Demanding Records About the Migrant Protection Protocols Program

The U.S. Department of Homeland Security (DHS) implemented a drastic change to our asylum system with the announcement of the Migrant Protection Protocols (MPP)—also known as Remain in Mexico—on January 24, 2019.

The program raises alarming safety and due process questions. However, the government has refused to disclose information about how the program is being implemented.

What is MPP and why are there concerns with the policy?

MPP imposed a new requirement that asylum-seekers wait in Mexico while the U.S. government decides their asylum claims. Mandating that asylum-seekers wait in Mexico while they pursue their asylum claims is an unprecedented shift in U.S. asylum policy and procedure.

Media outlets and non-governmental organizations have exposed MPP’s systemic infringement on due process rights, such as the right to notice of and access to court hearings. Reports also have documented the physical harm—including kidnapping and death—that asylum-seekers have faced while awaiting decisions on their asylum claims in Mexico.

Why was this Freedom of Information Act (FOIA) request filed?

DHS has not made guidance or information about how the MPP operates available to the public, advocates, attorneys, and asylum-seekers directly impacted by this new program. Multiple government agencies are responsible for implementing MPP, but no agencies have provided badly needed information about how the program functions.

In order to gain an understanding of MPP policies and procedures, the American Immigration Council (Council), the American Immigration Lawyers Association (AILA), and Human Rights Watch (HRW) filed Freedom of Information Act (FOIA) requests to six agencies and component agencies. The organizations asked that the requests receive expedited treatment.

What records did the government release?

Four of the agencies have produced over 1,000 pages in response to our FOIA lawsuit. Most of the documents are from the Executive Office for Immigration Review (EOIR) and include emails among immigration judges and officials implementing MPP. See the government records on DocumentCloud.

Notable documents include:

• MPP Standard Operating Procedures for ICE personnel in El Paso and San Antonio, and CBP personnel in El Paso. These documents guided the agency as it implemented MPP and expelled 65,000 people—many of them seeking asylum—from the United States to Mexico to wait for their U.S. immigration court hearings. 
• A DHS memo detailing available “removal pathways” that provides new information on the little-known Electronic Nationality Verification program (ENV). ICE and CBP use ENV to speed up the deportation of certain Central Americans.
• A redacted draft agreement between the United States and Mexico regarding MPP, which may not have been signed.
• Courtroom maps with social distancing layouts for the El Paso, Harlingen, San Antonio, and San Diego immigration courts.
• An email exchange where high-level EOIR officials discussed potentially having to “shut down entire courts” to deal with MPP.
• Formal confirmation that the Trump administration considered having Hawaii immigration judges hear cases in San Diego and keeping immigration courts open almost to midnight.

• An email exchange discussing how in April 2017, ICE Enforcement and Removal Operations (ERO) “drafted a memorandum outlining the fact that CBP’s [OFO] convened a working group to identify resource needs and develop a proposed PC, which DHS now refers to as MPP, implementation strategy.” According to the email exchange, there were site visits to determine where hearings could take place. There is further discussion about this earlier strategy development and the 2017 memorandum is provided, but entirely redacted. This email correspondence indicates discussion and planning regarding MPP began years before its formal implementation.

• An entirely redacted memo establishing framework of MPP: CBP Establishment of Immigration Courts at CBP Ports of Entry April 4, 2017.
• An email exchange discussing earlier memo re MPP and desire to Implement MPP at a "very rapid pace."
• An email requesting explanation for why MPP cannot be operational by March 1, 2019 and that there should be at least 20 Port of Entry returns a day starting March 1m 2019.
• A February 2019 email outlining costs of MPP, including costs for private services, guards and lunches for individuals transported to border and costs of transporting individuals to the border.
• A February 2019 email describing how MPP was envisioned to operate, including discussion regarding access to counsel with MPP. According to the email, prior to implementation, there was "no mechanism" for individuals in MPP to meet with counsel prior to a hearing in part because CBP did not want to "deal with attorneys" at Ports of Entry.