Nearly four months ago, the Trump administration launched its “Remain in Mexico” program, under which migrants seeking entry to the United States must stay in Mexico while their immigration court hearings go on north of the border. The government announced this week that it intended to expand the program beyond where it began in the San Diego-Tijuana corridor.
But U.S. immigration lawyers say the program is mainly leaving them confused on how best to help their clients, and leaving their clients fearful about their safety in Mexico.
“It’s frankly pretty terrifying as an attorney working with these vulnerable people and not having access to my clients and them being scared about so many things, like if they are going to be arrested by police or be attacked by a criminal organization,” said Robyn Barnard, an immigration lawyer with Human Rights First, a nonprofit international human rights organization.
Lawyers say some migrants do have legitimate fears of remaining in Mexico because some of the same gangs and drug cartels they fled from in El Salvador, Guatemala and Honduras also operate in Mexico.
Barnard is currently working with two clients from Honduras seeking asylum in the United States. Her clients underwent “credible fear” interviews for asylum with U.S. authorities but were sent back to Mexico to wait, and they now express fears about staying in Mexico. Under U.S. rules, if migrants can establish a “credible fear” that they could be harmed by returning to their home countries, they usually are granted asylum.
But Mexico can also be threatening even though it is not these migrants’ home.
“One gentleman expressed strong reasons around threats of kidnapping and said there had been an incident when an armed man came to the [Mexican] shelter where they had been staying and asked for the names of all the people that were staying at the shelter. At the same time, the pastor that was sheltering the migrants was also receiving threats,” Barnard said.
Barnard said she has still not received the reasons behind the U.S. immigration officer’s decision to send her clients back to migrant holding facilities in Tijuana.
Many immigration lawyers say it is hard to navigate the Remain in Mexico policy, formally known as the Migration Protection Protocol, or MPP, program.
Problems with lawyers not having access to their clients, migrants not automatically being given credible fear interviews, lack of housing in migrant facilities in Tijuana, and confusion on who is and is not eligible for the MPP program are just some of the problems many immigration lawyers have encountered in the past few months.
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Confusion and fear
“Mostly everyone that has gone under the MPP program does not understand what just happened to them,” said Leah Chavarria, a senior immigration lawyer with the Jewish Family Service of San Diego, a nonprofit organization that provides legal services to immigrants. “Most people believe that once they represent themselves again at the ports of entry to have their cases heard, they will stay in the United States, but that’s not the case.”
Chavarria, 37, who has been practicing immigration law for five years, said her organization has screened and given legal advice to nearly 20 MPP cases for potential legal representation, and they are currently representing four such cases.
She said she has had a hard time getting access to her clients and has to travel the 20-plus miles to Tijuana to speak with them.
Under the MPP program, lawyers are not allowed to be in the room when immigration officers are conducting asylum interviews with migrants, according to a U.S. Citizenship and Immigration Services policy memorandum. The lack of ability to communicate with her clients in person creates a lot of problems with tracking their whereabouts and ensuring that they are OK, Chavarria said.
Chavarria said that in one of her cases, her client and child had a court hearing March 28 and expressed a fear of returning to Mexico. DHS said they would be given a separate “fear assessment test” to determine if they had a legitimate fear about returning to Mexico to wait for their asylum case to be processed.
Chavarria said that she tried to get in contact with her client days later but to no avail. Chavarria received an email on Wednesday from a homeland security investigator who said that her client was returned to Mexico on March 28. It turns out that was incorrect.
“After a week of not knowing whether our clients were in DHS custody or alive or dead in Mexico, we were finally contacted by our clients moments before the battery on their phone died after they were released into the United States because of a sufficient fear to not be returned to Mexico,” Chavarria said. “We are thrilled that our clients now have the opportunity to continue asylum proceedings while in the safety of the United States.”
Still, Chavarris said “We have grave concerns regarding this process and the entire MPP program. Here, DHS not only prevented us from having contact with our clients for a week, and prevented us from being present for their fear assessment, but also did not even alert us to their being in custody...In this case, DHS disregarded our clients’ right to counsel when in removal proceedings and failed to show basic dignity and respect for the concerns of counsel and family.”
Migrants who present themselves at U.S. ports of entry are not automatically given an assessment to determine if they have a credible fear of going back to Mexico to wait for their immigration court hearings. Lawyers say migrants have to vocally tell officers that they also have a fear of waiting in Mexico for their asylum cases to be processed. Under policy guidelines, migrants with a fear of waiting in Mexico may be excluded from the Remain in Mexico program on a case-by-case basis.
Andrew Nietor, an immigration lawyer practicing in San Diego, said some lawyers are hesitant to take MPP cases because of the challenging logistics and expenses. And the recent disclosure that lawyers, advocates and some journalists were being put on U.S. watch lists by border officials for extra scrutiny when crossing back into the United States has them alarmed.
“It’s a concern that attorneys and advocates [are] being put on the watch list and that their passports are being flagged and that they’re going to [be] subjected to heightened suspicion and scrutiny, because attorneys are now going to Mexico to engage in works, and it’s unclear whether attorneys would need to have certain visas to work in Mexico,” said Nietor, who does not have any clients under MPP program at this time.
In a memorandum issued earlier this week, Homeland Security Secretary Kirstjen Nielsen ordered Customs and Border Protection to expand the MPP program to more ports of entry, which could mean that hundreds of additional migrants per day above current rates are returned to Mexico.
“The crisis at our border is worsening, and DHS will do everything in its power to end it,” Nielsen said in a statement.
CBP officials have already returned 240 migrants to Mexico in the San Diego-Tijuana sector as part of the MPP program as of March 12, according to Homeland Security spokesmen. Nielsen’s efforts to expand the MPP program have been met with resistance from advocacy groups and lawmakers
“The Trump administration has no regard for migrants or immigrants. And it’s been painful to watch and to fight because El Paso has been ground zero for so many of these hateful policies, anti-American policies,” said Texas Democratic Rep. Veronica Escobar, who represents border towns including El Paso.
Escobar said she plans on introducing a bill in the next couple of days that would defund the Remain in Mexico policy.
“This country has a process for asylum seekers, we need to follow the law and when asylum seekers arrive at our doorstep, when refugees arrive at our doorstep, we should not be looking at every possible way to violate the law,” she said.
Some praise for program
However, some Republicans have said that the Remain in Mexico policy is a step in the right direction and could encourage migrants to apply for asylum in their home countries rather than making the trek north.
“I think that people should be able to apply for asylum in their home country. This will stop this whole humanitarian crisis where people are traveling thousands of miles to get asylum,” Arizona Rep. Debbie Lesko said.
Some immigration lawyers have said that the Trump administration has made it harder for people to apply for asylum in the United States from their home countries because the government has lowered the annual Refugee Resettlement program cap to 30,000 people for fiscal 2019, the lowest level in recent U.S. history.
In addition, the Trump administration ended the Central American Minors, or CAM, program in 2017 that allowed certain minors from El Salvador, Guatemala and Honduras to apply for refugee status in the United States from their home countries. Some lawyers see the MPP program as just another roadblock for immigrants who want to enter the United States lawfully.
“This change in policy has ripple effects, and in Tijuana they are not prepared to deal with those ripple effects. I think the government’s argument is that it is not our problem, but this is a humanitarian issue and the government is creating a humanitarian crisis with this policy,” Chavarria said.