Amicus Curiae Brief — Joseph R. Biden, Jr., President of the United States, et al., Petitioners v. Texas, et al.
Supreme Court briefApr 14, 2022
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No. 21-954
In the Supreme Court of the United States
__________
JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED
STATES, ET AL,
Petitioners,
v.
STATE OF TEXAS; STATE OF MISSOURI.,
Respondents.
__________________________
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________________
BRIEF FOR AMERICA FIRST LEGAL
FOUNDATION AS AMICUS CURIAE IN
SUPPORT OF RESPONDENTS
__________
GENE P. HAMILTON
Counsel of Record
Vice-President and General Counsel
America First Legal Foundation
300 Independence Ave. SE
Washington, DC 20003
(202) 964-3721
gene.hamilton@aflegal.org
Counsel for Amicus Curiae
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICUS CURIAE............................. 1
SUMMARY OF THE ARGUMENT ............................ 2
ARGUMENT ................................................................ 4
I.
The Integrity of the Immigration System
Requires—as Reflected by the Passage of
Numerous Laws by Congress—Meaningful
Enforcement Outcomes for Aliens Who
Violate Our Immigration Laws ............................ 4
II. MPP Provided Numerous Benefits Related to
the Systemic Integrity of the Immigration
System: Not Only Reducing the Flow of New
Illegal Aliens into the United States, But
Also Enabling DHS to Provide Meaningful
Enforcement
Consequences
for
Aliens
Apprehended at the Southwest Border ................ 7
III. Additional Statistics Highlight the Extent of
MPP’s Substantial Benefits ................................ 10
A. The DHS Fiscal Year 2020 Enforcement
Lifecycle Report Makes It Abundantly
Clear: DHS Removes Those Aliens it
Detains, and it Does Not Remove Those
Aliens it Releases Into the United States.... 11
ii
B. Monthly Reports Submitted to the
District Court Below Document DHS
Releasing Over 750,000 Aliens into the
United States Over the Last 13 Months ...... 13
C. Additional Data Demonstrate That DHS
Will Not Remove the Overwhelming
Majority of Aliens Released into the
United States ................................................ 16
IV. By Failing to Consider MPP's Benefits and
Its Ability to Apply Meaningful Enforcement
Consequences, DHS Acted Arbitrary and
Capriciously by Terminating MPP. .................... 18
CONCLUSION .......................................................... 24
iii
TABLE OF AUTHORITIES
Cases
Atchison, T. & S.F.R. Co. v. Wichita Bd. of Trade,
412 U.S. 800 (1973) .............................................. 19
Bostock v. Clayton Cty.,
140 S. Ct. 1731 (2020) ............................................ 6
Burlington Truck Lines v. United States,
371 U.S. 156 (1962) .............................................. 19
Dep't of Homeland Sec. v. Regents of the Univ. of
California, 140 S. Ct. 1891 (2020) ............. 3, 19, 23
Jennings v. Rodriguez,
138 S. Ct. 830 (2018) .............................................. 5
Michigan v. E.P.A.,
576 U.S. 743 (2015) ........................................ 20, 23
Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) .......................................... 18, 19
Util. Air Regul. Grp. v. E.P.A.,
573 U.S. 302 (2014) .............................................. 20
Statutes
8 U.S.C. § 1101 et seq. ................................................. 2
8 U.S.C. § 1151 ............................................................ 5
iv
8 U.S.C. § 1153 ............................................................ 5
8 U.S.C. § 1182(d)(5)(A) ............................................... 5
8 U.S.C. § 1225 ............................................................ 5
8 U.S.C. § 1231(a)(1)(A) ............................................... 6
8 U.S.C. § 1325 ............................................................ 6
8 U.S.C. § 1326 ............................................................ 6
Secure Fence Act of 2006, Pub. L. No. 109-367, 120
Stat. 2638................................................................ 6
Other Authorities
Decl. of Peter B. Berg, Texas v. Biden, 524 F.
Supp. 3d 598 (S.D. Tex. 2021) (No. 78-1) ............ 16
Department of Homeland Security Office of
Immigration Statistics, Fiscal Year 2020
Enforcement Lifecycle Report (Dec. 2020),
https://bit.ly/3O6prgx ........................................... 11
Neli Esipova et al., More Than 750 Million
Worldwide Would Migrate if They Could,
Gallup (Dec.
10,
2018),
https://bit.ly/3JEcGq2 ........................................... 4
Executive Office of Immigration Review,
PENDING CASES, NEW CASES, AND TOTAL
COMPLETIONS
(Jan.
