Featured Issue: Migrant Protection Protocols (MPP)

Current State of Play

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January 12, 2022 – Following its December 2, 2021, announcement, the Biden administration has resumed returning people seeking protection to Mexico. Processing is in effect at the El Paso and San Diego ports of entry. Despite changes to purportedly make the Migrant Protection Protocols (MPP) more humane, there are already troubling reports that migrants are being returned to Mexico without publicly available plans on the provision of shelter and transportation. There are also initial accounts that CBP is not adequately conducting screenings to identify mental and physical vulnerabilities that could warrant exemption from the policy. All available publicly available guidance is accessible here.

On December 13, 2021, a Fifth Circuit panel of judges refused to vacate the Texas district court injunction requiring the reimplementation of MPP. The panel opined that the administration’s second termination memo, in which it outlined its reasoning for terminating MPP, had not mooted out the issue of whether the earlier termination of MPP was done in compliance with the Administrative Procedure Act. The panel ignored much of the evidence outlined in an earlier filed American Immigration Council and partners amicus brief. The Biden administration filed an appeal of the 5th Circuit’s decision with the Supreme Court and has requested the case to be heard this term, which ends in late June or early July.


Background

Two years after the Migrant Protection Protocols first began, new enrollments into this border processing program officially ended on January 20, 2021. Over this period, thousands of individuals arriving at the U.S. southern border seeking protection were forced to remain in Mexico pending their U.S. immigration court hearings.

MPP or "Remain in Mexico" dramatically altered the processing of asylum claims at the U.S. southern border and made it far more difficult for asylum seekers to receive a fair and meaningful review of their claims. In September 2019, DHS opened massive temporary tent facilities in Laredo and Brownsville, Texas, that functioned as virtual immigration courtrooms for vulnerable asylum seekers subject to MPP. AILA covered the numerous due process and access to counsel violations while these “tent courts” operated in Eyes on the Border but Shut out of the Tent Courts. Documents obtained via Freedom of Information Act (FOIA) litigation confirm that the true intent of MPP was to discourage migration and how the Trump administration worked to limit access to MPP Tent Courts for attorneys, witnesses, the media and the public.

On March 23, 2020 – in response to the COVID-19 pandemic – DHS and EOIR suspended all MPP hearings. The implementation of the suspension was chaotic and confusing, leading some people to travel to ports of entry only to be turned away and others to miss the opportunity to get their notices of rescheduled hearings.

Next, on February 11, 2021, DHS announced the beginning of the process to unwind MPP. In this initial phase, individuals in Mexico with active cases were permitted register online or by phone with the UNHCR and paroled into the U.S. at a port of entry. AILA called on DHS to expand processing to additional people who were subjected to MPP given the significant due process and fairness concerns surrounding the whole program.

Finally, on June 23, 2021, DHS expanded eligibility for processing into the U.S. to people in Mexico with in absentia orders of removal or whose cases were terminated. Notably, former MPP individuals who fled to safety in the U.S. and those who were forced to return to their home countries are permitted to register. However, DHS has not indicated how they will proceed with these categories of people and cases. Unfortunately, the June expansion does not protect people who were ordered removed following a final hearing in the tent MPP “courts.”


Resources on MPP Processing and Former MPP Individuals

Prior to a district court injunction that paused the program’s termination, several thousand individuals who had been forced to remain in Mexico under the Migration Protection Protocols (MPP) have been screened for COVID-19, processed, and their cases transferred to U.S. immigration courts.

Government Announcements and Policies

Information on MPP Hearings and Tent Courts

Litigation

Select Congressional Oversight Efforts and Responses

AILA Statements

Cite as AILA Doc. No. 19091660.