DHS issued a statement today suspending new enrollments in the Migrant Protection Protocols (MPP), known colloquially as "Remain in Mexico", effective today. The statement, however, directs MPP participants to stay where they are (that is, in Mexico, for reasons I explain below) — for now. Interestingly, it seemingly alludes to pandemic travel restrictions at the border, but leaves unanswered the question of whether the Biden administration will continue expulsions of illegal migrants under the latest CDC Title 42 order.
By way of background, under MPP (which was implemented in January 2019), DHS could return certain foreign individuals who were caught by CBP entering illegally or without proper documentation back to Mexico to await their removal hearings, if they were not Mexican nationals. The Mexican government agreed to provide those foreign nationals with protection for the duration of their stays.
Since its inception, approximately 68,000 migrants have been subject to MPP, and just less than 25,000 are still in the hearing process. Bringing tens of thousands of aliens without status to the United States immediately, however, could imperil Biden's amnesty proposals.
That said, there is a "pending further official information from U.S. government officials" caveat to current MPP participants who were directed to stay in Mexico in DHS's statement. Given this, I would not be surprised if DHS did not (quietly) parole those aliens into the United States on a rolling basis as their court dates occur.
With respect to Title 42, DHS's statement expressly refers to "current COVID-19 non-essential travel restrictions, both at the border and in the region, [that] remain in place at this time" as a reason for those MPP participants to stay where they are. That raises more questions than it answers.
Using the authority in Title 42, the director of CDC has issued orders suspending the introduction of aliens into the United States who have entered this country illegally along the borders of the United States, or have sought entry at the land and coastal ports of entry without proper documentation, to prevent the further introduction of Covid-19 into this country.
The latest Title 42 order was issued on October 16, and the intent of that order and its earlier iterations was to avoid large numbers of aliens being detained at ports of entry and Border Patrol facilities, as some may have the coronavirus that they would spread to others and to CBP personnel.
As a practical matter, that order has meant that the majority of aliens encountered by the Border Patrol entering illegally, and by CBP officers at the ports of entry without proper documents, have been summarily expelled from the United States. Of 216,701 aliens encountered by CBP at the Southwest border in FY 2021 through December, 189,020 (more than 87 percent) were expelled under Title 42.
Now, that may be what DHS is referencing, and if so, most aliens who enter illegally will continue to be expelled by CBP under Title 42. Separately, however, the United States has also reached agreements with the Mexican and Canadian governments to limit "non-essential" travel across its land borders.
In a January 12 tweet, DHS explained those restrictions remain in place:
In order to continue to prevent the spread of #COVID, the US, Mexico, Canada will extend the restrictions on non-essential travel through Feb. 21. We are working closely with Mexico & Canada to keep essential trade & travel open while also protecting our citizens from the virus.
— Homeland Security (@DHSgov) January 12, 2021
If those restrictions is what DHS is alluding to, then Biden may stop Title 42 expulsions. That, however, would logically require repealing the CDC's latest order.
That order is subject to 30-day reviews, but rescinding it poses risks for the Biden administration. Notably, the order states:
This Order shall remain effective until I determine that the danger of further introduction of COVID-19 into the United States has ceased to be a serious danger to the public health, and continuation of this Order is no longer necessary to protect public health.
It goes without saying that the president made the Trump administration's handling of Covid-19 a significant issue on the campaign trail. He has continued his focus on the coronavirus as president, with an entire Covid-19 page on the White House website. It states: "The American people deserve an urgent, robust, and professional response to the growing public health and economic crisis caused by the [Covid-19] outbreak."
It would be difficult to square "an urgent response" to the Covid-19 outbreak in the United States with a plan to allow aliens entering illegally to remain in this country. Even if they were screened before release, those aliens could still draw down limited medical resources if they were to subsequently contract the coronavirus.
Similarly, it would be politically difficult for the Biden administration to contend that "the danger of further introduction of Covid-19 into the United States has ceased to be a serious danger to the public health" at this juncture, which rescission of the Title 42 order would require.
Again, I could imagine that the Biden administration would leave the Title 42 expulsion policy in place for two reasons, one epidemiological and one political. The epidemiological one requires no explanation.
The political one has two parts. First, Biden would be attacked if he were to call for the continuation of (let alone more) internal restrictions while the border was being opened to illegal entrants. Two, a flood of new aliens would imperil the aforementioned amnesty plans, as noted above and as I have previously explained.
Of course, closing MPP to new enrollments risks such a flood, too, as its gives incentives to foreign nationals to enter illegally and claim credible fear when caught in the realistic expectation that they will be released to remain here indefinitely.
The final verdict on the continuation of Title 42 expulsions, whether the Biden administration can stem a flood of illegal migrants, and the viability of the amnesty proposal has yet to be issued. In the interim, for its current participants, MPP remains.