19,
2022),
https://bit.ly/3veGmVM ........................................ 16
v
IMMIGRATION AND CUSTOMS ENFORCEMENT, FY
2020 DETENTION STATISTICS, Cell P29-R29,
https://www.ice.gov/detain/detentionmanagement (last visited April 13, 2022) ........... 17
IMMIGRATION AND CUSTOMS ENFORCEMENT, FY
2021 DETENTION STATISTICS, Cell P29-R29,
https://www.ice.gov/detain/detentionmanagement (last visited April 13, 2022) ..... 16, 17
IMMIGRATION AND CUSTOMS ENFORCEMENT,
DETENTION FY22 YTD, ALTERNATIVES TO
DETENTION FY 2022 YTD AND FACILITIES FY
2022
YTD,
Cell
P29-R29,
https://www.ice.gov/detain/detentionmanagement (last visited April 13, 2022) ........... 17
U.S. Customs and Border Protection, Southwest
Border
Land
Encounters,
https://bit.ly/3uC6ISn (last visited April 13,
2022) ....................................................................... 9
1
INTEREST OF AMICUS CURIAE
America First Legal Foundation (America First
Legal or AFL) is a nonprofit organization dedicated
to promoting the rule of law in the United States by
preventing executive overreach, ensuring due process
and equal protection for every American citizen, and
encouraging understanding of the law and individual
rights guaranteed under the Constitution and laws of
the United States.
America First Legal has a substantial interest in
this case. Ensuring compliance with our immigration
laws, protecting national sovereignty, and promoting
the rule of law are core institutional interests at the
heart of the organization’s mission. Members of
AFL’s Board of Directors and its staff served in
various capacities during the Trump Administration,
most prominently in the homeland security and
immigration policy areas,
obtaining unique
knowledge and experience regarding the issues
presented in this case. AFL has a significant interest
in highlighting the effectiveness of the Migrant
Protection Protocols (MPP) using the federal
government’s own publicly-available statistics and
information. *
* All parties have consented to the filing of this brief. No counsel
for a party authored this brief in whole or in part, and no
counsel or party made a monetary contribution intended to fund
the preparation or submission of this brief. No person other
than amicus curiae, its members, or its counsel made a
monetary contribution to its preparation or submission.
2
SUMMARY OF THE ARGUMENT
The United States Department of Homeland
Security (DHS) implemented the Migrant Protection
Protocols (MPP) in 2019 in response to a border
crisis. DHS quickly realized the benefits MPP
created—particularly insofar as it reduced the
number of encounters at the border, provided the
ultimate backstop against the practice commonly
referred to as “catch-and-release,” and enhanced its
ability
to
apply
meaningful
enforcement
consequences to aliens apprehended at the border. In
total, MPP provided substantial benefits to the
federal government, state and local governments,
and the American people by reducing illegal
immigration via the southwest border, the number of
illegal aliens in the United States with unexecuted
removal orders, and the volume of meritless asylum
claims.
When DHS subsequently terminated MPP after
the change in presidential administrations, it did so
without considering the substantial benefits MPP
provided. Failing to consider those benefits was not
only arbitrary and capricious—as noted by Fifth
Circuit and the District Court below—but also
egregious when considering the immigration system
as a coherent whole. Indeed, Congress, through the
Immigration and Nationality Act (INA), 8 U.S.C. §
1101 et seq., charged the Executive Branch not just
with
apprehending
and
processing
aliens
encountered at the border, but also with actually
removing them from the United States or granting
them relief or protection from removal when they
qualify.
DHS
previously
recognized
MPP’s
3
enhancement of its ability to achieve that mission,
but DHS failed to consider those benefits when it
decided to terminate MPP.
Given that express direction from Congress, and
this Court’s precedent, including Dep't of Homeland
Sec. v. Regents of the Univ. of California, 140 S. Ct.
1891, 1913 (2020), reasoned decision-making in the
immigration
enforcement
context
requires
considering DHS’s ability to actually remove an alien
who is found inadmissible—not just DHS’s ability to
begin administrative processes that could eventually
lead to obtaining removal orders for aliens that will
likely never be enforced.
DHS’s statistics demonstrate that it removes from
the United States the overwhelming majority of
aliens whom it continuously detains after their
apprehension at the United States-Mexico border
(southwest border). But the opposite is true for those
aliens it releases—the very populations that would
otherwise be subject to MPP—with the overwhelming
majority remaining in the United States years after
their initial apprehension at the southwest border.
