Featured Issue: Migrant Protection Protocols (MPP)
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Current State of Play
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administration released an October 2021 memo and argued that the injunction should be vacated because the October memo superseded the June memo.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.
Government Announcements and Policies
- DHS Statement on U.S. District Court’s Decision Regarding MPP – August 8, 2022
- DHS Reports on Persons Enrolled in MPP – April 18, 2022
- DHS Releases Guidance on Court-Ordered Reimplementation of MPP – December 2, 2021
- DHS Issues a New Memo to Terminate MPP - October 29, 2021
- DHS Announces Intention to Issue New Memo Terminating MPP – September 29, 2021
- Biden Administration Files First MPP Implementation Compliance Report (Texas, et al., v. Biden, et al., 9/15/21)
- DHS Statement on Supreme Court Decision on MPP – August 24, 2021
- DOJ Issues Guidance Regarding Adjudication of Motions to Reopen in MPP Cases - June 24, 2021
- DHS Announces Expanded Criteria for MPP-Enrolled Individuals Who Are Eligible for Processing into the United States – June 23, 2021
- DHS Terminates the Migrant Protection Protocols Program – June 1, 2021
- DHS Releases Privacy Impact Assessment for Processing Individuals Subject to MPP – April 30, 2021
- DHS to Begin Processing Individuals in Mexico with Active MPP Cases – February 11, 2021
- DHS Suspends New Enrollments in the MPP Program – January 20, 2021
- White House Issues Executive Order on the Southern Border and the Asylum System (86 FR 8267, 2/5/21)
- BIA Rules IJ Should Enter In Absentia Order of Removal if Individual Returned to Mexico Under MPP Fails to Appear for Hearing (Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020))
- DHS Releases Policy Guidance for Implementation of the Migrant Protection Protocols - January 25, 2019
- Justice Action Center Litigation Tracker resource on Texas v. Biden
- Supreme Court decision in Biden v. Texas
- Think Immigration: SCOTUS Gets it Right: The Biden Administration Can End the Inhumane Remain in Mexico Program, July 6, 2022
- Immigration Impact: Supreme Court Permits Biden to Terminate ‘Remain in Mexico’ Program, June 30, 2022
- Immigration Impact: Supreme Court Hears Oral Arguments in ‘Remain in Mexico’ Case - April 27, 2022
- Resources Related to the Orantes Injunction
- AILA and Partners Submit Amicus Brief on the Termination of Migrant Protection Protocols (MPP) - March 21, 2022
- Supreme Court Grants Biden Administration for Petition for a Writ of Certiorari – February 18, 2022
- Biden Administration Petition for a Writ of Certiorari – December 29, 2021
- Biden Could Face Further Legal Action Upon Restarting ‘Remain in Mexico’ - November 22, 2021
- Advocates File Amended Complaint in Lawsuit Seeking Relief for Asylum Seekers Impacted by Wind-Down of “Remain in Mexico” Policy (Immigrant Defenders Law Center, et al. v. Mayorkas, et al., 8/13/21)
- District Court Issues Nationwide Injunction Directing Biden Administration to Reinstate MPP (Texas, et al. v. Biden, et al., 8/13/21)
- Council and Partners File Complaint to Compel Release of FOIA Records and Data Regarding MPP – May 13, 2020
- Family of Asylum Seekers Separated by Migrant Protection Protocols Files Lawsuit Seeking Reunification (Constanza Lemus, et al. v. Wolf, et al., 1/3/20)
- AILA Submits Amicus Brief on Migrant Protection Protocol (MPP) Proceedings – December 3, 2019
- District Court States Plaintiffs Cannot Be Sent Back to Mexico (Doe v. McAleenan, 11/12/19)
- Resources Related to Innovation Law Lab v. Nielsen Lawsuit Challenging the Trump Administration's Remain in Mexico Policy (Innovation Law Lab v. Wolf, 2/14/19)
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.
- Policy Brief: Remain in Mexico Is Alive and Well: Current Disenrollment Process Harms Vulnerable Asylum Seekers – September 20, 2022
- MPP Transfers Into the United State and Nationality Inequities Emerge, according to TRAC – June 17, 2021
- Justice Campaign Advisory: Employment Authorization for People Formerly in MPP - April 2, 2021
- AILA and Partners Send Letter Recommending Additional Actions on the Wind Down of MPP – March 12, 2021
- Practice Advisory: Information for Attorneys Representing Clients Currently in the Migrant Protection Protocols (MPP) – March 3, 2021
- UNHCR MPP registration page (“Conecta”)
- DHS Releases FAQs on MPP Processing – February 20, 2021
Information on MPP Hearings and Tent Courts
- Immigration Impact: I Visited Biden’s MPP Tent Courts. The Changes Since Trump Don’t Fix the Program’s Flaws - April 21, 2022
- House Homeland Security Congressional Hearing: Examining the Court-Ordered Reimplementation of the Remain in Mexico Policy - March 2, 2022
- Human Rights First: Fully End the Migrant Protection Protocols: Ensure Safety for All Subjected to Horrific Policy – April 29, 2021
- Human Rights First issued a factsheet urging the Biden administration to quickly expand processing into the United States for all families and adults subject to former MPP hearings, including those whose cases were unfairly denied, terminated, or ordered removed in absentia. The factsheet draws upon several AILA member case examples.
- Letter to DHS Requesting MPP Be Stopped Immediately in Accordance with U.S. Law – March 6, 2020
- AILA Sends Letter to DHS Acting Secretary Detailing MPP’s Barriers to Counsel - June 3, 2019
- AILA Policy Brief: DHS and DOJ Are Opening Secretive Port Courts Along the Southern Border – September 6, 2019
- AILA Policy Brief: "Remain in Mexico" Plan Sows Chaos, Puts Asylum Seekers at Risk - February 1, 2019
- U.S. Supreme Court Affirms the Biden Administration’s Authority to End MPP, June 30, 2022
- AILA Deeply Disappointed in Even Temporary Resurrection of MPP, December 2, 2021
- AILA Letter to the Administration on Due Process and Access to Counsel Failures of MPP October 25, 2021
- Supreme Court Fails to Act — Burden on Biden to Undo Inhumane Trump Policy Denying Protection to Asylum Seekers – August 25, 2021