Introduction

On December 20, 2018, then-Secretary of Homeland Security Kirstjen Nielsen announced a new policy called the “Migrant Protection Protocols (MPP)”. Acting under authority of section 235(b)(2)(C) of the Immigration and Nationality Act (INA), the Migrant Protection Protocols expressly give DHS officers the authority to return aliens arriving to the United States from Mexico, either illegally or without proper documentation, to Mexico pending their removal hearings. The policy only affects certain aliens who are not citizens or nationals of Mexico.

Subsequent to the announcement of the Migrant Protection Protocols (MPP) policy, DHS components issued policy guidance for the implementation of the Migrant Protection Protocols. Although the Protocols have been the subject of litigation, the policy is being enforced as of February 13, 2020.

In this article, we will examine the legal basis for the Migrant Protection Protocols, the implementation of the policy, and what the policy means for affected aliens who cross the Southwest Border from Mexico.

Statutory and Regulatory Background

In order to understand the Migrant Protection Protocols, we must first examine the statutory and regulatory basis for the policy. We will begin by examining the relevant statutes in the Immigration and Nationality Act (INA), followed by the implementing provisions of the statute in the Code of Federal Regulations (CFR).

Statutes

In general, when an alien who is not clearly and beyond doubt eligible for admission applies for admission, the alien will be detained for a full removal proceeding under section 240 of the INA. INA 235(b)(2)(A). Certain aliens, such as crewmen, stowaways, and aliens otherwise subject to expedited removal or reinstated removal proceedings, will not be placed in full removal proceeding. INA 235(b)(2)(B).

The statute underpinning the Migrant Protection Protocols applies only to those aliens described in INA 235(b)(2)(A). It provides as follows:

In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 240 of this Act…
INA 235(b)(2)(C).

There are only two contiguous foreign territories to the United States: Canada and Mexico. As we will see, the Migrant Protection Protocols (MPP) applies only to aliens described in INA 235(b)(2)(A) who are arriving from Mexico. Separate from the specific Migrant Protection Protocols policy, INA 235(b)(2)(C) gives the DHS authority to return most aliens who applicants for admission arriving from Mexico to Mexico pending their full section 240 removal proceedings.

DHS and Department of Justice (DOJ) regulations implement INA 235(b)(2)(C). The regulations refer to aliens described by INA 235(b)(2)(A):

In its discretion, the [DHS] may require any alien who appears inadmissible and who arrives at a land border port-of-entry from Canada or Mexico, to remain in that country while awaiting a removal hearing. Such alien shall be considered detained for a proceeding within the meaning of section 235(b) of the Act and may be ordered removed in absentia by an immigration judge if the alien fails to appear for the hearing.
8 CFR 235.3(d); 1235.3(d)

The regulation applies only to those aliens who arrive at a land border port-of-entry from Canada or Mexico, which is also the scope of INA 235(b)(2)(A). It provides specifically that an alien returned to Canada or Mexico pending a removal hearing is considered to be “detained” within the meaning of INA 235(b). Thus, even though aliens returned to Canada or Mexico under the provision are not in the physical custody of the DHS in the United States pending proceedings, they are nevertheless considered to be “detained” for purpose of the immigration law. Significantly, the statute provides that when an alien who has been returned to Canada or Mexico pending proceedings fails to appear for his or her removal hearing, the immigration judge having jurisdiction over the proceedings may order the alien removed in absentia. We will return later in this article to the issue of in absentia removal proceedings for aliens returned to Mexico under the Migrant Protection Protocols.

DHS Announcement and Implementation of Migrant Protection Protocols

Former Secretary of Homeland Security Kirstjen Nielsen announced the implementation of the Migrant Protection Protocols — under INA 235(b)(2)(C) authority — on December 20, 2018 [PDF version]. Former Secretary Nielsen followed the announcement of the Migrant Protection Protocols on January 25, 2019, by issuing a memorandum titled “Policy Guidance for Implementation of the Migrant Protection Protocols” [PDF version]. The memorandum was addressed to the heads of DHS’s three immigration components: the United States Citizenship and Immigration Services (USCIS); the United States Customs and Border Protection (CBP); and the United States Immigration and Customs Enforcement (ICE).