Because immigration courts rightly grant relief or
protection from removal in only a small percentage of
cases that originate from the southwest border,
releasing aliens from DHS custody with no plan to
remove them further compounds the substantial
problems created by illegal immigration, as countless
illegal aliens with removal orders do not comply with
their obligations to depart the United States.
DHS—particularly
under
the
current
administration’s
policies—removes
only
an
exceedingly small fraction of those aliens with final
4
removal orders every year. Indeed, as documented in
reports DHS filed with the District Court below, DHS
released over 750,000 aliens into the United States
between January 21, 2021, and February 28, 2022.
Based on DHS’s current abysmal rate of
approximately 4,300 removals each month during the
first six months of Fiscal Year 2022, it would take
DHS approximately 174 months—14.5 years—to
remove just the aliens it has released into the United
States over the last 13 months.
The Fifth Circuit’s decision below is exceptionally
well-reasoned, well-written, and thorough, and this
Court should affirm its decision below for the reasons
stated in the respondents’ brief alone. America First
Legal, however, offers this brief to further highlight
the particularly egregious nature of DHS’s failure to
consider MPP’s benefits and its own ability to enforce
the immigration laws when terminating the program,
while simultaneously considering ideologically and
politically-charged factors not found in statute.
ARGUMENT
I.
The Integrity of the Immigration System
Requires—as Reflected by the Passage of
Numerous
Laws
by
Congress—
Meaningful Enforcement Outcomes for
Aliens Who Violate Our Immigration
Laws.
Tens of millions of people across the world have
expressed a desire to live in the United States. Neli
Esipova et al., More Than 750 Million Worldwide
Would Migrate if They Could, Gallup (Dec. 10, 2018),
https://bit.ly/3JEcGq2
(estimating 158 million
5
potential migrants would like to move to the United
States if they could). And through the INA and other
statutes, Congress has enacted a comprehensive
legislative scheme to facilitate the lawful
immigration of individuals to the United States each
year. See, e.g., 8 U.S.C. § 1151, 1153.
Notwithstanding the desires of hundreds of millions
of potential immigrants—and aside from individuals
who qualify as “immediate relatives” of U.S.
citizens—Congress imposed caps on the number of
aliens who can lawfully enter the United States each
year. Id.
But the allure of a better life inside the United
States remains, creating a magnet for aliens to
unlawfully enter the United States and circumvent
the lawful process established by Congress.
And so, Congress has repeatedly acted to create a
comprehensive statutory scheme to direct the
Executive Branch to secure the international border
between the United States and Mexico. Whether
through requiring DHS to detain all aliens
apprehended in the border environment, as
mandated by 8 U.S.C. § 1225, Jennings v. Rodriguez,
138 S. Ct. 830, 844 (2018); creating an expedited
removal process under the same statute; curtailing
the parole authority in 8 U.S.C. § 1182(d)(5)(A), Pet.
App. 13a-15a (discussing the statutory history of the
parole power); † explicitly stating in the Secure Fence
Act of 2006 that the Department of Homeland
While not addressed in substance in this brief, the Fifth
Circuit’s recitation and explanation of the restrictions on the
use of the parole power are compelling and precisely correct.
†
6
Security must achieve “operational control” of the
border as defined as “the prevention of all unlawful
entries into the United States,” Secure Fence Act of
2006, Pub. L. No. 109-367, 120 Stat. 2638 or the fact
that unlawfully entering or reentering the United
States remains a criminal offense under 8 U.S.C. §§
1325 and 1326; preventing aliens from unlawfully
entering and being released into the United States is
an unambiguous requirement.
Further—and critically—Congress has directed
that DHS “shall remove” an alien within a 90-day
period after obtaining a final order of removal. 8
U.S.C. § 1231(a)(1)(A). Congress provided some
exceptions in other parts of section 1231, but the
general command is clear. Bostock v. Clayton Cty.,
140 S. Ct. 1731, 1738 (2020) (“interpret[ing] a statute
in accord with the ordinary public meaning of its
terms at the time of its enactment”).
These statutes work together to provide integrity
to the entire immigration system. It is simply not
enough that DHS deter and detain illegal aliens at
the border. DHS must also remove them from the
United
States
after
the
aliens
receive
administratively final orders of removal. After all,
what is the point of having a process if there is no
meaningful consequence at the end of that process?
7
II.
