Administration moves to restart MPP and ends expanded expedited removal—10-15-21

Immigration news, in context

This is the ninety-ninth 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 current efforts to reinstate the Migrant Protection Protocols after a judicial order.

  • In Under the Radar, we discuss the use of a restraint device now as the WRAP against African asylum seekers who were being deported.

  • In Next Destination, we look at the administration’s decision to suspend the use of workplace raids.

The Big Picture

The news: Following a federal court order, the Biden administration is setting the groundwork to restart the Migrant Protection Protocols, also known as Remain in Mexico. Meanwhile, DHS has moved to suspend the use of expanded expedited removal against migrants at the border.

What’s happening?

The Biden administration announced that it is taking steps to restart MPP after a federal judge ordered its reinstatement pending the ultimate outcome of a lawsuit brought by the states of Texas and Missouri. After a failure to get either the Fifth Circuit Court of Appeals or the Supreme Court to overturn the order, the administration is now legally obligated to move ahead with starting up the program again. Officials have told reporters that tent courts will be built along Brownsville and Laredo, mirroring how the program had operated before its termination earlier this year.

Under MPP,  migrants who arrive at the border intending to apply for asylum are put into removal proceedings, as is typical. However, instead of being detained in ICE facilities or released into the interior of the country, migrants are docketed for future court hearings in either immigration courts near the border or tents set up along it. After receiving their hearing date, migrants are sent back to Mexico, where they’re supposed to wait weeks or months for their subsequent court hearings. While the program was active, those in MPP couldn’t really stray very far from the border, as they were forced to cross each time they had a court hearing, and often had a difficult time securing representation. Many were the targets of violence from cartels or other criminal elements while living in squalid border camps (more detail on all this below).

For this iteration of MPP, officials are pledging to make due process-enhancing changes to the program, including efforts to ensure that asylum seekers secure access to representation, that cases are generally adjudicated within about six months, and that there are broader criteria that would trigger exemption from the program. These are, of course, just promises, and may very well be empty ones. There is a certain limit to how much the U.S. government can actually guarantee. A pledge to provide access to lawyers isn’t going to suddenly create an ecosystem of U.S. immigration attorneys in northern Mexico or protect migrants from the extortionists.

At about the same time as administration officials were discussing these plans, the administration  also announced that it would be suspending a policy of expanded expedited removal that had been enacted by the Trump administration last October. BuzzFeed News’s Hamed Aleaziz obtained data showing that expanded expedited removal had been used very sporadically, a total of 21 times since it was enacted. (For a more detailed breakdown, we recommend you read that prior edition linked above, but in a nutshell, ER allows immigration agents to very quickly deport people with no status, who are recent arrivals to the country, and without the need for a court hearing, provided that they don’t actively express fear of persecution or request asylum.) Prior to last year’s change, the rules were that people who were apprehended within 100 miles of a U.S. border and couldn’t prove they had been in the country longer than 14 days could be subject to ER.

It’s important to note here that this doesn’t mean expedited removal as a practice is over. The expanded ER rules had stretched the program to its maximum statutory capacity, permitting the rapid deportation of people apprehended anywhere in the country who couldn’t prove that they either had status or had been in the country longer than two years. With this suspension of those rules, the program presumably reverts back to its previous standards. That also means that it doesn’t necessarily affect the administration’s recent move to use ER against families of asylum seekers at the border, as recently arrived migrant families  amply fall under the prior criteria. As we noted before, the supposed exemption around asylum is thin, as the people who are attesting that migrants did not express a fear of persecution are the arresting agents themselves.

Between the reinstatement of MPP, the fact that expedited removal for families will remain in place, and the Biden administration continues fighting in court to preserve Title 42, the ability for migrants to successfully present an asylum claim remains severely constrained.

How we got here

The Migrant Protection Protocols began in January 2019 as a pilot program at the San Ysidro port of entry in California. The Trump administration expanded MPP across the entirety of the U.S.-Mexico border over the next year, enrolling more than 71,000 migrants in the program. Roughly two-thirds of the migrants on the MPP docket were Honduran, Guatemalan, or Salvadoran, according to federal data analyzed by TRAC.

From the Trump administration’s standpoint, MPP was a rousing success. Migrants forced to wait in Mexico were all but guaranteed to lose their asylum cases. Stranded in Mexico, they had little access to lawyers who could help them gather and present the evidence needed for a successful asylum claim. Just over 6,300 migrants on the MPP docket managed to find legal representation, according to TRAC’s data. And even then, there was little guarantee they’d actually win their cases. More than 28,000 MPP hearings led to in absentia decisions, meaning the migrants weren’t present. 

Sometimes migrants missed their hearings because they didn’t receive proper notice, or because they had tired of living in Mexico and decided to give up on their asylum claims. Other times, the reason was more sinister. Migrants forced to wait in Mexico became easy targets for organized crime, and were often subjected to extortion, threats, and even kidnappings. It wasn’t unheard of for migrants to get kidnapped after being sent back to Mexico.

Even migrants who weren’t in immediate physical danger were forced to live in squalid conditions. Shelters across the border—typically operated by churches or nonprofits with tight budgets—filled up and stayed full. Even before the implementation of MPP, migrants were spending much longer in Mexico than ever. In 2018, the Trump administration had started limiting the number of migrants who could ask for asylum at ports of entry each day, creating massive backlogs along the border. Migrants started keeping informal lists tracking whose turn it was to ask for asylum. People would often arrive in Tijuana or Nuevo Laredo expecting to cross into the U.S. to ask for humanitarian protection, only to learn that they’d have to wait weeks or months before being able to do so. The combination of metering and MPP meant that migrants who may otherwise have stayed in a shelter for a night or two were suddenly there indefinitely.

