MPP will be reinstated next week—12-03-21

Immigration news, in context

This is the 104th edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

  • In The Big Picture, we examine the administration’s efforts to restart the Migrant Protection Protocols program, slated to resume on Monday.

  • In Under the Radar, we discuss the growth in the population of immigrants held in private detention facilities.

  • In Next Destination, we look at the possibility that the Senate parliamentarian will rule against the remaining immigration measures in the reconciliation bill.

The Big Picture

The news: Remain in Mexico, also known as the Migrant Protection Protocols, is being restarted by U.S. and Mexican authorities in a limited fashion on Monday, the result of a federal court ruling even as the the Biden administration lays the groundwork for the program to be terminated again.

What’s happening?

Regular readers of this newsletter will be aware that President Biden’s commitment to turning back the clock on some of his predecessor’s heavy-handed border and immigration restrictions was halting at best, having most notably kept in place the so-called Title 42 order that tenuously stretches a public health law to justify immediate expulsions of asylum seekers. One thing he did move to do quickly was terminate MPP, almost immediately stopping new enrollments and having it formally terminated in June. MPP, the brainchild of former White House adviser Stephen Miller, addressed the “problem” of families of asylum seekers being released into the United States to await their court hearings by forcing them instead to wait for their U.S. cases to play out from Mexico.

It’s been a little while since we got into the weeds of MPP’s legal backing and context, so let’s polish up. Unlike the strained effort to stretch 42 U.S.C. § 265—which allows the government to enact restrictions to prohibit the potential introduction of communicable disease to the U.S.—into the current Title 42 expulsion order, MPP has a much more concrete backing in federal law. Specifically, 8 U.S.C. § 1225(b)(2)(C) notes that in the case of a person seeking asylum “who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States,” the government “may return the alien to that territory pending a proceeding” in immigration court. This isn’t seen as conflicting with the country’s asylum obligations because these migrants are still being screened for asylum, just not while remaining in the U.S.

As we’ve noted previously, a Trump-appointed federal judge in Texas this August ordered the administration to reinstate MPP after Texas and Missouri sued the federal government, arguing, among other things, that the termination of the program violated the Administrative Procedure Act. You may recognize that as the provision of law under which a number of Trump-era immigration policies were themselves struck down, as judges found that they were rushed or instituted in a capricious way. In this case, the judge agreed with the counterpoint: that the effort to wind down this Trump policy was actually done improperly and capriciously, in part by failing to address arguments that the policy was an important plank of bilateral relations with Mexico and a tool for controlling migration. The government filed an appeal of the injunction to the Fifth Circuit, which was denied, and then an emergency request to the Supreme Court, also denied. The litigation is ongoing, but the administration found itself forced to prepare to relaunch the program.

Taking a page from the prior administration’s playbook, Homeland Security Secretary Ali Mayorkas used the order as a blueprint for how to craft a new rescission memo that would address supposed legal deficiencies identified by the court. He issued it in late October along with a 39-page explanation of the decision, apparently preferring to go overkill on the justification rather than risk a judge again finding that the termination was done without proper consideration. In both the memo and the explanation, Mayorkas claimed that MPP may have decreased migration flows, but argued that the program was inappropriate due to the “​​substantial and unjustifiable human costs on migrants who were exposed to harm while waiting in Mexico” (more on that below).

While in theory the administration could argue that the injunction dealt only with the June rescission memo and that the superseding October memo could allow it to stop the program’s reimplementation, it has decided to continue observing the injunction and formulated the new memo such that it basically goes into effect “as soon as practicable after a final judicial decision to vacate the Texas injunction.” This means that, as the litigation continues, MPP will continue to be in effect but with the understanding that there’s an ax hanging over the program, set to fall as soon as this particular injunction is vacated by a higher court or a final ruling in the case. This, of course, doesn’t help tamp down on the enormous confusion and uncertainty that already permeates the border region with regards to humanitarian immigration policy, as migrants, lawyers, and even government officials struggle to keep up with who will or will not be targeted by any particular restriction at any given time.

