“Migrant Protection Protocols”: Legal Issues Related to DHS’s Plan to Require Arriving Asylum Seekers to Wait in Mexico

“Migrant Protection Protocols”: Legal Issues Related to DHS’s Plan to Require Arriving Asylum Seekers to Wait in Mexico

Legal Sidebari

“Migrant Protection Protocols”: Legal Issues
Related to DHS’s Plan to Require Arriving
Asylum Seekers to Wait in Mexico
Updated May 9, 2019
Update: The Migrant Protection Protocols (MPP) remain in effect after an initial round of
litigation (which followed initial publication of this Sidebar). On May 7, 2019, a motions panel
of the U.S. Court of Appeals for the Ninth Circuit granted the government an emergency stay of a
preliminary injunction issued by a federal district court in a lawsuit challenging the legality of
the MPP. The district court had issued the injunction after concluding that plaintiffs were likely
to succeed in their argument that the statutory provision relied upon by the Department of
Homeland Security (DHS) to institute the MPP, § 235(b)(2)(C) of the Immigration and
Nationality Act (INA), did not apply, “and even if it did, further procedural protections would be
required to conform to the government’s acknowledged obligation to ensure aliens are not
returned to unduly dangerous circumstances.” The preliminary injunction, had the Ninth Circuit
allowed it to take effect, would have prohibited DHS from continuing to implement the MPP. The
emergency stay permits DHS to enforce the MPP pending its appeal of the preliminary
injunction. DHS has returned more than 3,000 aliens to Mexico under the MPP thus far,
according to press reports.
In granting the emergency stay, the Ninth Circuit reasoned that the return authority of INA §
235(b)(2)(C) covers asylum seekers who are eligible for expedited removal proceedings (based
on their lack of valid entry documentation) but whom DHS opts to place in formal removal
proceedings instead. “[W]e think that Congress’ purpose was to make return to a contiguous
territory available during the pendency of [formal] removal proceedings, as opposed to being
contingent on any particular inadmissibility ground,” the court wrote. One judge disagreed,
rejecting as “clearly and flagrantly wrong” the proposition that § 235(b)(2)(C) provides
statutory authority for the MPP. In this judge’s view, § 235(b)(2)(C) does not apply to aliens who
are eligible for expedited removal, regardless of whether DHS decides to place them in formal
proceedings in lieu of expedited proceedings.
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A third judge, who agreed that DHS likely has statutory authority for the MPP, wrote separately
to argue that the MPP has a different flaw: it is likely arbitrary and capricious under the
Administrative Procedure Act because its procedures are “ill-suited to achieving [DHS’s] stated
goal” of ensuring that it does not return aliens to Mexico if they face a likelihood of persecution
or torture there. Because the MPP does not require DHS officers to ask aliens if they fear
persecution or torture in Mexico, the judge reasoned, the MPP is “virtually guaranteed to result
in some number of applicants being returned to Mexico” notwithstanding a heightened risk of
persecution or torture. Nevertheless, the judge concurred in the decision to grant the emergency
stay because he reasoned that the deficient procedures for assessing torture and persecution risk
could be remedied without prohibiting DHS from implementing the MPP altogether, as the
district court’s preliminary injunction would have done. The judge suggested, however, that it
would be appropriate for the district court to grant a new preliminary injunction, after further
proceedings, “directing DHS to ask applicants for admission whether they fear being returned to
Mexico.”
The original CRS post from February 1, 2019 is below.
Through two press releases posted on its website—the first on December 20, 2018, and the second on
January 24, 2019—the Department of Homeland Security (DHS) has announced a new policy that could
require many asylum seekers who arrive at the southern border to wait in Mexico while U.S. immigration
courts process their cases. DHS calls the new policy the “Migrant Protection Protocols” (MPP) and
contends that it will serve to address a “security and humanitarian crisis on the Southern border.” Details
about the policy’s implementation are still developing. A DHS memorandum indicates that the MPP went
into effect at the San Ysidro port of entry (south of San Diego) on January 28, 2019, and that DHS
anticipates expanding implementation of the new policy “in the near future.” According to media reports,
DHS first returned an asylum seeker to Mexico under the policy on January 29, 2019, when it returned to
Tijuana one Honduran national who presented himself at San Ysidro. The next day, DHS returned about a
dozen more asylum seekers to Tijuana from San Ysidro, according to a report.
Secretary of Homeland Security Kirstjen Nielsen and officials from two agencies within DHS—Customs
and Border Protection (CBP) and United States Citizenship and Immigration Services (USCIS)—have
issued memoranda and instructions that, together with the January 24 press release, provide details about
how the MPP is expected to work in operation, including the following:
 The MPP applies to aliens who “attempt[] to enter the U.S. illegally or without
documentation, including those who claim asylum.” As such, the policy apparently will
apply both to aliens arriving at ports of entry and also to aliens apprehended between
ports of entry.
 The policy apparently does not apply retroactively to aliens who arrived and were placed
in removal proceedings in the United States before the policy’s implementation.
 The policy does not apply to some categories of aliens, including 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.
 If an alien subject to the MPP expresses a fear of returning to Mexico, an asylum officer
“will interview the alien to assess whether it is more likely than not” that the alien would
be persecuted or tortured in Mexico. The alien will not have access to counsel during the
interview process.
 For aliens to whom the MPP applies, CBP officers have discretion on a “case-to-case
basis” to process and return them to Mexico under the MPP or to process them under