MPP
Provided
Numerous
Benefits
Related to the Systemic Integrity of the
Immigration System: Not Only Reducing
the Flow of New Illegal Aliens into the
United States, But Also Enabling DHS to
Provide
Meaningful
Enforcement
Consequences for Aliens Apprehended at
the Southwest Border.
As the Fifth Circuit noted, before MPP, “resource
constraints forced DHS to release thousands of
undocumented aliens into the United States and to
trust that those aliens would voluntarily appear for
their removal proceedings.” Pet. App. 7a. Most
prominently among those it released into the United
States were aliens traveling as members of family
units, which DHS “generally cannot detain . . . for
more than approximately twenty days in ICE family
unit facilities” due to the requirements of the Flores
Settlement Agreement. Id. at 391a (Declaration of
then-Assistant Secretary for Border Security and
Immigration, David Shahoulian, citing Flores v.
Garland, No. CV 85-4544).
As the District Court stated below, the border
crisis that precipitated MPP’s implementation, and
its “resulting influx of immigrants had severe
impacts on U.S. border security and immigration
operations.” Pet. App. 157a. “[M]ost aliens lacked
meritorious claims for asylum . . . [with] only 14
percent of aliens who claimed credible fear of
persecution or torture [being] granted asylum
between Fiscal Year 2008 and Fiscal Year 2019.” Id.
This made it “harder for the U.S. to devote
appropriate resources to individuals who [were]
8
legitimately fleeing persecution.” Id. “The influx did
not just divert resources from legitimate asylum
seekers, but illegal aliens with meritless asylum
claims were being released into the United States.”
Id.
In
response,
implemented MPP.
the
Trump
Administration
Under MPP, DHS instead returned
certain undocumented aliens [from
countries other than Mexico] to Mexico
for the duration of their removal
proceedings. MPP's goal was “to ensure
that certain aliens attempting to enter
the
U.S.
illegally
or
without
documentation ... will no longer be
released into the country, where they
often fail to file an asylum application
and/or disappear before an immigration
judge can determine the merits of any
claim.”
Pet. App. 7a-8a (citation omitted).
As DHS recognized in 2019, using MPP resulted
in significant benefits, including a decrease in
apprehensions of illegal aliens at the southwest
border. J.A. 189. Specifically, border apprehensions
decreased by 64% between May and September 2019,
and for Central American families, by 80%. Id.
According to DHS’s own publicly-available statistics,
the actual number of aliens apprehended over that
period decreased from 144,116 aliens in May 2019, to
9
52,546 in September, and decreased each subsequent
month thereafter until June 2020. ‡
See U.S.
Customs and Border Protection, Southwest Border
Land Encounters, https://bit.ly/3uC6ISn (last visited
April 13, 2022).
MPP also allowed for there to be consequences for
aliens apprehended along the border. “MPP
returnees who do not qualify for relief or protection
[were] being quickly removed from the United States.
Moreover, aliens without meritorious claims—which
no longer constitute a free ticket into the United
States—[were] beginning to voluntarily return
home.” J.A. 189. DHS noted, in summary:
In recent years, only about 15% of
Central American nationals making
asylum claims have been granted relief
or protection by an immigration judge.
Similarly, affirmative asylum grant
rates for nationals of Guatemala, El
Salvador,
and
Honduras
were
approximately 21% in Fiscal Year 2019.
At the same time, there are . . . over one
million
pending
cases
in
DOJ
immigration courts, in addition to
several hundred thousand asylum cases
pending
with
USCIS.
These
unprecedented backlogs have strained
DHS resources and challenged its
ability to effectively execute the laws
The increase in “encounters” occurred after meaningful
operation of MPP had suspended due to pandemic-related
conditions.
‡
10
passed by Congress and deliver
appropriate immigration consequences:
those with meritorious claims can wait
years for protection or relief, and those
with non-meritorious claims often
remain in the country for lengthy
periods of time.
Id. 196. Plainly, MPP enhanced DHS’s ability to
“deliver appropriate immigration consequences” to
illegal aliens apprehended at the border and
delivering
these
appropriate
immigration
consequences were several of the main benefits of
MPP. Pet. App. 192a. It gave DHS the ability to
comply with the comprehensive statutory scheme
provided by Congress to secure the southwest border.
III. Additional Statistics Highlight the Extent of
MPP’s Substantial Benefits.