The new MPP program is slated to begin on Monday, with a new guidance having been released by DHS yesterday. There are some minor guardrails added to the program’s prior construction, including a commitment for border officials to ask people if they have a fear of returning to Mexico, and expanded exemptions, such as for people who may be at increased risk in Mexico due to their sexual orientation or gender identity. Unaccompanied minors remain exempt, and the administration is making a lukewarm commitment to ensuring that migrants in the program can speak with lawyers, and to complete cases within 180 days. However, there are also some puzzling expansions of the program, most notably the fact that migrants can be put into MPP if they “are nationals of any country in the Western Hemisphere,” a much broader standard than the Trump administration’s decision to only target migrants from Spanish-speaking countries and Brazil.

None of these small improvements are particularly enforceable anyway, and are probably going to be ignored by CBP, which will no doubt continue to send vulnerable migrants back to Mexico even if they fear persecution. The guidance would also require returning migrants to be vaccinated against COVID-19, which on its face seems reasonable but could block the re-entry of small children if read literally.

The biggest hurdle in the effort to restart the program was sign-off from Mexico, which obviously had to agree to allow migrants to be sent back to its territory while going through U.S. immigration cases. In a statement posted to the Foreign Ministry’s website yesterday, the López Obrador administration announced that it would accept the program’s reinstatement in light of certain assurances from the U.S., including funding for shelters and aid groups; protection for vulnerable groups; an awareness of the local security situation and capacity to accept migrants; and COVID-19-related accommodations including vaccines for people put into MPP. This continues a trend of relatively tight cooperation between the U.S. and Mexico on tamping down on migration, and while it’s welcome that the Mexican government demanded some concessions on paper, it’s unclear how exactly this would be enforced. There also seem to be some lingering points of confusion in the bilateral arrangement, as some Mexican officials contradicted U.S. assertions that migrants would be sent back through Tamaulipas.

How we got here

The Trump administration first implemented MPP in January 2019, as a pilot program at the San Ysidro port of entry in California. Like every other Trump-era immigration policy—and really, pretty much every immigration policy change over the past decade—MPP was not the result of a legislative change, but rather an administrative one that made full use of an existing statute. The administration expanded MPP to ports of entry along the border, and by the onset of the pandemic, more than 70,000 migrants had been forced to wait in Mexico under MPP.

Administration officials repeatedly claimed that the goal of MPP was to cut down on non-meritorious asylum claims. They argued that keeping migrants in Mexico would deter people from filing fraudulent asylum applications and disappearing into the United States, and misleadingly interpreted data to claim that most asylum seekers missed their court hearings, and thus weren’t actually seeking asylum. In reality, the data showed that the overwhelming majority of asylum seekers allowed into the U.S. actually did show up to their hearings—and the absentia rates for MPP cases were far higher.

There were two reasons for the staggering absentia rates under MPP: the first is that it was logistically complicated for migrants to get to court. On the day of their court dates, migrants would have to present at their designated port of entry hours before their hearing, where they’d be processed by Customs and Border Protection. Being forced to live in Mexico made it harder for migrants to find U.S.-based lawyers, which meant they didn’t always have access to information about their next hearings. The logistical challenges were just one factor; the danger of living in Mexican border cities was another.

Over the two years that MPP was in place, journalists and advocacy groups published countless reports detailing the dangers migrants faced in Mexico. Kidnappings were not uncommon, nor were extortions, robberies, or rapes. MPP was a boon for Mexican cartels; the migrants were easy targets.

When the pandemic began, the Trump administration suspended MPP hearings indefinitely, closing off the only avenue for relief for those in the program: the possibility of obtaining asylum in the United States. (Though, to be clear, the odds of being granted asylum under MPP were slim.) 

On the campaign trail, Biden promised to end MPP if elected. The Biden administration stopped enrolling new migrants in the program in January—though by that point, asylum seekers were being expelled en masse under Title 42. The following month, BuzzFeed News reported that the Biden administration would begin phasing out the program, which it fully terminated in June. In July, the administration decided to allow asylum seekers on the MPP docket who were ordered deported in absentia—meaning that they had missed their hearings—to re-open their cases.

