What the Supreme Court ruling to “Remain in Mexico” means for the future of the Migrant Protection Protocols

Since the first colonists settled on North American soil, the United States has always been regarded as a place of refuge. The current situation in Afghanistan continues to prove this, as the United States works to evacuate thousands of Americans and Afghans from the region. According to Reuters, the Biden Administration hopes to evacuate 50,000 to 65,000 Afghan allies. 

Afghan refugees who aided U.S. military forces as interpreters and translators, as well as other roles, are eligible to apply for a Special Immigrant Visa program. Once in the United States, U.S. refugee resettlement programs will assist the SIV-eligible Afghans with housing, furniture, and food. However, not all refugees entering the United States at this time are provided with the same support. 

Like Afghanistan, refugees from Central America are fleeing from violence, economic instability, and other life-threatening situations. However, once they reach the U.S./Mexico border, they are faced with Migrant Protection Protocols (MPP) that force them to remain in Mexico, many in makeshift tent camps waiting for a chance at asylum in the United States. The Biden Administration promised to end the Migrant Protection Protocol program. Still, a ruling made by the U.S. Supreme Court in August 2021 denied the request, essentially ordering the return to the previous administration’s MPP immigration rules. 

What is the Migrant Protection Protocol?

Migrant Protection Protocols (MPP), often referred to as the “Remain in Mexico” program, was created by the Trump Administration in December 2018. Under MPP, asylum seekers who arrive at the U.S./Mexico border, either by a port of entry or after crossing the border, are given notices to appear in immigration court and sent back to Mexico to await their hearing, rather than wait in the United States. The policy was meant to discourage asylum seekers and relied heavily upon Mexico’s cooperation. 

The decision on whether an individual is placed in MPP is determined by Customs and Border Patrol agents. In addition, certain groups may be exempt from the MPP process, such as:

  • Unaccompanied children
  • Citizens or nationals of Mexico
  • Individuals processed for expedited removal
  • Individuals in “special circumstances,” including known physical or mental health issues
  • Individuals with criminal records or a history of violence
  • Individuals determined to “more likely than not” face torture or persecution in Mexico based on race, religion, nationality, political opinion, or membership in a particular social group

The U.S. government offers no support to migrants awaiting their hearings in Mexico. The Mexican government and the United Nation’s International Organization for Migration have provided transportation from the U.S./Mexico border to the Mexico/Guatemala border for those who chose to abandon their cases and return home. However, there have been reports of individuals coerced onto the buses, leaving them hundreds of miles away from the border, with no way to attend their hearings. Those who choose to stay in Mexico while waiting for their hearings are granted humanitarian visas and often have to wait weeks or months in dangerous areas controlled by drug cartels. 

According to human rights advocates, there were more than 1,500 publicly reported cases of murder, rape, torture, kidnapping, and other types of assault perpetrated against asylum seekers forced to wait in Mexico under the policy. Moreover, without proper legal representation and the unstable living conditions at the border, refugees can rarely successfully petition for asylum status. According to the American Immigration Council, of the 42,012 MPP cases in December of 2020, only 638 people were granted asylum. 

In response to the outbreak of COVID-19 in March 2020, all pending MPP hearings were temporarily suspended and eventually suspended indefinitely. Although the MPP program has not been enforced since the pandemic, the Biden Administration moved to officially terminate the program in June 2021. A lawsuit by Texas and Missouri challenged the policy’s termination, resulting in the recent Supreme Court ruling to reinstate the program. 

Title 42

In March 2020, the Center for Disease Control (CDC) issued a public health order under U.S. Code Title 42, calling for the rapid removal of migrants and asylum seekers, citing COVID-19 concerns. The removal process was considered an “expulsion” and not a “deportation,” effectively removing the migrants’ opportunity to bring their case to a U.S. immigration judge. 

Title 42 allows the U.S. Border Patrol and U.S. Customs to prohibit the entry of persons who pose a health risk or have recently been in a country where infectious diseases are present. To avoid holding migrants in congregate settings, persons subject to the order are immediately expelled to their country of last transit. Human rights organizations argue the rule is being misused to illegally block vulnerable people from seeking humanitarian protection in the United States.

