In a memorandum dated June 1, DHS Secretary Alejandro Mayorkas officially ended the Migrant Protection Protocols (MPP, known informally as “Remain in Mexico”). It’s not as big a deal as many in the press would have you believe, but that June 1 memo and the responses thereto reveal much larger truths about immigration policy under the Biden administration.
By way of background, under MPP (which was implemented in January 2019), DHS could return certain migrants caught by CBP entering illegally or without proper documentation back to Mexico to await their removal hearings, even if they were not Mexican nationals. The Mexican government agreed to provide those foreign nationals with protection for the duration of their stays there.
The Trump administration implemented MPP to respond to an ongoing crisis at the border, as it made clear in its fact sheet on the program.
Specifically, according to the then-DHS, loopholes in the law that I have discussed at length in the past encouraged migrants — largely from the Northern Triangle of Central America countries of El Salvador, Guatemala, and Honduras — to enter the United States illegally with weak and/or fraudulent asylum claims, in the expectation that they could remain indefinitely.
The primary loopholes are: (1) incentives for unaccompanied alien children from non-contiguous countries to enter illegally in the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA); (2) a 20-day release requirement for children traveling with adults in “family units” created out of whole cloth in a 2015 district court decision in Flores v. Lynch; and (3) an unreasonably low burden of proof for aliens claiming fear of persecution apprehended at the border.
Back in January 2019, DHS made clear how those loopholes had weakened border security: 90 percent of asylum claims by nationals of those Northern Triangle countries were denied, but 99 percent of the nationals of those countries who had been apprehended in FY 2017 remained in the country.
Their cases nonetheless clogged the immigration court system, making it much more difficult for aliens with valid persecution claims to be granted asylum. Smugglers got rich promising easy passage to the United States, and the migrants themselves (especially the children) faced sexual assault, physical harm, and trauma on the trek to the United States.
Cartels also took advantage of the disorder at the border to smuggle drugs into the United States, poisoning and killing Americans and undermining communities nationwide.
MPP responded to that situation by removing the enticement of a quick passage for migrants — mainly from the Northern Triangle — to this country in the expectation that they could remain here forever.
Under MPP, they would receive the opportunity to apply for asylum by being paroled into the United States for removal hearings where they could seek protection at “port courts” that handled their claims on an expedited basis. But they would have to remain in Mexico while their claims were pending.
According to Mayorkas, “approximately 68,000 individuals were returned to Mexico” under MPP. Some 44 percent of them failed to show up at their hearings and were ordered removed in absentia.
He views that statistic as indicative of the difficulties those respondents had in residing in Mexico and impediments to making it to their hearings; I would counter that such a high no-show rate suggests that many, most, or all of those foreign nationals never had asylum claims to begin with, and simply entered illegally and claimed a fear of return in order to stay here permanently — an intention frustrated by MPP.
Why is Mayorkas’s announcement not a big deal? The writing has been on the wall since Day One of the Biden administration. On January 20, DHS issued an announcement suspending new enrollments in MPP, effective the next day. It next announced a plan to begin processing the 25,000 migrants who remained under the program on February 11.
Mayorkas’s June 1 memo is simply the next shoe to drop.
You have to read between the lines, but in that memo Mayorkas all but admits that section 235(b)(2)(C) of the Immigration and Nationality Act (INA) authorized the Trump administration to implement MPP. That provision allows DHS to send aliens back to Mexico or Canada to await removal proceedings if they came without proper documents over the land border.
That is what MPP does (or rather, did), but Mayorkas adds:
Historically, DHS and the legacy Immigration and Naturalization Service primarily used this [section 235(b)(2)(C)] authority on an ad-hoc basis to return certain Mexican and Canadian nationals who were arriving at land border ports of entry, though the provision was occasionally used for third country nationals under certain circumstances provided they did not have a fear of persecution or torture related to return to Canada or Mexico.
There is no evidence (and Mayorkas does not cite any) to suggest that the third-country nationals who were subject to MPP faced persecution or torture in Mexico. But, read carefully, that statement implicates the Deferred Action for Childhood Arrivals (DACA) program, too.
Viewed in the best light, DACA was an exercise of prosecutorial discretion by DHS. “Historically”, prosecutorial discretion has been used by DHS to allow aliens without status to remain in the United States “on an ad-hoc basis”. Prosecutorial discretion had never been used to grant quasi-legal status to 643,000-plus illegal aliens, but that has been the consequence of DACA.
