Policy Brief: Migrant Protection Protocol (“MPP”)
*Please note that this brief was written prior to the 2020 Presidential election.
Problem Definition
Because of the implementation of Migrant Protection Protocol (MPP), Southern border migrants coming to the United States through Mexico are being returned to Mexico to wait for asylum hearings. While waiting in Mexico, the migrants are denied access to legal representation, cannot participate in their immigration hearings, and are exposed to dangerous living conditions in makeshift migrant border camps. Humanitarian and Constitutional crises, which are the direct result of American government policy, have ensued.
What is MPP (Migrant Protection Protocol)?
Administered in February of 2019 by the U.S. Department of Homeland Security, MPP requires asylum seekers who enter the U.S. through the Southern Mexican/United States border to return to Mexico and wait in makeshift migrant towns for the entirety of the U.S immigration court proceedings (HRW, 2020).
Prior to the Trump administration, migrants were allowed to stay in the U.S. while awaiting for their asylum case to move through the courts. This allowed migrants the opportunity to find a lawyer, go to their own court hearings, and have the chance to stay with their families (Human Rights First, 2020).
Under the MPP, the Trump administration radically changed the process. First, and most noticeable, migrants are no longer allowed to wait in the United States while their case moves through the courts. Clearly, this was in response to Trump’s proposed policy to remove the “illegals” from the country, something he focused on when he campaigned for president and has used a calling card among his base. Instead, under the MPP, migrants must remain South of the US/Mexico border, often in makeshift tent cities. They live in some of the most dangerous cities in Mexico — Tijuana, Mexicali, Nogales, Ciudao Juarez, Piedras Negras, Matamoros, Nuevo Laredo — with no information, explanation, or financial support to get them through the immigration process (Human Rights First, 2020). As a direct result of their removal from the United States, a staggering 94% of migrants waiting in Mexico do not have legal representation. (Human Rights First). Unfortunately, even those with an attorney fair even better, as “less than 1% have been granted asylum in the U.S” (HRW, 2020). Even more distressing, immigrants are unable to attend their own court proceedings. This causes a Constitutional crisis, as the immigrants’ right to due process is violated if they are unable to be present, and are limited to telephonic or video hearings in temporary “tent” courts, with no legal assistance (AILA, 2019).
The Trump Administration’s MPP program has also placed southern border migrants in grave danger. Since the inception of MPP in February 2019, there have been 1,114 reports of rape, murder, assault, and kidnapping of asylum seekers living in these makeshift migrant towns. Despite the dangerous conditions, which are the result of the Trump Administration’s own policies, the U.S. government turns a blind eye. “U.S. government officials know that these regions of the border are extremely dangerous. The U.S. State Department’s travel advisories warn U.S. citizens not to travel to some of the same Mexican border towns where U.S. authorities send asylum seekers to wait for immigration court hearings. These areas are designated as level 4 threats — the same danger assessment as for Afghanistan, Iraq, and Syria. Senior Trump Administration officials claim that they don’t believe that the refugees and migrants the U.S. has returned to Mexico are being kidnapped and attacked there. But this willful blindness is no defense for a policy that clearly jeopardizes the safety and very lives of the children, women, and men sent back to Mexico” (Human Rights First, 2020).
Finally, the MPP has created a humanitarian crisis.Asylum seekers live in makeshift tents. They have no running water and little to any access to health care. Although there is a global COVID-19 pandemic, social distancing is impossible in the closely crammed settlements. The living conditions are inhumane and a direct result of Trump administration policy.
Communities
There are three primary communities involved in MPP policy: asylum seekers, pre-existing occupants of migrant holding cities, the Trump Administration/U.S. Department of Homeland Security, and the court systems.
The first community is, of course, asylum seekers. According to the U.S. Department of Homeland Security, that MPP has a broad application. The primary community it applies to are people who try to enter the U.S. illegally or without documentation. The MPP includes asylum seekers in that category. Excluded from the MPP are “unaccompanied alien children, Mexican nationals, and aliens who demonstrate that it is more likely than not that they would face persecution or torture in Mexico” (Harrington and Smith, Pg. 2). In other words, even if a person alleges persecution and torture in any other country, such a threat in Mexico is the lithmus test for application of the MPP. And, given that many asylum seekers have likely only journeyed through Mexico on their way to the United States, they cannot meet this impossible requirement.
The second community — the people who already resided in or had ties to the communities where the asylum seekers are sent to live in Mexico. MPP places migrants in dangerous cities like Tijuana, Mexicali, Nogales, Ciudao Juarez, and Piedras Negras, with Matamoros and Nuevo Lavedo. These cities are controlled cartels. The cartels are primarily responsible for the crimes against the migrants, especially kidnapping, because they assume that the asylum seekers have relatives in the United States who can pay high ransoms for the return of loved ones (Human Rights First, 2020).
