Trump judges vs. Biden Part II

Trump judges vs. Biden: Immigration Priorities and Migrant Protection Protocol – Part II

by Jose Enrique Perez

The Biden Administration had been delivering good news for immigrants month after month. However, people from the right, specifically, from Texas have been filing lawsuits against the Biden administration to stop every single change. How are they doing it? You guessed it right: With Federal judges appointed by Trump.

Part I last month was about Biden’s Immigration Priorities and now this piece is about the Migrant Protection Protocols (MPP).

Trump’s baby, the Migrant Protection Protocols, started exactly 2 years ago. MPP or “Remain in Mexico” dramatically altered the processing of asylum claims at the U.S. southern border and made it far more difficult for asylum seekers to receive a fair and meaningful review of their claims. In September 2019, DHS opened massive temporary tent facilities in Laredo and Brownsville, Texas, that functioned as virtual immigration courtrooms for vulnerable asylum seekers subject to MPP. Many attorneys and the American Immigration Lawyers Association filed lawsuits for violation of due process and denial of access to counsel while these so-called tent courts operated. After several discoveries of memos and documents have been gained, now we know that the true intent of MPP was to discourage migration and how the Trump administration worked to limit access to MPP Tent Courts for attorneys, witnesses, the media and the public.

On March 23, 2020 – in response to the COVID-19 pandemic – DHS and EOIR suspended all MPP hearings. The implementation of the suspension was chaotic and confusing, leading some people to travel to ports of entry only to be turned away and others to miss the opportunity to get their notices of rescheduled hearings, so they would get removal orders without them even knowing that it was happening.

Two years after the Migrant Protection Protocols first began, new enrollments into this border processing program officially ended on January 20, 2021. Over this period, thousands of individuals arriving at the U.S. southern border seeking protection were forced to remain in Mexico pending their U.S. immigration court hearings.

Next, on February 11, 2021, DHS announced the beginning of the process to unwind MPP. In this initial phase, individuals in Mexico with active cases were permitted register online or by phone with the UNHCR and paroled into the U.S. at a port of entry.

Finally, on June 23, 2021, DHS expanded eligibility for processing into the U.S. to people in Mexico with in absentia orders of removal or whose cases were terminated. Notably, former MPP individuals who fled to safety in the U.S. and those who were forced to return to their home countries are permitted to register. However, DHS did not indicate how they will proceed with these categories of people and cases. Unfortunately, the June expansion does not protect people who were ordered removed following a final hearing in the tent MPP “courts.”

These were all good news until last month, a U.S. District Judge Matthew Kacsmaryk, appointed by Trump, issued a nationwide injunction directing the Biden administration to reinstate the Migration Protection Protocols, MPP/Remain in Mexico program. The court found that the termination of MPP violated the Administrative Procedure Act (APA) because DHS ignored critical factors, DHS’s given reasons were arbitrary, and DHS failed to consider the effect that terminating MPP would have on its compliance with 8 USC §1225.

Then, on August 25, 2021, the US Supreme Court has refused to stay the lower court ruling that will require the reinstatement of MPP. Now DHS and the Biden Administration will be complying with the order but are still appealing the decision. Therefore, we will have to hear from either the Fifth Circuit or the US Supreme Court later.

You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance about immigration policies. Furthermore, the article is not intended to explain or identify all potential issues that may arise in connection with this program or any new immigration policies. Each case is fact-specific and therefore similar cases may have different outcomes.

I represent individuals in immigration. If you have any questions or concerns about an immigration case or potential case, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at The Law Office of Jose Perez has now moved and is located at 659 West Onondaga Street, Upper Level, Syracuse, New York 13204. Now with offices in Buffalo and Rochester!!! Please look for my next article in the November edition and stay safe, get vaccinated and stay away from the Coronavirus.  In addition to our current practice of Personal Injuries, Work Accidents, Social Security and Immigration, we now also practice Criminal, Traffic, Family, DWI and Divorce.

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