The Congressional Research Service (CRS) on May 9, 2019 issued an update regarding the legal complexities arising from the Migrant Protection Protocols (MPP). The government program is currently being challenged in the U.S. Court of Appeals for the Ninth Circuit. A ruling is not expected until later in 2019.
On May 7, 2019, a three-judge panel issued the government an emergency stay of a preliminary injunction, allowing the MPP to remain in effect while the federal appeals court evaluates its legality. The preliminary injunction was granted in April 2019 by a district court in a lawsuit seeking to prohibit the U.S. Department of Homeland Security (DHS) from implementing the MPP. The district court ruled that the policy likely violated U.S. immigration law.
According to the CRS, one of the appeals court judges acknowledged DHS is likely to have the legal authority to enforce the MPP, but the judge described the policy as “ill-suited” and expressed concerns about U.S. border agents sending migrants back to Mexico without asking whether they feared facing persecution or torture upon returning there. Despite these concerns, the judge agreed to issue the emergency stay after noting that procedures for evaluating such risks could be modified without wholly prohibiting the MPP.
Another Ninth Circuit judge argued that the government is “clearly and flagrantly wrong.” The existing law does not provide DHS with statutory authority to enforce the MPP. The judge pointed out that the policy is not applicable to migrants who qualify for expedited removal, regardless of whether the DHS chooses to place them in formal proceedings.
Under the MPP, DHS requires incoming migrants to remain in Mexico while awaiting their court hearings in the United States. According to media reports, immigration officials have returned around 12,000 people to Mexico under the policy since it was implemented earlier in 2019.