Remain in Mexico comes to a close—08-12-22

Immigration news, in context

This is the 133rd 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 decision to finally phase out the Remain in Mexico program.

• In Under the Radar, we look at ICE’s use of a fake university in Michigan to ensnare, arrest, and deport foreign college students.

• In Next Destination, we discuss the Afghan Adjustment Act.

The Big Picture

The news: Over a month after the Supreme Court moved to allow the administration to terminate the Migrant Protection Protocols program, also known as Remain in Mexico, officials have finally moved to end the policy and disenroll those who were still in it after the district judge who initially issued the injunction and vacatur officially withdrew his orders.

What’s happening?

We’ve written about MPP perhaps a dozen or more times, given the many twists and turns that the Trump-era policy went through over years of administrative decisions and litigation. The policy’s effectiveness as a border-control and anti-asylum measure waned significantly since the 2020 implementation of the more expansive Title 42 program (which remains in place, also as a result of litigation), but it has remained active and at its height ensnared tens of thousands of asylum seekers.

In essence, MPP was used to keep asylum seekers waiting in Mexico and often in grave personal danger and without representation as they went through their formal court processes. Up until its 2018 implementation, migrants would be detained at the border and, if they expressed fear about returning to their country of origin, would be put into asylum proceedings and subsequently either detained in ICE detention centers or released with a future court date in one of the immigration courts across the country (unless CBP straight up lied on official forms about fear of return, which happens more often than you might think).

Unlike various other Stephen Miller plans, MPP had a clear statutory backing. The program relies on 8 U.S.C. § 1225(b)(2)(C), which gives the executive the ability to take an individual with no current status who “is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States'' and return them to that territory “pending a proceeding under section 1229a of this title,” i.e. removal proceedings.

When Biden tried to end the program last year, the administration was sued by Texas and Missouri. The states claimed, among other things, that terminating MPP would violate the Immigration and Nationality Act, as Title 8 is also known, because a separate provision mandates that, if a migrant “seeking admission is not clearly and beyond a doubt entitled to be admitted,” the government detain them pending a removal proceeding. This has never actually been enforced for a variety of reasons, the most basic of which is that such detention capacity does not exist, but the states argued that the government’s inability to fully comply with this statute meant they should be forced to use MPP for everyone that couldn’t be detained. U.S. District Judge Matthew Kacsmaryk of Texas, a Trump appointee, sided with the states, ordering the administration to reinstate MPP. The Fifth Circuit upheld this decision.

On the last day of June, the Supreme Court overruled the lower courts and allowed MPP to be terminated, and further found that courts lower than itself did not have the power to even issue injunctions against a broad array of border and immigration enforcement matters. Advocates and attorneys who’d spent years fighting against the program rejoiced and then… nothing happened. The administration took no immediate steps to unwind MPP, and eventually confirmed that it wouldn’t move forward until the lower court injunction had been officially lifted, even though it had already been declared unlawful by the Supreme Court. This couldn’t be done until SCOTUS officially certified the decision and sent it back, which it took almost a month to do.

Finally, on August 1, the Supreme Court issued the formal judgment, sending it back to the Fifth Circuit. The Justice Department made a cursory request for the circuit court to send the case back to the district court with a mandate for the injunction to be lifted immediately. The circuit court shocked everyone—including the states’ lawyers, who hadn’t opposed the motion—by refusing to do so for reasons that it didn’t explain. Justice filed another motion asking the circuit court to reconsider, stating flatly that the delay in getting the injunction lifted “serves no purpose” and pointing out that this could delay vacating an order that SCOTUS explicitly found unlawful for up to two months. The court finally reversed itself and, on August 6, issued the mandate. The injunction was lifted two days later.

The government is now moving to actually end MPP. Unlike its first attempt at doing so, this time the program is being wound down very gradually, with those affected being disenrolled as they come in from their court hearings as opposed to there being a generalized effort to bring them back into the country. As the San Diego Union-Tribune’s Kate Morissey reported, this is causing some confusion and some anxiety as asylum seekers try to figure out when they can enter, and fret that their disenrollment from MPP will only lead them to be detained in the U.S. instead. So far, it doesn’t appear that those formerly in MPP are being detained, but the disenrollments are happening very slowly.

