5,000 Asylum-Seekers Added to the Migrant Protection Protocols 2.0, Few are Granted Asylum

Published Jun 14, 2022

Case-by-case Immigration Court records current as of the end of May 2022 show that during the last six months, over 5,000 asylum seekers have been required to remain in Mexico under the Migrant Protection Protocols (MPP) while awaiting their Immigration Court hearings. Cases in MPP are generally being completed within the 180-day time frame set by the administration, but the problem with low rates of access to attorneys that plagued the first implementation of MPP continue this year.

This report provides an initial examination of how this court-ordered reimplementation of MPP—commonly referred to as MPP 2.0—is working since it restarted last December 2021.

Background

During the Trump administration, over 71,000 asylum seekers were required to remain in Mexico while they awaited their Immigration Court hearings under MPP 1.0. When President Biden assumed office in January of 2021, there were still 29,000 of these cases still pending.[1] President Biden initially stopped placing any additional individuals into this program and undertook an initiative, coordinated with the United Nations High Commissioner for Refugees (UNHCR) and others, to allow immigrants assigned to this program to apply to transfer their cases so that they could be heard by regular Immigration Courts within the U.S.

However, several states challenged the Biden administration’s actions and a federal district court enjoined his termination of MPP. The Department of Homeland Security (DHS) was ordered to once again assign asylum seekers arriving along the Southwest land border to remain in Mexico while awaiting their court hearings. In compliance with this court order, while court appeals proceeded, new guidelines were issued by the Biden administration on December 2, 2021. A number of changes were made for this reimplementation of the Migrant Protection Protocols (MPP) program (MPP 2.0). Among these, were changes which sought to “protect individuals’ rights to a full and fair hearing of their cases.”

Case-by-case Immigration Court records on these MPP proceedings, current as of the end of May 2022, were obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University through a series of Freedom of Information Act (FOIA) requests to the Executive Office for Immigration Review (EOIR). According to these court records, since December 2021, a total of 5,114 asylum seekers have been assigned to the MPP 2.0 program.

Pace of New MPP Enrollments and Case Completions

While MPP 1.0 under Trump had also been designed to attempt to expedite processing of these asylum cases, under MPP 2.0 the aim was to speed case completions even further. Under the guidelines, cases assigned to MPP were not supposed to exceed the capacity of EOIR to generally complete assigned cases within 180 days. The guidelines, however, also made clear that Immigration Judges retained discretion to grant continuances for “good cause shown.” As a result, the 180-day goal can be better understood as a soft target, because some cases would need to take longer in order to ensure “a full and fair hearing.”

The records to date suggests that the administration thus far has been largely successful in its aim to speed up court proceedings. During December 2021, a total of 129 asylum seekers were assigned to MPP 2.0. By the end of May 2022 for those assigned at the beginning of December, 180 days have passed while the remainder will reach the 180-day mark shortly. For these initial 129 cases, over eight out of ten (81%) now have been completed. And completion rates have already passed the halfway mark for cases with Notices to Appear (NTAs) issued in January and February 2022. See Figure 1.

There will be challenges for keeping this pace up. December saw a relatively small number assigned to MPP 2.0. Since then, as shown in Figure 1, the monthly pace of new MPP court filings has steadily grown to over 2,000 in May 2022. Thus, it may be difficult for the Court to maintain this same processing pace with the growing number of cases it is now receiving from DHS each month.

Further, MPP 2.0 cases have not been evenly spread among hearing locations. While those assigned in December were primarily heard by the El Paso Immigration Court which received 109 cases, El Paso hasn’t been particularly deluged with new cases as MPP monthly assignments climbed. It now has 923. In contrast, the MPP Brownsville Immigration Court has now been assigned 2,752 new cases – more than half (54%) of all MPP 2.0 assigned cases as of the end of May. Relatively smaller numbers have been assigned to other MPP courts. The MPP Laredo, Texas (Port of Entry) Immigration Court has been assigned 404 MPP cases, and an additional 76 cases have been assigned to the Laredo Immigration Court. The MPP Court San Ysidro Port has received only 386 cases so far. The volume and pace of receipts has thus varied from court to court and, depending upon judge availability, could well impact the pace of MPP completions going forward.

Few Asylum Seekers Are Represented or Successful

The initial MPP 1.0 program was severely hampered by a number of serious problems. One key problem was the inability of asylum seekers to obtain legal representation while they remained in Mexico. In fact, by January 2021 less than 8 percent (7.8%) of the 71,062 asylum seekers had obtained attorneys to assist them. [2] Yet, all evidence demonstrates that asylum seekers without representation have greatly reduced odds of success. For asylum seekers inside the U.S., for example, representation rates of 80 percent or higher were typical on cases decided during comparable periods of time. [3]

Under MPP 1.0, the end result was that less than one percent (0.9%) or just 641 individuals out of the over 71,000 asylum seekers had been successful in obtaining asylum or any other form of relief. Limiting the comparison to those whose cases had been concluded by the end of the Trump administration after two full years of MPP’s operation, these 641 out of the 42,000 concluded cases represented just 1.5 percent. The remainder lost their asylum bid, often by being issued a deportation order in absentia.

The initial evidence from just six months of operation under MPP 2.0 is that history is largely repeating itself. Finding attorneys has again proven difficult. Thus far only 5 percent of those assigned to MPP 2.0 have been able to find representation. While representation rates increase to some extent when an asylum seeker has more time to search for an attorney (see Table 1), finding representation is still extremely difficult when asylum seekers are trying to find attorneys familiar with U.S. asylum laws when they are still in Mexico.

The accelerated processing rate of MPP 2.0 also means that there is less time for asylum seekers to find an attorney. Similar rocket docket initiatives for asylum seekers – even those who were allowed into the country while their cases were under consideration by the Immigration Court – have had difficulty locating pro bono attorneys able and willing to take their cases. [4] And if the numbers assigned to MPP 2.0 grow, the already limited supply of pro bono attorneys willing and able to take on clients located in Mexico may act as a further constraint. As a direct result of the accelerated pace and the difficulty of finding representation, for the 5,100 asylum seekers in MPP 2.0, so far just 27 have been successful in being grant asylum or some other form of relief. Out of the 1,109 cases which have concluded thus far, these 27 represent just 2.4 percent. This is a dismal asylum success rate. During the same period of FY 2022, fully half of all Immigration Court asylum decisions resulted in a grant of asylum or other relief. [5]

Conclusion

It is still early in the implementation of MPP 2.0 . Thus, the above results are preliminary in nature. But they do raise some warning flags. Much more detailed analysis will be warranted as the experience builds in this program’s operation.