Migrant Protection Protocols Ready to Restart Says New DHS Memo
Department of Homeland Security Secretary Mayorkas issued a memo today announcing the revival of the much-criticized Migrant Protection Protocols. The final hurdle that the Biden administration needed to clear was getting the support of the Mexican government. The memo says that the Government of Mexico gave its approval today on December 2, 2021.
Memo available here: Guidance regarding the Court-Ordered Reimplementation of the Migrant Protection Protocols
The memo describes how MPP will be implemented in far more detail than the memos from the Trump administration in late 2018 and January 2019. The memo attempts to emphasize that the administration is providing as much due process as possible by providing packets of information about the asylum process, access to telephones to call attorneys, and protections against refoulement, or the international law against returning people to countries where they are likely to be persecuted or tortured.
The memo says that migrants will be provided with COVID-19 precautions, such as face masks, vaccines, and social distancing inside detention facilities to the extent possible.
Given how difficult access to counsel has been for migrants in MPP, Mexico insisted on better access to counsel provisions. This is something I’m particularly interested in, so I’ll share the section in detail here.
Access to Counsel: DHS officials will ensure that those processed into MPP have reasonable and meaningful opportunities to access legal information in a language they understand and to access counsel or legal representation for non-refoulement interviews and removal proceedings.
This will include the following:
CBP will provide all MPP enrollees with legal resource packets.
CBP will provide MPP enrollees information provided by the Department of State about where they can locate places in Mexico to engage in telephonic or video communications with counsel.
All persons enrolled in MPP will have access to telephones (and, when feasible, video connection) to make calls free of charge to speak with counsel in a confidential setting during their time in DHS custody, including during the 24-hour consultation period prior to the non-refoulement interview.
As noted above, individuals referred to USCIS for a non-refoulement interview will have the option to have counsel participate telephonically during their interviews.
On the day of their hearings, all persons enrolled in MPP will have an opportunity to meet with counsel, in a confidential setting, prior to the start of their hearings.
All individuals enrolled in MPP will have an opportunity to have retained counsel present either in-person or by video during their court hearings.
It’s unclear whether these provisions will ultimately make a difference in the rates of representation or the outcomes of asylum cases in MPP. Time—and data—will tell.
For more information about the Migrant Protection Protocols, see my discussion from Monday (packed with links and relevant resources) below: