Migrant Protection Protocols Along U.S.-Mexico Border Come to an End, but the Assault on Asylum Continues

Guest post by Anna-Theresa Unger and Austin Kocher. Anna-Theresa graduated from Sarah Lawrence College in 2020 with a concentration in international studies and will pursue a master’s degree in migration studies in the U.K. in the fall of 2021. She is currently working as a research intern with Kocher at Syracuse University. Dr. Austin Kocher is a Research Assistant Professor at Syracuse University. Kocher’s research focuses on the political and legal geographies of immigration enforcement, policing, and the immigration court system.

For two years—from January 2019 until February 2021—the Migrant Protection Protocols (MPP), commonly known as the ‘Remain in Mexico’ policy, forced over 70,000 asylum-seekers to await their US asylum claims in Mexico under conditions of violence and vulnerability. When the Biden administration took office, they ended new entries into MPP and by the end of February, migrants who had remained near the border, many in camps, were finally allowed to begin entering the United States to await their asylum cases. Migrants whose asylum claims had been rejected or who had given up their US asylum cases, however, would be given no second chance.

In this post, we examine the key components of the implementation and duration of the Migrant Protection Protocols. We focus on the legal and programmatic aspects of MPP, examine the ways in which MPP systematically rendered asylum out-of-reach for migrants while also placing those same people in harm’s way, and we argue that, while officially coming to a close, MPP continues to live on in the lives of those it affected.

The Problems with MPP from the Beginning

The Migrant Protection Protocols were part of the Trump administration’s broader effort to restrict both lawful and unlawful migration and to use harsh policies such as family separation to deter migrants from coming to the United States. The MPP policy was announced in December 2018 by former U.S. Secretary of Homeland Security Kirstjen Nielsen and implemented in January 2019. MPP was a border control strategy whereby individuals seeking asylum along the U.S.-Mexico border without documentation may be returned to Mexico to await the duration of their immigration proceedings.

MPP’s legality was in question from the beginning. On its face, MPP appears to violate domestic and international refugee law by sending asylum-seekers back to conditions where they are likely to face persecution. Indeed, this was precisely the concern raised by the Congressional Research Service and plaintiffs in a lawsuit filed against the Department of Homeland Security (DHS). The U.S. Supreme Court overruled a lower court ruling that put a pause on MPP, thereby allowing MPP to continue while the case was litigated. Shortly after taking office, the Biden administration stopped defending MPP in court, a move that contributes to the end of MPP but actually leaves the question of MPP’s legality unanswered.

Migrant Protection Protocols were premised, in part, upon the idea that asylum-seekers “skip their court dates,” i.e. that they do not attend their immigration court hearings once paroled into the United States, and therefore should not be allowed into the country in the first place. This claim was repeated by the Acting Secretary of the Department of Homeland Security in a hearing before Congress in 2019. However, at least two independent studies contradict these assertions. A study of 18,378 deportation proceedings found that 86% of families released from detention appear in court for all of their court hearings. The same study showed that with legal representation, this increased to as high as 97%. A second study of nearly 47,000 recently-arriving migrant families also concluded that most—85.5%—attended all of their hearings; with attorneys, that number increased to 99.0%.

MPP Made Asylum Nearly Impossible

MPP may have been justified by fictional problems, but it created it very real ones. The implementation of MPP has manipulated key aspects of the asylum process giving rise to widespread rejection of asylum claims. For instance, as migrants in MPP were forced to wait in Mexico rather than in the US, they have struggled to obtain legal counsel, one of the most critical factors in determining the outcome of asylum cases. According to data from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, only 7.6% of all individuals who have been placed in MPP have had legal representation compared to 80% for all asylum cases decided in the United States in fiscal year 2020. 

Migrants under MPP have also shown up for hearings at a much lower rate than usual. The need to cross an international border to attend a civil asylum hearing helps explain lower numbers. But so, too, does the U.S. Immigration and Customs Enforcement's (ICE) practice of providing incomplete or inaccurate paperwork for migrants, such as writing in “Facebook” as migrants’ physical addresses. As a result, of the 41,888 cases completed under the Migrant Protection Protocols, 32,659 asylum-seekers received a deportation order from an immigration judge. Most of these – 27,898 – received deportation orders because they did not appear for their immigration court hearing on the U.S. side of the border. A deportation order effectively prevents these migrants from entering the United States legally in the future.

