Biden’s immigration changes result in more aliens in the US ‘waiting’ for slower courts

President Joe Biden just ended the Trump administration’s Migrant Protection Protocol (MPP) program, which has been referred to as the “Remain in Mexico” policy. The MPP program required certain aliens entering or seeking admission to the U.S. from Mexico — illegally or without proper documentation — to return to Mexico and wait outside of the U.S. for the duration of their immigration proceedings.

That means the people will now be waiting inside the U.S. — usually anywhere they like — for as long as two and a half years, or more, until a backlogged court gets to their case, at which point, statistics show, they don’t show up for their hearing.

According to the Trump administration, the MPP program provided a safer and more orderly immigration process that discouraged individuals from taking advantage of the immigration system, such as by making false asylum claims just to be able to enter — and then remain — in the United States.

Approximately 68,000 individuals were returned to Mexico pursuant to the program.

According to DHS Secretary Alejandro N. Mayorkas, the MPP program did “not adequately or sustainably enhance border management in such a way as to justify the program’s extensive operational burdens and other shortfalls.”

How is Mayorkas enhancing border management by ending the MPP program? And what about the unintended consequences of ending it, which will almost certainly produce a surge in asylum cases for an immigration court already struggling unsuccessfully with a backlog crisis? Ending the program also will eliminate a deterrent to coming here to ask for asylum for the sole purpose of getting into the U.S. and then disappearing into the interior of the country.

Surge at the border & backlog crisis

Border Patrol apprehensions at the Southwest land border have already risen dramatically under the Biden administration. They averaged just over 70,000 per month in the months before Biden took office, and then rose to 101,120 in February, his first full month in office, to 173,348 in March, and to 178,622 in April.

Immigration courts had received 104,685 new cases as of April of fiscal 2021, and they only completed 58,371 cases during that period.

This increased the court’s backlog to 1,322,938 cases. The average wait for a hearing is 934 days — more than two and a half years.

Biden has taken some steps intended to reduce the backlog, but they are of questionable effect.

Biden established a “dedicated docket” to expedite hearings for certain families arriving at the Southwest border who are placed in removal proceedings. The objective of this program is to complete removal proceedings within 300 days of the initial master calendar hearing at which the aliens meet with an immigration judge to figure out how to proceed with their cases. These families will not be detained while they are waiting for their hearings.

The Trump administration moved nearly 17,000 families through a similar accelerated docket program: 80 percent of the cases resulted in an in absentia removal order because the families failed to appear for their hearings.

Even if the Biden administration has better luck with its program, it will not reduce the backlog. The only way to expedite hearings for newly admitted families is to put them in line ahead of aliens who are already waiting for a hearing. This will make the line longer, not shorter, and it is unfair to the aliens who are already in line.

Biden also has given ICE attorneys more discretion to drop immigration cases. This will reduce the backlog a little, but it also could be counterproductive. It reinforces what I call the “home free” magnet that Biden created when he used his priority categories to restrict enforcement to deportable aliens he thinks should be deported, completely disregarding the removal grounds Congress passed into law.

All undocumented aliens have to do is succeed in getting into the United States. Once they are here, they are safe from being deported unless they are convicted of a serious crime that puts them into one of Biden’s priority categories. This motivates potential migrants to keep trying until they succeed, which makes it virtually impossible to secure the border.

Biden’s efforts reduce the immigration court backlog would be more successful if he stopped releasing people into the country who will need hearings before an immigration judge.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.