But there was a legal hurdle: in April, Texas and Missouri sued the administration over its attempt to end the program. That lawsuit led us to this week’s decision to reinstate it. 

What’s next?

The administration is continuing its legal effort to have the injunction overturned, though some attorneys and advocates have grumbled that it is not doing so as quickly or aggressively as it could be. As noted above, it’s not altogether clear that the administration had to reinstate the program after it issued a second formal rescission, and it certainly didn’t have to revive the program in a substantially similar form to the one that had existed under Trump. It’s not at all clear why, for example, the pool of eligible migrants has been expanded to the entire hemisphere when that was not even part of Trump’s program.

Ultimately, the usage and impact of MPP will continue to be dwarfed by Title 42, which administration officials have indicated will be their primary way of keeping asylum seekers out of the U.S. (the pretense of it being a public health measure has by this point more or less been dropped completely), as it can be done practically instantly and, crucially, doesn’t initiate an asylum case for the individuals impacted. MPP will be essentially a backup to send away the people that the administration can’t expel for whatever reason. If and when the injunction is overturned, it will apparently move to end the program “as soon as practicable,” which probably means almost immediately.

In the meantime, there are a lot of open questions surrounding how the program will operate in practice. Guidelines are nice, but will CBP officials actually take into account the security situation in areas of northern Mexico before sending migrants back? It seems unlikely, just as it seems unlikely that all vulnerable groups will actually be exempted. It’s worth noting that Mexico has the capability to pull the plug on this at almost any time; without its cooperation, there is no MPP, though it’s unclear what exactly could trigger such a redetermination.

As noted above, the administration also began allowing people previously in the MPP program who had received in absentia asylum denials to re-apply, with the understanding that the program and the environment it created were not conducive to due process. Given that prior realization, it’s not clear how it will justify asylum denials for the people who will presumably now be given in absentia denials under the reinstated program. Also, while the commitment to permit more consultation with attorneys is positive, that doesn’t change the fact that there aren’t that many U.S. immigration attorneys based in northern Mexico, or that cartels and other criminal groups will find easy pickings among returned migrants.

Under the Radar

Population of immigrants detained at private facilities grows

As some local activists have succeeded in getting states and counties to move to prohibit ICE’s use of their jails and prisons for civil immigration detention, greater shares of detainees have started being held in private detention facilities instead, operated by prison conglomerates like the GEO Group and CoreCivic. While some people misunderstood Biden’s early promise to cancel federal contracts with private prisons as a commitment to stop using private ICE detention, that plan applied only to federal criminal detention.

Indeed, even as the administration has attempted to narrow enforcement priorities, the population of detained immigrants has nearly doubled from about 15,000 at the start of Biden’s term to almost 29,000 in recent weeks. Many of these are recent arrivals, and in order to detain them, ICE has been signing contracts for both existing and new detention centers, such as a former prison in Pennsylvania that is now a GEO-run detention facility.

Though Mayorkas moved to close down a couple of problematic facilities earlier this year, these were already facilities with few detainees, and the administration has made no commitments to fundamentally reduce its reliance on immigration detention writ large, let alone private detention.

Next Destination

Democrats await parliamentarian’s decision on reconciliation immigration measures

After two failed attempts to include pathways to permanent residency and citizenship in the reconciliation bill that Congressional Democrats have been haggling over for months, lawmakers are waiting with bated breath for Senate Parliamentarian Elizabeth MacDonough to make a final decision on whether the inclusion of plans to provide humanitarian parole to millions of undocumented immigrants and recapture unused green cards ascribe to the Senate’s obscure procedural rules.

It was MacDonough who twice nixed the earlier attempts to institute a more permanent fix, and if she were to again rule against the immigration measures, Democrats would almost certainly abide by her ruling and take them out (though they are not legally required to listen to her). At that point, there is no real plan D, and the reconciliation bill would probably pass without any immigration provisions at all, which would likely doom the chances of having any immigration legislation advance for the foreseeable future.

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