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.,
v.
Petitioners
STATE OF TEXAS, ET AL.,
_________________________
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit
_________________________
BRIEF OF ADVANCING AMERICAN FREEDOM
AS AMICUS CURIAE
SUPPORTING RESPONDENTS
_____________________
Matthew J. Sheehan
Counsel of Record
Advancing American Freedom, Inc.
801 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
(202) 780-4848
matt@advancingamericanfreedom.com
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... iii
STATEMENT OF INTEREST OF AMICUS CURIAE.... 1
SUMMARY OF THE ARGUMENT ............................. 2
ARGUMENT ................................................................ 3
I.
Federal Law Requires That Aliens Who are
Applicants for Admission and Not Entitled
to Admission Must be Detained Pending
Removal Proceedings ............................................ 4
II. The Biden Administration and Department
of Homeland Security Have Failed to
Employ Procedures Making it Possible For
DHS to Comply With § 1225(b)’s Detention
Mandate................................................................. 7
A. The Biden Administration and DHS
Have Deliberately Reduced Available
Detention Capacity ......................................... 9
B. DHS Has Eliminated All Family
Detention Centers......................................... 14
C. DHS Has Not Only Failed to Robustly
Utilize Expedited Removal, But Also
Restricted When That Authority May be
Used............................................................... 15
ii
III. MPP Was an Effective Policy to Control the
Crisis at the Southern Border ............................ 19
CONCLUSION .......................................................... 22
iii
TABLE OF AUTHORITIES
Cases
Page
Jennings v. Rodriguez,
138 S. Ct. 830 (2018) ................................................ 4
Kingdomware Techs., Inc. v. United States,
579 U.S. 162 (2016) .................................................. 8
Make the Road New York v. Wolf,
962 F.3d 612 (D.C. Cir. 2020) ................................ 18
Texas v. Biden,
20 F.4th 928 (5th Cir. 2021) .................. 5, 6, 7, 8, 20
Statutes
8 U.S.C. § 1182(d)(5).................................................... 5
8 U.S.C. § 1182(d)(5)(B) ............................................... 6
8 U.S.C. § 1225(b) ........................................................ 7
8 U.S.C. § 1225(b)(1) ............................................ 15, 16
8 U.S.C. § 1225(b)(2) .................................................... 5
8 U.S.C. § 1225(b)(2)(A) ..................................... passim
8 U.S.C. § 1225(b)(2)(C) ............................................... 5
8 U.S.C. § 1226(a) ........................................................ 5
iv
Regulations
Department of Homeland Security, Designating
Aliens for Expedited Removal, 84 Fed. Reg.
35409 (July 23, 2019) ....................................... 16, 17
Department of Homeland Security, Designating
Aliens for Expedited Removal, 84 Fed. Reg.
35412 (July 23, 2019) ....................................... 16, 17
Department of Homeland Security, Rescission of
the Notice of July 23, 2019, Designating
Aliens for Expedited Removal, 87 Fed. Reg.
16022 (March 21, 2022) ......................................... 19
President Joseph R. Biden, Jr., Creating a
Comprehensive Regional Framework to
Address the Causes of Migration, to Manage
Migration Throughout North and Central
America, and to Provide Safe and Orderly
Processing of Asylum Seekers at the United
States Border, Executive Order 14010, 86
Fed. Reg. 8270 (Feb. 5, 2021) ................................ 19
Other Authorities
Assessment of the Migrant Protection Protocols
(MPP) (Oct. 28, 2019), available at
https://www.dhs.gov/sites/default/files/publica
tions/assessment_of_the_migrant_protection_
protocols_mpp.pdf (last visited Apr. 13, 2022)
.................................................................... 20, 21, 22
v
Andrea Castillo, Biden Administration Halts
Immigration Family Detention For Now (Dec.
18,
2021),
LA
Times,
available
at
https://www.latimes.com/politics/story/202112-17/adults-only-biden-administrationrepurposes-immigrant-family-detentioncenters (last visited Apr. 13, 2022)........................ 14
Cong. Rsch. Serv., Expedited Removal of Aliens:
An Introduction (updated Mar. 25, 2022),
available
at
https://crsreports.congress.gov/product/pdf/IF/
IF11357 (last visited Apr. 13, 2022) ................ 15, 16
Department of Homeland Security, DHS to
Reprogram and Transfer $271 Million to
Support
Humanitarian
and
Security
Emergency Response (Aug. 27, 2019),
available
at
https://www.dhs.gov/news/2019/08/27/dhsreprogram-and-transfer-271-million-supporthumanitarian-and-security-emergency
(last
visited Apr. 13, 2022) ......................................... 9, 10
Department of Homeland Security, FY 2017
Budget
in
Brief,
available
at,
https://www.dhs.gov/sites/default/files/publica
tions/FY2017_BIB-MASTER.pdf (last visited
Apr. 13, 2022) ................................................... 12, 13
vi
Department of Homeland Security, FY 2020
Budget
in
Brief,
available
at,
https://www.dhs.gov/sites/default/files/publica
tions/fy_2020_dhs_bib.pdf (last visited Apr.
