Advocates Urge Supreme Court to Stop Revival of Migrant Protection Protocols

Today immigration groups and former immigration judges urged the U.S. Supreme Court in an amicus brief to stay a Texas court ruling that would force the Biden administration to revive the Migrant Protection Protocols (MPP) – an illegal Trump-era policy that forced people seeking asylum to await their U.S. court dates in perilous conditions in Mexico.

The lower court decision in Texas v. Biden, brought by Texas and Missouri, ordered the government to reinstate MPP, which the Biden administration had formally terminated in June. After the Fifth Circuit denied its request to stay the ruling, the administration appealed to the U.S. Supreme Court. On Friday Justice Alito granted an emergency stay temporarily blocking the district court order, which would have forced the government to resume MPP over the weekend. Now the administration, with support from amicus parties, is requesting a longer stay while the case plays out in the courts.

The amicus brief highlights fatal flaws in the lower court decisions, which fault Homeland Security Secretary Mayorkas for failing to consider MPP’s “benefits,” purportedly its success at deterring migration and fraudulent asylum claims. The evidence in this case reveals the opposite to be true. No matter what cruel policy the Trump administration devised, violence and insecurity in their home countries continued to force people to seek refuge at our border. MPP merely denied them access to the U.S. immigration system, trapping desperate families and adults in precarious conditions that exposed them to further violence.

Far from bringing greater integrity to the asylum process, the program’s procedural deficiencies, compounded by the inherent dangers in northern Mexico, prevented many asylum seekers from even making it to immigration court. As the sobering evidence in this case shows, many placed in MPP were kidnapped at the time of their hearings and denied protection through no fault of their own. Secretary Mayorkas rightly acknowledged the horrific consequences of MPP and the program’s intractable flaws when he terminated it.

This amicus brief was authored by the American Immigration Council, Center for Gender & Refugee Studies, Human Rights First, and the Southern Poverty Law Center and joined by the American Immigration Lawyers Association, Catholic Legal Immigration Network, Inc., Justice Action Center, National Immigration Law Center, and Round Table of Former Immigration Judges. Collectively, these organizations have decades of experience in asylum law practice and research, including close familiarity with MPP in particular.

“MPP was a human rights and due process catastrophe, and it was blatantly illegal,” said Blaine Bookey, Legal Director of the Center for Gender & Refugee Studies (CGRS). “The lower court rulings in this case rest on baseless, nativist claims that MPP deterred people from seeking safety at our border. This is objectively false and disregards ample evidence of the myriad harms caused by MPP. We are hopeful that the Supreme Court will see through the falsehoods and allow this case to proceed without forcing the administration to reinstate the policy in the interim. Lives hang in the balance.”

“We cannot let MPP go back into effect. Thousands of people have suffered the horrible consequences of this unlawful program. We’ve now asked the Supreme Court to stop the Texas court's decision and keep MPP a stain in the history books,” said Kate Melloy Goettel, Legal Director of Litigation at the American Immigration Council. “Forcing vulnerable families and children to wait in provisional camps in Mexico puts their lives at risk, while also making it nearly impossible for them to access the asylum process. Rather than turning away people fleeing harm, we should ensure providing people with a fair day in court.”

“MPP was a violation of domestic law and of the treaty obligations of the United States to protect refugees. It deliberately subjected asylum seekers to grotesque levels of violence and suffering in Mexico,” said Anwen Hughes, Director of Legal Strategy, Refugee Programs at Human Rights First. “We have been able to document over 1,500 publicly reported cases of murder, rape, kidnapping, and other violent assaults against asylum seekers returned to Mexico under MPP.  Many of these people were targeted for attack because they were migrants. The Department of Homeland Security had this information before it when it correctly decided to terminate this shameful policy. Quite aside from the other legal flaws in the district court’s and the Fifth Circuit’s decisions, pointed out in the Solicitor General’s stay application, a denial of a stay at this level would expose to terrible harm more asylum seekers who simply seek safety in the United States and a fair adjudication of their claims.”

“The Supreme Court has the opportunity to halt implementation of the injunction, which relied on erroneous reasoning that is not supported by the evidentiary record in this case,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center. “The Court must see through that rhetoric and acknowledge the reality that MPP forced people seeking protection into situations where they were vulnerable to sexual violence, kidnapping, hunger, disease, and death. This program, which is both illegal and immoral, cannot be permitted to continue.”

“Trump’s notorious ‘Remain in Mexico’ program was a legal and human rights disaster. It should be a shameful chapter in our history books, not resurrected,” said Esther Sung of Justice Action Center. “We joined this amicus brief to remind the Court and the country that Biden’s moves to unwind the program weren’t just lawful, they were warranted, just, and in line with our nation’s values.”

“CLINIC staff and volunteers have accompanied and provided legal counsel to thousands of men, women, and children who sought safety at our doors, only to be stranded in Mexico in inhumane conditions through MPP,” said Anna Gallagher, Executive Director of the Catholic Legal Immigration Network, Inc. “They desperately waited for protection and admission to one of the richest countries in the world, in increasing danger, by design of the U.S. government. MPP is a national shame, and we hope the Supreme Court will see through the anti-immigrant rhetoric and allow the government to wind down this harmful program.”

“The Supreme Court should stay the lower court order reinstituting the Remain in Mexico policy before it does further harm to vulnerable asylum seekers,” said Lisa Graybill, legal director at the National Immigration Law Center. “Ending the Remain in Mexico policy was the moral and lawful thing to do. Regardless of how the high court rules, the Biden administration must continue to support asylum seekers and their search for safety in the United States. This issue goes to the heart of what it means to be a just and welcoming nation.”