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DHS Tries to Address ‘Endemic Flaws’ in Court-Ordered ‘Return to Mexico’ Reimplementation

When there is doubt as to whether a vulnerability should exclude a migrant from MPP, CBP has been instructed to err on the side of the exception.

The court-ordered reimplementation of the “return to Mexico” policy started under the Trump administration includes more safeguards for vulnerable migrants and determination of the “reasonable possibility” that they may be harmed if sent back across the border while their immigration case proceeds, DHS officials told the House Homeland Security Subcommittee on Border Security, Facilitation, and Operations on Wednesday.

The Migrant Protection Protocols (MPP) were initiated in January 2019 to return to Mexico, while their U.S. removal proceedings are pending, nationals of Western Hemisphere countries other than Mexico who arrive from Mexico by land.

On June 1, 2021, Homeland Security Secretary Alejandro Mayorkas determined that the Migrant Protection Protocols should be terminated. On Aug. 13, 2021, the U.S. District Court for the Northern District of Texas determined in Texas v. Biden that the June 1 memo was not issued in compliance with the Administrative Procedure Act and INA and ordered the Department of Homeland Security to “enforce and implement MPP in good faith.” The 5th U.S. Circuit Court of Appeals upheld the lower court ruling.

After another review of the program — which found “extreme violence” against migrants waiting in Mexico, an inadequate non-refoulement screening process, barriers for migrants in accessing counsel and receiving sufficient information about their court hearings, growing backlogs in immigration courts and asylum offices, and other factors — Mayorkas issued another memorandum on Oct. 29 to terminate MPP, but that is in limbo until when and if the injunction is vacated. DHS asked the Supreme Court to hear the case, and arguments are anticipated in April.

As of Feb. 28, 1,602 migrants have been enrolled in MPP under the reinstallment and 893 of them have been returned to Mexico, with 181 still being processed. All have been Spanish speakers primarily from Nicaragua, Venezuela, Cuba, Colombia, and Ecuador. Only one of the enrollments was a family unit, and they were later disenrolled and allowed to stay while their immigration case moved forward.

Eighty-two percent claimed a fear of harm in Mexico during initial enrollment and were referred to USCIS for a non-refoulement interview; 17 percent of those received a positive determination from USCIS. The remaining 83 percent of those who claimed fear either received a negative determination (69 percent), had their cases administratively closed (12 percent), or remain pending (2 percent). During their non-refoulement interviews, 2 percent were legally represented.

In the interviews, migrants must establish that there is a “reasonable possibility” that they will be persecuted on account of a statutorily protected ground (race, religion, nationality, membership in a particular social group, or political opinion) or that they will be tortured in Mexico.

Acting Assistant Secretary for Border and Immigration in the Office of Strategy, Policy and Plans Blas Nuñez-Neto stressed that Mayorkas believes the “endemic flaws” of MPP include “that it imposed unjustifiable human costs on migrants, subverted the asylum system, pulled resources and personnel away from other priority efforts, and failed to address the root causes of irregular migration,” and the program is ultimately not fixable.

Nuñez-Neto told lawmakers in prepared remarks that DHS is trying to move forward with the court-ordered reimplementation “in the most humane way possible,” but “no matter what measures are put in place to attempt to protect migrants enrolled in MPP, we cannot ensure their safety and security in Mexico.” The goal in reimplementation is to try to minimize harm, he said.

Unaccompanied children cannot be enrolled in MPP, as well as adults with particular vulnerabilities including known physical and mental health issues, disabilities, pregnancy, advanced age, and those at increased risk of harm in Mexico due to their sexual orientation or gender identity. “When there is doubt as to whether a vulnerability merits exception to enrollment, CBP has been instructed to err on the side of excepting the individual from MPP,” Nuñez-Neto said.

CBP officials are now required to proactively ask individuals subject to MPP if they fear being returned to Mexico. Those who express fear are referred to USCIS for a non-refoulement interview, and are provided access to telephones and are “generally given 24 hours to consult with a legal representative in advance of their interview.” Migrants enrolled in MPP are given a legal resource packet.