13, 2022) ................................................................. 11
Department of Homeland Security, FY 2021
Budget
in
Brief,
available
at,
https://www.dhs.gov/sites/default/files/publica
tions/fy_2021_dhs_bib_0.pdf (last visited Apr.
13, 2022) ........................................................... 11, 12
Department of Homeland Security, FY 2023
Budget
in
Brief,
available
at,
https://www.dhs.gov/sites/default/files/202203/22-%201835%20%20FY%202023%20Budget%20in%20Brief%2
0FINAL%20with%20Cover_Remediated.pdf
(last visited Apr. 13, 2022)..................................... 12
Department of Homeland Security, FY2018
Budget
in
Brief,
available
at,
https://www.dhs.gov/sites/default/files/publica
tions/DHS%20FY18%20BIB%20Final.pdf
(last visited Apr. 13, 2022)..................................... 11
Department of Homeland Security, FY2019
Budget
in
Brief,
available
at,
https://www.dhs.gov/sites/default/files/publica
tions/DHS%20BIB%202019.pdf (last visited
Apr. 13, 2022) ......................................................... 11
vii
Department of Homeland Security, FY2021
Budget
in
Brief,
available
at,
https://www.dhs.gov/sites/default/files/publica
tions/fy_2021_dhs_bib_0.pdf (last visited Apr.
13, 2022) ................................................................. 11
Department of Homeland Security, FY2022
Budget
in
Brief,
available
at,
https://www.dhs.gov/sites/default/files/publica
tions/dhs_bib_-_web_version_-_final_508.pdf
(last visited Apr. 13, 2022)..................................... 13
Department of Homeland Security, Migrant
Protection Protocols Archived Content,
https://www.dhs.gov/news/2019/01/24/migrant
-protection-protocols (last visited Apr. 12,
2022) ......................................................................... 6
Fox News, Biden administration releasing
families from Texas migrant centers in 72
hours (Mar. 7, 2021), New York Post,
available
at
https://nypost.com/2021/03/07/bidenadministration-releasing-families-frommigrant-centers/ (last visited Apr. 13, 2022) ........ 14
viii
Anna Giaritelli, 47,705 migrants released with
instructions to report to ICE have gone
missing under Biden (Jan 11, 2022), available
at
https://www.washingtonexaminer.com/news/4
7-705-migrants-released-with-instructions-toreport-to-ice-have-gone-missing-under-biden
(last visited Apr. 13, 2022)..................................... 20
John Gramlich, Migrant encounters at U.S.Mexico border are at a 21-year high (Aug. 13,
2021),
available
at
https://www.pewresearch.org/facttank/2021/08/13/migrant-encounters-at-u-smexico-border-are-at-a-21-year-high/
(last
visited Apr. 13, 2022) ............................................. 13
Stef Kight, Scoop: Biden to stop holding
undocumented families in detention centers
(Dec.
15,
2021),
available
at
https://www.axios.com/biden-ends-migrantfamily-detention-border-immigrationb39f3e04-689a-486b-82de-7deb9412cea6.html
(last visited Apr. 13, 2022)..................................... 15
Migrant Protection Protocols Metrics and
Measures,
available
at
https://www.dhs.gov/sites/default/files/publica
tions/migrant_protection_protocols_metrics_a
nd_measures_2.pdf (last visited Apr. 13, 2022) .... 21
ix
U.S. Customs and Border Protection, Southwest
Land Border Encounters, available at
https://www.cbp.gov/newsroom/stats/southwes
t-land-border-encounters (last visited Apr. 13,
2022) ....................................................................... 13
U.S. Department of Homeland Security,
Department of Homeland Security FY 2019
Southwest Border Emergency Transfer and
Reprogramming Notification, available at
https://s3.documentcloud.org/documents/6345
992/DHS-FY-2019-Southwest-BorderEmergency-Transfer.pdf (last visited Apr. 13,
2022) ....................................................................... 10
1
STATEMENT OF INTEREST
OF AMICUS CURIAE
Advancing American Freedom (AAF) is a
nonprofit organization that promotes and defends
policies that preserve liberty and are consistent with
the United States Constitution. 1 AAF believes that
policies enacted by the federal government should be
consistent with the rule of law. AAF files amicus
briefs in federal courts that support these principles.
All parties have consented to the filing of this brief. No
counsel for a party authored this brief in whole or in part. No
person other than amicus curiae made any monetary
contribution intended to fund the preparation or submission of
this brief.