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other removal procedures, such as expedited removal (a streamlined removal process
explained further below). Where the officer opts to place an alien in expedited removal,
the MPP will not apply.
 Mexico’s position: the January 24 DHS press release states that “the Mexican
government has made its own determination” to grant aliens returned to Mexico under
the MPP permission to remain in Mexico. The Mexican Foreign Ministry has made an
announcement along similar lines. According to news reports, however, Mexico’s
immigration agency will not accept returnees who are under 18 or over 60—a position
that may hamper DHS’s ability to apply the MPP to family units.
 Logistics: aliens returned to Mexico under the policy are to receive a “Notice to Appear”
instructing them to appear for a hearing in immigration court at a specific date and time.
DHS will allow those aliens to enter the United States at a port of entry for the purpose of
attending such hearings, and Immigration and Customs Enforcement (ICE) will transport
the aliens to court and then back to the port of entry (if removal proceedings remain
ongoing after the hearing). Aliens who lose their cases and are ordered removed by an
immigration judge will be removed directly to their country of origin from the United
States.
Some advocacy organizations have expressed concern that the MPP will endanger asylum seekers forced
to remain in Mexico for long periods of time and will hinder their access to counsel. Groups have vowed
to challenge the MPP in court. While a challenge does not appear to have been filed as of the time of this
Sidebar’s publication, the MPP does raise legal issues. Most significantly, there is a question as to
whether DHS possesses authority to implement the MPP under the Immigration and Nationality Act
(INA). The statutory provision that DHS cites in support of the policy, INA § 235(b)(2)(C), does not
plainly authorize application of the MPP to one significant group of aliens: those who are subject to
“expedited removal” under the INA. This group probably includes most Central American asylum seekers
coming to the U.S.-Mexico border.
Expedited Removal and the MPP
Most aliens who present themselves at U.S. ports of entry without visas or other valid entry
documentation, or who attempt to enter illegally between ports of entry, are subject to expedited removal.
The DHS press releases make clear that DHS intends to apply the MPP to such aliens, but the interplay
between the expedited removal statute and the INA provision that underlies the MPP raises questions
about whether DHS has statutory authority to do so.
Expedited Removal Generally
As explained in this CRS Report, expedited removal under INA § 235(b)(1) is a streamlined removal
process that generally applies to aliens who arrive at a designated port of entry and are inadmissible for
one of two reasons: (1) they lack valid entry documents; or (2) they have attempted to procure their
admission through fraud or misrepresentation. Pursuant to authority conferred by INA § 235(b)(1), DHS
has also extended expedited removal to other categories of aliens who are inadmissible on the same
grounds, including those apprehended within 100 miles of the border within 14 days of entering the
country. Thus, aliens without valid entry documents who claim asylum at a port of entry or shortly after
crossing the border illegally are generally subject to expedited removal procedures under INA §
235(b)(1). Those procedures provide an avenue for such aliens to pursue their asylum claims or certain
other types of humanitarian relief in immigration court if they demonstrate a credible fear of persecution
or torture.

