Biden Jettisons “Remain in Mexico” Program

February 15, 2021
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On Inauguration Day, the Biden Administration announced it was ending new enrollments in the “Remain in Mexico” Program, formally called the Migrant Protection Protocols (MPP). The suspension of the program would become effective the next day.  (DHS press release, Jan. 20, 2021)

The Migrant Protection Protocols program was created by the Trump Administration in December 2019 to help stem the migration crisis on the Southern border.  The program was based on the large-scale implementation of decades-old statutory authority found in Section 235(b)(2)(C) of the INA.  Section 235(b)(2)(C) authorizes DHS to return aliens arriving illegally by land from a contiguous country (i.e., Mexico or Canada) to the country from which they arrived pending a deportation proceeding before an immigration judge.  Section 235(b)(2)(C), grants this authority to DHS whether an alien arrives at a port of entry or between ports of entry.   

Using this authority, the Migrant Protection Protocols program authorized U.S. immigration agencies, as a matter of prosecutorial discretion, to return non-Mexican aliens arriving illegally by land from Mexico to Mexico for the duration of their immigration proceedings.  To ensure the program was not violating the 1951 Convention Relating to the Status of Refugees and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Secretary Nielsen directed that a third country national should not be involuntarily returned to Mexico under MPP if the alien would more likely than not be persecuted or tortured if returned.  (DHS, Policy Guidance for Implementation of the Migrant Protection Protocols, Jan. 25, 2019; See also USCIS, Guidance for Implementing Section 235(b)(2)(C) of the Immigration and Nationality Act and the Migrant Protection Protocols, Jan. 28, 2019)

The Trump Administration enacted MPP to stem the skyrocketing number of unfounded asylum claims made by aliens to get into the U.S. and then abscond before their court dates.   Secretary Nielsen’s announcement stressed the difficulty of the problem:

“Illegal aliens have exploited asylum loopholes at an alarming rate.  Over the last five years, DHS has seen a 2000 percent increase in aliens claiming credible fear (the first step to asylum), as many know it will give them an opportunity to stay in our country, even if they do not actually have a valid claim to asylum.  As a result, the United States has an overwhelming asylum backlog of more than 786,000 pending cases.  Last year alone the number of asylum claims soared 67 percent compared to the previous year.  Most of these claims are not meritorious—in fact nine out of ten asylum claims are not granted by a federal immigration judge.  However, by the time a judge has ordered them removed from the United States, many have vanished.”  (DHS press release, Dec. 20, 2018)”

“The situation has had severe impacts on U.S. border security and immigration operations.  The dramatic increase in illegal migration, including unprecedented number of families and fraudulent asylum claims is making it harder for the U.S. to devote appropriate resources to individuals who are legitimately fleeing persecution. In fact, approximately 9 out of 10 asylum claims from Northern Triangle countries are ultimately found non-meritorious by federal immigration judges. Because of the court backlog and the impact of outdated laws and misguided court decisions, many of these individuals have disappeared into the country before a judge denies their claim and simply become fugitives.” (Id.)

As DHS announced the program, the Government of Mexico issued a statement declaring it would facilitate implementation of MPP by protecting the rights of those returned pending a court date under the MPP program. (Statement from the Government of Mexico, Dec. 20, 2018)  More specifically, the Government of Mexico agreed to:

  • Authorize the temporary entrance of foreign individuals coming from the U.S. who were placed in the MPP program;
  • Allow foreigners who received a notice to appear under MPP to request admission into Mexican territory at designated locations and grant them permission to enter and leave national territory multiple times;
  • Ensure that foreigners who are waiting in Mexico pursuant to MPP have all the rights and freedoms recognized in the Mexican Constitution, the international treaties to which Mexico is a party, and its Migration Law.  Mexico also promised them the opportunity to apply for a work permit, allowing them to meet their basic needs;
  • Ensure coordination to allow migrants placed in MPP to have access to information and legal services, and to prevent fraud and abuse.

Customs and Border Protection began the implementation of MPP on January 28, 2019.  CBP Memorandum, Implementation of the Migrant Protection Protocols, Jan.28, 2019; See also CBP Memorandum, Guidance on the Migrant Protection Protocols, Jan. 28, 2019)  At the same time, CBP issued Guiding Principals which required officers placing aliens into MPP to provide them with a specific court date and time, information about the program and a list of free or low-cost legal service providers.  (Guiding Principles of the Migrant Protection Protocols, Jan. 28, 2019)  

The Guiding Principles also directed officers at ports of entry to schedule and coordinate the return of aliens waiting in Mexico for their court dates.  Upon return, CBP officers were required to fingerprint the aliens and ensure they were carrying the proper documentation. The officers would then transfer custody of the aliens to ICE for transport to and from immigration court.  Aliens who were given a final order of removal by the immigration judge would be processed by ICE for removal. (Id.)

