Amid Border Chaos, the MPP Legal Battle Continues

Remain in Mexico isn't quite dead yet

By Elizabeth Jacobs on December 20, 2022

The U.S. District Court for the Northern District of Texas filed a preliminary injunction to stop the Biden administration from ending the Migrant Protection Protocols (MPP), otherwise known as the “Remain in Mexico” program, on December 15, 2022. The Texas district court ruled that the U.S. Department of Homeland Security (DHS) likely violated federal law when it issued a second round of memoranda in October 2021 to end the program.

The district court order follows the U.S. Supreme Court’s ruling on June 30, 2022, that allowed DHS’s termination of the program to go forward. The Supreme Court, however, remanded the case back to the Texas district court to consider whether DHS’s later attempt to end MPP was lawful.

MPP, which was implemented for the first time in 2019, but authorized by statute in 1996, allows U.S. Customs and Border Protection officers to require certain border-crossers to wait in Mexico pending their immigration proceedings rather than be detained or released into the United States. The program cut off the most significant pull factor for illegal border-crossing and asylum fraud: the likelihood of being released into the United States. Unsurprisingly, illegal border crossings fell sharply after the agency implemented the deterrence policy.

President Biden announced he would suspend MPP immediately upon taking office in January 2021, and DHS formally rescinded the program by issuing a memorandum on June 1, 2021. DHS issued a second round of rescission memoranda on October 29, 2021, to bolster its decision after the states of Texas and Missouri initiated a legal challenge to DHS’s MPP termination plans.

The states asserted that DHS’s actions violated both the INA and the Administrative Procedures Act (APA) when it attempted to terminate MPP. Notably, the states argued that DHS failed to adequately consider:

  1. How using MPP would allow DHS to avoid violating the INA’s clear detention mandate;
  2. MPP’s deterrent effect in reducing dangerous attempted illegal border crossings;
  3. MPP’s reduction of unmeritorious asylum claims; and
  4. Whether the rescission of MPP is causing DHS to violate the INA’s limits on its parole authority, and the impact of the rescission on the States and their reliance interests, among other concerns.

The Texas district court reasoned that the agency action was likely “arbitrary and capricious”, stating that “the October 29 Memoranda do not appear to demonstrate a ‘rational connection between the facts found and the choice made’ to terminate MPP”, and issued a preliminary junction pending a complete review of the case.

DHS is unlikely to win an appeal in the Fifth Circuit Court of Appeals. Previously, that court condemned the Biden administration’s excessive use of parole in lieu of MPP when it first reviewed the case in December 2021. The court of appeals referred to the practice as DHS’s “pretended power to parole aliens while ignoring the limitations Congress imposed on the parole power”, after explaining that the INA allows DHS to parole aliens only on a case-by-case basis for “urgent humanitarian or significant public benefit” reasons. The court of appeals went as far as to describe the government’s legal theory to be “as dangerous as it is limitless”.