Administration will allow reopening of MPP cases with in absentia removal orders or termination—06-25-21
Immigration news, in context
This is the eighty-fourth 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 analyze the Biden administration’s plan to reopen cases for some asylum seekers in the Remain in Mexico program who had been ordered deported or had cases closed in absentia.
In Under the Radar, we delve into a new report detailing abysmal conditions at a shelter for unaccompanied migrant children.
In Next Destination, we discuss the potential immigration implications of a draft budget bill for fiscal 2022.
The Big Picture
The news: The administration communicated to Congress that it would begin allowing asylum seekers formerly in the Migrant Protection Protocols program who were ordered deported after failing to make it to their hearings to enter the U.S. and re-apply for asylum. The move comes after those in MPP with still-active cases were permitted to enter, and the program was wound down altogether.
What’s happening?
We’ll get into more detail below, but very broadly, MPP—also known as Remain in Mexico—was a Trump-era program that leaned on a specific area of law (8 U.S.C. § 1225(b)(2)(C); we recommend you read our previous post on earlier efforts to let people with active cases enter for more granular detail) to force asylum seekers to wait across the border in Mexico as their U.S. asylum cases played out. It differs from the more recent Title 42 expulsion scheme in that those sent back to Mexico under MPP were at least able to begin defensive asylum cases, but their circumstances made it exceedingly difficult to mount a solid legal defense.
In February, Biden officials announced that they were rolling out a process to let asylum seekers stuck in Mexico under MPP finally enter the U.S. and continue their cases from here, starting with particularly vulnerable immigrants and those who’d been waiting the longest (over a year for some). The administration stopped enrolling new people into the program, and officially terminated it in June. Allowing these asylum seekers to continue their cases from within the United States was a due process victory for a number of concrete reasons: being in Mexico made it much harder for the migrants to secure U.S. counsel; they were forced to be very close to the border so they could briefly enter the U.S. for their hearings, but typically had no one they could stay with in northern Mexico and many ended up crowding into unsafe and unsanitary shelters; and criminal organizations knew exactly where to find them, as well as the fact that they could be extorted or might have family in the United States who could pay for ransoms, leading to kidnappings.
Those who were finally allowed in left behind these particular risks, but thousands more had already been affected by these obstacles, which in many cases had prevented them from making their hearings and had led them, somewhat absurdly, to receive deportation orders despite never having been allowed to enter the country in the first place. The lack of legal representation and Customs and Border Protection’s shoddy paperwork and notice standards had left many confused about when and where exactly they were supposed to show up, exacerbated by the fact that they were often directed to ports of entry hundreds of miles from where they were dropped off. Others were assaulted or kidnapped around when they were supposed to go to court.
Advocates commended the decision to terminate the program, but had been pressing the administration for action on the roughly 28,000 migrants in MPP who had received deportation orders in absentia and had their cases closed. An additional almost 3,000 migrants had their cases terminated without a removal order in absentia, making the total group of impacted people close to 31,000. Administration had previously acknowledged that this population should get a chance to reopen their cases, and this week officials notified Congress that this process would formally begin. Eligible migrants have to register through an online United Nations portal to receive an appointment to present themselves at a particular port of entry, at which point presumably they would be paroled in and have the chance to restart an asylum case.
How we got here
The Trump administration rolled out MPP in January 2019. The policy began as a pilot program at the San Ysidro port of entry outside San Diego, California, but was steadily expanded until it encompassed the entire U.S.-Mexico border. More than 71,000 migrants were enrolled in the program from January 2019 to January 2021, when the Biden administration stopped putting asylum seekers on the MPP docket. (The administration didn’t formally end MPP until June.)
The Remain in Mexico policy required certain migrants to wait in Mexico while their cases made their way through U.S. immigration courts. Their cases would be heard by U.S.-based judges in U.S. courts, but the migrants themselves would only be allowed in the country to attend their hearings. That meant that on the morning of their hearings, migrants would have to present themselves at ports of entry and be processed by Customs and Border Protection—which meant brief detention at border facilities—before being taken to see an immigration judge. After a migrant’s hearing ended, U.S. immigration officials would drop them off outside official crossing points.
The statute allowing MPP to exist had been in place for decades; it was introduced as part of the 1952 Immigration and Nationality Act, also known as the McCarran-Walter Act, and had never actually been used. The Trump administration said MPP was a necessary measure meant to ensure migrants would attend their asylum hearings, claiming that most migrants would simply abscond into the U.S. and never go to court otherwise. (In reality, 86 percent of families released from immigration custody attended their asylum hearings between 2001 and 2016, according to federal data analyzed by the American Immigration Council.
Rather than ensuring that migrants showed up to their hearings, the Remain in Mexico policy made it much harder for them to actually do so. It wasn’t unusual for gangs or drug cartels to prey on migrants forced to wait in Mexico; a Human Rights Watch report found at least 32 instances of kidnapping or attempted kidnapping of migrants in the Mexican state of Tamaulipas between November 2019 and January 2020 alone, as well as five instances in which Mexican police abducted and extorted asylum seekers during that same period. In at least one instance, a migrant was kidnapped just hours after being sent across the international bridge connecting Laredo, Texas and Nuevo Laredo, Mexico, according to a VICE News report.