“DHS and DOJ are coordinating returns to the United States for court hearings to allow individuals enrolled in MPP with substantial time to meet with counsel on the day of the hearing, and DOJ is providing access to the Legal Orientation Program for individuals in MPP. Counsel may be present at the noncitizens’ court hearings by video or in person,” Nuñez-Neto said. “Additionally, the Department of State is working with international organizations to increase access to legal and other informational resources via shelters in Mexico, including through provision of WiFi and outfitting of private spaces that can be used to consult remotely with legal representatives or others.”

Since December, DHS has expanded MPP reimplementation at several ports of entry across the southwest border and will continue to do so contingent on the government of Mexico’s “continued agreement to receive returns and location-specific reception capacity.” While in CBP custody, eligible migrants are offered COVID-19 vaccination.

“As DHS continues to work in good faith to reimplement MPP consistent with the court order, MPP enrollments are expected to resume in other Southwest Border locations and returns to Mexico facilitated at seven ports of entry in San Diego and Calexico, California; Nogales, Arizona; and El Paso, Eagle Pass, Laredo, and Brownsville, Texas,” CBP Acting Chief Operating Officer Benjamine “Carry” Huffman said in prepared remarks.

Temporary immigration hearing facilities were established in Laredo and Brownsville when MPP was first implemented in 2019 but were partially demobilized when MPP enrollments were suspended. Huffman said these facilities are again fully operational.

“Again, if at any time while in the United States the MPP enrollee affirmatively states a fear of return to Mexico, they are referred to USCIS for a non-refoulement interview,” Huffman said. “If USCIS determines that there is a reasonable possibility that the individual will be persecuted or tortured in Mexico, the individual is disenrolled from MPP and CBP coordinates with ICE ERO to determine whether the individual may be maintained in custody or paroled, or if another disposition is appropriate. In this situation, the individual may not be subject to expedited removal, and may not be returned to Mexico to await further proceedings.”

CBP established dedicated MPP teams made up of Office of Field Operations and Border Patrol personnel who assist port and station personnel with questions or concerns about implementing MPP procedures. The DHS Office of the Immigration Detention Ombudsman is also observing implementation of MPP and reviewing enrollees’ access to legal counsel.

“CBP will continue to work with our partners to ensure MPP is applied appropriately, consistent with policy, and that MPP enrollees, including those who fear returning to Mexico, are provided clear information about their rights and responsibilities under MPP, and are treated with civility and in accordance with U.S. law and our mission,” Huffman said. “We will also continue to assess and reassess our performance, processes, and procedures to find areas where we can further improve MPP and better collaborate with our partners across the Department and federal government.”

Bridget Johnson
Bridget Johnson is the Managing Editor for Homeland Security Today. A veteran journalist whose news articles and analyses have run in dozens of news outlets across the globe, Bridget first came to Washington to be online editor and a foreign policy writer at The Hill. Previously she was an editorial board member at the Rocky Mountain News and syndicated nation/world news columnist at the Los Angeles Daily News. Bridget is a terrorism analyst and security consultant with a specialty in online open-source extremist propaganda, incitement, recruitment, and training. She hosts and presents in Homeland Security Today law enforcement training webinars studying a range of counterterrorism topics including conspiracy theory extremism, complex coordinated attacks, critical infrastructure attacks, arson terrorism, drone and venue threats, antisemitism and white supremacists, anti-government extremism, and WMD threats. She is a Senior Risk Analyst for Gate 15 and a private investigator. Bridget is an NPR on-air contributor and has contributed to USA Today, The Wall Street Journal, New York Observer, National Review Online, Politico, New York Daily News, The Jerusalem Post, The Hill, Washington Times, RealClearWorld and more, and has myriad television and radio credits including Al-Jazeera, BBC and SiriusXM.

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