1
2
SUMMARY OF THE ARGUMENT
Congress has written into federal law the clear
policy determination that undocumented aliens who
are “applicant[s] for admission” “shall be detained”
pending the resolution of removal proceedings. 8
U.S.C. § 1225(b)(2)(A). Federal law provides tailored
alternatives to this statutory detention mandate, for
the purpose of aiding the Department of Homeland
Security (DHS) in the efficient administration of our
immigration laws. But the Biden Administration
insists that these statutory alternatives to the
detention mandate are insufficient. Determined to
release as many undocumented aliens as possible
into the general public, the Biden Administration
contends that this Court should grant it plenary
release authority in contravention of the clear
language of § 1225(b)(2)(A) by adopting the
nonsensical reading that “shall” means “may.”
This Court should reject the Biden
Administration’s
Orwellian
reading
of
our
immigration statutes. Congress has made the policy
determination that a baseline policy of mandatory
detention of undocumented aliens who are applicants
for admission into the United States is necessary to
protect the public from the harmful effects of illegal
immigration. President Biden is bound by his oath
of office to faithfully execute our immigration laws,
and the Biden Administration should not be
permitted to disregard them in its fervent pursuit of
its radical contrary policy agenda.
3
In particular, this Court should reject the
Biden Administration’s disingenuous argument that
“shall” should be read to mean “may” because, it
asserts, it cannot possibly detain all aliens pending
the resolution of their removal proceedings. Before
the Executive is permitted to claim that purported
impossibility
should
influence
this
Court’s
interpretation of a statute, the Executive should first
be required to demonstrate that it has done
everything in its power to comply with the statute as
written. The Biden Administration flunks that test
in every respect, having instituted numerous policies
as exercises of claimed executive discretion that have
had the deliberate effect of making it substantially
more difficult for DHS to enforce the laws enacted by
Congress.
This Court should not allow itself to be made
complicit in the Biden Administration’s overt efforts
to subvert the rule of law, by using illicit executive
actions that contravene the immigration policy
established by Congress to secure the statutory
interpretation it prefers. The Court should instead
forcefully remind the Biden Administration that it
has a duty to enforce the laws, and that it cannot
request that the courts release it from that obligation
on grounds of impossibility until it first demonstrates
that it has actually tried.
ARGUMENT
The purpose of this amicus brief is to bring to
the Court’s attention numerous policies enacted by
4
the Biden Administration as claimed exercises of
executive discretion that have had the deliberate
effect of making it more difficult for DHS to enforce
the immigration laws enacted by Congress. The
Biden Administration should not be permitted to
argue that the detention mandate that Congress
enacted in § 1225(b)(2)(A) should instead be read to
confer plenary discretion on the grounds that it is
impossible for it to execute a policy of mandatory
detention, while in practice deliberately doing
everything it can to undermine the nation’s detention
capacity.
I.
Federal Law Requires That Aliens Who
are Applicants for Admission and Not
Entitled to Admission Must be Detained
Pending Removal Proceedings.
Federal law is clear. If “an alien who is an
applicant for admission . . . is not clearly and beyond
a doubt entitled to be admitted, the alien shall be
detained” pending removal proceedings. 8 U.S.C. §
1225(b)(2)(A) (emphasis added). Congress’s decision
to utilize the term “shall” – a mandatory term – in §
1225(b)(2)(A) indicates its determination that DHS
has a baseline statutory obligation to detain aliens
pending their removal (subject to any statutory
exceptions). And the Supreme Court has previously
opined that “[r]ead most naturally, §§ 1225(b)(1) and
(b)(2) [] mandate detention of applicants for
admission until certain proceedings have concluded.”
Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018).
5
Congress, however, has provided two permissible
statutory alternatives to the detention mandate of §
1225(b)(2)(A). See Texas v. Biden, 20 F.4th 928, 994995 (5th Cir. 2021). First, § 1225(b)(2)(C) provides
the Attorney General discretionary authority to
“return” an alien “arriving on land (whether or not at
a designated port of arrival) from a foreign territory
contiguous to the United States . . . to that territory”
pending
removal
proceedings.
8
U.S.C.
§
1225(b)(2)(C). Second, § 1182(d)(5) permits DHS to
“parole” – rather than detain or return – an alien.
This parole alternative, however, is very limited;
parole may only be granted “on a case-by-case basis
for urgent humanitarian reasons or significant public
benefit[.]” 8 U.S.C. § 1182(d)(5). 2
The Trump-Pence Administration implemented
the Migrant Protection Protocols (MPP), which
relates to the first of the two statutorily permissible
alternatives to detention, in December 2018, in
response to a surge of undocumented aliens arriving
at the Southern Border of the United States. Texas,
20 F.4th at 944. MPP permitted DHS to return to
8 U.S.C. § 1226(a) provides a separate “detention-and-parole
scheme” that covers aliens who have already entered the United
States. This provision allows for bond and conditional parole,
but only applies “to aliens detained under § 1226(a) itself—not
to aliens detained under § 1225(b).” Texas, 20 F.4th at 996; id.
at 947 (“Section 1226(a) provides its own detention-and-parole
scheme that applies to aliens who have already entered the
United States—in contradistinction to the applicants for
admission covered by § 1225(b)(2) and § 1182(d)(5).”).
