By Haiyun Damon-Feng*
In January 2019, the Department of Homeland Security (DHS) began implementing the inaptly named “Migrant Protection Protocols” (MPP), often referred to as the “Remain in Mexico” policy. MPP is a coercive, inhumane, and likely unlawful U.S. immigration policy that marked a stark departure from U.S. asylum law and procedure. Asylum is a humanitarian protection available to people fleeing persecution in their home countries, including people who have suffered severe violence and threats of death on account of their religion, sexual orientation, gender, or political beliefs. The right to seek asylum is enshrined in U.S. immigration law and in U.S. commitments under international law. As a general matter, any individual physically in the United States is entitled to seek asylum, regardless of how or where they entered the country, and may remain in the country while their asylum claim is pending.
MPP essentially turned the process of seeking asylum on its head. Under MPP, asylum seekers present in the United States were not allowed to remain in the country; instead, they were forcibly returned to Mexico, where many were kidnapped, assaulted, tortured, or killed. On Day One of his presidency, President Biden suspended new enrollments of asylum seekers in MPP. On February 11, 2021, DHS announced that it was taking long-awaited and highly anticipated steps toward unwinding and shutting down MPP. Although the rollout of the wind-down process has been confusing and far from smooth, the first group of asylum seekers was processed into the United States on February 19, 2021, and DHS has committed to continue to process people out of MPP and into the United States.
Over 68,000 asylum seekers, predominantly from Central America, were returned to Mexico under MPP. Some 25,000 MPP cases remain open. Of the cases that have been adjudicated, about 32,600 have resulted in removal orders, 10,600 in termination of removal proceedings (i.e., dismissal), and 500 in immigration relief. Some people were effectively coerced into accepting removal as a way to escape the horrors of MPP; some abandoned their claims because they could not sustain themselves in Mexico; and others were ordered removed in absentia because they were kidnapped and held captive during their scheduled hearings, and therefore could not appear in court. Of the total removal orders issued, more than 86 percent—more than 28,000 orders—were issued in absentia after an individual failed to appear for their immigration court hearing.
Removal orders attach permanent restrictions on a person’s ability to seek U.S. immigration relief in the future. This essay examines the issue of removal in the MPP context and argues that removal orders issued under MPP can, and should, be rescinded.
I. Removal Orders Issued in MPP Should Be Rescinded as the Result of a Coercive and Likely Unlawful Program
Since its inception, MPP has stood on questionable legal footing. A few months after it was announced, the U.S. District Court for the Northern District of California enjoined MPP, finding that the policy was inconsistent with the statutory framework set forth by the Immigration and Nationality Act. The injunction was stayed pending appeal before the U.S. Court of Appeals for the Ninth Circuit. During the stay, DHS continued MPP and expanded it along the southern border. The Ninth Circuit then affirmed the district court’s preliminary injunction on the merits, but the circuit court’s mandate was also stayed pending appeal to the U.S. Supreme Court. This case, Mayorkas v. Innovation Law Lab, is currently before the Supreme Court, but was removed from the Court’s February 2021 calendar and is being held in abeyance following a request from the U.S. Department of Justice.
Other federal courts that have considered MPP have also found the program to be unlawful as applied to individuals and groups of asylum seekers, and that the few procedural safeguards that applied to MPP were being either ignored or exercised in a way that unlawfully denied asylum seekers their right to counsel. Through MPP, the U.S. government placed an international border between asylum seekers and their ability to access counsel, making it nearly impossible for people in MPP to find representation in their immigration court proceedings—over 92 percent of people in MPP were never able to retain an attorney. The few who were able to secure counsel still faced additional barriers to adequately preparing for their asylum cases, including difficulty meeting with their attorneys and collecting the evidence necessary to support their claims.
The Ninth Circuit has further held that MPP likely violates the United States’ treaty- and statute-based non-refoulement obligations, which prohibit the United States from returning an individual to a territory where they are likely to be persecuted or tortured. The court found that people returned to Mexico pursuant to MPP “face targeted discrimination, physical violence, sexual assault, overwhelmed and corrupt law enforcement, lack of food and shelter, and practical obstacles to participation in court proceedings in the United States.”
MPP is undeniably coercive. The program was lauded as a success by the Trump Administration, which boasted that under the conditions of MPP, “aliens without meritorious claims—which no longer constitute a free ticket into the United States—are beginning to voluntarily return home.” This Hobbesian premise effectively relies on human rights violations as an immigration adjudication and sorting mechanism, and rests on the flawed assumption that only those with meritorious asylum claims would self-select into, and continue to wait in, such harsh and inhumane conditions. It is inappropriate and inconsistent with the principles of due process, fundamental fairness and dignity that lie at the core of our legal and justice system, but MPP has been incredibly effective at reducing the number of asylum seekers able to gain humanitarian protection. One of my clients, like other parents in MPP, waived the right to seek asylum for himself and his child and accepted removal orders after an immigration judge told him that accepting removal was the only way for him to get his child out of the dangers of MPP. Removal orders issued as part of MPP should be void ab initio in recognition that the program itself deliberately and successfully denied asylum seekers of the fundamental due process protections necessary to a fair and functioning adjudicative process.
