Supreme Court’s MPP reinstatement order a test for U.S.-Mexico border coordination—08-30-21

Immigration news, in context

This is the ninety-third 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 Supreme Court’s refusal to stay an order mandating MPP reinstatement, and how it affects the U.S.-Mexico relationship.

  • In Under the Radar, we discuss the fact that some Afghan refugee children have been ending up in unaccompanied minor shelters after arriving alone.

  • In Next Destination, we delve into the Mexican secretary of defense’s recent comments on using the military to tamp down on migration.

The Big Picture

The news: Last Tuesday, the Supreme Court declined to block the implementation of a district court order directing the U.S. government to reinstate the Migrant Protection Protocols, also known as Remain in Mexico. Put simply, the court’s ruling means the Biden administration has to take the steps to restart the program, which forced asylum seekers to wait in Mexico as their U.S. asylum cases went forward. To actually do so, however, the government requires the cooperation of Mexico in another test of our neighbor’s willingness to play ball with hardline immigration policies.

What’s happening?

If you’re a regular reader, you’re probably already well aware of MPP and the havoc it wreaked at the southern border. Under MPP, migrants were briefly processed in the United States and then returned, confused and often with minimal additional information, to northern Mexico with sometimes incorrect or incomplete paperwork for court dates months in the future. The program relied on 8 USC § 1225(b)(2)(C), a somewhat obscure provision of immigration law that permits the government to return someone who arrives via a land border to “a foreign territory contiguous to the United States” pending an immigration court proceeding.

We’ll get more into the history and the program’s many safety and due process issues down below, but ultimately the program was formally terminated by Homeland Security Secretary Ali Mayorkas on June 1. By then, the Biden administration had already begun allowing current MPP enrollees to enter the country and was looking into reopening cases of people who had been ordered deported in absentia, failing to find their way back to U.S. courtrooms after being sent back to Mexico (often as a result of being victimized by criminal elements or not being given intelligible information about their cases.)

A group of states led by Texas sued the administration over its decision to wind down the program. A Trump-appointed federal judge issued a national injunction essentially ordering the government to reinstate it, on the argument that it had not followed the proper procedures or provided adequate justifications for shutting it down. The government asked the Fifth Circuit to step in and stay the order while it formulated an appeal, and when the Fifth Circuit declined to do so, took the matter to the Supreme Court. Justice Samuel Alito briefly stayed the order before the full court sided with the states and also declined to stay the order.

This is actually the second time the Supreme Court has allowed MPP to go forward. The first happened in March 2020, with more or less the exact opposite situation: the Trump administration was implementing the program and was sued by legal advocacy organizations looking to halt it. A federal district judge agreed with the plaintiffs that the policy was likely illegal under domestic and international law and issued an injunction blocking it, an order which was largely upheld on questions of law by the Ninth Circuit. The Supreme Court then stepped in and blocked the injunction, letting the policy continue while it conducted its own review.

While the case was on the Supreme Court docket, it was dropped after Mayorkas terminated the policy and made it basically a moot point, meaning that the highest court has yet to actually rule on the question of the program’s legality. In this case, the federal judges are more so looking at whether the process undertaken to end the program was thorough enough, and whether the Biden administration can substantiate a reasoning for ending it. One part of that argument could be that MPP is actually illegal as a program, though the administration is so far going with the simpler argument that reinstatement of the policy would lead to chaos and damage U.S.-Mexico relations.

This brings us neatly to another salient point, which is that it’s not really up to the administration or even the Supreme Court to unilaterally decide whether and how the program should be run. MPP’s existence requires the cooperation of Mexico, the country to which people are actually being sent. If it so chooses, Mexico can simply prevent the program from restarting, not to mention take more aggressive action against Title 42 expulsions. The clearest answer we’ve gotten so far on this question comes courtesy of Bloomberg News’ Maya Averbuch, who directly pressed President Andrés Manuel López Obrador at a press conference last week on whether Mexico would keep accepting expelled and MPP migrants from the United States indefinitely. López Obrador bobbed and weaved a bit but ultimately emphasized that his priority was to maintain good relations with the U.S. government and that, while such acceptances can’t be “eternal,” there’s no current plan for the Mexican government to put its foot down.

This comes at the same time as Mexico’s immigration authorities and relatively new National Guard come under fire after the emergence of videos showing them chasing down and brutalizing migrants on their way to the United States. The Instituto Nacional de Migración (INM) has since issued a statement condemning its officers’ actions and pledging to investigate, but there’s little indication things will fundamentally change. Just a couple of days before the videos were taken, Defense Secretary Luis Cresencio Sandoval had said that the primary purpose of the Mexican troop presence along the border was to “stop all migration” in collaboration with the United States (more on that below).

How we got here

The Trump administration announced the Migrant Protection Protocols in December 2018, and the program was first piloted in January 2019 at the San Ysidro port of entry in southern California. Over the next year and a half, the administration expanded MPP along the entirety of the U.S.-Mexico border, though not every asylum seeker who arrived at the border was put in the program. At first, MPP was limited to some asylum seekers from Spanish-speaking countries; it was eventually expanded to include Brazilians as well. 

From the beginning, MPP was an unmitigated disaster. Migrants forced to wait in Mexico have little to no access to attorneys, making it all but certain that they’ll lose their asylum cases. Of the 34,917 cases that have been decided thus far, just 2 percent have resulted in some form of relief for the migrant. There’s also a high humanitarian cost: migrants waiting in Mexico have a more difficult time finding work and making ends meet. Many live in overcrowded shelters or squalid tent cities near ports of entry. And to make matters worse, migrants are easy prey for cartels and gangs. Kidnappings, assaults, and murders of migrants have become commonplace in Mexican border cities. In some cases, migrants even missed their U.S. court hearings because they had been kidnapped.

