Administration to start allowing migrants in MPP to enter—02-12-21

Immigration news, in context

This is the sixty-seventh 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 look at the Biden administration’s plan to officially phase out the Remain in Mexico program.

  • In Under the Radar, we examine the recent expulsion flight to Haiti.

  • In Next Destination, we discuss whether Biden will rescind Trump’s ban on immigrant and non-immigrant visas.

The Big Picture

The news: BuzzFeed News has reported that the Biden administration is creating a system to begin allowing asylum seekers in the “Remain in Mexico” program—officially titled the Migrant Protection Protocols—to begin entering the United States after extended limbo in Mexico.

What’s happening?

MPP was the Trump-era initiative that really put the “out of sight, out of mind” axiom to the test. Another one of Stephen Miller’s “innovations,” the program was announced in January of 2019 and based on the previously little-used 8 U.S.C. § 1225(b)(2)(C), which permits the government to return an individual who does not possess valid entry documents and “is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States'' to that territory “pending a proceeding under section 1229a of this title,” i.e. a removal process before an immigration court (asylum processes in immigration court are technically removal hearings).

As a consequence, tens of thousands of asylum seekers were left to wait months in often-squalid conditions along the border, which they were forced to remain close to in order to attend their hearings (more on that below). On the first day of his presidency, Joe Biden’s Department of Homeland Security announced that it would stop enrolling new people into the program, but did not otherwise clarify what would happen to the thousands who were still waiting. According to the reporting, the administration is now planning to take a phased approach, working with still-unannounced NGOs to identify those who spent the longest in MPP and are particularly vulnerable (criteria also not yet clear) and have them screened to enter at one of three ports of entry, at least two of which will have a capacity of 300 MPP arrivals per day.

This screening would include Covid-19 tests, which would have to be negative before migrants were allowed to enter. Once they’re let through, most apparently won’t be detained, but released under one of the various current alternatives to detention, which include everything from orders of supervision that require periodic check-ins to ankle bracelets to cell-phone apps that engage in constant monitoring. It’s not clear how quickly the program will be rolled out; the government estimates that about 25,000 people remain in the program, meaning that if they maintained a rate of around 800 people per day, it would still take about a month to process everyone.

The MPP program is not to be confused with the other major policy of turninggetting asylum seekers turned back to Mexico, which is the CDC Title 42 order. As we’ve noted in detail before, that Trump-era policy usesutilizes the coronavirus pandemic as a pretext for practically shutting down U.S. land borders to people who don’t already have entry documentation, and allowing the immediate expulsion of anyone who crosses or presents at a port of entry. The Biden administration has announced it will not expel unaccompanied minors, but border officials have latitude to expel pretty much everyone else, either to Mexico or to their countries of origin. (Border officials have recently begun releasing some families into the interior of the country only because Mexico refused to take the expulsions.)

The difference between someone being sent to Mexico under MPP and Title 42 is that in the latter scenario they have no ongoing legal process to determine their right to stay in the United States. For practical purposes, it’s almost as if they’d never entered or tried to enter at all; in some cases, no identifying records are even created. 

How we got here

The Trump administration announced its plan to require some asylum seekers to wait in Mexico while their cases were processed in U.S. immigration courts in December 2018. The Remain in Mexico program officially began in January 2019 as a pilot program at the San Ysidro port of entry in California. Over the next year, the administration expanded MPP along the U.S.-Mexico border. More than 70,000 people have been enrolled in the program to date, and nearly half have been ordered deported thus far, according to federal data analyzed by TRAC, a Syracuse University project.

Even before the pandemic gave the administration an excuse to halt all MPP hearings—leaving tens of thousands of migrants in limbo—the Remain in Mexico program was an unmitigated disaster. Asylum seekers on the MPP docket were sent to Mexico without any resources; some were able to find lodging at migrant shelters run by nonprofits and other religious organizations, while thousands of others were forced into squalid encampments near ports of entry. Being essentially trapped in Mexico has turned migrants into easy targets for gangs and petty criminals alike, who regularly rob, assault, kidnap, and extort people they identify as asylum seekers. There have been several documented instances of migrants being kidnapped shortly after being released into Mexico following their hearings in U.S. immigration court, or of migrants missing their hearings altogether because they had been abducted.