It’s worth noting that, as damaging as MPP has been, its usage has been somewhat limited in recent months. According to DHS’ latest report, between December and June the government enrolled over 9,600 people in MPP and then disenrolled 3,400 prior to any return to Mexico, meaning that they were found to have some particular vulnerability or otherwise weren’t eligible. Almost 5,700 were returned to Mexico under MPP, with the remaining 500 or so either in processing or having cases closed. These numbers certainly aren’t nothing, but they’re a very small percentage of the hundreds of thousands of border encounters that are happening every month. That said, Title 42 is still in place, and thousands of people are being returned to Mexico with no semblance of due process as a result.

How we got here

The statute that forms the basis for MPP was introduced as part of the Immigration and Nationality Act of 1952. Also known as the McCarran-Walter Act, the bill made several key changes to the immigration system, including establishing the H-1 visa category for non-immigrant workers and requiring anyone applying for naturalization to be of “good moral character” (and allowing the government to deny admission to anyone who, conversely, was deemed to not be of good moral character). Those changes were implemented immediately. MPP, despite its statutory origins, was unprecedented. 

MPP was introduced in January 2019. It started as a pilot program at the San Ysidro port of entry in San Diego, California and was quickly expanded to other ports of entry along the U.S.-Mexico border. An October 2019 DHS assessment declared that MPP was a “core component of U.S. foreign relations and bilateral cooperation” with Mexico, and that the program’s “expansion was among the key ‘meaningful and unprecedented steps’” the Mexican government undertook “‘to help curb the flow of illegal immigration to the U.S.’ border.’”

From an immigration restriction standpoint, MPP was an undisputed success. More than 71,000 people were enrolled in the program; most of them had no legal representation, and the majority were ordered deported. From both a logistical and humanitarian standpoint, MPP was an unmitigated disaster. The low representation rate meant that migrants with valid asylum claims often didn’t stand a chance in immigration court. The few who did manage to win their cases had to contend with appeals from the government, meaning they were sent back to Mexico despite having been granted protection.

Oftentimes, after asylum seekers are processed at the U.S.-Mexico border, they’ll head to sponsors’ homes in other parts of the country, and have their hearings reassigned to local immigration courts. Since MPP concentrated migrants along the border, the Executive Office for Immigration Review—the federal agency within the Department of Justice that oversees the immigration courts—built makeshift tent courtrooms along the border. Immigration judges based elsewhere in the country would video call into these courts rather than presiding over cases in person. BuzzFeed News uncovered several instances of Border Patrol agents falsely writing “Facebook” as contact information on migrants’ notices to appear, the documents that inform people of their hearing date and location. If there’s any change to someone’s hearing, the government is supposed to contact them at the phone number or address listed on their notice to appear—something that could obviously not be done via Facebook.

Every time a migrant had a hearing in immigration court, they’d have to show up at the port of entry several hours ahead of time in order to be processed—and briefly detained—by Customs and Border Protection. For migrants with cases early in the morning, this meant showing up to ports of entry around 3 or 4 a.m., an obvious safety risk. It wasn’t uncommon for migrants to be threatened, extorted, or even kidnapped by gangs and cartels. A 2020 study by Doctors Without Borders found that 75 percent of migrants waiting in Nuevo Laredo, Mexico were kidnapped during a month-long period; Vice News spoke to a migrant who was kidnapped just three miles from a port of entry.

The pandemic only served to intensify the chaos. In the early weeks of March 2020, EOIR suspended all MPP hearings, as well as all hearings for non-detained immigrants in the U.S. Hearings for people in detention continued, which was notable given that people on the MPP docket were considered “detained” for administrative purposes. At first, asylum seekers were asked to report to ports of entry on their scheduled hearing date to “receive tear sheets and hearing notices with new hearing dates.” A few months into the pandemic, they were instructed to show up to ports of entry one month after their scheduled hearing date to receive information about the rescheduled hearing. 

