Exclusive–Kobach: Biden Could Stop the 60,000 Migrant Surge Immediately

Haitian migrants remain outside a migrant shelter where they await their immigration resolution, in Monterrey, Mexico, on September 26, 2021. - Almost all of the mostly Haitian migrants who had gathered on both sides of the US-Mexico border have left their makeshift camps, ending a standoff that had provoked a …
ULIO CESAR AGUILAR/AFP via Getty Images

Some 60,000 migrants are reported to be gathering south of the border to enter the United States.  It will be one of the largest surges of illegal aliens into the country in a year that has already shattered previous records in border apprehensions.

It’s yet another chapter in the ongoing saga of human trafficking, drug smuggling, and fraudulent asylum claims that has defined the Biden Administration’s record on immigration.  The Administration has pretended as if the flood of illegal immigration is an uncontrollable natural phenomenon like a hurricane—driven by abstract “root causes” in countries such as Honduras, Guatemala, and El Salvador, according to Jen Psaki.  Vice President Kamala Harris has even attributed the surge of migrants to “the lack of climate adaptation and resilience.”

Of course, nothing could be further from the truth.  The surge of migrants has been a predictable outcome caused by two policy changes:  (1) the Biden Administration’s termination of the Migrant Protection Protocols (MMP), also known as the Remain in Mexico program, as well as (2) the Administration’s February 18 and September 30 directives that prevented ICE officers from deporting hundreds of thousands of illegal aliens.  Both policies violate federal law.

But just as those two faucets were quickly turned on by the Biden Administration in February, they can just as easily be turned off.  If the Biden Administration won’t do it themselves, the judiciary may do it for them.

In early August, federal district court judge Matthew Kacsmaryk of the Northern District of Texas ruled in the case of Texas and Missouri v. Biden that the Biden Administration’s termination of the MPP violated the Administrative Procedure Act (APA), as well as federal immigration law requiring that certain illegal aliens be detained.  

Federal law at 8 U.S.C. § 1225 requires that illegal aliens apprehended crossing the land border must be either deported immediately, detained, or ordered to remain in Mexico.  President Trump didn’t invent the program; his Administration simply complied with the requirements of federal law.

Under the MPP, illegal aliens arriving at the United States border and making claims of asylum were issued a notice to appear at a future immigration court hearing and were ordered to wait in Mexico until the time of the hearing.  As Judge Kacsmaryk noted, requiring such aliens to remain in Mexico was especially important, since 86 percent of the asylum claims between FY 2008 and FY 2019 were rejected.  If the illegal aliens making these bogus claims of asylum are allowed to enter the United States, many simply disappear and never show up for their hearings.  But if they are required to remain in Mexico, the flow of incoming aliens immediately abates as word travels south that migrants are not being turned loose into the United States.

Judge Kacsmaryk’s decision ordered the Department of Homeland Security to “enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under Section [1225] without releasing any aliens because of a lack of detention resources.”

The Department of Justice was allowed a brief reprieve in order to seek a stay of Judge Kacsmaryk’s injunction in the higher courts.  But that didn’t take long.  The injunction was sustained by the Supreme Court on August 24.  However, in the two months since the Supreme Court ruled, the Biden Department of Homeland Security has dragged its feet in complying with the injunction, announcing recently that it would finally get around to restarting the Remain in Mexico program “sometime in mid-November.”  The Administration’s delay has been inexcusable.  

President Biden could restart the Remain in Mexico program tomorrow.  If he did, word would immediately get to the caravans of migrants bound for the United States.  Thousands would change their plans and return home.

Reversing the second Biden policy change would have the same effect.  If Biden rescinded the February 18 and September 30 Memoranda that handcuffed ICE in its deportation of illegal aliens, word would immediately travel to the caravans that illegal aliens are no longer free to roam the interior of the United States.  Texas sheriffs and ICE officers are currently suing the Biden Administration to accomplish exactly that.

But Biden doesn’t have to wait for the court in that case to rule.  He could restart deportations tomorrow.

Those two steps alone would stop the 60,000 migrants who are headed toward Texas.  Biden’s handlers know this.  But don’t hold your breath.  They have no desire to stop the surge.  It’s all part of the plan.

Kris W. Kobach served as the Secretary of State of Kansas during 2011-2019.  Prior to that, he was a law professor at the University of Missouri—Kansas City School of Law.  An expert in immigration law and policy, he was an informal adviser to President Trump.  He is currently representing the Texas sheriffs and an association of ICE officers who are suing the Biden Administration over its violation of laws requiring the deportation of illegal aliens.  His website is kriskobach.com.

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