2
6
Mexico certain foreign individuals who illegally or
without proper documentation sought entry or
admission from Mexico to the United States.
Department of Homeland Security, Migrant
Protection
Protocols
Archived
Content,
https://www.dhs.gov/news/2019/01/24/migrantprotection-protocols (last visited Apr. 12, 2022). Once
returned to Mexico pursuant to MPP, undocumented
aliens are required to wait outside the United States
“for the duration of their immigration proceedings[.]”
Id.
The second statutorily permissible alternative to
detention – parole – applies only in very limited
circumstances. Parole of an alien into the United
States is forbidden “unless the Attorney General
determines that compelling reasons in the public
interest with respect to that particular alien require
that the alien be paroled into the United States[.]” 8
U.S.C. § 1182(d)(5)(B). Further, the unambiguous
plain text of the statute only authorizes parole on a
case-by-case basis; the en masse parole of aliens is
impermissible. Texas, 20 F.4th at 997. (“DHS cannot
use that power to parole aliens en masse; that was
the whole point of the case-by-case requirement that
Congress added in IIRIRA. So the Government’s
proposal to parole every alien it cannot detain is the
opposite of the case-by-case basis determinations
required by law.”) (internal quotations and citations
omitted). “Quintessential modern uses of the parole
power include, for example, paroling aliens who do
not qualify for an admission category but have an
urgent need for medical care in the United States
7
and paroling aliens who qualify for a visa but are
waiting for it to become available.” Id. at 947. Merely
paroling undocumented aliens en masse with a hope
that they return for their immigration hearings, see
id. at 944 (prior to the implementation of MPP aliens
would “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.”), is not contemplated by or
consistent with the statute.
Congress has thus provided the Executive with
specific but limited authorities that allow it, in
appropriate and specified circumstances, to avoid
detaining undocumented aliens pursuant to the
detention mandate of § 1225(b)(2)(A). There is no
valid justification to override Congress’s clear policy
choice by granting the Biden Administration the
plenary authority it seeks to release undocumented
aliens into the general population.
II.
The
Biden
Administration
and
Department of Homeland Security
Have Failed to Employ Procedures
Making it Possible For DHS to Comply
With § 1225(b)’s Detention Mandate.
The Biden Administration claims that Congress
has failed to provide DHS with “sufficient
appropriations to detain” all aliens encountered by
the Agency who are subject to detention under 8
U.S.C. § 1225(b). Brief for the Petitioners, Biden v.
Texas, No. 21-954, at 5. Yet, in the middle of the
8
worst border crisis in American history, instead of
continuing the successful MPP in order to make best
use of available detention capacity and to maximize
legal compliance, the Administration has deliberately
sought to end MPP so that it can instead release
more undocumented aliens with no legal right to
entry into the United States. See Texas, 20 F.4th at
944 (“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”).
The release of these aliens – rather than detaining or
returning them to Mexico under the terms of the
MPP – violates Congress’s clear statutory command
to detain undocumented aliens who are applicants for
admission. See id. at 998.
The rule of law dictates that the government
cannot merely decide to claim impossibility and
ignore the plain command of the statutory text
(“shall be detained”) without any demonstration that
it has first made best efforts to comply with the
statute’s text. C.f. Kingdomware Techs., Inc. v.
United States, 579 U.S. 162, 171 (2016) (“Unlike the
word may, which implies discretion, the word shall
usually
connotes a
requirement.”)
(internal
quotations omitted). DHS claims that it cannot
comply with the statutory text because it lacks
resources to detain aliens, see Brief for the
Petitioners, Biden v. Texas, No. 21-954, at 5, but
DHS and the Biden Administration have not
demonstrated that they first exhausted readily
available methods that could be used to comply with
9
the statutory command to detain.
The Biden
Administration has several different procedures
available to it to comply with the statute’s command,
including maintaining MPP. See Brief for the
Respondents, Biden v. Texas, No. 21-954, at 20-21
(“MPP enables DHS to comply with its section 1225
obligations by exercising one of its applicable
statutory options, its contiguous-return authority, by
returning eligible aliens to Mexico. Because DHS
must comply with federal law if it is able, it cannot
terminate MPP so long as, as the district court found,
termination of MPP necessarily leads to the systemic
violation of section 1225.”) (internal quotations
omitted).