The Remain in Mexico program also introduced a new series of legal hurdles for asylum seekers. The overwhelming majority of migrants on the MPP docket—99 percent, according to TRAC—don’t have legal representation. Unlike criminal proceedings, immigrants in deportation proceedings aren’t entitled to a free, government-appointed attorney; if they want a lawyer, they have to pay for one themselves or find an attorney or legal organization willing to take their case on for free. 

There have been other logistical problems. In 2019, BuzzFeed News reported that immigration officials were listing “Facebook” as migrants’ addresses in Mexico—the address to which immigration courts were supposed to send important paperwork, including notices to appear in court. Later that year, the San Diego Union-Tribune reported that CBP was giving fake court dates to some migrants enrolled in MPP even after their cases had been terminated, as well as to migrants who had already been granted asylum. On other instances when migrants on the MPP docket were granted asylum, the Trump administration immediately challenged their cases, hoping that the immigration courts’ appellate body would rescind protections.

The Trump administration had two main justifications for the Remain in Mexico program. One was that the statute allowing the program to exist had existed for decades—it had been introduced as part of the 1952 Immigration and Nationality Act, also known as the McCarran-Walter Act, a restrictive, rabidly anti-communist piece of legislation. Administration officials, including then-acting DHS secretary Kevin McAleenan, claimed MPP was necessary because most asylum seekers skip their hearings after being allowed into the U.S. According to McAleenan, 90 percent of asylum seekers released from ICE custody didn’t show up to their hearings—a completely fabricated statement. In reality, 86 percent of families released from detention between 2001 and 2016 attended their hearings. Migrants on the MPP docket actually had higher absentia rates than those in the U.S., largely because of the logistical and humanitarian problems mentioned above.

When the pandemic hit, all MPP hearings were postponed indefinitely. Asylum seekers on the MPP docket were first asked to come back on the date of their hearing to “receive tear sheets and hearing notices with new hearing dates.” Later on, they were told to come back the month after their scheduled hearings. After that, all hearings were put on indefinite hold and updates all but ceased. This happened despite the fact that migrants on the MPP docket are considered “detained” for administrative purposes—their cases are adjudicated on timelines similar to those of immigrants detained in the U.S. Meanwhile, detained hearings continued throughout the pandemic, but hearings for immigrants not in detention were postponed, raising questions about the categorization of migrants forced to wait in Mexico as “detained.”

What’s next?

Being allowed to enter the country, of course, does not confer any type of legal status. These migrants would essentially be in the same position as they would have been if they’d never been put into MPP in the first place: people seeking hard-to-obtain humanitarian protections, and subject to deportation if they’re ruled not to qualify. Asylum grant rates across the board have been pretty dismal in the last couple of years, but the MPP ones are notably low. According to the TRAC data, of the close to 42,000 MPP cases that have already been closed, over 32,000 resulted in removal orders (the irony of issuing “removal” orders to people who were not allowed to enter the United States is not lost on us), about 8,500 were terminated or otherwise closed for administrative reasons, and 641 resulted in asylum grants as of last month. That’s a success rate hovering around 1.5 percent.

As we noted above, a large part of the reason for this are the practical realities of obtaining representation and preparing a legally complex case from a migrant camp in Mexico. Allowing these migrants to enter the country and stay out of detention will substantially improve their ability to, at minimum, have a fair asylum proceeding. To enhance due process further, Biden will also have to work on the immigration courts themselves, which (as we have also broken down in depth before) the Trump administration spent years molding to its restrictionist standards.

There are already concerns about the fact that only MPP enrollees with pending cases will be allowed to enter the country when over 40,000 other migrants were ordered deported or had cases terminated under conditions that were plainly not conducive to due process rights. It’s not clear how exactly the administration would resolve this issue, though. A deportation, for legal purposes, usually bars someone from attempting to seek asylum again. Many will already be back in Central America.

