ICYMI: AILA Quicktake #309 : Biden Administration Re-Instates MPP

The Biden administration announced that they will be re-implementing the Trump-era policy Migrant Protection Protocols (MPP) starting on Monday December 6, 2021. AILA’s Jen Whitlock explains how we got here, what are some of the changes to the program, and what to expect next.

Video Transcript

AILA Quicktake #309 – Biden Administration Re-Instates MPP

The Biden Administration announced yesterday that they will begin returning migrants, who are seeking protection in the US, to await court proceedings in Mexico starting next week. It’s the latest in a series of events that are being propelled by a mix of litigation and regrettable policy choices.

Before diving into what we know and don’t yet know of the re-implementation of the Migrant Protection Protocols or MPP, let’s remember how we got here.

President Biden terminated MPP pretty soon after taking office. Several thousand people formerly enrolled in MPP were orderly processed into the US as a part of that earlier wind down process. However, Missouri and Texas filed a lawsuit in a Texas District court, to stop that winddown and a Trump appointed judged reward them for their efforts by granting an injunction, preventing the Biden administration from terminating the program while the case was litigated.

Even though the Biden administration issued a second termination memo in October, because the district court hasn’t considered it yet, the injunction from the Texas court is still in effect.

Here’s what we know about MPP version 2.0.: it appears that the Biden administration has chosen to not only re-implement but go one step further and expand the nationalities eligible for return to MX. For example, up until now, Creole speaking Haitians were never enrolled in MPP. That changes on Monday.

There are also supposed to be changes made such as asking migrants if they fear return to MX and whether there is a reasonable possibility that they will be persecuted or tortured. They are also to be given the chance to consult with an attorney telephonically.

But its CBP who is tasked with asking those questions and their rate of compliance has historically been low, even when being monitored by oversight officials. Similarly, CBP is supposed to consider certain vulnerabilities and exclude some people from MPP. But their track record of returning children with epilepsy and other physical disabilities makes many advocates doubtful of whether we will see any exceptions.

We also know that MPP enrollees will be offered COVID-19 vaccines but the public health order expelling individuals known as Title 42 remains in place and will be used to expel anyone not enrolled in MPP. Lastly, none of the publicly available guidance says anything about people who were formerly enrolled in MPP and what will happen with their court cases.

It is the calm before the storm and AILA will continue to advocate for the Administration to vigorously defend the second termination memo but also not gloss over the real harm that cannot be mitigated with every passing day that this policy is in effect.

Cite as AILA Doc. No. 21120305.