The Migrant Protection Protocols: Policy History and Latest Updates

What are the Migrant Protection Protocols (MPP)?

On December 6, 2021, the US Department of Homeland Security (DHS) reimplemented the Migrant Protection Protocols (MPP), commonly known as the “Remain in Mexico” policy. Announced by the Trump administration in December 2018 and first implemented in January 2019, the policy allows US immigration officials to send asylum seekers to Mexico to wait for their US court hearings. The policy initially applied to migrants from Spanish-speaking countries other than Mexico, and in January 2020, was expanded by the Trump administration to include Brazilian asylum seekers. 

Under the latest iteration of the program, US immigration officials can send “nationals of any country in the Western Hemisphere other than Mexico” to Mexico to wait for their US court hearings. This expands the list of eligible countries to include Haitians for the first time. At present, the program is active. 

The graphic below outlines policy changes and estimates of people impacted by MPP and their asylum case outcomes. 

 

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Estimates of Individuals Impacted and Policy Timeline

Between January 2019 and December 2020, more than 70,000 people were returned to Mexico to await US court hearings. In March 2020, all pending MPP hearings were suspended temporarily and later indefinitely due to the COVID-19 pandemic. The vast majority of MPP enrollments occurred prior to March 2020 because those who otherwise would have been eligible for MPP were expelled under Title 42. 

In January 2021, the Biden administration announced it was suspending MPP. In coordination with the United Nations High Commissioner for Refugees, the administration rolled out a virtual platform to begin processing MPP cases and to allow asylum seekers enrolled in the program to enter the United States. 

Initially, only about 25,000 MPP enrolled migrants with “active cases” were eligible to register for entry into the United States. In June 2021, the Biden administration terminated MPP and began processing individuals who had their MPP cases terminated or were ordered removed in absentia. As of July 2021, 13,000 MPP enrolled people had been allowed to pursue their court cases from within the United States. 

“Any benefits the program may have offered are now far outweighed by the challenges, risks, and costs that it presents,” DHS Secretary Alejandro Mayorkas stated in his memo terminating the program.

On August 13, 2021, a District Court judge in Texas ruled the Biden administration must restart MPP. The Supreme Court refused the Biden administration’s request for a stay of the order, requiring the administration to make a “good faith” effort to reimplement the policy as the court case proceeds. In the subsequent months, the Biden administration worked along two concurrent tracks: (1) to reinstate MPP and (2) to terminate it. 

On October 29, 2021, Secretary Mayorkas issued a second memorandum announcing and explaining his decision to terminate MPP. This memorandum will not be effective until the August 13 ruling is overturned by a higher court. 

After negotiating with the Mexican government about the return of migrants, the Biden administration announced its plans to re-start MPP the week of December 6, 2021. In the first week of the court-ordered reimplementation of MPP, 86 migrants were returned to Mexico. 

On December 13, the 5th US Circuit Court of Appeals ruled against the Biden administration’s Justice Department and upheld the district court’s order to restart MPP.

The “Unjustifiable Human Costs” of MPP

Numerous human rights organizations have documented the danger to asylum seekers forced to wait for US hearings in Mexican border cities. Human Rights First documented 1,544 publicly reported incidents of violence against migrants subjected to MPP, including violent attacks, sexual assault, and kidnapping. A report – prepared by the International Human Rights & Conflict Resolution Clinic at Stanford Law and published by HOPE Border Institute – describes abuse and extortion of MPP enrollees by Mexican authorities, as well as the negligence of Mexican authorities in preventing migrant kidnappings and disappearances by criminal organizations. 

The program has also overwhelmed shelter capacity in Mexico and left migrants stranded without work authorization to provide for themselves and their families. DHS Secretary Alejandro Mayorkas acknowledged these dangers and the “unjustifiable human costs” of MPP in his second effort to terminate the program. 

Another effect of MPP was to separate asylum seekers from legal aid in the United States, where the vast majority of legal professionals trained in US asylum law are located. “The majority of people that are subject to MPP will not have access to counsel,” Anna Gallagher, the executive director of the Catholic Legal Immigration Network Inc. (CLINIC), told CMS in an interview in early 2020. “Essentially what [the Trump] administration has done, by preventing access to counsel and by refusing admission of this population that has a right to seek asylum, is they have eliminated access to asylum.”

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