A. The Biden Administration and DHS
Have Deliberately Reduced Available
Detention Capacity.
During the Trump-Pence Administration DHS
sought
to
increase
detention
capacity
by
(1) transferring and reprogramming other DHS
appropriations to the U.S. Immigration and Customs
Enforcement (ICE), and (2) requesting additional
funds for detention bedspace from Congress.
In response to the number of single adults
crossing the Southwest border in 2019, DHS used its
reprogramming and transferring authority to
increase the number of detention beds beyond
Congress’s
baseline
funding
authorization.
Department of Homeland Security, DHS to
Reprogram and Transfer $271 Million to Support
10
Humanitarian and Security Emergency Response
(Aug.
27,
2019),
available
at
https://www.dhs.gov/news/2019/08/27/dhs-reprogramand-transfer-271-million-support-humanitarian-andsecurity-emergency (last visited Apr. 13, 2022); U.S.
Department of Homeland Security, Department of
Homeland Security FY 2019 Southwest Border
Emergency
Transfer
and
Reprogramming
Notification,
available
at
https://s3.documentcloud.org/documents/6345992/DH
S-FY-2019-Southwest-Border-EmergencyTransfer.pdf at 3 (last visited Apr. 13, 2022) (“ICE
requires additional detention resources in order to
maintain sufficient capacity to detain aliens and
enforce the Nation’s immigration laws.”).
DHS
ultimately reprogramed and transferred $271 million
in available funding via authority in the fiscal year
(FY) 2019 DHS Appropriations Act to pay for
additional detention space, court space, and
transportation. U.S. Department of Homeland
Security, Department of Homeland Security FY 2019
Southwest Border Emergency Transfer and
Reprogramming
Notification,
available
at
https://s3.documentcloud.org/documents/6345992/DH
S-FY-2019-Southwest-Border-EmergencyTransfer.pdf, 3 (last visited Apr. 13, 2022) (indicating
that ICE requires $101.4 million for additional
detention resources). Reprograming and transfer of
funds to increase detention bed capacity is but one
example of the many ways that the Biden
Administration could take additional steps to
increase detention capacity to comply with
§ 1225(b)(2)(A)’s mandatory detention requirement.
11
In its 2021 budget proposal, DHS requested $3.1
billion for 60,000 detention beds (55,000 adult beds
and 5,000 family beds). 3 Department of Homeland
Security, FY2021 Budget in Brief, available at,
https://www.dhs.gov/sites/default/files/publications/fy
_2021_dhs_bib_0.pdf at 3 (last visited Apr. 13, 2022).
DHS found that this “increase in detention capacity
is critical to supporting ICE’s ability to apprehend,
detain, and remove aliens.” Id. at 32. Between FY
2018 and FY 2021, DHS requested an average of
54,344.75 detention beds each year. (51,379 detention
beds for FY 2018, 52,000 detention beds for FY 2019,
54,000 detention beds for FY 2020, and 60,000
detention beds for FY 2021). See Department of
Homeland Security, FY2018 Budget in Brief,
available
at,
https://www.dhs.gov/sites/default/files/publications/D
HS%20FY18%20BIB%20Final.pdf at 4 (last visited
Apr. 13, 2022); Department of Homeland Security,
FY2019
Budget
in
Brief,
available
at,
https://www.dhs.gov/sites/default/files/publications/D
HS%20BIB%202019.pdf at 4 (last visited Apr. 13,
2022); Department of Homeland Security, FY 2020
Budget
in
Brief,
available
at,
https://www.dhs.gov/sites/default/files/publications/fy
_2020_dhs_bib.pdf at 3 (last visited Apr. 13, 2022);
Department of Homeland Security, FY 2021 Budget
in
Brief,
available
at,
https://www.dhs.gov/sites/default/files/publications/fy
Detention bed space is measured in terms of average daily
population.
3
12
_2021_dhs_bib_0.pdf at 3 (last visited Apr. 13, 2022).
Further, DHS’s budget requests for detention space
between FY 2017 and FY 2021 increased by 29,087
beds, a 94.09% increase (30,913 detention beds for FY
2017 and 60,000 detention beds for FY 2021).
Department of Homeland Security, FY 2017 Budget
in
Brief,
available
at,
https://www.dhs.gov/sites/default/files/publications/F
Y2017_BIB-MASTER.pdf at 38 (last visited Apr. 13,
2022).
But instead of requesting more funding to comply
with
§
1225(b)(2)(A)’s
mandatory
detention
requirement, the Biden Administration has done the
opposite.
