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AILA Doc. No. 19091660 | Dated October 7, 2022
October 7 2022 - Migrant Protection Protocols (MPP) is a Trump-era policy, and the federal government itself acknowledged that the program “impos[ed] substantial and unjustifiable human costs on migrants who were exposed to harm while waiting in Mexico,” as well as these difficulties for asylum seekers to access counsel.
The Biden Administration tried to end MPP with a memo released in June 2021. However, Texas sued to force them to continue the program, resulting in a nationwide injunction. In response, the administration released an October 2021 memo and argued that the injunction should be vacated because the October memo superseded the June memo. The Court of Appeals disagreed, stating that the October memo was not “a new and separately reviewable ‘final agency action.’” Due to this injunction, MPP has continued throughout the litigation.
In Biden v. Texas, the Supreme Court found that (1) the district court did not have the jurisdiction to issue an injunction stopping MPP because of INA §1252(f )(1); (2) that DHS has the discretionary authority to return an alien arriving on land to Mexico because the text of the statute says “may”; and (3) that the October 2021 memo was a valid agency action.
The Supreme Court explicitly suggests in its opinion that “[o]n remand, the District Court should consider in the first instance whether the October 29 Memoranda comply with section 706 of the APA.” This leaves open the opportunity that the October MPP termination memo could be litigated under the APA grounds. Indeed, Texas and Missouri amended their complaint to challenge this October memo as well as a motion to “postpone the effective date” of the October memo. According to the current schedule set by the court, the Biden administration has until September 2, 2022, to file their opposition to this motion to postpone.
After the Fifth Circuit formally lifted the injunction following the Supreme Court ruling, DHS issued a statement saying, “DHS is committed to ending the court-ordered implementation of MPP in a quick, and orderly, manner. Individuals are no longer being newly enrolled into MPP, and individuals currently in MPP in Mexico will be disenrolled when they return for their next scheduled court date. Individuals disenrolled from MPP will continue their removal proceedings in the United States.”
In short, MPP is over for now, although there is confusion surrounding its ending, with a lack of clarity resulting in some judges initially denying venue changes because “it wasn’t clear whether migrants released from the program would be allowed to enter the U.S.” and at least one government attorney reportedly stating to an immigration attorney that the “client was going to be deported now that MPP was over.”
Shortly after the DHS announcement in mid-August, the San Diego Union Tribune reported that so far the MPP 2.0 winddown is “different from the previous wind down, which involved coordination among international agencies and local nonprofits to bring dozens of asylum seekers into the U.S. each morning. So far one to three people per day have been taken out of the program in San Diego for a total of eight since Tuesday. At that pace, the wind down could take months to bring in the hundreds waiting in Tijuana.”
DHS confirmed that “[i]ndividuals are no longer being newly enrolled into MPP, and individuals currently in MPP in Mexico will be disenrolled when they return for their next scheduled court date. Individuals disenrolled from MPP will continue their removal proceedings in the United States.” Expedited MPP disenrollment requests can still be filed here.
AILA and the National Immigration Law Center issued a policy brief detailing some of the problems with the current disenrollment process, which include requiring individuals to remain in Mexico until their hearing date.
This page will be updated with any resources on the winddown process as they become available.
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.
Cite as AILA Doc. No. 19091660.
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