When ‘Prosecutorial Discretion’ Becomes Suspension of the Law
Can the Biden administration get away with not enforcing the Immigration and Nationality Act?
By Andrew R. Arthur on February 3, 2022
I have written extensively about the Biden administration’s efforts to limit immigration enforcement against removable aliens, most recently DHS Secretary Alejandro Mayorkas’ September memo titled “Guidelines for the Enforcement of Civil Immigration Law”. Can DHS simply not enforce the Immigration and Nationality Act (INA)? Maybe, maybe not, but to explain I must delve deep into a recent decision of the Fifth Circuit, Texas v. Biden, which the Supreme Court may soon consider.
Texas, MPP, Detention, and Parole. At issue in Texas is whether DHS violated the law in its attempts to terminate the Migrant Protection Protocols (MPP, better known as “Remain in Mexico”), but as I explained on January 21, “factually the case has much more to do with how the Biden administration is handling the ongoing disaster at the Southwest border.”
Simply put, DHS is required to detain illegal migrants under section 235(b) of the INA, but alternatively, it can release them individually under a very limited authority known as “parole”, or it can send them back across the border to await their removal proceedings (which is what MPP does). What the Fifth Circuit held DHS cannot do is release them on parole en masse, which appears to be DHS’s current approach.
https://cis.org/Arthur/When-Prosecutorial-Discretion-Becomes-Suspension-Law
