70,000 Returned to Mexico Through the Migrant Protection Protocols: Just Bad Policy Or Illegal as Well?

70,000 RETURNED TO MEXICO THROUGH THE

MIGRANT PROTECTION PROTOCOLS: JUST BAD

POLICY OR ILLEGAL AS WELL?

LAUREN GAMBARDELLA*

I. INTRODUCTION

The Migrant Protection Protocols (MPP), colloquially known as the

“Remain in Mexico” program, is a Trump-era immigration initiative.

Through this program, individuals entering or seeking admission to the

United States at the southern border—illegally or without proper documenta-

tion—are sent back to Mexico and forced to wait outside of the U.S. for the

duration of their immigration proceedings.

1

This was an extreme policy

change that immediately affected thousands of vulnerable individuals each

day.

2

Before the implementation of the MPP, asylum-seekers were entitled to

remain in the U.S. pending court proceedings as long as they established a

“credible fear” of persecution. “Credible fear” is a low threshold requiring

only that an individual demonstrates a “significant possibility” of establishing

eligibility for asylum.

3

Within two weeks of the program’s implementation,

the American Civil Liberties Union (ACLU) launched a legal attack on the

MPP on behalf of eleven asylum-seekers returned to Mexico and six legal-

service organizations, including Innovation Law Lab.

4

On March 1, 2021, the

Supreme Court was set to hear oral arguments in Mayorkas v. Innovation

Law Lab—the culmination of this two-year legal challenge.

5

However, the

Court granted the Acting U.S. Solicitor General’s request to remove this case

from its argument session because the Biden administration suspended the

MPP on January 20, 2021,

6

which could “potentially render the [case]

* J.D. Candidate, 2021, Georgetown University Law Center; M.A. Special Education, 2014,

National Louis University; B.A. Theology, 2012, Georgetown University. © 2021, Lauren Gambardella.

1. See Migrant Protection Protocols, DEP’T OF HOMELAND SEC. (Jan. 24, 2019), https://www.dhs.

gov/news/2019/01/24/migrant-protection-protocols.

2. Id.

3. Ashoka Mukpo, Asylum-Seekers Stranded in Mexico Face Homelessness, Kidnapping, and Sexual

Violence, AM. C.L. UNION, https://www.aclu.org/issues/immigrants-rights/immigrants-rights-and-

detention/asylum-seekers-stranded-mexico-face (last accessed Apr. 7, 2021).

4. Id.

5. See Pekoske v. Innovation Law Lab, SCOTUS BLOG, https://www.scotusblog.com/case-files/

cases/pekoske-v-innovation-law-lab/ (last accessed Apr. 7, 2021).

6. DHS Statement on the Suspension of New Enrollments in the Migrant Protection Protocols

Program, DEP’T OF HOMELAND SEC. (Jan. 20, 2021), https://www.dhs.gov/news/2021/01/20/dhs-

statement-suspension-new-enrollments-migrant-protection-protocols-program.

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