The Guiding Principles prohibited the placement in MPP of aliens who were:

  • Unaccompanied alien children (UACs);
  • Citizens or nationals of Mexico; 
  • Processed for expedited removal;
  • Had known physical or mental health issues;
  • Criminal aliens or aliens with a history of violence;
  • Of interest to the Government of Mexico or the United States; and
  • More likely than not to face persecution in Mexico. (Id.)  

Immigration Advocates quickly sued DHS, challenging the legality of MPP.  The main lawsuit, Innovation Law Lab v. Wolf, was filed by Innovation Law Lab, the Central American Resource Center of Northern California, Centro Legal de la Raza, UCSF School of Law Immigration and Deportation Defense Clinic, El Otro Lado, and Tahirih Justice Center on behalf of 11 asylum seekers who were sent to Mexico to wait until their court dates before an immigration judge. (Memorandum in Support of a Temporary Restraining Order, Feb. 19, 2020)  In requesting an injunction to stop the implementation of MPP, plaintiffs argued that the program conflicts with existing law (INA Section 235(b); 8 USC 1225(b)), violates the Administrative Procedure Act (APA), and violates nonrefoulment laws relating to asylum, codified at 8 USC 1231(b)(3). (Id.)

A flurry of judicial opinions soon followed.  On April 8, 2019, the District Court for the Northern District of California ruled in favor of the plaintiffs and issued a nationwide preliminary injunction halting the implementation of MPP and ordering DHS to let the eleven asylum seekers into the U.S. while they pursued their asylum claims.  DHS then asked the Ninth Circuit Court of Appeals to stay the injunction while the government appealed.  On May 7, 2019, the Ninth Circuit agreed to the government’s request. 

With MPP back up and running, the situation at the Southern border began to significantly improve. In October 2019, DHS released an assessment of MPP that highlighted the following points:

  • DHS returned more than 55,000 aliens to Mexico under MPP (estimates now indicate the number is over 65,000); Since a recent peak of more than 144,000 in May 2019, total enforcement actions (the number of aliens apprehended between points of entry or found inadmissible at ports of entry) decreased by 64% through September 2019.
  • Encounters with Central American families—who were the main driver of the crisis and comprise a majority of MPP-amenable aliens—decreased by approximately 80%.
  • Aliens processed through MPP receive initial court hearings within two to four months, instead of years typically required for aliens not processed through MPP.  Almost 13,000 cases had been completed at the immigration court level. (DHS Assessment of the Migrant Protection Protocols, Oct. 28, 2019)

In its assessment, DHS also stressed how it was partnering with international organizations to offer services to migrants in cities near Mexico’s northern border:

  • In September 2019, the U.S. Department of State funded a $5.5 million project by IOM to provide shelter in cities along Mexico’s northern border to approximately 8,000 vulnerable third-country asylum seekers, victims of trafficking, and victims of violent crime in cities along Mexico’s northern border.
  • In late September 2019, the State Department provided $11.9 million to the International Organization for Migration (U.N.) to provide cash-based assistance for migrants seeking to move out of shelters and into more sustainable living.

Finally, DHS reported that the U.S. Government was providing support to aliens who wished to voluntarily withdraw their claims and receive free transportation home. Since November 2018, the State Department has provided $5 million to IOM to expand its Assisted Voluntary Return Program to more cities along the Mexico border. At that time, almost 900 aliens in MPP had participated in the AVR program.

By early 2020, CBP enforcement actions had dropped even further. Specifically, between the peak of the surge in May 2019 and March 2020, CBP enforcement actions at the Southwest border dropped 76 percent. (Calculations based FY 2019 and FY 2020 data published by CBP.)