All of this has contributed to alarmingly low rates of asylum. Only 1.5% of all completed MPP cases have resulted in asylum or other forms of relief. By contrast, in fiscal year 2017, 40% of all asylum-seekers had their claims granted by an immigration judge in court.

MPP Exposed Migrants to Violence and Exploitation

For over two years, MPP has forced migrants to wait in northern Mexico, including the state of Tamaulipas which the U.S. Department of State has deemed too dangerous for U.S. citizens due to reports of crime and kidnapping. Mexico has claimed to provide individuals in MPP with humanitarian protections, but has largely failed to do so. Due to the nature of their immigration status, their perceived vulnerability, and potential contacts in the United States, migrants are targeted by criminal cartels.

As of February 2021, Human Rights First has documented 1,544 cases of murder, kidnapping, beatings, rape, torture, and other forms of assault, “including 341 reports of kidnappings or attempted kidnappings of children” from individuals placed in MPP. Along with reports of physical assaults, a case study of 95 individuals in MPP conducted by Physicians for Human Rights found that “nearly all of those evaluated were diagnosed with post-traumatic stress disorder, and many exhibited other debilitating psychological conditions or symptoms.”

Furthermore, individuals in MPP have been subject to deplorable, unsanitary, and unsafe living conditions. These conditions include cold temperatures, due to inadequate shelter, including living in makeshift camps and not having access to warm and dry clothes. Over the winter, migrants waiting for their asylum hearings in Mexico endured unusually harsh winter conditions that drove temperatures below freezing. Immigrants in MPP also have insufficient access to clean running water, restrooms, and showers. Together, inadequate housing and the lack of access to sanitary conditions create an increased risk of contracting illnesses for those in the program.

Given the state of the continued spread of COVID-19 throughout the world, the lack of access to sanitary conditions (including the lack of cleaning supplies and facemasks), and adequate housing (that allows for social distancing), individuals in MPP are left unsupported, exposed, and at risk.

Biden Ends MPP but Sends Mixed Signals on Central American Refugees

On President Biden’s first day in office, he issued an executive order that ended all new enrollments into MPP and asked those in the program to “remain where they are” until the government issued new guidance. Then, in February 2021, after President Biden ordered the Department of Homeland Security to review MPP, DHS announced that it would begin hearing the cases of asylum-seekers remaining in the program, but the agency did not provide an indication that it would reopen the cases that were rejected under the program.

DHS has stated that approximately 25,000 migrants in MPP will be allowed to apply for entry into the United States to await the duration of their immigration court proceedings, rather than being forced to wait in Mexico. While the Biden administration has stated that implementing humane immigration policy along with rolling back Trump-era immigration policies are a priority, they have consistently noted that their actions should not stand as welcome indications for migrants. When speaking at a daily press briefing on February 10, 2021, White House Press Secretary Jen Psaki stated, “due to the pandemic and the fact that we have not had the time, [...] now is not the time to come, and the vast majority of people will be turned away.” The Biden administration has also faced criticism for detaining unaccompanied minors arriving at the southern border.

On February 25th, the first group of 27 migrants who were waiting in the Mexican Matamoros camp due to MPP entered the United States under a new policy to process these cases. Once the three initial processing locations (El Paso and Brownsville, Texas and San Ysidro, California) are fully operational, the administration claims it will process up to 300 migrants per day. Already by the beginning of March, the migrant encampment in Matamoros had emptied out.

MPP Cases May Take Years to Complete

Although the Biden administration is currently terminating MPP and processing the remaining cases on the MPP docket, the impacts of the program will be long-lasting. Migrants who were waiting in Mexico under the MPP program for months are only now beginning their asylum process in the immigration courts at a time when the courts are backlogged with nearly 1.3 million pending cases. It could take years before these asylum seekers receive a decision in their case. But for those migrants whose cases are now closed, most of whom never had the opportunity to present their case before a judge, there are likely no second chances.

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How to cite this blog post (Harvard style) 

Unger, A-T. and Kocher, A. (2021). Migrant Protection Protocols Along U.S.-Mexico Border Come to an End, but the Assault on Asylum Continues. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/03/migrant [date]