DHS has instead asked Congress to
reduce funding for immigration detention beds. In
its 2023 budget proposal, DHS requested $1.4 billion
for 25,000 detention beds (25,000 adult beds and
elimination of all family beds). Department of
Homeland Security, FY 2023 Budget in Brief,
available
at,
https://www.dhs.gov/sites/default/files/2022-03/22%201835%20%20FY%202023%20Budget%20in%20Brief%20FINA
L%20with%20Cover_Remediated.pdf at 3, 40 (last
visited Apr. 13, 2022). This request represents a
reduction request of 35,000 beds, a 58.33% reduction
in bedspace between the agency’s FY 2021 request
and its FY 2023 request (60,000 detention beds for
FY 2021 and 25,000 detention beds for FY 2023).
Moreover, at a time when U.S. Customs and Border
Protection encounters at the Southwest Land Border
are at the minimum the highest in more than two
13
decades, see U.S. Customs and Border Protection,
Southwest Land Border Encounters, available at
https://www.cbp.gov/newsroom/stats/southwest-landborder-encounters (last visited Apr. 13, 2022), DHS’s
FY 2023 request is 5,913 beds lower than its FY 2017
request made during the last year of the Obama
Administration, Department of Homeland Security,
FY 2017 Budget in Brief, available at,
https://www.dhs.gov/sites/default/files/publications/F
Y2017_BIB-MASTER.pdf at 38 (last visited Apr. 13,
2022); John Gramlich, Migrant encounters at U.S.Mexico border are at a 21-year high (Aug. 13, 2021),
available
at
https://www.pewresearch.org/facttank/2021/08/13/migrant-encounters-at-u-s-mexicoborder-are-at-a-21-year-high/ (last visited Apr. 13,
2022), and 7,500 beds lower than DHS’s request for
FY 2022, Department of Homeland Security, FY2022
Budget
in
Brief,
available
at,
https://www.dhs.gov/sites/default/files/publications/d
hs_bib_-_web_version_-_final_508.pdf at 3, 35 (last
visited Apr. 13, 2022).
The Biden Administration claims that there is a
lack of funding and capacity to detain aliens, yet
DHS has not transferred or reprogramed funds, nor
has it sought additional funding for detention space.
Instead, it has twice asked Congress to reduce
detention funding when compared to the agency’s FY
2021 request. The Biden Administration cannot
claim it is impossible to comply with the statutory
detention
requirements
while
simultaneously
deliberately failing to request sufficient detention
beds in its budget.
14
B. DHS Has Eliminated
Detention Centers.
All
Family
Instead of increasing family detention facilities to
handle the influx of families illegally entering the
United States, DHS has instead exercised supposed
executive discretion to deliberately reduce family
detention capacity. It has been reported that in early
2021, the agency transformed two of ICE’s three
family detention centers into “reception centers” that
provided short-term housing before release into the
United
States. 4
Andrea
Castillo,
Biden
Administration Halts Immigration Family Detention
For Now (Dec. 18, 2021), LA Times, available at
https://www.latimes.com/politics/story/2021-1217/adults-only-biden-administration-repurposesimmigrant-family-detention-centers (last visited Apr.
13, 2022); Fox News, Biden administration releasing
families from Texas migrant centers in 72 hours
(Mar. 7, 2021), New York Post, available at
https://nypost.com/2021/03/07/biden-administrationreleasing-families-from-migrant-centers/ (last visited
Apr. 13, 2022) (characterizing the transformed
detention facilities as “Ellis Island-style rapid
processing centers”). By the end of 2021, according to
The three family detention facilities located in Dilley (Texas),
Karnes City (Texas), and Berks County (Pennsylvania) could
house in total 3,335 undocumented aliens. Fox News, Biden
administration releasing families from Texas migrant centers in
72 hours (Mar. 7, 2021), New York Post, available at
https://nypost.com/2021/03/07/biden-administration-releasingfamilies-from-migrant-centers/ (last visited Apr. 13, 2022).
4
15
reports, DHS entirely ended the policy of housing
undocumented families in detention centers and
shifted the usage of at least one of the facilities to
focus on detaining single adults. Stef Kight, Scoop:
Biden to stop holding undocumented families in
detention centers (Dec. 15, 2021), available at
https://www.axios.com/biden-ends-migrant-familydetention-border-immigration-b39f3e04-689a-486b82de-7deb9412cea6.html (last visited Apr. 13, 2022)
(as of early December, “the U.S. had zero migrant
families in detention facilities[.]”).
While claiming that DHS lacks sufficient
detention space, the Biden Administration has
deliberately eliminated all family detention space
and repurposed at least one facility to house single
adults. And it has done so even though, as discussed
below, DHS had other tools available, including
expedited removal, to handle an influx of single adult
aliens.
C. DHS Has Not Only Failed to Robustly
Utilize Expedited Removal, But Also
Restricted When That Authority May
be Used.