In addition to the evidence in the record,
separately published statistics highlight why MPP
provided such substantial benefits to the integrity of
the immigration system. In short, particularly under
current policies, DHS has an abysmal record when it
comes to enforcing the law against those aliens who
have been released from its custody at the southwest
border into the United States. DHS is and was
clearly aware of these facts, as reports regularly
published by it and other Executive Branch
departments have extensively documented as much.
11
A. The DHS Fiscal Year 2020 Enforcement
Lifecycle Report Makes It Abundantly
Clear: DHS Removes Those Aliens it
Detains, and it Does Not Remove Those
Aliens it Releases Into the United States.
In
December
2020,
DHS
published
a
comprehensive report about the actual outcomes of
encounters along the southwest border. Department
of Homeland Security Office of Immigration
Statistics, Fiscal Year 2020 Enforcement Lifecycle
Report (Dec. 2020), https://bit.ly/3O6prgx.
By comparing data from the Department of
Justice and DHS, the report described “the final or
most current outcomes, as of March 31, 2020,
associated with the 3.5 million Southwest Border
encounters occurring between 2014 and 2019.” Id. at
1. Overall, the report found that just “59 percent of
the 3.5 million Southwest Border encounters between
2014 and 2019 had been resolved through a final
outcome of repatriation or relief/protection from
removal as of the end of 2020 Q2.” Id. The report
noted the shifts in demographic characteristics of
aliens encountered over this period and noted that
the changes were meaningful “because of dramatic
differences in enforcement outcomes across” the
various demographic groups. Id. For example:
•
“Most encounters of aliens from Mexico,
single adults, and non-asylum seekers were
fully resolved (i.e., either repatriated or
granted relief) relatively quickly[.]” Id.
•
“[M]ost encounters of aliens from countries
other than Mexico, [aliens in family units]
12
and [unaccompanied alien children], and
asylum seekers remained in an unresolved
status . . . even years after their initial
encounter[.] Id.
Critically, DHS noted that the disparities in
outcomes reflected “differences in detention
practices.” Id. at 17. Simply stated, aliens who were
subject to catch-and-release policies were allowed to
remain in the United States. Notably:
•
DHS only continuously detained 42 percent
of aliens encountered between 2014 and
2019. Id. But for those encounters, “aliens
were repatriated 98 percent of the time,
with 0.5 percent resulting in relief or other
protection from removal and 1.5 percent
remaining unresolved as of March 31,
2020.” Id. (emphasis added). Overall, just
“1 percent of continuously detained
encounters resulted in unexecuted removal
orders.”
•
By comparison, aliens released into the
United States were most likely to remain in
the United States years after their
encounters.
•
Aliens “never detained following their
initial encounters were repatriated 30
percent of the time, with 15 percent
granted relief and 55 percent unresolved.”
Id. Most of the unresolved cases were still
being processed, but “11 percent were
subject to unexecuted removal orders,
13
including 10 percent subject to in absentia
orders.” Id.
•
Aliens “partially detained,” meaning those
initially detained but released before a final
enforcement
outcome,
“resulted
in
repatriations just 3 percent of the time and
relief just 12 percent of the time, with 85
percent still unresolved, including 18
percent with unexecuted removal orders (14
percent in absentia orders).” Id.
Overall, DHS’s report makes clear a fundamental
fact understood by the men and women who enforce
our laws every day: catching and releasing aliens into
the United States is illogical and undermines
existing immigration laws. Explaining all the reasons
why could fill a treatise, but DHS clearly and
specifically noted the aggregate effects of releasing
aliens into the United States in this report, issued
roughly six months before Secretary Mayorkas issued
his memorandum purporting to terminate MPP.
B. Monthly Reports Submitted to the
District Court Below Document DHS
Releasing Over 750,000 Aliens into the
United States Over the Last 13 Months.
In addition to DHS’s acknowledgment of MPP’s
benefits in 2019, and its recognition of the wide
disparity in enforcement outcomes in the
Enforcement Lifecycle Report described above, recent
DHS statistics revealed from monthly reporting
requirements to the District Court below further
demonstrate the irrationality of the mass release of
aliens into the United States.
14
DHS has released into the United States
hundreds of thousands of illegal aliens over the
roughly 13-month period from January 21, 2021,
through February 28, 2022.
•
Combined, between January 2021 and
November 2021, DHS, through U.S.
Customs and Border Protection (CBP),
released into the United States at least
403,360 illegal aliens apprehended along
the southwest border. Defendants’ Monthly
Report of Dec. 15, 2021, ECF 119-1, Texas
v. Biden, No. 2:21-CV-067-Z, 2021 WL
4552546 (N.D. Tex. June 7, 2021).
