DHS Seeks to Clarify Migrant Protection Protocols as Lawsuits Erupt

In December, the Department of Homeland Security (DHS) introduced Migrant Protection Protocols (MPP) aimed at reducing the number of asylum seekers living in the U.S. awaiting immigration court proceedings. These directives have come under fire by civil liberties groups claiming a lack of due process protections. Now, DHS Secretary Kirstjen M. Nielsen is working to clarify the MPP rules to avoid further legal scrutiny.

Under MPP, individuals seeking admission to the country may be returned to Mexico while awaiting immigration proceedings.

Secretary Nielson testified before Congress that , “more than not,” asylum seekers enter the country but fail to show up to immigration court. Instead, they remain living in the country illegally. While the DOJ contends Nielson’s claim and presents evidence that a majority of asylum seekers do show up in court, the MPP functions to prevent unlawful residence in the country while awaiting court proceedings.

The Southern Poverty Law Center (SPLC) and American Civil Liberties Union (ACLU) filed a law suit against the policy last week. The suit claims that the MPP violates the Immigration and Nationality Act, the Administrative Procedures Act, and various international human rights laws by violating due process rights for the immigrants.

In a policy memorandum released by the DHS, Secretary Nielson defends the legality of the policy, noting, “Section 235(b)(2)(C) of the Immigration and Nationality Act (INA) provides that aliens arriving by land from a foreign contiguous territory (i.e., Mexico or Canada)—whether or not at a designated port of entry—generally may be returned, as a matter of enforcement discretion, to the territory from which they are arriving pending a removal proceeding under Section 240 of the INA.”

The memo further clarifies the MPP to better protect those possibly eligible for protective status, it explains, “Upon a referral by a DHS immigration officer of an alien who could potentially be amenable to the MPP, the [U.S. Citizenship and Immigration Services] asylum officer should interview the alien to assess whether it is more likely than not that the alien would be persecuted in Mexico on account of his or her race, religion, nationality, membership in a particular social group, or political opinion (unless such alien has engaged in criminal, persecutory, or terrorist activity…), or that the alien would be tortured in Mexico.”

The memo outlines the best course of action border officers should take when interviewing and assessing migrants for removal.

The DHS began implemented MPP on January 28, 2019, at which time Secretary Nielson said, “The MPP will provide a safer and more orderly process that will discourage individuals from attempting illegal entry and making false claims to stay in the U.S., and allow more resources to be dedicated to individuals who legitimately qualify for asylum.”

The SPLC and ALCU suits were filed in the Northern District of California and will likely determine the legality of this policy in time.