In the announcement and guidance, former Secretary Nielsen explained that “the United States will begin the process of implementing section 235(b)(2)(C) … with respect to non-Mexican nationals who may be arriving on land (whether or not at a designated port of entry) seeking to enter the United States from Mexico illegally or without proper documentation.” Thus, although the policy covers applicants for admission arriving from Mexico, it does not cover citizens or nationals of Mexico.

Former Secretary Nielsen instructed DHS officers, when exercising their discretion whether to place an arriving alien in section 240 proceedings and return him or her to Mexico pending such proceedings, to “act consistent with the non-refoulment principles contained in Article 33 of the 1951 Convention Relating to the Status of Refugees (1951 Convention) and Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (CAT).” This means that under the Migrant Protection Protocols a DHS officer may not return an applicant for admission to Mexico under the Migrant Protection Protocols if the officer determines that the alien would “more likely than not” be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion in Mexico, unless that alien has engaged in criminal, persecutory, or terrorist activity described in INA 241(b)(3)(B). Furthermore, if it is determined that the alien would more likely than not be tortured in Mexico, he or she may not be returned to Mexico under the Migrant Protection Protocols.

Former Secretary Nielsen explained that the Migrant Protection Protocols were being implemented with the cooperation of the Mexican Government. Mexico agreed to authorize the temporary entrance of individuals returned to Mexico under the Migrant Protection Protocols. Furthermore, Mexico pledged to authorize multiple entries and reentries for subject individuals in order for them to have their cases adjudicated in the US, and Mexico pledged to afford subject individuals all due protections under Mexican law and the Mexican Constitution.

Former Secretary Nielsen directed the USCIS, CBP, and ICE to publish policy guidance on the implementation of the Migrant Protection Protocols. In the following sections, we will examine the agency-specific guidance that resulted from this directive.

USCIS/CBP/ICE Guidance

In this section, we will examine the following guidance documents issued by the then-heads of USCIS, CBP, and ICE:

USCIS Policy Memorandum PM-602-0169: Guidance for Implementing Section 235(b)(2)(C) of the Immigration and Nationality Act and the Migrant Protection Protocols (Jan. 28, 2019) [PDF version] (“USCIS Memo”)
Hoffman, CBP memorandum: Guidance on Migrant Protection Protocols (Jan. 28, 2019) [PDF version] (“Hoffman CBP Memo”)
McAleenan, CBP memorandum: Implementation of the Migrant Protection Protocols (Jan. 28, 2019) [PDF version] (“McAleenan CBP Memo”)
CBP Enforcement Programs Division: MPP Guiding Principles (Jan. 28, 2019) [PDF version] (“MPP Guiding Principles”)
Vitiello, ICE memorandum: Guidance on Migrant Protection Protocols (Feb. 12, 2019) [PDF version] (“Vitiello ICE Memo”)
Asher, ICE memorandum: Implementation of the Migrant Protection Protocols (Feb 12, 2019) [PDF version] (“Asher ICE Memo”)

Because the CBP is responsible for border patrol and manning the ports of entry, CBP officers are the first in line for making Migrant Protection Protocols determinations. For that reason, we will begin by examining the MPP Guiding Principles document, to which the Hoffman CBP Memo instructed CBP officers to refer for guidance on the program.

Aliens Not Amenable to Migrant Protection Protocols

To start, the following categories of aliens are never amenable to placement in the Migrant Protection Protocols:

Unaccompanied alien children
Citizens or nationals of Mexico
Aliens processed for expedited removal
Returning lawful permanent residents seeking admission (subject to INA 212)
Aliens with an advance parole document or in parole status
Aliens with known physical or mental health issues
Criminal aliens and aliens with a history of violence
Aliens of interest to the Government of Mexico or the United States Government
Any alien who is more likely than not to face persecution or torture in Mexico
Other aliens at the discretion of the Port Director

The Migrant Protection Protocols do not alter the guidance for processing aliens for expedited removal. If an alien is processed for expedited removal, he or she may not be processed for the Migrant Protection Protocols. The MPP Guiding Principles states that CBP officers retain discretion to process aliens under the Migrant Protection Protocols or under other procedures, such as expedited removal, depending on the facts presented.