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Aliens whom immigration officers determine to be inadmissible on grounds not covered by the expedited
removal statute, such as aliens who have been convicted of certain types of crimes, are placed in formal
removal proceedings under INA § 240 rather than expedited proceedings under INA § 235(b)(1).
Additionally, expedited removal does not apply to unaccompanied alien children; if the government
intends to seek their removal, it must be through formal proceedings under INA § 240. Formal removal
proceedings confer more procedural protections—including the right to a hearing before an immigration
judge, the right to counsel at no expense to the government, and the right to some forms of administrative
and judicial review—than expedited removal proceedings.
Statutory Authority for the MPP
The primary legal issue raised by the MPP is whether DHS has statutory authority to implement it. DHS
contends that its authority to implement the policy comes from INA § 235(b)(2)(C), which states as
follows:
(C) Treatment of aliens arriving from contiguous territory
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 [Secretary of
Homeland Security] may return the alien to that territory pending a proceeding under section 1229a
of this title.
This provision authorizes DHS to return some aliens “described in subparagraph (A)” to Mexico pending
the outcome of the aliens’ formal removal proceedings. But whether that return authority encompasses
asylum seekers who arrive at the border without valid entry documents requires a closer look at the cross-
references in the statute. “Subparagraph (A)” refers to INA § 235(b)(2)(A). “An alien described in
subparagraph (A)” apparently does not include any alien who is subject to expedited removal under §
235(b)(1), because another subparagraph—INA § 235(b)(2)(B)—provides that “[s]ubparagraph (A) shall
not apply to an alien” to whom expedited removal applies under § 235(b)(1):
(A) In general
Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if
the examining immigration officer determines that an alien seeking admission is not clearly and
beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section
1229a of this title.
(B) Exception Subparagraph (A) shall not apply to an alien—
(i) who is a crewman,
(ii) to whom paragraph (1) [establishing expedited removal] applies, or
(iii) who is a stowaway.
In other words, aliens who are subject to expedited removal do not appear to fall within DHS’s return
authority under INA § 235(b)(2)(C). The return authority conferred by that provision only applies to
aliens “described in subparagraph (A),” which by virtue of the exclusions in subparagraph (B) does not
encompass aliens who are subject to expedited removal. And, as explained previously, aliens who arrive
at the border without valid entry documents—a group that includes most asylum seekers from Central
American countries—are generally subject to expedited removal and therefore do not appear to fall within
DHS’s return authority under INA § 235(b)(2)(C). Instead, INA § 235(b)(2)(C) appears to grant DHS
return authority only with respect to aliens seeking to enter the United States (other than stowaways and
crewmen) who are inadmissible on grounds other than the two grounds covered by the expedited removal
statute: a lack of valid entry documents or their attempt to procure admission by fraud. (For example, an
alien convicted of a drug trafficking offense would fall within the § 235(b)(2)(C) return authority.)

