Featured Issue: Migrant Protection Protocols (MPP)

Current State of Play

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May 6, 2022 – The Migrant Protection Protocols (MPP) is operational in four locations along the U.S. southern border with Mexico: El Paso (Ciudad Juarez), San Diego (Tijuana), Brownsville (Matamoros), and Laredo (Nuevo Laredo). Despite certain changes, MPP follows the same basic outline as before. Migrants seeking asylum are forced to return to Mexico to await U.S. immigration court hearings. While some transportation is now provided to and from hearings in some locations, migrants remain targets for criminal activity as they are still largely responsible for finding their own shelter and meeting their basic personal and security needs. At a February 28, 2022, congressional hearing, DHS reported that 1,602 people had been enrolled in MPP and 893 had been returned to Mexico (with 181 still being processed). Individuals not returned to Mexico likely passed their non-refoulement interviews or were found to have certain vulnerabilities as outlined in DHS public guidance. Per DHS, about 2% of people have legal representation at their non-refoulement interviews.

The litigation resulting in the re-implementation of MPP has now progressed to the U.S. Supreme Court. The Supreme Court is reviewing the lower court decisions holding that the Biden Administration did not have the legal authority to end MPP. Other legal questions about whether the government is required to detain all asylum seekers are also in the mix.

On April 26, 2022, the Supreme Court heard oral arguments in Biden v. Texas. During oral arguments, “many justices were skeptical of Texas’[s] arguments that the Biden [A]dministration was required to keep MPP in place. The Immigration and Nationality Act (INA) only says that DHS ‘may’ use the legal authority behind MPP.” Other justices expressed that “DHS’[s] authority to release people on parole was at the ‘heart of the matter.’”

A week later, the Supreme Court asked both parties to submit additional briefing addressing technical questions. These questions are: (1) Whether 8 USC §1252(f)(1) imposes any jurisdictional or remedial limitations on the entry of injunctive relief, declaratory relief, or relief under 5 USC §706. (2) Whether such limitations are subject to forfeiture. (3) Whether this Court has jurisdiction to consider the merits of the questions presented in this case.

A decision is expected near the end of June. Even if the Biden Administration wins, that does not mean MPP will end, as the lower court would then have to consider the October 2021 memo.


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 to 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.