There have been exceptions to these policies. For example, after taking office, the Biden administration ceased expelling unaccompanied children to countries of origin under Title 42. Instead, they are brought into the temporary care of the U.S. Department of Health and Human Services, which works to place them with sponsors, usually relatives who already live in the U.S.

Although the Biden Administration has taken steps to reverse many Trump-era immigration policies, including MPP, the Title 42 policy remains in place, citing public health concerns related to recent outbreaks of the Coronavirus delta variant. Public health officials, however, report that this use of Title 42 has actually worsened its spread. Migrants who test positive for COVID-19 are often sent back to the countries they fled, which encourages the spread of disease.

The Supreme Court’s MPP Ruling

Migrant Protection Protocols have been significantly scaled back during the pandemic and were formally ended in June 2021. As a result, Texas and Missouri attorney generals sued the administration, claiming that ending the program puts a burden on states because the migrants use state services such as issuing driver’s licenses, educating migrant children, and providing hospital care. 

A federal judge ruled to uphold MPP, stating that the administration’s decision to end the program was unjustifiable. However, the Biden Administration appealed the decision asking the Supreme Court to halt the effect of a lower court ruling while an appeal is pending. The Supreme Court denied the request, stating that federal law may have been violated when attempting to end the program and effectively required the “Remain in Mexico” program to restart while the appeals continue. 

In a statement by the Supreme Court, the Biden Administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” However, the administration must make a “good-faith effort” to reinstate MPP but is not prohibited from pursuing additional legal actions to end the program formally. 

The future of “Remain in Mexico”

When the Biden Administration ended the program in June 2021, migrants already enrolled in MPP could cross the U.S. border. In Mexico border cities, migrants were tested for COVID-19 by the U.N. and the U.S., processing several hundred people per day. Those seeking asylum after June 2021 were subjected to Title 42 and immediately expelled to Mexico or their home countries. 

U.S. District Judge Matthew Kacsmaryk found that the administration did not give adequate reasoning when it rescinded the policy and, in doing so, violated the Administrative Procedure Act, which governs executive branch rulemaking. With the Supreme Court in agreement with this ruling, to win an appeal to officially end MPP, the Biden administration must provide a full explanation that proves the correct legal process was followed to terminate the policy and give a new memorandum of termination that is not deemed capricious and arbitrary. 

Regardless, “the injunction only requires good faith on the part of the United States – if Mexico thwarts the Government’s good-faith efforts to implement MPP, it nonetheless will be in compliance with the district court’s order, so long as it also adheres to the rest of the statutory requirements,” the Supreme Court ruling says.

As part of good-faith efforts to reinstate the program, the Biden administration could also ensure a more humanitarian process until a successful repeal can take place. Efforts like a quicker parole process and assistance from non-profit organizations to help individuals arrange transit to their court cases could provide a more fair and humane system. 

Mexico’s Participation in MPP

MPP relies heavily on Mexico’s participation, and the Supreme Court ruling is neither legally binding in Mexico nor is Mexico legally obligated to accept non-Mexican migrants. Nevertheless, Mexico has stated that they plan to discuss the ruling with the Biden administration and how to handle safe, orderly, and regulated immigration at the border.

Given the history of Mexico’s cooperation with the United States, it is unlikely that Mexico will block efforts to continue MPP, despite the lack of sufficient resources to deal with an influx of asylum seekers. In a recent press conference, Mexico President Andrés Manuel López Obrador stated, “We had a good relationship with Trump, and we have a good one with President Biden. We’re working on the root causes, looking for ways to invest in development, jobs, and well-being in the countries of Central America so that people don’t feel obligated to migrate.”

Long-needed reforms to the U.S. asylum system, including working with Mexico and Central American countries to resolve the influx of refugees, can help provide a more holistic and effective long-term solution to managing migration.  

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