By the time Biden took office, people enrolled in MPP had been waiting for nearly a year. One of Biden’s earliest moves as president was to parole people with pending MPP cases into the U.S. The administration also looked into reopening cases for people who had been ordered in absentia, noting that people often missed hearings due to logistical or safety issues. Though the administration was taking steps to ramp down and eventually end MPP, it reinstated the program after a court order—despite outcry from advocacy organizations, some of whom walked out of a meeting with administration officials, who said there was no humane way to reinstate the program.

What’s next?

Given the slow pace of the program’s unwinding, it’ll probably take months until all the current MPP enrollees in Mexico are taken out of the program and allowed to remain in the U.S. as they pursue their cases. Given the dangers faced in Mexico, and the general lack of access to legal counsel, this is not a mere technicality, but could have real impact on their cases and wellbeing. Though the administration has not been detaining disenrolled so far, it could choose to do so at any time.

With MPP on the way out, all eyes now turn to Title 42. It is by far the largest asylum-blocking measure still in effect, with tens or even low hundred thousands of expulsions taking place monthly. In March, the Biden administration was blocked by a federal court from sending migrants back to danger, but its attempt to fully wind down the policy was enjoined and vacated by a separate federal court in May, and though it has appealed the decision, it has not sought a stay of the injunction. The Supreme Court’s ruling stopping district courts from acting enjoin most immigration policies has no impact because Title 42 is not, and never has been, technically an immigration policy.

It’s also important to bear in mind that the Supreme Court ruling did not find that MPP itself was in any way unlawful or inappropriate, merely that the administration was not mandated to use it. As a program, MPP rests on much firmer ground than Title 42 and doesn’t even require the flimsy excuse of preventing entry of a communicable disease. If a Miller-like figure were to regain control of immigration policy under a future GOP administration, it would be very easy to reimplement MPP at any time and with far less reasoning than would be required to reach for Title 42 again.

Under the Radar

Groups call for inquiry into ICE’s “entrapment” with fake university

A series of immigration advocacy and civil rights groups sent a letter to the Department of Homeland Security calling for an investigation into ICE’s use of a fake university in Michigan, the University of Farmington, to lure and subsequently target international students who were then accused of visa fraud. The school was set up in 2015 as a front with an official-looking website and recruitment efforts, mostly focused on India. When students enrolled, they were sent real I-20 Certificates of Eligibility for Nonimmigrant Student Status.

The school didn’t have a real campus or offer actual classes, and ICE maintains that the students who utilized it to gain nonimmigrant students status were aware that the scheme was a fraud and willingly participated. Students themselves have claimed that they were led to believe that the university was real and would have had no way of knowing otherwise until they had basically already fulfilled ICE’s parameters for fraud. Every single student targeted by ICE was from India, with the exception of one student from Palestine.

The groups argue that ICE’s actions were effectively entrapment, designed to trick the students into committing violations they would not have committed were it not for ICE’s efforts, and ended up paying over $6 million in tuition only to be likely barred from ever attempting to reenter the country. The letter calls for both an inquiry and a settlement agreement.

Next Destination

Afghan Adjustment Act introduced in the House

A bipartisan group of senators introduced a bill that would allow Afghans who evacuated to the U.S. to become lawful permanent residents, CQ Roll Call reports. More than 76,000 Afghans who entered the U.S. via humanitarian parole lack a clear path to citizenship or any other kind of permanent status in the country. Afghan evacuees in the U.S. have already begun receiving parole denials, meaning some will likely be deported to Afghanistan. Even if their parole applications are accepted, these don’t confer any permanent benefits. As CQ Roll Call notes, Congress did pass a separate bill aimed at Ukrainian refugees but didn’t include any provisions that would benefit Afghan refugees, because some Congressional Republicans said there weren’t enough security measures in place to vet them.

The new bill includes additional security measures. It’s worth noting that many of the Afghans who were evacuated to the U.S. worked with the American government or with international organizations during the war, are recipients of or have applied for Special Immigrant Visas, and already received some layer of vetting. If the bill does pass, it will provide a clear path forward for Afghans who are currently in legal limbo.