Logistical and bureaucratic problems also made it difficult, if not impossible, for migrants to attend their hearings in the U.S. In 2019, BuzzFeed News reported that immigration officials were listing “Facebook” as migrants’ addresses in Mexico, which meant there was no physical address to which immigration courts could send important paperwork, such as hearing notices. Just over 5,400 people on the MPP docket had legal representation. Without lawyers in the U.S. keeping track of their cases and advocating on their behalf, it was difficult for migrants in the Remain in Mexico program to keep track of developments with their cases, much less win them. More than 30,000 MPP cases were decided in absentia, meaning the asylum seekers weren’t present at their most recent hearing and were therefore ordered deported or had their cases terminated.
What’s next?
The announcement certainly is welcome from a general due process perspective, but its actual impact could be relatively muted depending on implementation. First of all, it’s important to note that the second bite at the apple will only apply to those whose removal orders or case terminations came as a result of a failure to appear in immigration court. For migrants who did go to their hearings and were ordered deported on the merits, it’s over, all of the other procedural due process obstacles inherent in MPP notwithstanding. Of those who did show up to all of their hearings, about 4,700 were still ordered deported and another 3,800 had their proceedings terminated. Of these, only about 800, or 9 percent, had legal representation. There’s no second chance for them.
This effort also requires migrants who are eligible to be aware of this change, though it remains rather unclear how they would be informed, particularly given that a large portion of them aren’t in northern Mexico anymore. It’s likely that many left the area following the initial failure of their cases and either attempted to resettle elsewhere in Mexico or returned to their countries of origin. Those migrants would now have to register through an online portal and then make their way all the way back to the U.S. border and trust that the government that tossed them out last time around will conduct itself differently now.
The government will probably lean on the same network of nonprofit providers it’s relying on to identify vulnerable migrants to exempt from Title 42 in order to identify and reach asylum seekers who could benefit from this decision, but it’s not at all obvious that these organizations will have access to most of these migrants, particularly those whose cases were closed months ago. Even if they are reached, the government doesn’t appear to be offering any assistance in reaching the U.S. again, leaving them to consider re-taking the long and arduous ground journey that the same U.S. government officials, including Vice President Kamala Harris, have separately insisted is dangerous.
It’s also worth noting that this change guarantees access to the asylum system, and certainly not success in the asylum system. Defensive asylum has only been getting more difficult to obtain, with denials in immigration court hitting an all-time high of 71.6 percent last fiscal year. Attorney General Merrick Garland recently moved to roll back some of the Trump era’s most draconian restrictions on winning asylum in court, but it remains complicated and technical, and there’s a high likelihood that a large number of migrants formerly in MPP will lose their new asylum cases, too, and be ordered deported yet again.
Under the Radar
New report details abysmal conditions at “tent city” shelter for migrant children
Migrant teenagers housed at a temporary influx shelters the Fort Bliss Army base are “constantly monitored” for potential self-harm and panic attacks, and some children have even tried escaping the facility, according to a new report by CBS News’s Camilo Montoya-Galvez.
One 13-year-old Honduran girl said she was one of 29 children in the shelter to be placed on suicide watch; that girl had been in the shelter for 58 days as of June 6. Another girl, a 17-year-old from Guatemala, told lawyers she had been at Fort Bliss for 60 days and that her anxiety had become so bad that she once went three days without sleeping. On another occasion, she fainted. The situation has become so dire that staff at the shelter have banned pencils, pens, scissors, and nail clippers from the facility for fear children might use them to harm themselves.
The Biden administration began housing unaccompanied migrant children at Fort Bliss, an Army base located outside of El Paso, earlier this year. The base has capacity for up to 10,000 children—nearly 5,000 children were housed there in April, when the number of migrant teens at the shelter reached its peak. There are currently around 1,600 migrant teenagers at the facility, according to the CBS News report. The Department of Health and Human Services, which oversees the agency that runs shelters for unaccompanied migrant children, told CBS News that it expanded mental health counseling and legal services at Fort Bliss.
Fort Bliss is not a licensed shelter; it’s a temporary influx facility, and therefore is allowed to have lower care standards than traditional shelters for unaccompanied migrant children. The teenagers at Fort Bliss likely arrived at the border unaccompanied—or with adult relatives who weren’t their parent or guardian—and are supposed to be held in government shelters until they can be released to sponsors in the U.S. These shelters aren’t supposed to operate like prisons—but one federal employee who volunteered to work there told CBS News that it’s effectively “a juvenile detention facility.”
Next Destination
Sanders budget plan would set aside $150 billion for immigration programs
Sen. Bernie Sanders, the chair of the Senate Budget Committee, is working on a draft of a $6 trillion budget for fiscal 2022 that would allocate $150 billion for federal immigration programs, CQ Roll Call reports. There aren’t many details on what the money would be used for, but the CQ report says the funds seem to be set aside for a pathway to lawful permanent resident status for people in certain protected categories, including Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS), farmworkers, and essential workers. At least $24 billion of the $150 billion total would be used for border infrastructure and to modernize ports of entry, per the CQ report.
This bill is in line with the Biden administration’s desire to provide permanent residency to certain undocumented immigrants. The immigration bill introduced by Biden allies in February, which has gone pretty much nowhere so far, would provide immediate permanent residency to people with DACA, TPS, and certain agricultural workers.
The question is whether the Democratic budget plan for next fiscal year will actually pass, especially with the immigration provisions in place. Financially speaking, $150 billion is a minuscule percentage of a $6 trillion budget plan, but immigration remains a contentious issue in Congress, where any attempts to provide any sort of relief—or even roll back the Trump administration’s most harmful policies—are met with immediate backlash from Republicans. The CQ report says the bill “includes reconciliation instructions for a filibuster-proof package.”