•
In December 2021, CBP released at least
55,626 illegal aliens, Defendants’ Monthly
Report of Jan. 12, 2022, ECF 124-1 at 6.
•
In January 2022, CBP released at least
46,186. Defendants’ Monthly Report of Feb.
15, 2022, ECF 129-1 at 6.
•
And in February 2022, CBP released at
least 39,069. Defendants’ Monthly Report of
Mar. 15, 2022, ECF 133-1 at 6.
Altogether, according to DHS, CBP released at
least 544,241 illegal aliens into the United States
between January 21, 2021, and February 28, 2022.
But CBP’s releases only tell part of the story, because
U.S. Immigration and Customs Enforcement (ICE)
also has released hundreds of thousands of aliens
over the same period.
•
From January 2021 through September
2021, ICE released at least 120,930 illegal
15
aliens into the United States. Defendants’
Monthly Report of Dec. 15, 2021, ECF 1192 at 20.
•
ICE released another 18,731 in October
2021 and 20,673 in November 2021.
Defendants’ Monthly Report of Dec. 15,
2021, ECF 119-2 at 18.
•
ICE released another 19,173 in December
2021. Defendants’ Monthly Report of Jan.
12, 2022, ECF 124-2 at 4.
•
ICE released another 16,387 in January
2022. ECF No. 129-2 at 4.
•
ICE released another 15,974 in February
2022. Defendants’ Monthly Report of Mar.
15, 2022, ECF 133-2 at 4.
Altogether, according to DHS, ICE has released at
least 211,868 illegal aliens into the United States
since January 21, 2021.
Combined, these self-reported numbers from DHS
indicate that it has released at least 756,109 illegal
aliens from the southwest border into the United
States between January 21, 2021, and February 28,
2022—many, if not all, of whom would have been
deterred from coming or would have been returned to
Mexico had MPP been implemented to the fullest
extent possible. §
§ Notably, these releases appear not to include unaccompanied
alien children, nor do they include the number of aliens who
evade apprehension. So, the actual number of illegal aliens who
16
C. Additional Data Demonstrate That DHS
Will Not Remove the Overwhelming
Majority of Aliens Released into the
United States.
Unfortunately, the release of at least 756,019
illegal aliens into the United States over a 13-month
period does not paint the complete picture.
That number is in addition to the over 1.2 million
aliens who had pending cases in immigration courts
at the end of FY 2020 (before these new releases
occurred). Executive Office of Immigration Review,
PENDING
CASES,
NEW
CASES,
AND
TOTAL
COMPLETIONS
(Jan.
19,
2022),
https://bit.ly/3veGmVM. And that number is also in
addition to the roughly 1.2 million aliens subject to
administratively final orders of removal who
remained in the United States as of January 30,
2021. Decl. of Peter B. Berg, Texas v. Biden, 524 F.
Supp. 3d 598 (S.D. Tex. 2021) (No. 78-1).
Aside from permitting these aliens to remain in
the United States for years during the pendency of
their removal proceedings as demonstrated by the
Enforcement Lifecycle Report, DHS’s recent statistics
also demonstrate that it will only eventually deport a
mere fraction of this population.
•
For example, ICE reports that in all of FY
2021, it removed a total of only 59,590
aliens from the United States. IMMIGRATION
AND CUSTOMS ENFORCEMENT, FY 2021
have entered the United States during this time is likely much
higher.
17
DETENTION STATISTICS, Cell P29-R29,
https://www.ice.gov/detain/detentionmanagement (last visited April 13, 2022).
•
Halfway through FY 2022, ICE has only
removed 25,986 aliens from the United
States.
IMMIGRATION
AND
CUSTOMS
ENFORCEMENT, DETENTION FY22 YTD,
ALTERNATIVES TO DETENTION FY 2022 YTD
AND FACILITIES FY 2022 YTD, Cell P29-R29,
https://www.ice.gov/detain/detentionmanagement (last visited April 13, 2022).
•
And for context, in FY 2020—before the
current Administration took office—ICE
removed 185,884 aliens from the United
AND
CUSTOMS
States.
IMMIGRATION
ENFORCEMENT,
FY
2020
DETENTION
STATISTICS,
Cell
P29-R29,
https://www.ice.gov/detain/detentionmanagement (last visited April 13, 2022).
