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MPP Program Slowly Coming to an End | Tafapolsky & Smith LLP


21 Feb 2021

United States

MPP Program Slowly Coming to an End

The 2018 Migrant Protection Protocols (MPP), also known as the “Remain in Mexico” policy, forced many asylum seekers at the southern border to wait in Mexico while their cases moved through U.S. immigration courts. Before MPP, individuals who presented themselves at the border with a credible asylum claim were either detained in ICE custody or released (“paroled”) into the U.S while their asylum cases were pending. 

In 2019 and 2020, more than 70,000 asylum seekers were enrolled in MPP. They were required to remain in Mexico to pursue their U.S. asylum cases, with many living in makeshift camps, tent cities, and homeless shelters. The number of MPP enrollees likely would have been higher, but as the COVID-19 pandemic became widespread in 2020, hundreds of thousands of people were turned away at the border—without the opportunity to even claim asylum—under emergency health orders based on Title 42 of the U.S. code.    

President Biden suspended the MPP program on his first day in office and ordered a stop to new enrollments. Three weeks later, the administration announced a plan to begin processing into the U.S. approximately 25,000 individuals still waiting in Mexico under the MPP program. The first phase of the plan is a virtual registration process facilitated by international partners—including UNHCR, the United Nations Refugee Agency—and priority will be given to those waiting the longest and those in the most vulnerable conditions. 

The legality of MPP was an issue under consideration by the U.S. Supreme Court in the case of Pekoske v. Innovation Law Lab but on February 1, 2021, the U.S. Department of Justice asked the Court to cancel oral argument and put the case on hold—a sign that it no longer intended to defend the legality of the program. In separate litigation brought by the ACLU, a U.S. district court ordered DHS on February 13, 2021, to remove seven asylum-seekers from MPP and permit their reentry into the U.S. for the pendency of their asylum proceedings. The court’s order included a finding that the MPP program likely violated U.S. immigration law. 

On February 19, 2021, the virtual portal was opened to allow those with active MPP cases to register for processing. Twenty-five pre-processed individuals were accepted into the U.S. on the first day and DHS launched a new MPP webpage to share information about how it is winding down MPP. So far, the announced plan is limited to those who are outside the U.S., enrolled in MPP, and with cases still active in a U.S. immigration court. No relief has been offered to the tens of thousands of MPP enrollees whose asylum cases were denied because they did not (and likely could not) appear. The Biden administration has also not yet presented a plan for processing new asylum seekers, most of whom are still being turned away under Title 42 public health orders.  

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