Jan. 5, 12:20 p.m.: This story has been updated to include comment from the Executive Office for Immigration Review on providing legal services to people placed in Migrant Protection Protocols.
Plastic chairs line the hallways of the seventh floor at a federal courthouse in Downtown El Paso, where a group of men from Nicaragua, Venezuela and Cuba sat Tuesday as they listened to “know your rights” legal presentations before attending their first U.S. immigration court hearing.
It was day two of El Paso hearings for enrollees in Migrant Protection Protocols, the controversial program also known as “remain in Mexico,” which restarted legal proceedings on Monday despite the Biden administration’s unsuccessful efforts to end the program.
First adopted during the Trump administration, MPP requires migrants and asylum seekers to await their immigration court hearings from Mexico. The program was reinstated at the El Paso port of entry in December after a successful lawsuit by Texas and Missouri that argued the program had been unlawfully terminated earlier in 2021. A federal court ruling siding with the states was upheld by the U.S. Supreme Court in August.
Immigration hearings under MPP had been suspended since March 2020 because of the COVID-19 pandemic.
The previous iteration of “remain in Mexico” has been decried by immigrant advocates for denying asylum seekers the right to seek asylum in the United States, and for widespread human rights abuses inflicted upon enrollees in Northern Mexican cities like Ciudad Juárez. It has also been criticized for low rates of legal representation among those enrolled in the program, increasing the hurdles to successfully gain asylum in the United States.
The rate of legal representation may not be much better in the restarted program, if the first two days of hearings are any indication, according to Yael Schacher, deputy director for the Americas and Europe at the humanitarian organization Refugees International.
“The vast majority of people (at Monday and Tuesday hearings in El Paso) are unrepresented,” she said. “And what that means is that … most people will be filling out their own asylum applications, or with minimal help, representing themself pro se.”
Schacher observed both court hearings and know your rights presentations for MPP enrollees at the El Paso courthouse on Monday and Tuesday. El Paso Matters was not permitted to observe a Tuesday court hearing, despite being provided a Department of Justice fact sheet that said “when court space is limited, media representatives have priority over the general public.” An Executive Office for Immigration Review representative at the courthouse cited COVID-19 capacity limitations as the reason for denying entry.
Schacher observed that among the 82 MPP enrollees who had hearings on Monday and Tuesday, only five had legal counsel.
An EOIR spokesperson said the agency is working to improve access to legal services for MPP enrollees, although few details were provided. Attorneys have struggled to provide legal assistance to MPP participants because their clients are in another country, often in dangerous Mexican border cities.
“EOIR is in the process of contracting with additional legal service providers to serve MPP enrollees when they enter the United States, including providing consultations prior to and during an enrollee’s non-refoulement interview before DHS,” the spokesperson said, who declined to be identified by name.
EOIR is also “encouraging and supporting” the provision of pro bono legal services for MPP enrollees, the spokesperson said.
Improved access to representation was among the listed changes to the revived program by the Biden administration, with the stated aim of making the program more humane. An additional change was an expedited timeline for MPP court hearings; a Department of Homeland Security press release committed to generally conclude legal proceedings within six months of enrollees being sent to Mexico to await a decision in their case.
DHS Secretary Alejandro Mayorkas has sternly criticized the program and continued to move toward terminating it, even as the DHS restarted it in compliance with the court order.
“MPP had endemic flaws, imposed unjustifiable human costs, pulled resources and personnel away from other priority efforts, and did not address the root causes of irregular migration,” Mayorkas said in an October memorandum explaining his decision to terminate the MPP program.
Since the program restarted in December, 217 single adult men have been returned to Mexico at the El Paso port of entry. According to data provided by Mexico’s Institute of National Migration to Human Rights First, 62% of those enrollees are from Nicaragua.
Other nationalities represented among new MPP enrollees include Venezuela, Cuba, Ecuador and Columbia.
People from Honduras, El Salvador and Guatemala are not currently being placed in MPP because they can be expelled under Title 42, a provision of public health law invoked by President Donald Trump in 2020 at the outset of the COVID-19 pandemic and continued by President Joe Biden. MPP currently has resumed primarily in the El Paso-Juárez region and restarted in San Diego on Monday. It is scheduled to be implemented at other locations on the U.S.-Mexico border in the coming weeks.
Schacher said that MPP enrollees with court hearings on Monday and Tuesday were all asylum seekers, explaining that when they were asked if they were fearful of returning to their home country, all raised their hands to indicate yes.
Schacher explained that MPP has been described by DHS as a program for foreign nationals who entered the country without legal documentation, but that the new version appears to be more narrowly used with those who are seeking asylum from persecution in their home country.
“So MPP is an asylum program at this point, it’s not a border program,” she said. “I think that’s an important distinction.”
Cover photo: Mexican immigration officials receive two Migrant Protection Protocols enrollees (center, wearing blue and gray) at the top of the Stanton Street bridge on Dec. 8. The program, which forces asylum seekers to stay in Mexico while they wait for their court hearings in the United States, was reinstated in early December. (Corrie Boudreaux/El Paso Matters)