Migrants who couldn’t secure a bed in a shelter had to find other accommodations. Those with a bit of money to spare often rented hotel rooms or apartments, which they split with other migrants. Those who had no money lived in encampments near ports of entry. The tent cities were squalid and dangerous, but they also provided safety in numbers.

In March 2020, the Trump administration used the pandemic as a pretext to indefinitely suspend all MPP hearings. Migrants on the MPP docket weren’t let into the U.S., nor were they officially denied asylum. Instead, they were told to report to ports of entry on their hearing dates so they could be issued tear sheets with new hearing dates. In May 2020, the policy changed again: migrants with hearing dates between May 10 and June 5 were told to “present themselves at their designated [port of entry] one month later than that date to receive their new notices of hearing … and tear sheets for a future court date,” according to a DHS letter sent to Human Rights First researcher and policy analyst Kennji Kizuka. Those whose hearings are scheduled between June 8 and 19 were told to present themselves at their designated port of entry on their scheduled hearing date to receive a new notice.

On his first day in office, Biden announced that his administration would stop enrolling new people into MPP. The Biden administration rolled out its plan to bring people who had been on the MPP docket into the U.S. in February. (The administration didn’t formally rescind MPP until June.) 

That would have been the end of MPP, but in April, Texas and Missouri sued the Biden administration for suspending the policy. The states argued that MPP would force them to direct state resources to fighting human trafficking. They also argued that ending MPP “threatens damage to the bilateral relationship between the United States and Mexico,” an objectively nonsensical argument. Crucially, the lawsuit claimed that the Biden administration’s efforts to end MPP violated the Administrative Procedure Act (APA), a law prohibiting capricious rule-making. (The Trump administration was regularly sued for violating the APA, especially with regards to its immigration policies.) 

A Trump-appointed federal judge in Texas ordered the Biden administration to reinstate the program. The Biden administration filed an appeal with the Fifth Circuit and was denied. The only reason MPP wasn’t reinstated sooner is because, as the Justice Department’s lawyers argued in late September, the administration can’t reinstate MPP without the compliance of the Mexican government. 

What’s next?

There remains the possibility that the underlying MPP lawsuit will be resolved in the administration’s favor and it can cease the program’s reinstatement. Remember, this order is not a final ruling, it is merely a directive that the government maintain the policy as the litigation plays out. The administration is also in the process of drafting another memo to rescind MPP again, which it hopes will address any purported legal deficiencies in its initial attempt.

As we’ve pointed out in the past, a big open question is what exactly Mexico is going to do here. Ultimately, any version of the program can only function with Mexico’s consent and cooperation, as it inherently involves pushing people back to its sovereign territory. The impact of Title 42, for example, has been somewhat dampened by the Mexican government’s refusal to take certain would-be expulsions back in. While the government of President Andrés Manuel López Obrador has broadly been amenable to the U.S. government’s migration-deterrence efforts, the Biden administration, which actually does want to end MPP, could easily insinuate to our southern neighbors that maybe they shouldn’t let it happen.

The fact of the restoration of the program also doesn’t necessarily indicate how widely it will be used. After all, the administration has several tools in its arsenal now to turn migrants away, and something like Title 42, while it lasts, is far more powerful than MPP. Even if there is no additional legal action that would take Biden off the hook for relaunching it, it’s not clear how widespread MPP’s usage would be, though its more extensive application might look more tantalizing in the event that, for example, Title 42 is struck down in court.

Under the Radar

African asylum seekers deported using torture-like restraints

A group of asylum seekers who were deported to Cameroon and Uganda have filed a civil rights complaint against ICE, alleging that they were put into a device known as the WRAP during their removal flights. The device, which is made of a number of shackles and wraps, holds a person’s legs together and at a relatively sharp angle to their torso, making them immobile and causing difficulty breathing. According to these detainees, they had not resisted attempts to load them onto the aircraft or otherwise done anything to merit such a dramatic restraint.

The asylum seekers claimed that they were left in the WRAP for hours, including before their flights were close to taking off. A coalition of immigrant advocacy groups and legal organizations that collectively submitted the complaint noted that the only known reports of the WRAP being used are against African asylum seekers, which raises questions about why exactly ICE felt that they were such a particular threat that they needed to be put into the device.

Next Destination

Biden administration ends mass workplace immigration raids

In August 2019, the Trump administration dispatched ICE officers to several chicken plants in central Mississippi to arrest undocumented workers. The Mississippi raids resulted in the arrests of 680 workers—it was believed to be the largest immigration enforcement action in a single state. 

The Biden administration announced this week that it would not conduct mass workplace raids like the one in Mississippi. In a statement, DHS secretary Ali Mayorkas said the department would focus its efforts on “unscrupulous employers who exploit unauthorized workers, conduct illegal activities or impose unsafe working conditions.”

Mass workplace raids weren’t a Trump invention. They were a hallmark of the George W. Bush administration, which similarly opted for “shock and awe” tactics. In 2008, for example, federal immigration agents arrested nearly 400 workers at a meatpacking plant in Iowa. The Obama administration moved away from workplace raids—not solely for humanitarian reasons but also because they were costly and not always effective. Instead of mass work-site raids, the Obama administration conducted “paper raids” in which it audited employers’ I-9 forms to look for potential immigration violations. The Biden administration appears to be moving in a similar direction, albeit in a more polarized climate with regards to immigration.