If an alien affirmatively states that he or she has a fear of persecution or torture in Mexico, or a fear of return to Mexico, the CBP officer will refer the alien to a USCIS asylum officer for a screening. The USCIS asylum office will then determine whether it is more likely than not that the alien would be persecuted or tortured in Mexico. If the USCIS asylum officer determines that it is more likely than not that the alien would be persecuted or tortured in Mexico, the alien will not be processed under the Migrant Protection Protocols — but may be processed or re-processed under other procedures that are not foreclosed by the USCIS’s finding. If the USCIS determines that it is not more likely than not that the alien would be persecuted or tortured in Mexico, the alien may be processed under the Migrant Protection Protocols in the discretion of CBP. We will examine the asylum/CAT screening process in the USCIS documents later in this article.

Processing Under Migrant Protection Protocols

Assuming that the alien does not fall in any of the above categories, the CBP may determine that the alien should be subject to the Migrant Protection Protocols process. If an alien is subject to the Migrant Protection Protocols process, the CBP officer will issue the alien a Notice to Appear, placing the alien in section 240 proceedings. The alien will then be returned to Mexico to await his or her removal hearing.

The MPP Guiding Principles states that an alien processed under the Migrant Protection Protocols will receive a specific immigration court hearing date and time. The CBP stated that it will make every effort to schedule similar Migrant Protection Protocols populations for the same hearing dates. Aliens who are processed under the Migrant Protection Protocols will receive a tear sheet containing both information about the process and a list of free or low-cost legal service providers.

If an alien who is processed under the Migrant Protection Protocols states that he or she fears returning to Mexico upon arriving at a Port of Entry to be transported to his or her immigration court hearing, CBP will refer the alien to USCIS for screening prior to any return to Mexico. In the event that the USCIS determines that it is more likely than not that the alien would be persecuted or tortured in Mexico, the CBP will coordinate with ICE Enforcement and Removal Operations (ERO) to determine whether the alien should be maintained in immigration custody, paroled, or subject to some other disposition. The alien may not, in this case, be subject to expedited removal or returned to Mexico.

CBP coordinates with ICE ERO regarding the transport of aliens subject to the Migrant Protection Protocols from the port of entry to immigration court, and back. ICE ERO is responsible for the actual transportation of the alien from the port of entry to immigration court and, when applicable, back to the port of entry,. If the alien is ordered removed by an immigration judge, the alien will be processed by ERO.

Transportation to and From Hearing and Custody Issues

The Asher ICE Memo provides guidance regarding ICE ERO’s transportation and custody of aliens who are processed under the Migrant Protection Protocols by CBP.

The memo explains that an alien who is returned to Mexico under INA 235(b)(2)(C) will be required to report to a designated port of entry for his or her scheduled hearing date. Before returning the alien to Mexico, the CBP will provide the alien with instructions explaining when and to which port of entry the alien must report in order to be transported to his or her immigration hearing. The time will be set such that the alien will have time to be processed by CBP and to have a pre-hearing consultation with counsel, if applicable.

Upon arriving at the designated port of entry at the specified time, the CBP screens the alien before paroling the alien into the United States under INA 212(d)(5)(A) for purpose of attending the section 240 hearing in immigration court. After doing so, the CBP will transfer the alien into ERO custody to be transported to the Executive Office for Immigration Review (EOIR) immigration court for the hearing. The ERO will maintain custody of the alien during the transportation. Where ERO transfers the alien from a port of entry to an inland immigration court, the alien will be detained in ICE custody as an “arriving alien” — regardless of how the alien was originally encountered by CBP.

If the immigration judge orders the alien released, the ERO should coordinate with the ICE Office of the Principal Legal Advisor (OPLA) for guidance on how to proceed. After the completion of the removal hearing, the ERO will transport the alien back to the port of entry for return to Mexico or to retrieve personal property, if applicable. The ERO will coordinate with the CBP to make appropriate custody determinations in the event that the alien receives a final grant of relief or an administratively final order of removal.

