On September 17, 2019, an Immigration Judge in San Diego, California, terminated removal proceedings for a family of aliens whom the U.S. Government had made subject to the Migrant Protection Protocol ("MPP"), colloquially known as the Remain in Mexico program. The Judge held that the Government had no authority to apply the MPP to aliens apprehended in the territory of the United States, as opposed to aliens classified as "arriving aliens." The Judge concluded that the only remedy available to the respondents in this situation was termination of the removal proceedings.
The decision, however, raises more questions than it answers.
The Government established the MPP during the 2018-19 winter to address the increase of Central American migrants traveling to the United States to seek asylum. Prior to the MPP, the Obama Administration implemented the Catch and Release program, where certain migrants apprehended by the Government were released on bond into the United States pending removal proceedings. In most cases, these were migrants who claimed a fear of persecution if they were returned to their home country, and who passed a credible fear interview.
President Trump, who greatly opposed to the Obama Administration's Catch and Release program, sought to implement the MPP to prevent the Central American migrants from remaining in the territory of the United States pending removal proceedings. Mexico had agreed to permit certain migrants to remain in Mexican territory during the pendency of their removal proceedings in the United States.
Pursuant to the MPP, if a migrant who lacked proper visa documentation or attempted to gain entry based on fraud claimed fear of persecution, immigration officials would follow the procedures set forth in section 235(b) of the Immigration and Nationality Act ("INA"), and refer the migrant to an asylum officer for a credible fear interview. If the migrant passed the credible fear interview, U.S. Immigration and Customs Enforcement ("ICE") would issue a Notice to Appear and commence removal proceedings, where the migrant could apply for asylum before an Immigration Judge. Once in removal proceedings, ICE returned the migrant to Mexico, where the migrant would wait for his or her next Immigration Court hearing.
The Government's authority to implement the MPP stemmed from section 235(b)(2)(C) of the INA. That section of the statute provided that if an alien arrived on land from a foreign country contiguous to the United States, that alien could be returned to the contiguous country pending removal proceedings. This provision of the INA, however, is subject to the exception of aliens who are eligible for expedited removal.
Through expedited removal, immigration authorities may remove an alien who either lacks proper documentation, or has attempted to enter through fraud, without subjecting that alien to formal removal proceedings before an Immigration Court. Expedited removal applies to aliens apprehended at a port of entry or at the border, or who are apprehended within 100 miles of the border and cannot prove that they entered more than 14 days prior to the apprehension.
Currently, the MPP is subject to litigation in federal court. Opponents of the program argue that the Government cannot apply the MPP to aliens who are eligible for expedited removal because of the statutory exception. The Government replies that it has discretion on whether to apply expedited removal. If the Government chooses not to apply expedited removal, despite the alien's eligibility, and instead places the alien in full removal proceedings before an Immigration Court, then the MPP may apply to that alien.
The decision of the Immigration Judge in San Diego does not address the federal litigation over the MPP. Indeed, Immigration Courts lack the authority to address such litigation. Immigration Courts are not part of the Judiciary Branch of Government. They are instead more akin to administrative courts, and are part of the Executive Branch. As such, Immigration Courts only have the authority as set forth in the INA, which is to adjudicate whether the specific alien before it is removable from the United States.
The Immigration Judge did address a different issue raised by the MPP. Namely, whether the MPP can be applied to aliens who do not meet the definition of an arriving alien. An arriving alien is specifically defined as an alien who presents himself or herself for inspection at a port of entry, or who is apprehended on the border. The Immigration Judge noted that 90% of the aliens who were being placed in the MPP and sent back to Mexico awaiting removal proceedings were aliens apprehended in the territory of the United States. That is, aliens who crossed the border and were found by immigration authorities inside U.S. territory. This is a separate category of aliens. The Judge emphasized this point, noting that arriving aliens possess fewer rights than aliens apprehended within the United States. Because section 235(b)(2)(C) expressly applied to arriving aliens, the Judge held that the Government violated the law by applying the MPP to aliens apprehended within the United States.
However, the Immigration Judge noted that it was a court of limited authority. The court had no authority to order the Government to bring the aliens wrongfully placed in the MPP back into the United States from Mexico. The only authority it had was to terminate the removal proceedings, without prejudice. This means that the Government could refile the Notice to Appear and being new removal proceedings. But the court could not order that the Government do so.
Although the decision is significant in that it finds that the U.S. Government is applying the MPP in an illegal manner, the outcome raises more questions than it answers. It does not answer the question of whether the aliens wrongfully placed in the MPP will eventually return to the United States. Indeed, arguably the Government could just ignore the aliens who are already in Mexico, and refuse to restart removal proceedings. Under such circumstances, the aliens may need to begin more litigation, such as a habeas corpus proceeding, or sue the Government for a breach of constitutional rights. The ultimate success of such litigation remains in doubt.
Moreover, the Government can appeal the Immigration Judge's decision to the Board of Immigration Appeals. The future of the particular migrants subject to this decision, as well as others similarly situated, remains clouded.
By: William J. Kovatch, Jr.
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