The State of Play on ‘Remain in Mexico’

Fourteen-plus judges, nine justices (twice), and Mexico all having a say on MPP

By Andrew R. Arthur on November 4, 2021

On November 1, I analyzed DHS Secretary Alejandro Mayorkas’s latest memo terminating the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”, issued on October 29. That memo did not actually end the Trump-era MPP, as it had received new life in a series of federal court decisions in August, but it signaled an intention by the Biden administration to kill the program as soon as it can. Here is a brief timeline of MPP, and the current state of play.

MPP was implemented by then-DHS Secretary Kirstjen Nielsen in January 2019.

That program allowed DHS to return “other than Mexican” migrants caught entering illegally or without proper documentation back to Mexico to await removal hearings. They were then paroled into the United States long enough to apply for asylum, while the Mexican government agreed to provide them with protection for the duration of their stays there.

Immigrant advocates moved to block the program in February 2019 in federal court in northern California, and a district court judge there enjoined MPP in early April of that year. Shortly thereafter, that injunction was stayed by a three-judge panel of the Ninth Circuit.

The program then got up and running, and nearly 70,000 migrants were sent back across the border to await their removal hearings under MPP.

In its October 2019 assessment of the program, DHS determined that MPP was “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly as related to alien families. Asylum cases were expedited under the program, and MPP removed incentives for aliens to make weak or bogus claims when apprehended.

A separate three-judge Ninth Circuit panel that was considering the government's appeal from the northern California district court’s decision, however, affirmed the injunction of MPP in late February 2020, but stayed that injunction temporarily for aliens apprehended outside of California and Arizona, to allow the government to seek Supreme Court review.

Shortly thereafter, in early March 2020, the Supreme Court stayed that injunction pending the government’s filing of, and the Court’s ruling on, a petition for certiorari on the injunction.

Later that month, removal hearings for aliens who remained in Mexico were put on hold due to the Covid-19 pandemic.

Because illegal migrants could be quickly expelled under orders issued by the CDC under Title 42 of the U.S. Code in response to that pandemic, and because pandemic shutdowns slowed illegal entries, Remain in Mexico largely became an afterthought, although 6,000 migrants were placed into the program between March 2020 and January 2021.

On January 21, the Biden administration suspended new enrollments in MPP, but still required those in the program to stay in Mexico pending further guidance. That guidance arrived on February 11, when DHS announced that it would begin admitting the approximately 25,000 aliens who remained in proceedings under the program into the United States, on February 19.

Thereafter, on June 1, Mayorkas issued his first memo terminating MPP. The states of Texas and Missouri challenged MPP’s rescission in federal court in Texas, and on August 13, U.S. district court Judge Matthew Kacsmaryk enjoined Mayorkas’s termination of MPP.

The government asked a three-judge panel of the Fifth Circuit to stay that injunction, which it declined to do in an order dated August 19. That prompted the administration to file an application for a stay of Judge Kacsmaryk’s order from the Supreme Court, which was denied in a brief order from the Court issued on August 24.

The Biden administration has promised to reimplement MPP in accordance with Judge Kacsmaryk’s order while appealing that order at the Fifth Circuit — although MPP has not recommenced yet.

Nonetheless, as I explained on November 1, Mayorkas again terminated MPP on October 29. That termination “will be implemented as soon as practicable after a final judicial decision to vacate” Judge Kacsmaryk’s injunction is issued.

Oral arguments before the Fifth Circuit in that case were held on November 2, and the timing of Mayorkas’s latest memo did not sit well with at least one of the judges.

The government contended that Mayorkas’s latest memo terminating MPP rescinded his June 1 termination memo, rendering it pointless to continue the litigation because that earlier memo is moot. If the states want to start over and challenge the new memo, DOJ counsel argued, they could do so.

As Law360 reported: “U.S. Circuit Judge Kurt Engelhardt ... called it ‘suspicious and disappointing’ that the Biden administration had issued a new memorandum on Oct. 29, days before the hearing”. Judge Engelhardt continued: “Why is it an Oct. 29 memo and not an Oct. 1 memo or a Sept. 15 memo? The motion comes with some suspicion of gamesmanship.”

Texas and Missouri complained at that hearing that the administration has failed to restart MPP in good faith (as Judge Kacsmaryk had ordered), but the government asserted that it has not received Mexico’s assent to do so; rather, the Mexican government is asking “for changes to the program before it would agree to a restart.”

The Biden administration should tread carefully in its appeal.

Judge Engelhart and Judge Andrew Oldham, who is also on the three-judge panel, were both Trump appointees, and the third judge, Rhesa Hawkins Barksdale, is a George H.W. Bush appointee in senior status. That does not mean that they will necessarily rule against the government, but they are not likely to rubberstamp Mayorkas’s termination of MPP, either.

At this point, MPP has been considered by two district court judges, 12 circuit court judges (two three-judge panels of the Ninth Circuit, and two separate panels of the Fifth Circuit), and the nine justices of the Supreme Court (twice). That doesn’t even count a different federal district court judge in West Virginia, who is considering a complaint by that state’s attorney general also challenging the termination of Remain in Mexico.

Mexico will also have its say, although if the president’s heart were truly in restarting the program, he could forge an agreement with that country as Trump did. All while the border descends further into chaos, dragging Biden down further in the polls.