Lankford, Grassley Call Out Failure to Restart Remain in Mexico Policy

WASHINGTON, DC — Senators James Lankford (R-OK), Ranking Member of the Senate Homeland Security Subcommittee on Government Operations and Border Management, and Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, sent a letter to DHS Secretary Alejandro Mayorkas to share their concerns on the efforts to re-implement the Migrant Protection Protocols (MPP) program, or ‘Remain in Mexico’ policy. Lankford and Grassley have repeatedly asked for information and raised significant questions about whether DHS is following the District Court’s order to resume the program in “good faith.” 

In the letter, Lankford and Grassley wrote, “Since MPP has been re-implemented, we have repeatedly asked for information on the number of MPP enrollees who have claimed a fear of return in their non-refoulement interviews (NRIs), either during initial enrollment in MPP or post-enrollment, and the guidance DHS officials use to make these determinations. While DHS has provided us with information on the number of migrants who have been disenrolled from MPP pursuant to a fear claim, DHS has not yet shared the guidance or information we have requested.

“On February 15, 2022, DHS officials held a briefing with the Senate and House oversight and authorizing Committees. During this briefing, DHS officials informed our staffs that DHS is not currently keeping records of which vulnerability a MPP enrollee is claiming in an NRI during initial enrollment in MPP or after returning to the US. post-enrollment. Insofar as the DHS officials’ comments are true, DHS’ unwillingness to track this information or retain these records seemingly contradicts statements that DHS has made in its implementation guidance and to the public,” they concluded.

Lankford went down to the border in January 2022, specifically to see the progress that has been made to re-implement the federal court mandate on the “Remain in Mexico” policy, which he outlined what he saw during a floor speech. Lankford saw the massive complex they had in place to conduct MPP hearings: six court rooms, 120 meeting spaces, and ancillary space. When Lankford visited the facility, they had evaluated 60 people, 57 were excused and let into the US. Federal taxpayers are paying millions for a space that the Administration can’t use, because Biden’s DHS isn’t even enforcing the MPP program.

Read the full letter HERE and below.

Dear Secretary Mayorkas,

We write today to express our grave concerns about the US Department of Homeland Security’s (DHS) continued efforts to re-implement the Migrant Protection Protocols (MPP) program. We recognize that DHS has only reinstated this program after Judge Kacsmaryck’s order to implement it in “good faith.” However, comments made by DHS staff in a recent briefing to the authorizing and oversight Committees of Congress raise significant questions about DHS’ compliance with Judge Kacsmaryck’s order.

Since MPP has been re-implemented, we have repeatedly asked for information on the number of MPP enrollees who have claimed a fear of return in their non-refoulement interviews (NRIs), either during initial enrollment in MPP or post-enrollment, and the guidance DHS officials use to make these determinations. While DHS has provided us with information on the number of migrants who have been disenrolled from MPP pursuant to a fear claim, DHS has not yet shared the guidance or information we have requested.

On February 15, 2022, DHS officials held a briefing with the Senate and House oversight and authorizing Committees. During this briefing, DHS officials informed our staffs that DHS is not currently keeping records of which vulnerability a MPP enrollee is claiming in an NRI during initial enrollment in MPP or after returning to the US post-enrollment.

Insofar as the DHS officials’ comments are true, DHS’ unwillingness to track this information or retain these records seemingly contradicts statements that DHS has made in its implementation guidance and to the public. First, in announcing the court-ordered implementation of MPP, a DHS press release stated: “DHS announced key changes to MPP to address humanitarian concerns raised by the Government of Mexico and shared by the U.S. Government. Second, your implementation guidance notes: “DHS will put in place mechanisms to continuously evaluate MPP’s operations and effectiveness, and to make ongoing adjustments, as needed, in order to improve the integrity and operation of MPP, including in response to humanitarian concerns. Third, your October 29, 2021, and June 1, 2021, rescission memos for MPP express your concern about the humanitarian impacts of MPP.The documentary record suggests that DHS is exceedingly concerned about the humanitarian impacts of MPP, but the comments made by DHS officials during the February 15 briefing about DHS’ lack of records pertaining to MPP’s humanitarian impacts suggest otherwise.

