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The process to seek asylum in the United States has changed dramatically in recent years. In December 2018, the Trump Administration introduced the Migrant Protection Protocols (MPP), colloquially known as the “Remain in Mexico” policy. Under MPP, asylum seekers were given notices to appear in court, placed into Section 240 removal proceedings, and then returned to Mexico for the duration of their immigration proceedings. Prior to MPP, asylum seekers were allowed to wait in the United States during these proceedings. From January 2019 to December 2020, more than 70,000 migrants were enrolled in MPP. This action marked a significant shift in immigration policy.
Immigration enforcement priorities have changed significantly since the Obama Administration, when an immigrant was only prioritized for removal if they had committed serious crimes. The Trump Administration considered all undocumented immigrants high priorities for removal. In January 2017, President Trump issued Executive Order 13768 which mandated “direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.”
Federal statute confers immigration authorities with “broad discretion” concerning the removal of non-US citizens that lack a legal basis to remain in the country. Section 235 of the Immigration Nationality Act (INA) addresses the inspection of aliens seeking admission into the United States and provides specific procedures regarding the treatment of those not clearly entitled to admission. Section 235(b)(2)(C) provides that “[i]n the case of an alien…who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the [U.S.],” the Secretary of the Department of Homeland Security (DHS) “may return the alien to that territory pending a [removal] proceeding under [Section 240 of the INA].” Accordingly, then-DHS Secretary Kirstjen M. Nielsen announced MPP as a “historic action to confront the illegal immigration crisis facing the United States.”
Asylum seekers were enrolled in MPP for the rest of the Trump Administration (MPP 1.0). In March of 2020, MPP 1.0 hearings were suspended in response to the COVID-19 pandemic and asylum seekers were forced to wait an indefinite period of time for a hearing.
Shortly after taking office, President Biden issued a series of directives on immigration, including Executive Order 14010. President Biden also directed the new DHS Secretary Alejandro Mayorkas to decide whether to modify or terminate MPP. On June 1, 2021, Secretary Mayorkas issued a seven-page memorandum ending the program and explaining that, “any benefits the program may have offered are now far outweighed by the challenges, risks, and costs it presents.” Secretary Mayorkas was also concerned that the MPP did not ensure that “that aliens waiting in Mexico were able to attend their immigration proceedings.”
In April 2021, Texas and Missouri challenged MPP’s rescission in the Northern District of Texas. U.S. District Judge Matthew Kacsmaryk held that the Termination Decision was arbitrary and violated both the Administrative Procedure Act and Section 1225 of the Immigration Nationality Act. The Court vacated the Termination Decision and ordered a permanent injunction to reinstate MPP in good faith or to take a new agency action that complied with the law. The U.S. Court of Appeals for the Fifth Circuit denied the Biden administration’s motion for a stay pending appeal, as did the Supreme Court. In August 2021, in a four-sentence order, the Supreme Court held in Biden v Texas I that the Biden Administration “failed to show a likelihood of success on the claim that the memorandum…was not arbitrary and capricious.”
Three days before the Fifth Circuit’s scheduled oral argument, Secretary Mayorkas issued another memorandum ending MPP and explaining the decision. The Biden Administration contended that “the October 29 Memorandum mooted the case.” Judge Andrew Oldham held that the October memorandum did not constitute “a new and separately renewable ‘final agency action,’” and affirmed the district court’s conclusion that the recession was arbitrary and violates the INA.
On December 3, 2021, the Biden Administration formally reinstated MPP with some changes and began sending individuals back on December 6, 2021 (MPP 2.0). The Biden Administration expanded the scope of MPP to include nationals from all countries within the Western Hemisphere. While it formerly covered only Spanish-speaking nations and Brazilians, the renewed MPP program included countries like Haiti and Jamaica.
On June 30, 2022, the Supreme Court reversed and remanded. In a 5-4 decision, the Court held that the government’s rescission of MPP did not violate Section 1225 of the INA and that the October 29 memorandum constitutes final agency action. Writing for the Court, Chief Justice Roberts held that Section 1225(b) confers a discretionary authority to return non-residents to Mexico. On August 8th, 2022, DHS issued a statement announcing the end of MPP 2.0.
More than 71,000 asylum seekers were returned to Mexico under MPP. When DHS Secretary Nielson first announced MPP, it was with the stated expectation that vulnerable populations would receive protection while awaiting their removal proceedings in Mexico. In practice, however, this policy delivered people seeking U.S. refugee protection to grave dangers by stranding them in Mexico. Many were returned to dangerous locations far from where they arrived, including Tamaulipas, a Mexican state classified as the same level of danger as Syria, Afghanistan, and Iraq by the State Department. Customs and Border Protection (CBP) officers had discretion over the decision to send an individual or family back, sometimes separating families.
The violence and insecurity caused by this policy are widely documented. In 2019, a UNHCR Rapid Protection Assessment found that over 80% of individuals and families returned under MPP did not feel safe in Mexico. Human Rights First documented more than 1,314 public reports of rape, torture, kidnapping, murder, and other violent assaults perpetrated against those returned to Mexico under MPP. A Doctors Without Borders report found that 75% of migrants returned to Mexico under MPP had been a victim of an attempted kidnapping and nearly 80% of migrants enrolled in MPP that were treated by an MSF mental health clinic at the border had been a victim of violence. These security concerns impeded the ability of migrants to attend their removal proceedings, which has been widely documented in court filings, studies, and press reports.
Access to legal counsel was limited. Reports demonstrate that the first iteration of the program did not provide due process to migrants. An independent analysis of data obtained from the Executive Office for Immigration Review (EOIR) shows that only 7.5% of individuals subjected to MPP had a lawyer. Another report puts that number at 4%. A copy of ICE’s MPP Standard Operating Procedures obtained through a Freedom of Information Act request demonstrates that individuals in El Paso were given just one hour after arriving at court to speak with their attorney. In Laredo and Brownsville, individuals who returned for court hearings were taken to “tent courts,” built next to the port of entry, where they appeared in front of immigration judges through video teleconferencing equipment.
There were multiple challenges and inconsistencies in the implementation of non-refoulement interviews (NRI). This process is used to assess whether individuals would likely face persecution on account of a protected ground or torture in Mexico. Originally, individuals processed for MPP were not questioned by CBP about their fear of persecution or torture in Mexico, but were instead required to affirmatively articulate such a fear regarding returning to Mexico.” Assessing this feature of the program, Judge Watford of the U.S. Court of Appeals for the Ninth Circuit stated that it was “virtually guaranteed to result in some number of applicants being returned to Mexico in violation of the United States’ non-refoulement obligations.” Asylum seekers who attempted to enter the United States. along the California portion of the U.S.-Mexico border were 14.7% less likely to be asked by U.S. immigration officials about fear of being returned to Mexico when compared to asylum seekers who attempted to enter along the Arizona portion. The Red Team Report issued by DHS in 2019 noted that some CBP officials “pressured United States Citizenship and Immigration Services (USCIS) to arrive at negative outcomes when interviewing migrants on their claim of fear of persecution or torture.”
The Migrant Protection Protocols highlight fundamental problems with the immigration courts, including a lack of access to counsel, lack of transparency in immigration proceedings, and limited legal protections for asylum seekers. The executive and legislative branches of the U.S. government must pass legislation and enact policy to protect the rights of asylum seekers at the border.