In sum, these statistics demonstrate that DHS
knows—after all, it publishes the information on the
internet or discloses it to the public in court filings—
it is extremely unlikely that it will ever, or even
attempt to, remove aliens from the United States
that it releases into the United States after
apprehending them at the southwest border—a
result completely contrary to the benefits DHS
acknowledged obtaining by using MPP.
Considering the facts above in combination with
the clear commands of Congress to apprehend,
detain, and remove those aliens who violate our laws,
it is quite difficult to understand the logic behind
18
knowingly releasing well over 750,000 illegal aliens
into the United States from the southwest border
over a 13-month period as DHS has done and
documented to the District Court below, while only
removing approximately 4,300 aliens every month as
DHS has done in the first six months of this Fiscal
Year. Indeed, if removals continue at that rate, it will
take DHS approximately 174 months—14.5 years—to
remove just the aliens it has released into the United
States over the last 13 months.
IV.
By Failing to Consider MPP's Benefits
and Its Ability to Apply Meaningful
Enforcement Consequences, DHS Acted
Arbitrary
and
Capriciously
by
Terminating MPP.
Secretary Mayorkas failed to consider the benefits
MPP provided when he terminated the program.
Because Congress has provided clear directions to
DHS about how to secure the border, and DHS knows
that without MPP it will struggle to ever come close
to complying with those directions, Secretary
Mayorkas’s decision to terminate MPP was a clear
error in judgment for failing to consider the relevant
factors. Accordingly, the decision to terminate MPP
was arbitrary and capricious for that reason alone.
“Revocation constitutes a reversal of the agency's
former views as to the proper course.” Motor Vehicle
Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 41 (1983). A settled course of
behavior embodies the agency's informed judgment
that, by pursuing that course, it will carry out the
policies committed to it by Congress. There is at least
a presumption that those policies will be carried out
19
best if the settled rule is adhered to. Atchison, T. &
S.F.R. Co. v. Wichita Bd. of Trade, 412 U.S. 800,
807–808 (1973). Accordingly, an agency changing its
course by rescinding a rule has an obligation to
supply a reasoned analysis for the change beyond
that which may be required when an agency does not
act in the first instance. Dep't of Homeland Sec. v.
Regents of the Univ. of California, 140 S. Ct. 1891,
1913 (2020).
The scope of review under the “arbitrary and
capricious” standard is narrow and a court is not to
substitute its judgment for that of the agency.
Nevertheless, the Court must ensure that the agency
has examined the relevant data and articulated a
satisfactory explanation for its action including a
“rational connection between the facts found and the
choice made.” Burlington Truck Lines v. United
States, 371 U.S. 156, 168 (1962).
In reviewing that explanation, this Court must
consider whether the decision was based on a
consideration of the relevant factors and whether
there has been a clear error of judgment. Normally,
an agency rule would be arbitrary and capricious if
the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an
explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that
it could not be ascribed to a difference in view or the
product of agency expertise. State Farm, 463 U.S. at
43 (citations omitted).
Agency action is lawful only if it rests on a
consideration of the relevant factors found in its
20
authorizing statutes; the question is whether “the
agency has acted reasonably and thus has ‘stayed
within the bounds of its statutory authority.’” Util.
Air Regul. Grp. v. E.P.A., 573 U.S. 302, 315 (2014);
see also Michigan v. E.P.A, 576 U.S. 743, 750 (2015).
Secretary Mayorkas failed to adequately explain
his analysis of the relevant factors at issue: namely,
the benefits DHS previously identified MPP as
providing, as well as his Department’s own available
statistics on its ability to faithfully execute the laws
Congress charged it with enforcing. See Pet. App.
346a-360a. And the Fifth Circuit rightly found as
much. Id. 107a-110a. To the extent that DHS
addressed MPP’s supposed shortcomings, the Fifth
Circuit rightly found those to be “irrational”
considering the record before the Court. Id. 108a109a.
DHS’s decision to terminate MPP fares no better
when considering the post-hac explanations offered
in the October Termination Memorandum. In that
document, DHS admitted that MPP reduced illegal
immigration. Pet App. 308a, 312a. However, it
“concluded that this benefit cannot be justified,
particularly given the substantial and unjustifiable
human costs on the migrants who were exposed to
harm while in Mexico, and the way in which MPP
detracts from other regional and domestic goals and
policy initiatives that better align with this
Administration’s values.” Id. 313a.