II. In Absentia Removal Orders Issued in MPP Further Illustrate the Need for Rescission of Removal Orders
The case for rescission of MPP removal orders is strong across the board, and it is particularly compelling with respect to removal orders issued in absentia. As a general rule, failure to appear for an immigration court hearing results in an order of removal in absentia. That general rule has been applied in the MPP context as well, without regard to the separate circumstances an asylum seeker faces by virtue of being in MPP. More than 28,000 in absentia removal orders have been issued to individuals in MPP—86 percent of the total removal orders issued—despite reports that many people in MPP failed to appear at their immigration court hearings due to the exceptional hardships and circumstances of MPP. For example, people have been ordered removed in absentia because they were kidnapped and held hostage during their hearing, and for that reason did not appear. Other people with open proceedings have left Mexico during the pendency of these proceedings because they were unable to sustain themselves or their families under MPP’s onerous conditions.
The problem of in absentia removal has been compounded by the convoluted posture of MPP cases, which made it difficult for individuals to withdraw applications for admission or seek voluntary departure. In non-MPP circumstances, applicants for admission or people seeking voluntary departure may be permitted to leave the United States prior to the conclusion of their immigration court cases if they can show an ability to leave the United States at their own expense and meet other statutory and regulatory requirements. See 8 U.S.C. §§ 1225(a)(4), 1229c(a)(1); 8 C.F.R. §§ 1235.4, 1240.26. However, people in MPP were not physically in the United States except to attend their immigration court hearings—they were “paroled” in only for the time necessary for them to attend hearings and then immediately returned to Mexico—and so could not voluntarily leave the United States. To further complicate matters, Mexico would allow individuals in MPP to return to Mexico only if they were in active immigration proceedings in the United States. Thus, because of the limitations thrust upon people in MPP, it has been virtually impossible for them to avoid removal by voluntarily withdrawing their applications or departing the United States. For people who needed to leave Mexico while their immigration court proceedings were pending, accepting a removal order in court or leaving without approval from the court and instead receiving an in absentia removal order were essentially their only options. Further, it is not known how many people with pending MPP cases have left Mexico in the time that MPP courts have been closed due to COVID-19, nor is it apparent what will happen to their cases when immigration court proceedings resume. Relief from removal should extend to this group as well.
III. Legal Authority Exists for Rescinding Removal Orders, Reopening Removal Proceedings, and Terminating Cases
The consequences of removal are severe and impose permanent barriers to an individual’s ability to seek future immigration relief. Removal orders, once issued, can be reinstated if an individual returns to the United States, such that the individual is summarily removed with little to no procedural protections. Removal also generally results in a multi-year bar on admissibility, heightened burdens of proof for seeking asylum and relief from persecution, and the inability to access most forms of immigration relief in the future.
There are a number of ways that MPP removal orders can be rescinded and immigration proceedings reopened. As a preliminary matter, it should be noted that the immigration courts are administrative courts within the Department of Justice and the prosecuting agency for immigration court proceedings is Immigration and Customs Enforcement (ICE), which is housed within the Department of Homeland Security. Immigration law and adjudication, as a matter of structure and by design, is highly sensitive to policy directives and mandates from the executive branch. The Biden Administration, through executive and agency action, could provide guidance directing DHS and DOJ to adopt a liberal practice and standard for reopening removal proceedings for people previously ordered removed under MPP, so that their future immigration status and standing is not prejudiced by what happened in MPP. The agencies could also promulgate regulations providing a framework for reopening MPP removal orders in recognition that such orders were the result of a fundamentally unfair process, similar to what happened following the Supreme Court’s decision in INS v. St. Cyr. See 8 C.F.R. § 1003.44.
Congress could also act to resolve the issue, and legislative action would not be without precedent. The Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) as amended by the Legal Immigration Family Equity Act Amendments of 2000 (the LIFE Act Amendments) allows eligible individuals with final removal orders to reopen their immigration proceedings. Regulations were later promulgated laying out procedures for filing and adjudicating such motions to reopen. See 8 C.F.R. § 1003.43.
The Biden Administration has taken necessary and welcome steps to restore fundamental fairness and dignity to our asylum system through its early actions to wind down and terminate MPP, but such restoration will not be complete without addressing the immigration consequences stemming from removal orders issued pursuant to MPP. This essay points to some additional actions that can and should be taken in furtherance of that goal, such that asylum seekers subject to the aberrant process of MPP are not forever prejudiced with respect to their asylum and U.S. immigration matters.
* Haiyun Damon-Feng is Director of the Adelante Pro Bono Project and Assistant Director of the William H. Gates Public Service Law Program at the University of Washington School of Law. She is grateful to Kurt Walters and the editors of the Harvard Law & Policy Review for their thoughtful comments and feedback.