None of this is news to anyone. U.S. and Mexican officials alike knew about the dangers migrants on the MPP docket faced, and they let the policy continue anyway. 

To be clear, the U.S. put the Mexican government in a tight spot. In addition to forcing some migrants to wait in Mexico while their cases were decided in the U.S., the Trump administration slowed the number of migrants allowed to ask for asylum at port of entry each day to a trickle. This practice, called “metering,” was never a formal policy—but its effects were disastrous. Metering, and later MPP, led to the creation of tent cities of migrants at ports of entry along the border. It swelled the ranks of migrants waiting to be let into the U.S., and created the images of “chaos” at the border that needed to be reined in by additional restrictive policies. In March 2020, when coronavirus infections in the U.S. began to surge, the Trump administration implemented yet another policy limiting asylum at the border: Title 42. 

The specifics of each of these policies vary, but the end result has largely been the same: migrants who arrive at the border try to ask for asylum in the U.S. and, for some reason or another, are instead forced to wait in Mexico. They rarely have work, barely have money, and often have to wait for months or even a year before being let into the U.S., if they ever are at all. Amid all this, the Mexican government is forced to deal with the consequences—and it has largely abdicated responsibility for what happens to migrants, instead leaving their fates up to various humanitarian and religious organizations. The country has made humanitarian visas available to some migrants, which allowed them to legally live and work in Mexico, but has done so inconsistently and began tapering them off in early 2019.

Mexican president Andrés Manuel López Obrador, who took office in 2018, promised that his administration would be kinder to migrants passing through Mexico on their way to the U.S. Instead, he has aided the U.S. in its bipartisan effort to push its own border southward—though, to be fair, he has had little choice but to do so. In 2019, for example, Trump threatened to impose additional tariffs on Mexico unless López Obrador did more to curb migration to the U.S. A few months later, the Mexican government deployed nearly 15,000 soldiers and national guard to its border with the U.S. to prevent migrants from crossing. Mexico has also sent forces to its southern border with Guatemala, a common entry point for migrants.

What’s next?

For now, it seems that the Mexican government is more than happy to be a full partner in U.S. efforts to curtail all humanitarian migration north through the border. Even as Mexican officials make a big show out of welcoming Afghan refugees, it is decidedly on board with the hemispheric objective of tamping down migration at all points, from its unlawful expulsions of migrants to Guatemala to increasing troop presence at the northern border with the United States.

With the Texas district judge’s ruling still standing and no higher court to appeal to, it seems like the administration really will have to move towards a reinstatement of MPP, with Mexico’s cooperation. After the initial decision, it already outlined a plan to restart MPP hearings while observing COVID-19 protocols (as this is all, of course, happening in the midst of the latest deadly wave in this drawn-out pandemic). It’s not clear when exactly it might start enrolling new people into MPP, but it must at least already be working out the logistics.

The confluence of MPP, Title 42, and the expansion of expedited removal will lead to a situation where most families and almost all adults will probably be returned to Mexico or their countries of origin, albeit under different circumstances: some will have scheduled immigration court hearings in the U.S., others will have already been quickly deported, and others may as well have never entered, at least for legal purposes. There is no doubt that this will cause significant confusion among migrants at the border, as people with more or less the same characteristics will have very different experiences. Many will be subject to predation from traffickers and gangs in northern Mexico, and will probably lack legal guidance.

The consequences for misunderstanding your situation can be dire. For MPP enrollees who don’t make their court hearings, it can mean an in absentia deportation order. For deportees, it can mean a second deportation upon re-entry, as it becomes practically impossible to seek humanitarian protections again.

Now, the lawsuit will continue to make its way through the courts with the reinstatement order active. It’s still possible that after a full consideration of the facts, a judge might rule that the program was unlawful or that the Biden administration appropriately struck it down, that that’s unlikely to come from U.S. District Judge Matthew Kacsmaryk, who issued the order. It will ultimately probably have to be the Circuit Court or the Supreme Court that allows the program to end.

Under the Radar

Some Afghan refugee children are being sent to shelters for unaccompanied migrant kids

As the situation in Afghanistan deteriorates and evacuations become more difficult, some parents are making the impossible choice to have their young children evacuate without them. Some of those children are ending up in the U.S., where they’re being placed in shelters for unaccompanied migrant children, CBS News’s Camilo Montoya-Galvez reports.

These shelters, overseen by the Office of Refugee Resettlement—an agency within the Department of Health and Human Services—have made headlines in recent years for substandard conditions. Per the CBS News report, “relatively few” of the 14,900 children in ORR custody are Afghan refugees; the majority are from Central America. 

Typically, when noncitizen children arrive in the U.S. without a parent or guardian, they’re placed in ORR shelters until immigration officials can find sponsors for them in the U.S. Sponsors are typically parents, extended family, or in some cases, family friends. It’s unclear whether the Afghan children in ORR shelters have any family in the U.S.

Next Destination

Mexican defense secretary details plan to end migration to the U.S.

The Mexican government’s decision to deploy troops to its border with Guatemala is to entirely halt migration to the U.S., Defense Secretary Luis Cresencio Sandoval recently told reporters. According to Sandoval, the Mexican armed forces said the country’s military had been carrying out “operative activities” on the Mexico-Guatemala border, and was “rescuing migrants” who sought to cross through Mexico on their way to the U.S. One day prior, Mexican president Andrés Manuel López Obrador said he would commit to helping the U.S. implement the Migrant Protection Protocols.

It’s unlikely that any efforts to deter migration will halt it altogether. As the past has shown us, policies that seek to eliminate migration to the U.S. don’t actually prevent migrants from attempting the journey. Instead, these policies encourage migrants to seek out the help of coyotes, paid guides who smuggle them across the border, often through dangerous, remote routes.