Supreme Court Is Latest To Strike Down Biden’s Immigration Policies

It was another bad day in court for President Biden. On Tuesday, the U.S. Supreme Court ordered the administration to reinstate the Migrant Protection Protocols implemented by his predecessor.

Since the day he entered office, Mr. Biden has stifled immigration enforcement, resulting in historic numbers of aliens entering the country illegally. States, fed up with the fallout from these negligent policies, have sued to reinstate Trump-era enforcement practices halted by the Biden White House.

The sudden influx of many thousands of Afghan refugees fleeing Taliban rule only complicates the dire operational reality facing the Department of Homeland Security. That alone should prompt the administration to turn border enforcement programs back on. In the meantime, courts are starting to order as much.

>>> Federal Judge Reinstates “Remain in Mexico,” Ruling Biden Broke Law in Terminating Policy

In April, Texas Attorney General Ken Paxton and Missouri Attorney General Eric Schmitt sued the administration to reinstate the MPP (informally known as the “Remain in Mexico” program) to curb the criminal and humanitarian crisis at the border. This policy, authorized by Congress in 1996, allows immigration officials to return asylum applicants across the border to await the conclusion of their asylum proceedings. Faced with the “migrant caravan” phenomenon, President Trump implemented the policy in 2019. It quickly put an end to migrants crossing the border, making fraudulent claims of fear, and then disappearing into the interior while those claims were being assessed. The caravans came to a halt.

Combined with other border security measures, the “Remain in Mexico” program brought the brewing border crisis under control. The number of illegal encounters fell from a high of more than 144,000 in May 2019 to a low of about 36,500 in January 2020.

Starting on Day 1 in office, Mr. Biden set about systematically undoing this highly successful approach. He halted construction of the border wall and the “Remain in Mexico” program. He gutted immigration enforcement, ripped up agreements with Central American governments, and ceased using Title 42 authority with unaccompanied children illegally crossing the border.

In response to state lawsuits seeking resumption of immigration enforcement, federal courts have stopped the administration from its attempts to: ban deportation; end mandatory detention; revive the illegal DACA program; and, now, terminate the MPP.

The U.S. District Court for the Northern District of Texas permanently enjoined the secretary of Homeland Security’s June 1 memo pulling the plug on MPP. The U.S. Supreme Court on Tuesday denied the administration’s request to stay the district court order.

In handing down the order, District Court Judge Matthew Kacsmaryk noted that the administration: (1) knew MPP had been found effective by DHS as a matter of policy; (2) knew MPP had been successfully defended in court previously; and (3) had received warnings during the Biden transition about the consequences of repealing MPP.

The order also noted that the June 1 DHS memorandum contained no discussion or analysis of the department‘s previous assessment that MPP removed “perverse incentives” and decreased the number of migrants attempting to illegally cross the border. The judge further found that the termination of MPP has contributed to the current border surge.

“By ignoring its own previous assessment on the importance of deterring meritless asylum applications without ‘a reasoned analysis for the change,’” Judge Kacsmaryk ruled that the Biden administration acted arbitrarily and capriciously.

The U.S. Government appealed to the 5th Circuit Court of Appeals, requesting a stay of the lower court’s order. The 5th Circuit denied the administration’s request and the Supreme Court has affirmed that denial. Now, DHS should fully and faithfully implement the district court’s order.

The administration should not slow-roll the restart of MPP. Rather, it should immediately begin turning migrants back to Mexico in key sectors, with a projected timeframe to begin asylum hearings in 60-90 days, just as the Trump administration did when it first stood up the successful program.

What is the International Entrepreneur Parole program?

The International Entrepreneur Parole program was designed with the intention of promoting foreign entrepreneurship in the U.S. The overall objective is to encourage international entrepreneurs to develop innovative start-up entities with high growth potential to be directly invested into the U.S. Economy. These entities will further create an increase in direct and indirect job creation, and will thus have a positive impact on the U.S. Labor market.

Under the program, international entrepreneurs can be granted temporary renewable residency for up to five years if they can prove that their business venture will be a significant public benefit, as well as promote growth and rapid job creation. The authorization to reside in the U.S. Will be determined on a case by case basis by the DHS. The DHS will then use their statutory obligation of granting parole authority to those entrepreneurs who are deemed eligible.

While the program does not provide a route to citizenship, the temporary residential status provides authority for the entrepreneur to work on the progression of their start-up entity, and further extends to their immediate family members. Additionally, under the program rules, there can be multiple partners in the business who can receive residency. The program rules state that each entity can have up to three eligible entrepreneurs.

How is eligibility determined?

While the biggest criteria is that the business venture must demonstrate a public benefit to the country, entrepreneurs must also prove the following:

Substantial ownership interest in a start-up entity that has potential for rapid growth and job creation.

  • The entrepreneur must have a central active role in the business.
  • The start-up entity must have been created in the past five years in the U.S.
  • Related: Visas on Hold: What’s Next for International Entrepreneurs?
  • Is this the best immigration solution for international entrepreneurs?

To truly determine which immigration route is beneficial to each individual is based on a series of moving elements. This particular one is a step forward to allowing greater access to the U.S. Unlike the E-2 visa, which looks at whether the investor’s country of citizenship has a trade treaty with the U.S., the International Entrepreneur Parole program primarily looks at the merit of the business venture and how its contribution will be mutually beneficial. This further opens up opportunities for more innovative businesses that will adjust with the needs of the evolving and ever-changing world.


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