Subsequent Trump-Era and Court Action(s)

• January 25, 2019

  DHS Memorandum: Policy Guidance for Implementation of the Migrant Protection Protocols

  DHS's policy guidance details Secretary Nielsen's legal justification for the Migrant Protection Protocols (MPP) under INA section 235(b)(2)(C), categorizing the policy as prosecutorial discretion. MPP allows DHS to return citizens and nationals of countries other than Mexico who arrive in the United States by land from Mexico -- without inspection or without proper documentation -- to Mexico during the pendency of their removal proceedings.

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• April 1, 2019

  Press Release: Secretary Nielsen Orders CBP to Surge More Personnel to Southern Border, Increase Number of Aliens Returned to Mexico

  DHS Secretary Nielsen issues a memorandum to CBP outlining new steps the agency must take, including reassigning hundreds of CBP personnel to the southern border and expanding the Migrant Protection Protocols (MPP), to return asylum seekers to Mexico during the pendency of their U.S. immigration proceedings.

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• August 21, 2019

  AP: 900 asylum seekers returned to wait in Mexican border city

  Pursuant to MPP, the U.S. government has reportedly sent approximately 3,000 people with pending U.S. immigration proceedings to wait in Mexico’s Tamaulipas state. According to the Tamaulipas state immigration office, the United States is sending back groups of 50 to 100 migrants almost daily to the border city of Matamoros. MPP implementation began at the San Ysidro port of entry on or about January 28, 2019.

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• September 6, 2019

  Policy Brief: DHS and DOJ Are Opening Secretive Port Courts Along the Southern Border

  AILA reports that DHS is building massive temporary tent facilities in Laredo and Brownsville, TX, that will function as virtual immigration courtrooms for MPP cases, with many of the detailed immigration judges adjudicating cases via video teleconferencing (VTC). See also, Washington Post: "Along Texas border, Trump administration sets up tent courts for virtual asylum hearings," (Sept. 18, 2019), https://www.washingtonpost.com/immigration/along-texas-border-trump-administration-sets-up-tent-courts-for-virtual-asylum-hearings/2019/09/18/f29d1326-d9bc-11e9-adff-79254db7f766_story.html.

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• October 28, 2019

  DHS Expands MPP Operations to Eagle Pass

  DHS will implement MPP at the Eagle Pass, TX port of entry, increasing to six the number of ports of entry engaged in implementing MPP. According to DHS, the Mexican Government has agreed to "accept returns." Asylum seekers attend immigration hearings at a temporary hearing facility in Laredo, TX. For a news report, see https://www.voanews.com/a/usa_immigration_us-adds-sixth-city-controversial-remain-mexico-program/6178487.html

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• January 2, 2020

  DHS Begins MPP Returns at Nogales Port of Entry in Arizona

  DHS begins processing migrants for return to Mexico under MPP at the Nogales Port of Entry south of Tucson, Arizona. This brings the total number of MPP ports of entry to seven.

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• January 29, 2020

  DHS expands MPP to Brazilian nationals

  DHS began processing Brazilian migrants for return to Mexico under MPP.

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• March 11, 2020

  ACLU | Innovation Law Lab v. Wolf

  A federal district court enjoined MPP on April 8, 2019. The Ninth Circuit stayed the injunction pending appeal, and then affirmed it on Feb. 28, 2020. The Supreme Court stayed the injunction on Mar. 11, 2020, and granted certiorari on Oct. 19, 2020. Oral argument scheduled for Feb. 2021 was postponed and then dismissed as moot at the new administration's request. See Innovation Law Lab v. Wolf (N.D. Cal. 3:19-cv-00807) (9th Cir. 19-15716) (SCOTUS 19-1212).

  **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

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• October 28, 2020

  Immigrant Defenders Law Center v. Wolf - Complaint (Oct. 28, 2020)

  On October 28th, 2020, a group of organizational plaintiffs and a class of asylum seekers filed another challenge to the MPP policy. Although overlapping with other lawsuits, this one also argues that the policy violates asylum seekers' "First Amendment rights to hire and consult an attorney and petition," and Fifth Amendment due process rights. See Immigrant Defenders Law Center et al. v. Wolf et al., (N.D. Cal. 2:20-cv-09893).

  On November 2, 2020, the Texas Civil Rights Project filed a new challenge to the MPP policy, seeking relief for asylum-seekers with disabilities. See E.A.R.R. v. DHS (S.D. Cal. 3:20-cv-02146).

  ** Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

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• December 7, 2020

  Supplemental Policy Guidance for Additional Improvement of the Migrant Protection Protocols

  DHS issues supplemental policy guidance on MPP. The guidance, which does not replace previous guidance, provides additional information on counsel participation in non-refoulement assessments (where it does not delay the interview), appeals processes, the treatment of family units, including mixed-nationality family units, the treatment of unaccompanied minors, exemptions from MPP for medical and mental health reasons, the use of restraints when transporting migrants, and interagency collaboration.

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• January 14, 2021

  ImmDef v. DHS Press Release

  Immigrant Defenders and RAICES with Justice Action Center and Simpson Thacher & Bartlett LLP filed a lawsuit seeking to protect the statutory and constitutional due process rights of unaccompanied immigrant children.

  ** Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

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• August 13, 2021

  2021.08.13 Texas v. Biden, Case No. 2:21-cv-00067-Z (N.D. Texas, Aug. 13, 2021).

  On August 13, 2021, Judge Matthew J. Kacsmaryk of the Northern District of Texas, Amarillo Division, enjoined the Biden administration's June 1, 2021, memo terminating MPP, requiring the Biden administration to re-start MPP with monthly status reports to the court.

  ** Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

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• August 19, 2021

  Texas v. Biden, No. 21-10806 (5th Cir., Aug. 19, 2021).

  On August 19, 2021, the Fifth Circuit denied the government's motion for a stay of Judge Kacsmaryk's nationwide injunction pending appeal. The Fifth Circuit ruled that the government retains the option to parole asylum seekers into the U.S. and is not limited to "return to Mexico or detain," as the district court had stated.

  ** Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

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• August 20, 2021

  Biden v. Texas, No. 21A21 (U.S., August 20, 2021).

  On August 20, 2021, Justice Alito temporarily stayed Judge Kacsmaryk's nationwide injunction until August 24, 2021, "so that the full Court can consider the application."

  On August 24, the Supreme Court denied the government's motion for an emergency stay.

  ** Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

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• December 13, 2021

  2021.12.13 (revised 2021.12.21) Texas v. Biden, No. 21-10806 (5th Cir., Dec. 13, 2021).

  On December 13, 2021, the Fifth Circuit affirmed the district court and denied the government's motion to vacate and remand for further proceedings given its second termination memo attempting to rescind MPP.

  ** Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

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• June 30, 2022

  2022.06.30 21-954 Biden v. Texas

  On June 30, 2022, the Supreme Court issued Biden v. Texas, reversing the Fifth Circuit and remanding the case. The Court held that the district court erred in issuing an injunction, that rescinding the MPP program did not violate the INA, and that the Biden administration's October 2021 memo rescinding the program for a second time was final agency action that the district court should have reviewed. The case was remanded for further proceedings under the Administrative Procedure Act.

  ** Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

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• August 8, 2022

  2022.08.08 Texas v. Biden NDTX order vacating injunction

  On August 8, 2022, the Northern District of Texas vacated its 2021 injunction ordering MPP's reimplementation. The injunction was vacated in accordance with the Supreme Court's June 30, 2022 decision in Biden v. Texas.

  ** Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

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