MPP Aliens Ordered Removed In Absentia Allowed to Come Back to the United States

From ‘Do not come’ to ‘See you soon’ in just 15 days

By Andrew R. Arthur on June 23, 2021

DHS announced today that aliens who had been subject to the Migrant Protection Protocols (MPP or “Remain in Mexico”) and who had been ordered removed in absentia or had their cases terminated when they failed to appear for removal hearings would be “processed” to return to the United States. It’s an about-face for the Biden administration, which has been telling migrants not to enter illegally.

By way of background, under MPP (which was implemented under the Trump administration in January 2019), DHS returned certain aliens caught by CBP entering illegally or without proper documentation back to Mexico to await their removal proceedings here. The Mexican government agreed to provide those foreign nationals with protection for the duration of their stays.

Approximately 68,000 migrants were sent back to Mexico under MPP, which the Biden administration ended on February 11 (when there were still 25,000 pending MPP cases). Processing of aliens with pending cases into the United States began on February 19, and although DHS has not issued any updates on the status of those individuals, logically they have all been let in by now.

Biden’s plan to let those aliens into the United States did not come as a surprise. As a candidate, he derided MPP on his campaign website, asserting that through the program:

Trump has effectively closed our country to asylum seekers, forcing them instead to choose between waiting in dangerous situations, vulnerable to exploitation by cartels and other bad actors, or taking a risk to try crossing between the ports of entry.

A few points in that passage require comment.

First, it is questionable whether MPP ever “closed our country to asylum seekers”, because MPP actually allowed aliens to seek asylum in the United States — they just had to wait in Mexico, a country they had voluntarily transited on their way to the United States.

By law, those aliens are supposed to be detained until they are granted protection, which would have “closed our country” to them just as much as return to Mexico under MPP did.

Second, however, even if MPP had “closed” the United States “to asylum seekers”, it guaranteed permanent resettlement in the United States for aliens who were actually been granted asylum. That was the whole purpose of the program.

Third, Biden’s description of the purported “choice” that those aliens had to make between waiting in Mexico or reentering illegally begs a number of questions (in the truest sense of the phrase). He offered no proof to show that remaining in Mexico imperiled those aliens, and again, the Mexican government had actually agreed to protect them there.

Are there “cartels and other bad actors” in Mexico? Yes, but there is also violent crime and a seriously underreported gang problem in certain parts of the United States (and I should know, given I’m from Baltimore, a town recently described by a former police commissioner as “ridiculously dangerous”).

Was the danger faced by the approximately 68,000 foreign nationals who were subject to MPP more serious than that endured by the just fewer than 600,000 residents of Baltimore on a daily basis? Maybe, maybe not, but if I were to make a blanket statement denigrating the ability of a foreign country to fulfill its security promises, I would be pilloried. Biden’s assertions passed without comment.

It should be noted, however, that Congress thinks that returning aliens who have entered illegally to Mexico to await removal hearings is just fine: It has expressly permitted such returns in section 235(b)(2)(C) of the Immigration and Nationality Act (INA).

This means that the Biden administration’s decision to end MPP, and allow aliens who had been sent back to Mexico to enter the United States, was a policy choice, not an attempt to rectify some illegal act by a rogue predecessor.

That said, it is one thing for the Biden administration to end MPP and move foreign nationals who were still going through the removal hearing process to the United States, and another thing for it to allow aliens who were ordered removed in absentia after they failed to appear in court into this country.

Those aliens received due process — they were given the opportunity to come to court and seek asylum, but they didn’t appear. They are now being rewarded with entry into the United States, in all likelihood to remain here permanently — regardless of whether they ultimately receive asylum (or even show up for their hearings here) or not.

Perhaps the Biden administration concluded that some, most, or all of those aliens failed to appear because they weren’t allowed in for their hearings, were otherwise prevented from appearing, or never got notice (DHS’s June 23 announcement references a “careful review” of MPP that the administration undertook, but neither Biden nor DHS has offered any insight into that review or its findings).

If those aliens were prevented from coming to court when they were in MPP — for whatever reason — or didn’t appear because they never received their hearing notices, they are expressly permitted under section 240(b)(5)(C) of the INA to have their removal hearings reopened.

DHS is not even requiring aliens who were subject to MPP and who were ordered removed in absentia to make even this basic showing, however. It’s just going to let them in.

Not to belabor the point, but those aliens not only violated our laws by entering illegally, they were also given the chance to apply for the asylum they were allegedly seeking, and didn’t take it.

Allowing them entry now is not a policy choice — it’s extending access to the United States to aliens who are not otherwise able to come here, apparently out of pure spite for the decisions that the Trump administration took to control the border.

At a June 8 press conference with Guatemalan President Alejandro Giammattei, Vice President and “border czar” Kamala Harris told would-be migrants: “Do not come. The United States will continue to enforce our laws and secure our borders.” Fifteen days later, however, the Biden-Harris administration has reversed course, telling aliens who were in MPP and ordered removed: “See you soon.”