Aliens in removal proceedings have the privilege of being represented by counsel of his or her choosing, provided that such counsel is authorized to practice at removal proceedings, at no expense to the Government. INA 240(b)(4)(A); INA 292. For this reason, the Asher Memo provides that when ERO transports an alien subject to the Migrant Protection Protocols to a port of entry, it will endeavor to arrive with the alien at the proper immigration court at least one hour before the alien’s scheduled hearing time in order to ensure that the alien has the opportunity to meet in-person with his or her legal representative. However, aliens subject to the Migrant Protection Protocols are responsible for securing their own legal representation.

If an alien subject to the Migrant Protection Protocols informs an ERO officer at any point that he or she has a fear of persecution or torture in Mexico, or a fear of return to Mexico, ERO will notify the CBP of the alien’s statement. After such notification, it will be CBP’s responsibility to determine whether the alien should be referred to the USCIS for a screening. If the USCIS determines that an alien who would otherwise be returned to Mexico under the Migrant Protection Protocols would more likely than not be persecuted or tortured in Mexico, ERO will then determine whether the alien may be maintained in custody, paroled, or if a disposition other than being returned to Mexico is appropriate.

Screenings Based on Stated Fear of Return to Mexico

The USCIS is responsible for screening aliens who are potentially amenable to the Migrant Protection Protocols, but who claim a fear of persecution or torture in Mexico. As we discussed, an alien may be referred to the USCIS for screening by the CBP.

The USCIS Memo provides that all Migrant Protection Protocols assessment interviews must be conducted in a non-adversarial manner, separate from the general public. The object of the interview is to determine whether the alien would more likely than not be subject to persecution or torture in Mexico.

The Migrant Protection Protocols assessment interviews may be conducted in person, via video teleconference, or by telephone. USCIS officers are instructed to ensure that the alien understands from the onset of the interview that he or she may be subject to return to Mexico under INA 235(b)(2)(C) pending his or her INA 240 removal proceedings. The USCIS officer will also confirm that the alien understands the interview process. The USCIS Memo explains that as of the date of the publication of the memorandum DHS is currently unable to provide access to counsel for aliens undergoing Migrant Protection Protocols assessment interviews.

The USCIS Memo instructs officers to take several specific factors into account when conducting Migrant Protection Protocols assessment interviews. We paraphrase some of these factors below:

Whether the alien’s statements in support of his or her claims are credible.
Whether facts known by the officer support the alien’s claims, such as whether the alleged harm could occur in the region where the alien would reside in Mexico and whether the alien could avoid such harm by residing in a different region of Mexico.
Commitments from the Government of Mexico regarding the treatment and protection of aliens returned to Mexico under INA 235(b)(2)(C), and the U.S. Government’s expectations that Mexico will abide by those commitments.
Reliable assessments of current country conditions in Mexico made by DHS and the U.S. Department of State.
Whether the alien engaged in criminal, persecutory, or terrorist activity described in INA 241(b)(3)(A).

Ultimately, the interviewing officer must determine “whether the alien, if returned to Mexico, would be more likely than not persecuted on account of a protected ground (or has engaged in criminal, persecutory, or terrorist activity described in section 241(b)(3)(B) of the INA), or would be more likely than not tortured in Mexico…” The interviewing officer’s decision will be reviewed by a supervisory asylum officer, and the supervisory asylum officer may change the interviewing officer’s decision or concur with it.

After the USCIS reaches a decision, it should inform the alien of its decision. The USCIS will also provide its assessment to the CBP “for purposes of exercising prosecutorial discretion in connection with one or more of the decisions as to whether to place the alien in expedited removal or to issue a Notice to Appear for purpose of placement directly into Section 240 removal proceedings, and if the latter, whether to return the alien to Mexico pending the conclusion of Section 240 proceedings under Section 235(b)(2)(C) pursuant to the [Migrant Protection Protocols], and, when appropriate, to [ICE] for purposes of making discretionary custody determinations for aliens who are subject to detention and may be taken into custody pending removal proceedings.

