Only days before the 2018 midterm election, President Donald Trump called immigrants, or asylum seekers, fleeing violence an “invasion.” It was not unusual for Trump to use this type of pejorative language—Trump had publicly used demeaning terms such as “predator” and “killer” to refer to immigrants at the southern border not once or twice, but over 500 times. Though Trump insisted his intention was not to create division, political commentators have noted that the repetitive use of dehumanizing rhetoric was a purposeful tool used to engender a view of immigrants as a threat to the safety of the United States. Trump responded to his base’s support for one of his headline issues by enacting measures aimed at undercutting immigration flow and attacking the asylum system. Specifically, the Trump administration was determined to decrease the rate of migration across the southern border. Among the myriad of changes to immigration policy the government made to migrants’ detriment, the Migrant Protection Protocols (MPP), which unjustly kept asylum seekers in Mexico until their hearing date, was one of the most brutal. Immigration advocates were quick to challenge the program as a violation of the Immigration and Nationality Act (“INA”) and international law.
Joe Biden, in his acceptance speech for the Democratic Party’s presidential nomination, promised to undo Trump’s immigration policies and restore the asylum system. In fact, one of President Biden’s first actions was to end new MPP enrollments. However, in the first year of his presidency, Biden largely failed to move beyond words and make any of his promises on immigration a reality.
For one, Biden’s attempt to end the MPP was thwarted when the District Court for the Northern District of Texas enjoined its termination in August 2021 based on Administrative Procedure Act (APA) violations. This action forced the Biden administration to reinstate the program. In October 2021, DHS attempted to defend the MPP’s termination in a second memorandum explaining their agency action. However, because the injunction remained in effect, the government reinstituted the MPP in December 2021. Recent reports suggest that the MPP’s reimplementation is plagued by the same legal and due process violations symbolic of the program’s first iteration.
This Comment proceeds in four sections. Section II provides an overview of the MPP from inception under the Trump administration to reimplementation under the Biden administration. Section III discusses the MPP’s legal flaws and posits that it violates not only the INA and the United States’ international legal obligations, but also the Constitution’s Due Process Clause. Finally, Section IV concludes that the MPP should be terminated immediately and, in compliance with INA provisions, asylum seekers awaiting their proceedings in Mexico should be paroled into the United States.