If DHS is truly concerned about the humanitarian impacts of the re-implemented MPP program, then it seems unconscionable that DHS would not keep records pertaining to the specific types of vulnerabilities exhibited by the individuals it screens under this program. These records would certainly be of interest to the Courts that have mandated DHS re-implement this program in “good faith” and to the Committees in Congress to whom you report.

To better assess DHS’ efforts to comply with the court order to re-implement MPP in “good faith” and its commitment to humanitarian protections in the re-implemented MPP program, we request the following information:

A list of all records kept by DHS and its components pertaining to MPP;

1. Copies of all guidance used by US Border Patrol to determine whether a migrant should be placed in MPP or whether the migrant  should be processed through an alternate Title 8 pathway; 
2. Copies of all guidance used by US Border Patrol to determine whether a migrant is amenable for MPP during processing;
3. Copies of all guidance used by US Border Patrol to determine that a migrant has a vulnerability that would disqualify him or her from participation in MPP;
4. Copies of all guidance used by US Citizenship and Immigration Services to assess a migrant’s fear of return to Mexico and evidence of a disqualifying vulnerability during the initial MPP-related non-refoulement interview;
5. Copies of all guidance used by US Citizenship and Immigration Services to assess a migrant’s fear of return to Mexico and evidence of a disqualifying vulnerability during any subsequent MPP-related non-refoulement interview;
6. Copies of all guidance used by any DHS personnel or contractors to evaluate a migrant’s claimed vulnerability during and after a MPP-related non-refoulement interview; and
7. Data on the number of migrants who have claimed a vulnerability, the specific vulnerability claimed, the stage of the MPP lifecycle at which such vulnerability was claimed, and whether a USCIS adjudicator found that the migrant had the claimed vulnerability.

In addition to the information requests above, we ask the following questions:

1. When a migrant claims a vulnerability during the non-refoulement interview prior to their return to Mexico, does current MPP guidance require that the vulnerability also be mentioned in the migrant’s credible fear screening? If not, why not?
2. If a migrant makes a vulnerability claim but is subsequently enrolled in MPP, do USCIS asylum officers treat the initial amenability determination with deference if that migrant makes another fear claim post-enrollment? If not, why not?
3. If a migrant makes a vulnerability claim, is enrolled in MPP, and then makes a different vulnerability claim post-enrollment, how do USCIS asylum officers evaluate the post-enrollment vulnerability claim and, in doing so, to what extent do they take into account the migrant’s pre-enrollment vulnerability claim?
4. For any migrant who claims a vulnerability and is disenrolled from MPP pursuant to that vulnerability, are immigration judges required during their proceedings to determine whether the migrant’s claim to asylum is based in part or wholly on that vulnerability? If not, why not?

Finally, a DHS website instructs MPP enrollees to provide information regarding why they “should now be taken out of MPP” and instructs enrollees to email MPPRequest@hq.dhs.gov with information. The normal MPP enrollment process is run through US Border Patrol and USCIS, not DHS headquarters. To better understand, we ask the following questions:

1. How many requests have been sent to this email address? How many of those requests have been approved and how many have been denied?
2. Which officials at DHS headquarters review the requests sent to this email address? Which officials at DHS component agencies review the requests sent to this email address?
3. What guidance do reviewing officials use to adjudicate the requests sent to this email address?
4. Does a request for a migrant to be taken out of MPP that is sent to this email address require a vulnerability claim? If not, why not?
5. What is the screening process for requests sent to this email address? Do all requests sent to this email address lead to a non-refoulement interview?
6. Do DHS political appointees or political appointees at a DHS component agency have access to this email address? If so, please share a list of the each political appointee who has access to this email address. 
7. Have DHS political appointees or political appointees at a DHS component agency discussed any requests sent to this email address? If so, please share a list of each political appointee and the specific request email.

We request that you respond to us by no later than 5:00 p.m. on March 24, 2022. Thank you for your attention to this matter. We look forward to hearing from you.

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