Federal law, 8 U.S.C. § 1225(b)(1), permits the
expedited removal of aliens without a hearing before
an immigration judge “if they are inadmissible either
because they (1) lack valid entry documents, or (2)
tried to procure their admission into the United
States through fraud or misrepresentation.” Cong.
Rsch. Serv., Expedited Removal of Aliens: An
16
Introduction, at 1 (updated Mar. 25, 2022), available
at
https://crsreports.congress.gov/product/pdf/IF/IF1135
7 (last visited Apr. 13, 2022). The statute also
authorizes, but does not require, DHS to remove
“certain other aliens,” 8 U.S.C. § 1225(b)(1), if “they
(1) were not admitted or paroled into the United
States by immigration authorities and (2) cannot
establish at least two years’ continuous physical
presence in the United States at the time of
apprehension.” Cong. Rsch. Serv., Expedited
Removal of Aliens: An Introduction, at 1 (updated
Mar.
25,
2022),
available
at
https://crsreports.congress.gov/product/pdf/IF/IF1135
7 (last visited Apr. 13, 2022). Prior to 2019, DHS did
not fully implement its expedited removal authority.
Id. at 2.
In July 2019, DHS published a Notice in the
Federal Register that enabled the Department “to
exercise the full remaining scope of its statutory
authority to place in expedited removal, with limited
exceptions[.]” 5 Department of Homeland Security,
The Notice specifically designated as eligible for expedited
removal “(1) Aliens who did not arrive by sea, who are
encountered anywhere in the United States more than 100 air
miles from a U.S. international land border, and who have been
continuously present in the United States for less than two
years; and (2) aliens who did not arrive by sea, who are
encountered within 100 air miles from a U.S. international land
border, and who have been continuously present in the United
States for at least 14 days but for less than two years.”
Department of Homeland Security, Designating Aliens for
5
17
Designating Aliens for Expedited Removal, 84 Fed.
Reg. 35409 (July 23, 2019). The basis for this
expansion of the Department’s expedited removal
authority was the ongoing crisis on the Southern
Border, which was caused by the “large number of
aliens” entering the United States illegally who “were
apprehended and detained within the interior of the
United States” and “insufficient [DHS] detention
capacity both along the border and in the interior of
the United States[.]” Id. at 35411.
In its 2019 Notice, DHS found that “[f]ully
implementing expedited removal will help to
alleviate some of the burden and capacity issues
currently faced by” the agency. Id. The Department
noted that a significant number of aliens encountered
in the interior of the United States by ICE would
have been eligible for expedited removal had DHS
previously exercised its discretion to use its full
statutory authority. Id. (“In Fiscal Year (FY) 2018,
37% (20,570) of ICE’s 54,983 total interior
encounters, with entry dates, were of aliens who had
been present in the United States for less than two
years. Through March 30, 2019, 39% (6,410) of U.S.
Immigration and Customs Enforcement’s (ICE)
15,328 total interior encounters, with entry dates, in
FY2019 were aliens who had been present in the
United States for less than two years.”). By placing
these aliens in expedited removal, ICE reasoned it
could “more effectively use its limited detention
Expedited Removal, 84 Fed. Reg. 35412 (July 23, 2019).
18
resources.” Id.
Indeed, based upon FY 2018
statistics, DHS estimated that expedited removal
would cut the average time that inadmissible aliens
encountered in the interior of the United States
spent in detention by approximately 40.1 days. Id.
(average time in DHS custody for aliens placed in
expedited removal was 11.4 days and the average
time in DHS custody for inadmissible aliens
encountered in the interior of the United States
placed into full removal proceedings was 51.5 days).
Thus, DHS’s expanded use of its expedited removal
authority would “likely result in those aliens
spending less time in ICE detention than if they were
placed in full removal proceedings. That, in turn, will
more quickly make available additional ICE bed
space, which can be used for additional interior
arrests and removals.” Id. And the continued use of
DHS’s expedited removal authority would allow it to
deploy its limited resources more efficiently and use
its “detention capacity more effectively,” id. at 35412,
to also detain “more aliens apprehended along the
southern border,” id. at 35411. 6
In Make the Road New York v. Wolf, 962 F.3d 612 (D.C. Cir.
2020) the D.C. Circuit upheld DHS’s expansion of its expedited
removal authority, finding that “Congress committed the
judgment whether to expand expedited removal to the
Secretary’s sole and unreviewable discretion” and is “not subject
to review under the APA’s standards for agency decisionmaking.
Nor is it subject to the APA's notice-and-comment rulemaking
requirements.” Id. at 618 (internal quotations omitted).
6
19
Less than two weeks after his inauguration,
however, President Biden issued an Executive Order
directing the Secretary of Homeland Security to
“promptly review and consider whether to modify,
revoke, or rescind” DHS’s July 2019 Notice
expanding its expedited removal authority. President
Joseph R. Biden, Jr., Creating a Comprehensive
Regional Framework to Address the Causes of
Migration, to Manage Migration Throughout North
and Central America, and to Provide Safe and
Orderly Processing of Asylum Seekers at the United
States Border, Executive Order 14010, 86 Fed. Reg.