In December 2018, when the government
announced MPP, it stated that MPP was expected to
provide numerous benefits for the immigration
system, including reducing false asylum claims, more
21
quickly adjudicating meritorious asylum claims,
clearing the backlog of unadjudicated asylum
applications, and, perhaps most importantly,
stemming migration flows across our southwest
border. The evidence demonstrates that it did these
things.
But in October 2021, to justify MPP’s termination,
the government cited “provid[ing] legal and regular
pathways for individuals seeking protection and
opportunity to work in the United States”, “concerns
about the safety and security of those returning to
Mexico”,
“tackling
humanitarian
concerns,”
“address[ing] root causes”, “providing regional
approaches to lawful pathways” for mass migration,
and “managing migratory flows at the border, and
doing so in a humane way, consistent with the
Administration’s values.” Id. 340a-343a. No statutory
citations were provided as authority for these
considerations because none support them. Rather,
the government unlawfully substituted its own
partisan political open-borders “values” for the
factors that Congress intended it to consider, as
memorialized in our duly enacted immigration laws.
Similarly, while the government considered at
length the needs of illegal aliens for “pathways” and
“opportunit[ies] to work in the United States,” it did
not seriously consider the impact of terminating
MPP, and the increase in illegal immigration such
termination admittedly will cause, on the
employment opportunities and personal safety of
American citizens. Instead, the government
dismissed these as “marginal costs”:
22
The fact that some noncitizens might
reside in the United States rather than
being returned to Mexico and thus
access certain services or impose law
enforcement costs is not, in the
Secretary’s view, a sufficiently sound
reason to continue MPP. Federal
immigration policy virtually always
affects the number of people living
within the States. Notably, not all of
those burdens are borne by border
States—many noncitizens proceed to
interior States; others are detained by
the federal government. In this case, the
Secretary has made the judgment that
any marginal costs that might have
been inflicted on the States as a result
of the termination of MPP are
outweighed by the other considerations
and policy concerns
Id. 317a-318a.
Critically, DHS failed to address adequately the
effect that terminating MPP would have on its ability
to faithfully execute the immigration laws in a
manner that would result in meaningful enforcement
outcomes. Rational thinking, requires consideration
of how DHS’s termination of MPP will affect its
ability to meaningfully enforce the 1.2 million
administratively final removal orders for aliens
already in the United States, or what it will do to
enforce the removal orders for the majority of the 1.2
million aliens with cases currently pending in
immigration court—a small minority of which will
23
receive something other than an order of removal if
laws are faithfully interpreted and executed. And of
course,
it
would
also
require
meaningful
consideration of how DHS plans to enforce the law
for the tens of thousands of aliens it releases from the
border into the United States each month MPP is not
in effect. All these considerations are relevant factors
DHS had to consider—but DHS did not.
DHS also failed to quantify either the benefits of
MPP to the States, or the law enforcement and other
marginal costs that might be inflicted on the States
as a result of the termination of MPP. It failed to
specify the cited “other considerations and policy
concerns” it relied on to dismiss their States’ very
real concerns, and then to assess and quantify their
cost to the States and the citizens of communities
used for the resettlement of illegal aliens. But even
assuming the immigration laws do not require the
government to evaluate its immigration policy
decisions through the prism of what is best for
American citizens, the government was not “writing
on a blank slate” in this case.
Given the evidence that releasing illegal aliens
into the United States, as the government has done
and continues to promise to do on an unprecedented
scale, practically guarantees that they will remain
here indefinitely, something more than a general
statement of “values” was required to satisfy the
“reasoned decision-making” standard. Regents, 140 S.
Ct. at 1915 (citations omitted); Michigan, 576 U.S. at
758.
24
CONCLUSION
Releasing illegal aliens into the United States
practically guarantees that they will remain in the
United States indefinitely. MPP addressed this
problem by employing the comprehensive statutory
framework provided by Congress in a manner that
permitted DHS to detain certain illegal aliens, return
others to Mexico pending the duration of their
removal proceedings, and effectively use other
statutory authorities like expedited removal.
The Biden Administration’s decision to terminate
MPP was not only substantively unlawful, but in
failing to consider MPP’s benefits and DHS’s own
available statistics about its ability to faithfully
execute the immigration laws, was also egregiously
arbitrary and capricious.
The Court should affirm the decision below.
Respectfully submitted,
GENE P. HAMILTON
Counsel of Record
Vice-President and General Counsel
America First Legal Foundation
300 Independence Ave. SE
Washington, DC 20003
(202) 964-3721
gene.hamilton@aflegal.org
Counsel for Amicus Curiae
APRIL 14, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.