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Nonetheless, DHS appears to believe that § 235(b)(2)(C) applies even to aliens who generally fall within
the scope of the expedited removal statute. Its announcements make clear that it intends to apply the MPP
to asylum seekers who attempt to enter the country “illegally or without documentation.” The MMP
announcements do not, however, articulate legal reasoning to support this broad interpretation of DHS’s §
235(b)(2)(C) authority. One DHS regulation arguably supports the interpretation in providing that the
agency may, in its discretion, “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.” In the 1997 Federal Register notice that proposed this regulation, the legacy Immigration and
Naturalization Service (INS) said that the regulation recognized “long-standing [INS] practice” but did
not provide relevant statutory analysis. As such, it is unclear what legal arguments DHS would use to
defend in court its application of the MPP to asylum seekers who fall within a category generally subject
to expedited removal under INA § 235(b)(1).
DHS might pursue an argument based on the idea of enforcement discretion—namely, that it may bring
asylum seekers within the reach of § 235(b)(2)(C) by exercising discretion not to pursue expedited
removal orders against them. The USCIS guidance memorandum mentions the concept of “prosecutorial
discretion” in connection with the MPP. One potential challenge with this argument is that the expedited
removal statute uses mandatory rather than permissive language: it says that DHS “shall” implement
expedited removal procedures with respect to covered aliens. But DHS appears to have exercised
discretion to waive expedited removal in the past. For example, in 2004 DHS expanded expedited
removal to cover aliens who entered the U.S. without inspection, and who were apprehended within 100
miles of the border within 14 days of their entry. In doing so, the agency limited the application of
expedited removal to non-Mexican and non-Canadian nationals, and Mexican and Canadian nationals
with histories of criminal or immigration violations. Thus, nationals of Mexico and Canada were
generally placed in formal removal proceedings instead of expedited removal. In the Federal Register
notice announcing the expansion of expedited removal, DHS described the decision not to enforce the
new policy against most Mexican and Canadian nationals as “a matter of prosecutorial discretion.” In
addition, in the 1990s the INS reportedly had a policy of “permitting asylum seekers to wait in Mexico or
Canada for an affirmative asylum procedure in lieu of expedited removal proceedings.”
In short, although the INA seems to describe expedited removal in mandatory terms for aliens who meet
its criteria, DHS (and the legacy INS) previously asserted discretion not to employ expedited removal in
certain circumstances. It remains an open question, however, whether such exercises of discretion adhere
to INA § 235(b)(1), or whether the exercise of such discretion would allow DHS to compel aliens arriving
at or between ports of entry along the southern border to remain in Mexico while their asylum claims are
adjudicated. Courts do not appear to have decided these questions.
Other Legal Issues
Aside from the question of DHS’s statutory authority, the MPP may raise other legal issues. First, DHS
has reportedly decided to implement the MPP without promulgating regulations. This decision might
invite challenges under the Administrative Procedure Act (APA), which generally requires that agencies
follow specific rulemaking requirements when implementing new “legislative rules” (as opposed to
“interpretive rules” and “guidance documents,” which are not subject to APA rulemaking requirements).
DHS would likely argue that the MPP constitutes a “guidance document” rather than a legislative rule
because of the discretion that officers have (according to the DHS documents) to decline to apply the
MPP to individual aliens on a case-by-case basis.
Challengers might also claim that the MPP violates asylum seekers’ substantive and procedural due
process rights. Such claims would trigger unresolved questions about the extent to which aliens at the
threshold of entry to the United States enjoy due process protections (particular those of a procedural

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nature). In a different vein, any legal challenge to the MPP in federal court would have to be brought by a
party that has suffered a concrete and particularized injury on account of the MPP sufficient to confer
standing to sue. Asylum seekers denied entry to the United States under the policy may face obstacles in
stating claims against the MPP themselves, so the success of a legal challenge may depend, as a threshold
matter, on whether any organizations that provide services to asylum seekers can demonstrate that they
have standing to challenge the MPP directly. Advocacy organizations have succeeded in establishing
standing in challenging past immigration policies, including in the first stage of a challenge last year to a
currently suspended DHS regulation that would bar asylum claims by aliens who enter the country
unlawfully.

Author Information

Ben Harrington
Hillel R. Smith
Legislative Attorney
Legislative Attorney

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