DHS Expands Expedited Removal, Reboots ‘Remain in Mexico’

The Department of Homeland Security has responded to President Trump’s “Securing Our Borders” executive order with the announcement that it has restarted the “Remain in Mexico” program, more formally known as the Migrant Protection Protocols (MPP). (You can find an explanation of all of Trump’s immigration executive orders here.) MPP is a process authorized by the Immigration and Nationality Act (INA) that allows DHS to return recent border-crossers to Mexico to wait for a hearing with an immigration judge.

Individuals placed in MPP are given court hearings on an expedited docket that allows aliens to present their cases (including asylum claims, or any other defense to removal) to immigration judges significantly faster than when processed through other means. It has been used by the Trump administration between 2019 and 2021 to deter illegal immigration over the southern border — and, unwillingly, by the Biden administration between November 2021 and August 2022, following a federal court order striking down the Biden administration’s recission of MPP.¹

MPP is also useful to employ when the country is experiencing high rates of border crossings. This is primarily because aliens subject to MPP do not have to be — and, in fact, are not — detained. Similar to Biden’s CBP One app scheme, migrants in MPP are given a time to return to a port of entry to be transported for a hearing with an immigration judge.² Aliens placed in other legal processes, such as expedited removal or standard (section 240) removal proceedings, on the other hand, are subject to mandatory detention pending the completion of their proceedings under INA § 235’s mandatory detention requirements.³

In October 2019, DHS determined that MPP was “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”. As my colleague Andrew Arthur reported, “Southwest border encounters dropped by 64 percent between May and September 2019, and encounters with “Central American families — who were the main driver of the crisis … decreased by approximately 80 percent.”

The MPP restart announcement was shortly followed by a Federal Register publication, signed by Acting Secretary of Homeland Security Benjamine C. Huffman, announcing the Trump administration’s decision to expand the scope of expedited removal proceedings — or in other words, who may be placed into expedited removal proceedings. Like MPP, expedited removal proceedings are authorized by the INA to ensure an expedited processing of recent border crossers. Unlike MPP, these proceedings occur while an alien is in the United States and subject to detention. Detention limitations, such as space and the 1997 Flores Settlement Agreement, however, inhibit DHS’s ability to comply with INA § 235’s mandatory detention provisions — particularly with regard to migrants who arrive as family units.

DHS’s decision allows the agency to exercise the full scope of its statutory authority to place aliens in expedited removal proceedings. Consistent with INA § 235, aliens who are determined to be inadmissible under sections 212(a)(6)(C) or (a)(7) of the INA (covering illegal entrants who lack valid entry documents or who engage in fraudulent or willful misrepresentation) who have not been admitted or paroled into the United States and who have been in the United States for less than two years can be placed in expedited removal, with limited exceptions including unaccompanied alien children (UACs). Previous policy limited its applicability, however, to only such aliens apprehended within 100 air miles of the United States international land border, and who were encountered within 14 days of their arrival.

DHS anticipates that this change will “enhance national security and public safety — while reducing government costs” by facilitating prompt immigration determinations and adjudications. The government explained that, “the full application of expedited removal authority will enable DHS to address more effectively and efficiently the large volume of aliens who are present in the United States unlawfully, without having been admitted or paroled into the United States, and ensure the prompt removal from the United States of those not entitled to enter, remain, or be provided relief or protection from removal”.

This expedited removal expansion is also being challenged by the ACLU and other organizations in the U.S. District Court for the District of Columbia. The challenge, however, has an uphill battle because that court already considered a similar case in 2020, called Make the Road v. Wolf, that challenged the first Trump administration’s attempt to expand expedited removal proceeding’s scope to its statutory limits. There, the court determined that, “Congress committed the judgment whether to expand expedited removal to the Secretary’s ‘sole and unreviewable discretion’” and therefore, is not subject to review under the Administrative Procedure Act. Moreover, that same year, the U.S. Supreme Court in DHS v. Thuraissigiam, held that recent alien arrivals have “only those rights regarding admission that Congress has provided by statute”, and found that expedited removal proceedings did not violate the Due Process Clause because aliens detained shortly after unlawful entries “cannot be said to have ‘effected an entry’”. (Citations omitted.)

End Notes

¹ The U.S. Supreme Court ultimately allowed the Biden administration to end its use of MPP in 2022.

² Biden’s CBP One app scheme, however, did not provide aliens with a prompt immigration court hearing, but instead allowed aliens to receive parole, be released into the interior, and apply for work authorization. Migrants were typically given appointments years (sometimes over a decade) into the future to appear before an immigration court.

³ Of course, the Biden administration did not detain many inadmissible aliens apprehended after crossing the border illegally. During this time, DHS used “alternatives to detention” and/or its parole authority, en masse, to release aliens into the interior, allowing them access to work authorization eligibility.