Exclusive–Kobach: Federal Court Rules Biden Administration’s Termination of the Migrant Protection Protocols Was Illegal

On Friday evening, a federal district court in Texas handed the Biden Administration a huge defeat.  In so doing, the court also handed the people of the United States a huge victory.

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 Migrant Protection Protocols (MPP) violated both the Administrative Procedure Act (APA), as well as federal immigration law requiring that certain illegal aliens be detained.

The MPP was one of the most successful elements of the Trump Administration’s immigration policies.  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 for asylum are allowed to enter the United States, many simply disappear into the fabric of country and never show up for their hearings.

In terminating MPP, the Biden Administration failed to explain why the program’s success should be ignored—especially when DHS had sung the praises of MPP before Biden took office.  As Judge Kacsmaryk pointed out, “DHS … found that MPP addressed the perverse incentives” created by allowing ‘those with non-meritorious claims … [to] remain in the country for lengthy periods of time.’” 

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Department of Homeland Security to “enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory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.”

Judge Kacsmaryk’s decision is thorough and well written—making it likely to survive the inevitable appeal by the Biden Administration.  The judge gave DHS seven days to appeal to the Fifth Circuit before his decision takes effect.  But assuming that no emergency stay is granted by the court of appeals, the country may finally see some relief in the relentless immigration crisis at the border.

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 five 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.