The third community is the Trump Administration, and the US Department of Homeland Security, which is a branch of Trump’s executive administration. Trump and his team, in an effort to appease his base and “control” the “illegals”, decided that the only way to seal the border and discourage further migration was to send virtually all immigrants back to Mexico while they await their hearings. This community developed and implemented the MPP, upending years of immigration policy in the United States.
The final community is the U.S. court system. There are three levels of courts that are involved with interpreting MPP policy — federal circuit courts, U.S. Court of Appeals, and the Supreme Court. Since the implementation of MPP, challenges in federal courts have resulted in rulings against the new policy. “The Court of Appeals unequivocally declared this policy to be illegal. The Supreme Court should as well… Judges William A. Fletcher and Richard A. Paez, both appointed by President Bill Clinton, agreed with a lower-court judge in California that MPP probably violated federal immigration law by ousting undocumented asylum seekers who should be allowed to apply for protection in the United States… The judges also said the program probably violated the administration’s ‘non-refoulement’ obligations under international and domestic law, which prohibit the government from sending people to countries where they face danger. The 57-page ruling cited asylum seekers who feared kidnapping, threats and violence in Mexico” (Barnes, 2020). Although the circuit and courts of appeals have found against MPP, the policy is still being implemented and will have to be considered by the US Supreme Court. Unfortunately, with the death of Justice Ruth Bader Ginsburg, the balance of the Court, and the future of the MPP are questionable.
President Trump’s Persistent, Racist Attacks on Immigrants Resulted in Implementation of the MPP
Since the beginning of his presidential campaign in 2015, Donald Trump made it very clear to voters that his first act in office would be to build a “great, great” wall along the Southern border to keep undocumented immigrants out of the United States. This was one of Trump’s main campaign strategies, resulting in mass popularity among his supporters, the infamous “build the wall” chant, and allegations of racism and xenophobia from opponents.
Trump’s animosity for president Obama’s immigration policy, as well as his general contempt for undocumented migrants, especially those from Mexico and Central America, is well chronicled, “El Chapo and the Mexican drug cartel use the border unimpeded like it was a vacuum cleaner, sucking drugs and death right into the U.S.” (Trump, 2015). Whereas the Obama administration pushed the DREAM Act, and focused on deportation of criminals, Trump plays on a segment of the country’s bias and distrust for non-white, non-English speaking people. President Trump appealed to peoples’ fears, categorizing all undocumented migrants as “criminals”, “rapists” and “drug dealers”, to gather support. Once Trump made his brand of xenophobia part of the daily diaglogue in America, implementation of the MPP was an easy continuation of his campaign promise to rid the country of undocumented migrants, part of his misguided effort to “Make America Great Again.”
Will This Problem be Solved?
The MPP seeks to prohibit a very specific sector of undocumented immigrants — hispanics from Mexico and Central America — and prohibit their entry into the United States. Instead of “solving” an issue, i.e., undocumented immigration, it has actually created a terrible crisis at our Southern border. The problem can be solved, but both solutions depend on politics. First, voters could elect a new president who can institute a new border policy. Presumably the election of Joe Biden would result in a return to Obama era policies. The second option is for the challenges to the MPP for work through federal courts. While the federal circuit and courts of appeals have held against the MPP, how the US Supreme Court will rule is uncertain given recent upheaval in the Court. Both options are fraught with political uncertainty. Until then, the lives of tens of thousands of immigrants remain in jeopardy due to Trump’s unjust policy.
Works Cited
AILA — Immigration Law Experts Debriefed Press on “Port Courts” and Due Process Concerns. American Immigration Lawyers Association. (2019, September 12). https://www.aila.org/advo-media/press-releases/2019/immigration-law-experts-debriefed-press-on-port.
Barnes, R. (2020, March 12). Supreme Court says Trump administration may continue ‘Remain in Mexico’ policy for asylum seekers. The Washington Post. https://www.washingtonpost.com/politics/courts_law/supreme-court-trump-remain-in-mexico/2020/03/11/7abd4b9c-62d7-11ea-acca-80c22bbee96f_story.html.
Delivered to Danger. Human Rights First. (2020). https://www.humanrightsfirst.org/campaign/remain-mexico.
Harrington, B., & Smith, H. R. (2019). “Migrant Protection Protocol” : Legal Issues Related to DHS’s Plan to Require Arriving Asylum Seekers to Wait in Mexico. Congressional Research Service, 9.
Q&A: Trump Administration’s “Remain in Mexico” Program. (2020, September 24). https://www.hrw.org/news/2020/01/29/qa-trump-administrations-remain-mexico-program.
Trump, D. J. (2015, July 13). El Chapo and the Mexican drug cartels use the border unimpeded like it was a vacuum cleaner, sucking drugs and death right into the U.S. Twitter. https://twitter.com/realDonaldTrump/status/620545104525307904?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E620545104525307904%7Ctwgr%5Eshare_3.