Contrast the careful wording in Mayorkas’s memo with the June 1 joint statement of Rep. Bennie G. Thompson (D-Miss.), chairman of the House Committee on Homeland Security, and Rep. Nanette Diaz Barragan (D-Calif.), chairwoman of that committee’s Subcommittee on Border Security, Facilitation, and Operations, “applaud[ing]” the decision to end MPP.
They assert: “Despite Republican efforts to misrepresent U.S. asylum law and smear those fleeing violence and seeking asylum, we must remember that it is completely legal to come to the U.S. border and seek asylum.”
That passage is in error as a matter of law. It is legal to “come to the U.S. border and seek asylum” if an alien has a visa to enter, but that does not appear to be the class of foreign nationals to whom the chairs are referring.
Entering the United States illegally between the ports of entry at the border is a ground of removability under both sections 212(a)(6)(A)(i) and 212(a)(7)(A)(i) of the INA, and a crime (punishable as a misdemeanor for a first offense and a felony for subsequent offenses) under section 275(a) of the INA.
Asylum is “relief” from removal that is available to avoid the civil immigration consequences of illegal entry, but it is not a defense to the criminal charge. And if 90 percent of those applying for asylum have been denied, it is not relief for nine out of 10 of those who requested it under MPP.
The statement of the chairs — who actually have limited oversight jurisdiction of the border, but still should know what the law says — reveals a larger truth, however, and one that undergirds Mayorkas’s memo.
In a rather stunning statement, the secretary asserts that the Biden administration “has been — and will continue to be — unambiguous that the immigration laws of the United States will be enforced”.
I can give Thompson and Barragan a pass for not knowing the finer points of immigration law, but Mayorkas knows full well that his statement "the immigration laws of the United States will be enforced” under the current administration is full of balloon juice.
You need look no further for proof than the February 18 memo from Acting ICE Director Tae D. Johnson, captioned “Interim Guidance: Civil Immigration Enforcement and Removal Priorities”.
It is a statement that the Biden administration is going to pick and choose which immigration laws it will enforce. And that the agency’s heads choose not to enforce most immigration laws in the interior of the United States.
The situation at the border, as my colleague Todd Bensman has explained, is not much better. For all intents and purposes, the smugglers and the cartels are calling the shots there — DHS is simply in response mode, and the administration’s “response” as it pertains to migrant children and families is “catch, release, and disperse into the interior”.
I would refer Thompson and Barragan to the expedited removal provisions in section 235(b)(1)(B) of the INA. In it, Congress requires DHS to detain migrants — other than unaccompanied children — who are apprehended entering illegally until they are granted asylum.
So, yes, illegal migrants can seek asylum, but the trade-off is that they have to be detained while doing so.
Flores frustrated that clear congressional intent as it relates to migrant families, and explains why so many adult migrants and their kids have been showing up at the border: 473,682 in FY 2019 (almost six times as many as in FY 2014, before the judge issued that decision), and more than 141,000 already in FY 2021 — more than 85 percent of whom were apprehended after Biden took office.
MPP basically did the same thing that section 235(b)(1)(B) of the INA required, except that instead of denying those migrants access to free movement in the United States via detention, it did so by sending them to Mexico to await their hearings.
The program was only ever going to be a stop-gap until Congress “fixed” Flores (as a bipartisan federal panel of experts recommended it do in April 2019), but that prospect — as well as the prospect of plugging the other loopholes encouraging migrants to enter illegally — seems more remote than ever.
Why do I say that? In his June 1 memo, Mayorkas implicitly blames “the root causes of migration” for the migrant surge (he uses the phrase twice). In the past, he has used those words to refer to poverty, corruption, and violence in the Northern Triangle and Mexico, which he has contended “have propelled migration to our southwest border for years”.
Those factors plainly play a role for many migrants, but responding to institutional issues that have plagued the region for decades (if not centuries) is much less effective — both in the short term and the long — than simply plugging the loopholes that I have described. Mayorkas, however, seems oblivious to the fact that those loopholes exist at all.
So, long story short: MPP was legal and effective, but as a matter of policy choice, the administration is ending it as the president and his subordinates have made clear for months they planned to do. In its place, Biden’s team will send billions of tax dollars south in an almost certainly fruitless effort to improve the lives of would-be migrants.
The migrants will suffer on the trek north (especially the children), but ultimately almost all will get to stay here indefinitely. The smugglers will get rich without much effort, the cartels will get richer, and the United States will face an insecure border — with all of its attendant hells and consequences — for the foreseeable future.