If the USCIS makes a positive assessment on the alien’s claim, it is not granting withholding of removal or protection from removal under CAT. That is, if the USCIS determines that it is more likely than not that the alien would be persecuted or tortured in Mexico, the only direct effect of the decision is to prevent the alien from being returned to Mexico under the Migrant Protection Protocols. It does not grant any relief or benefit to the alien. Since nationals of Mexico are not amenable to the Migrant Protection Protocols, a finding that a national of another country would be more likely than not subject to persecution and torture in Mexico does not necessarily implicate any application for relief or protection.

The USCIS Memo makes clear that there is no provision for administrative review, reopening, or reconsideration of its conclusion after a Migrant Protection Protocols assessment interview. The only purpose of the interview is to determine whether the alien may be returned to Mexico under the Migrant Protection Protocols.

Expansion of Subject Ports of Entry

The McAleenan Memo notes that the Migrant Protection Protocols was initially implemented only at the San Ysidro Port of Entry. As of October 28, 2019, the Migrant Protection Protocols was being implemented at six ports of entry [PDF version]. The CBP is gradually working to apply the Migrant Protection Protocols at all ports of entry on the Southwest Border.

In Absentia Removal Proceedings for Subject Aliens Who Fail to Appear

On January 31, 2020, the Board of Immigration Appeals (BIA) published a precedent decision in Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020) [PDF version]. The Board held that if an alien returned to Mexico under the Migrant Protection Protocols fails to appear at the port of entry to be transported to his or her removal hearing after having received sufficient notice of when and where to appear, the immigration judge should commence in absentia removal proceedings against the alien. In Matter of J.J. Rodriguez, specifically, the Board held that an alien whose signed Notice to Appear included the time and place of his initial removal hearing, and whose signed Migrant Protection Protocols Initial Processing Information sheet included specific instructions on when to arrive at the port of entry to be transported to his hearing, had received sufficient notice.

We discuss Matter of J.J. Rodriguez in detail in a separate article [see article].

Ongoing Litigation

On April 8, 2019, Judge Richard Seeborg of the United States District Court for the Northern District of California entered a preliminary injunction against the enforcement of the Migrant Protection Protocols. Innovation Law Lab v. Nielsen, 366 F.Supp.3d 1110 (N.D. Cal. 2019) [PDF version]. The injunction applied universally, not limited to the particular plaintiffs or to the geographic area of the district court.

The Government asked the United States Court of Appeals for the Ninth Circuit to stay the district court injunction. On May 7, 2019, a three-judge panel of the Ninth Circuit granted the Government’s motion for the stay, finding both that the DHS was likely to prevail on the merits of its argument and that DHS would suffer irreparable harm if the injunction was not stayed. Innovation Law Lab v. McAleenan, 924 F.3d 503 (9th Cir. 2019) [PDF version].

The DHS resumed implementing the Migrant Protection Protocols after the Ninth Circuit’s staying of the district court injunction. Thus, it continues to apply the policy while litigation remains pending.

We will update this section in the future with any important news about the litigation surrounding the Migrant Protection Protocols.

Conclusion

The Migrant Protection Protocols, in conjunction with the INA, allow the DHS to return certain foreign nationals of countries other than Mexico, who are encountered at or between ports of entry on the Southwest Border, to Mexico pending their removal hearings. If a foreign national has a fear of being returned to Mexico, it is important that he or she inform a CBP or ICE officer, whichever is applicable, as soon as possible, in order that he or she may receive an interview regarding the claim.

Foreign nationals who are returned to Mexico under the policies must ensure that they appear at the correct port of entry at the time specified in order to be transported to their removal hearing. As the Board has made clear, failure to appear at the port of entry at the specified time may lead to the alien’s being ordered removed in absentia. It is also important for foreign nationals subject to the Migrant Protection Protocols to attempt to secure competent legal representation for their removal hearings. An experienced attorney will be able to determine whether the foreign national has a viable case for relief or protection in immigration court.