Opponents of the Migrant Protection Protocols (MPP), commonly known as the “Remain in Mexico” program, say, “It forces asylum-seekers to wait in Mexico until their cases are resolved here, putting migrants at risk of kidnapping, forced gang recruitment, rape, and murder on the other side of the border.”

But they aren’t asking DHS to make waiting in Mexico safer.

And many of the nation’s nonprofits that provide legal service to asylum-seekers are refusing to provide their services to the migrants in the MPP. They claim that the program doesn’t just put the immigrants in danger, it also endangers the attorneys and humanitarian groups that help them. But the government can — and should — make arrangements with the Mexican government to protect the MPP participants and the people who provide legal services for them. If nothing else, it should be possible to arrange for assistance to be provided with video conferencing.

There’s very little chance that the MPP will be terminated in the foreseeable future.

Attempts to end the MPP

On Jan. 20, 2021, DHS issued a statement that suspended new enrollments in the MPP. Four months later, it issued a memorandum terminating the program.

On Aug. 13, 2021, a federal district court held in Texas and Missouri v. Biden that the MPP termination was unlawful procedurally because it did not comply with the provisions in the Administrative Procedure Act (APA) and substantively because it caused the administration to systemically violate the mandatory detention provisions in INA section 1225.

The court issued a nationwide injunction ordering the administration to:

“enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under Section 1255 without releasing any aliens because of a lack of detention resources.”

The government appealed to a U.S. Court of Appeals for the Fifth Circuit, but the circuit court affirmed the district court’s decision on Dec. 13.

Then, the administration filed a petition for a writ of certiorari asking the Supreme Court to review the case. That is not likely to end well.

The government’s arguments to the Supreme Court



Published originally on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.