public benefit”.

Ms Prelogar said the public interest in this case is to free some border workers so that more serious people can be held in the limited bed space available for immigration detention.

She said Mr Mayorkas had done a cost-benefit analysis and concluded that releasing illegal immigrants to the United States was a better option than trying to send them back to the United States. Mexico.

Judge Stephen G. Breyer questioned why more people could not be detained.

“Did you ask for more?” Have you asked for more from Congress? he said.

Ms. Prelogar said Congress makes those decisions about detention space at U.S. Immigration and Customs Enforcement.

The administration offered no increase in the number of beds, but instead pushed to reduce ICE’s detention capacity. Ms Prelogar said the president had, however, asked for more money for alternatives to detention and more immigration judges to speed up cases.

“We are seriously committed to addressing all the challenges that exist on the border,” she said.

Even as they questioned the scope of catch and release, the judges wondered if there was much they could do about it. The Stay in Mexico policy relies on a section of the law that gives the administration discretion, rather than making it mandatory.

On the one hand, Judge Elena Kagan said, Mexico has a say in whether the United States can push people back over the line.

“You’re putting the secretary’s immigration decisions in Mexico’s hands,” she told Texas Solicitor General Judd Stone, who argued the case for opponents of the administration.

Chief Justice Roberts said that even if MPP policy is fully reinstated, it will do little to resolve the border chaos, given the number of people crossing and the numbers that can be returned.

“It won’t change anything,” he said.

Mr Stone said any mitigation would help. Moreover, he said, the administration is still breaking the law.

“Less law breaking…is better than more,” he said.

The Trump administration created the Remain in Mexico program in 2019 amid a previous border wave. The program started slowly, requiring the cooperation of a reluctant Mexico.

After then-President Donald Trump threatened crippling economic sanctions in June 2019, Mexico was quick to cooperate. The program began registering thousands of returnees each month, and border numbers soon fell to more manageable levels.

Immigrant rights advocates said those returned to Mexico face challenges ranging from lack of support to kidnappings and abuse by criminal gangs and cartels.

The Biden administration agreed and began a phase-out of the program soon after it took over.

After a judge ruled the phasing out illegal and ordered a restart, Biden’s team was slow to get things moving.

In March, only 199 migrants were subjected to the MPP.

By contrast, in March 2020, just before the pandemic hit, 2,255 migrants were enrolled in the MPP by the Trump administration.

Once the pandemic hit, the government triggered Title 42, a health policy that allowed illegal immigrants to be deported to Mexico even faster than the MPP.

The Biden administration now wants to end Title 42 next month.

Border experts say that without Title 42 or the MPP, migrants will flock to the United States, seeking to take advantage of the broken immigration system. Homeland Security forecast an attack of as many as 18,000 illegal immigrants per day, nearly three times current record levels.

A federal judge in Louisiana issued a ruling on Monday imposing a temporary restraining order on the administration’s Title 42 phase-out.

The decision is the latest in a series of legal losses for Mr. Biden on immigration matters.

The judges – many of whom are appointed by Mr Trump – ruled that the Biden team was cutting too many corners in its executive actions, in violation of the Administrative Procedure Act. This law requires that the decisions of the executive be well reasoned and gives the public the opportunity to submit comments before major changes take place.

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