The gradual rollout of MPP’s termination appears to be a continuation of the administration’s general caution with regards to immigration policy rollbacks, particularly as it involves the border. Administration officials have long feared a so-called border surge and have calibrated every initiative to prevent it. CBP officials have been fanning the flames recently, releasing scary-looking border apprehension numbers while often neglecting to mention that many of these apprehensions are of the same people, who are being expelled under the CDC order and try to enter the U.S. again.

It’s not at all clear that federal policy signaling ultimately has much of an impact on migrants’ willingness to seek asylum. Some of the largest volumes of asylum seekers in years occurred well into the Trump administration, after it had already put in place a number of draconian policies and messaged in no uncertain terms that it did not see any migrants’ humanitarian claims as valid. Instead, the tentative approach appears to be mostly causing frustration and confusion among those still in the program, who are upset that some recent arrivals have been let in the country, and other would-be asylum seekers.

While the CDC order remains in place, the fact that MPP wont have new enrollees is a largely cosmetic measure. Asylum seekers arriving at the border will be turned away anyway without any access to the asylum system. As we note below, it seems that there are no plans to reevaluate this system for now.

Under the Radar

ICE expels dozens, including babies and children, to Haiti

Two expulsion flights carrying at least 72 people arrived in Haiti this week, The Guardian reports. The Haitian migrants on the flight were not being deported, as many reports have claimed, but rather being sent back to Haiti under the CDC Title 42 order. The order was implemented by the Trump administration last spring despite pushback from public health officials and allows migrants to be expelled either back to Mexico or, as was the case with the Haitians aboard the two Monday flights, to their country of origin.

The expulsions have nothing to do with Biden’s deportation moratorium, which a Trump-appointed federal judge temporarily blocked in late January pending litigation. Though expulsions and deportations have a similar end result—a person gets “removed” from the United States and sent to another country—there are a few legal differences. Expulsions are near-immediate and leave no legal record. A deportation, meanwhile, usually occurs after proceedings in immigration court and comes with significant legal consequences. In addition to being removed from the U.S., someone who has been deported is barred from re-entering the U.S. for at least five years, and faces fines and imprisonment if they attempt to re-enter in that period.

All of this is to say that the flight to Haiti was not a “deportation” flight and thus had nothing to do with either Biden’s deportation moratorium or the recent injunction issued against it. It was an expulsion flight under Title 42, which White House Press Secretary Jen Psaki recently said the Biden administration won’t be rescinding any time soon, citing the ongoing pandemic.

It’s worth emphasizing that experts at the CDC initially refused to issue the border closure order, saying there was no valid public health rationale for it. The order was finally pushed through in March after then-Vice President Mike Pence intervened. In other words, the Biden administration—which, as a reminder, promised to undo Trump’s most restrictive immigration policies—is using a nonsense public health argument to justify keeping the Title 42 order in place.

Next Destination

Will Biden rescind Trump’s proclamation banning visas?

Last spring, Trump issued a proclamation banning immigrant visas, allegedly to mitigate the “risk to the U.S. labor market” posed by immigration amid the ongoing pandemic. In June, as the visa ban was set to expire, Trump issued a new proclamation extending it. That proclamation also limited the issuance of certain non-immigrant visas. The bans weren’t based on any public health guidance; the rationale was entirely economic. Since then, legal immigration to the U.S. has been virtually nonexistent.

Although Biden promised that rescinding Trump’s restrictive immigration policies would be a day-one priority, his administration hasn’t made any progress on this front. In fact, this week, the administration told the federal judge overseeing the legal challenge to Trump’s visa proclamations that it was still reviewing whether it wanted to rescind the visa ban, and is appealing an injunction that had allowed a small pool of plaintiffs’ relatives to obtain immigrant visas. The fact that the Biden administration is still reviewing whether to end the ban on both immigrant and non-immigrant visas is noteworthy. Critics have pointed out that although Biden ended Trump’s “Muslim ban,” little has changed in practice since the people subjected to that ban are still being denied entry under the coronavirus-related proclamations.