MPP’s success was relatively short-lived, however, as external events took over.  On February 28, 2020, the Ninth Circuit upheld the California District Court’s ruling invalidating MPP and affirmed the District Court’s injunction.  The Government immediately filed an emergency request to stay the injunction while appealing to the U.S.  Supreme Court, but it was only able to convince the Ninth Circuit that the injunction should be limited to the Ninth Circuit (i.e. California and Arizona).. (See Innovation Law Lab v. Wolf, Appendix of Documents filed with the Supreme Court of the United States).  The Government then immediately appealed to the Supreme Court, which one week later granted the Government’s request to stay the Ninth Circuit’s injunction while the case was before the Supreme Court.  (Scotusblog, March 11, 2020; Congressional Research Service, Supreme Court Grants Stay in MPP Case, March 18, 2020; See also NPR, Oct. 19, 2020)  

Even with the Supreme Court’s decision to stay the injunction, the resumption of MPP was fleeting, as the emergence of Covid-19 upended all immigration proceedings.  In late March 2020, the DOJ’s Executive Office of Immigration Review (EOIR), which houses the immigration courts, suspended hearings of aliens placed in MPP.   (DHS/EOIR press release, March 23, 2020)  EOIR then postponed MPP hearings multiple times until July 2020, when EOIR announced hearings for aliens placed in MPP would be postponed until such time as certain milestones for combatting Covid-19 are met.  (DOJ press release, July 18, 2020)  It instructed that it would provide the public two weeks notice with location specific details prior to resuming hearings. (Id.)

At the same time EOIR postponed hearings, President Trump and HHS invoked the authority found in Section 265 of Title 42 to help prevent the cross-border spread of Covid-19.  Pursuant to this authority, the Director of the CDC on March 20, 2020 issued an order prohibiting the entry of persons who would otherwise be introduced into “congregate settings” at a land port of entry or Border Patrol station at or near the U.S.  border, subject to certain exceptions. 

The next day, CBP announced it would immediately begin expelling illegal entrants to their country of last transit, except for aliens who should be processed in the U.S. based on considerations of law enforcement, officer and public safety, humanitarian, or public health interests. (CBP press release, March 21, 2020)  Throughout 2020, CBP continued to used the Title 42 authority to help stop the spread of Covid-19 and reduce the number of illegal aliens released into the U.S.  Consequently, the number of aliens placed into MPP decreased significantly.  (See CBP, Migrant Protection Protocols FY 2020)

Less than two weeks after the Biden Administration announced it would end enrollment in MPP, President Biden signed an executive order that laid the groundwork to allow aliens waiting in Mexico to enter the U.S. pending their court dates.  (Executive Order 14010, Feb. 2, 2021)  Specifically, the order directed DHS, DOJ, and HHS “to promptly begin taking steps to reinstate the safe and orderly reception and processing of arriving asylum seekers, consistent with public health and safety and capacity constraints.”  To further this goal, the Executive Order also mandates that:

  • DHS, HHS, and the CDC review the CDC’s order under Title 42 to determine whether termination, rescission, or modification is necessary;
  • DHS promptly review and determine whether to terminate or modify the MPP program; and
  • (Apparently without regard to the outcome of the review) DHS promptly consider a phased strategy for the safe and orderly entry into the United States, consistent with public health and safety and capacity constraints, of aliens placed in MPP;

On February 11, 2021, DHS announced it would start bringing into the U.S. at least 25,000 aliens who were waiting in Mexico pursuant to MPP.  The process, which would depend on an online registration program, would begin February 19.  (DHS press release, Feb. 11, 2021)  Once registered, aliens would be provided with additional information about where and when to present themselves at the border.  

In making the announcement, Secretary Mayorkas stressed that this action represented “another step in [the Department’s] commitment to reform immigration policies that do not align with our nation’s values.” “As President Biden has made clear, the U.S. government is committed to rebuilding a safe, orderly, and humane immigration system.” (Id.)

Immigration advocates continue to press President Biden to formally end MPP. (Immigration Impact, Jan. 21, 2021)  They protest that President Biden’s actions are not enough, arguing he should not only immediately parole in aliens waiting in Mexico under MPP, but also parole in aliens who waiting in Mexico under CBP’s metering entry process. They also argue that Biden should allow aliens who were given an immigration hearing through MPP but deported to be given a second chance to apply for asylum. (Id.)  Other advocates say President Biden has not done enough to allow entry of black migrants, especially Haitians who traveled all the way to Tijuana, Mexico in an attempt to enter the U.S. near San Diego. (Reuters, March 12, 2021)  According to one advocate who works specifically to help Haitians, the Biden Administration “has not done anything for Black immigrants except continuing the cruel and inhumane system that existed before Trump but heightened under Trump.” (Id.)

Updated March 31, 2021