8270 (Feb. 5, 2021). Approximately a year later,
DHS rescinded the July 2019 Notice, ending the
Department’s expanded expedited removal authority.
Department of Homeland Security, Rescission of the
Notice of July 23, 2019, Designating Aliens for
Expedited Removal, 87 Fed. Reg. 16022 (March 21,
2022).
If the Biden Administration and DHS retained
the expanded expedited removal program, it could
have – as DHS previously predicted – resulted in the
availability of additional bed space and reduced
overall detention times, making it easier for DHS to
comply with § 1225(b)’s command to detain all aliens.
III.
MPP Was an Effective Policy to
Control the Crisis at the Southern
Border.
MPP was an effective means of curtailing the
crisis at the Southern Border of the United States.
20
See Assessment of the Migrant Protection Protocols
(MPP)
(Oct.
28,
2019),
available
at
https://www.dhs.gov/sites/default/files/publications/as
sessment_of_the_migrant_protection_protocols_mpp.
pdf (last visited Apr. 13, 2022) (“MPP Has
Demonstrated Operational Effectiveness”). Prior to
the implementation of the protocol, resource
constraints forced DHS to release undocumented
aliens seeking asylum into the United States,
“trust[ing] that those aliens would voluntarily appear
for their removal proceedings.” Texas, 20 F.4th at
944. These releases resulted in significant numbers
of undocumented aliens disappearing into the U.S.,
where they either failed to file an asylum application
or appear before an immigration judge. 7 Id.
In an October 2019 memorandum, DHS concluded
that MPP was “an indispensable tool in addressing
the ongoing crisis at the southern border and
It has been reported that in 2021, the Biden Administration
lost track of almost 50,000 migrants who were released from
U.S. Customs and Border Protection custody – a number that
represented nearly half of the approximately 100,000
noncitizens released at the southern border between March and
August. Anna Giaritelli, 47,705 migrants released with
instructions to report to ICE have gone missing under Biden
(Jan
11,
2022),
available
at
https://www.washingtonexaminer.com/news/47-705-migrantsreleased-with-instructions-to-report-to-ice-have-gone-missingunder-biden (last visited Apr. 13, 2022). These individuals who
“disappeared and are untraceable” were merely “given
instructions to self-report to Immigration and Customs
Enforcement within 60 days” and have “failed to check in.” Id.
7
21
restoring integrity to the immigration system.” The
protocol was responsible for a massive reduction in
the number of aliens unlawfully present in the
United States. Assessment of the Migrant Protection
Protocols (MPP) (Oct. 28, 2019), available at
https://www.dhs.gov/sites/default/files/publications/as
sessment_of_the_migrant_protection_protocols_mpp.
pdf (last visited Apr. 13, 2022). DHS found that the
number of aliens apprehended decreased by 64%
through September 2019 from a peak of 144,000 in
May 2019 and “[b]order encounters with Central
American families—who were the main driver of the
crisis and comprise a majority of MPP-amenable
aliens—have decreased by approximately 80%.” Id.
Between MPP’s implementation and October 2019,
DHS
found
a
“connection
between
MPP
implementation and decreasing enforcement actions
at the border.” Id. In other words, MPP worked.
The immigration system was also stronger and
more efficient after the implementation of MPP.
Under MPP, meritorious claims were processed more
quickly. Rather than waiting years for relief,
returnees who presented meritorious claims were
granted relief in a matter of months. Id. Indeed, as
of October 1, 2020, immigration judges had
completed 67% (43,820) of the 65,409 MPP cases
filed.
Migrant Protection Protocols Metrics and
Measures,
available
at
https://www.dhs.gov/sites/default/files/publications/m
igrant_protection_protocols_metrics_and_measures_2
.pdf (last visited Apr. 13, 2022).
22
While benefitting those with meritorious claims,
MPP discouraged those with meritless claims from
asserting requests for relief or protection.
See
Assessment of the Migrant Protection Protocols
(MPP)
(Oct.
28,
2019),
available
at
https://www.dhs.gov/sites/default/files/publications/as
sessment_of_the_migrant_protection_protocols_mpp.
pdf (last visited Apr. 13, 2022). Prior to MPP,
meritless claims could be presented as a means for
aliens to gain entry to the United States. Id.
CONCLUSION
This Court should affirm the Fifth Circuit’s
decision.
Respectfully submitted,
Matthew J. Sheehan
Counsel of Record
Advancing American Freedom, Inc.
801 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
(202) 780-4848
matt@advancingamericanfreedom.com
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.