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Migrant Protection Protocols: Legal Issues
Related to DHS's Plan to Require Arriving
Asylum Seekers to Wait in Mexico
Updated May 9, 2019
Update: The Migrant Protection Protocols (MPP) remain in effect after an initial round of
litigation (which followed initial publication of this Sidebar). On May 7, 2019, a motions panel
of the U.S. Court of Appeals for the Ninth Circuit granted the government an emergency stay of a
preliminary injunction issued by a federal district court in a lawsuit challenging the legality of
the MPP The district court had issued the injunction after concluding that plaintiffs were likely
to succeed in their argument that the statutory provision relied upon by the Department of
Homeland Security (DHS) to institute the MPP, § 235(b) (2) (C) of the Immigration and
Nationality Act (INA), did not apply, and even if it did, further procedural protections would be
required to conform to the government's acknowledged obligation to ensure aliens are not
returned to unduly dangerous circumstances. The preliminary injunction, had the Ninth Circuit
allowed it to take effect, would have prohibited DHS from continuing to implement the MPP The
emergency stay perm its DHS to enforce the MPP pending its appeal of the preliminary
injunction. DHS has returned more than 3, 000 aliens to Mexico under the MPP thus far,
according to press reports.
In granting the emergency stay, the Ninth Circuit reasoned that the return authority of INA §
235(b)(2) (C) covers asylum seekers who are eligible for expedited removal proceedings (based
on their lack of valid entry documentation) but whom DHS opts to place informal removal
proceedings instead. [W]e think that Congress 'purpose was to make return to a contiguous
territory available during the pendency of [formal] removal proceedings, as opposed to being
contingent on any particular inadmissibility ground, the court wrote. One judge disagreed,
rejecting as clearly and flagrantly wrong the proposition that § 235(b)(2)(C) provides
statutory authority for the MPP In this judge's view, § 235(b)(2)(C) does not apply to aliens who
are eligible for expedited removal, regardless of whether DHS decides to place them informal
proceedings in lieu of expedited proceedings.
Congressional Research Service
https://crsreports.congress.gov
LSB10251
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govzpu0001&div=1&collection=&method=preview&ext=.png&size=3)
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