President Donald Trump’s “Remain in Mexico” policy has all but assured that migrants do not have access to the legal counsel necessary to bolster their asylum claims, and while the courts wrangle with whether or not to halt the program, the access problems are only growing, attorneys said.
Remain in Mexico, officially the “Migrant Protection Protocols,” pushed asylum-seekers looking to enter the U.S. at the southwestern border back into Mexico while they awaited decisions on their immigration cases.
A California federal judge blocked the policy
on Monday and ordered the return of 11 asylum-seeking plaintiffs in a case filed by the American Civil Liberties Union
, Southern Poverty Law Center
and other legal advocates. But late Friday that move was undone, when the Ninth Circuit temporarily reinstated the policy
while the cases play out in court.
According to Muzaffar Chishti, director of the Migration Policy Institute’s office at New York University School
of Law, the problem goes far beyond the 11 named plaintiffs in the case. “There could be 500-odd people by now.”
Access to Counsel Concerns Under MPP
The rollout of the policy created chaos for organizations and attorneys who provide legal services to asylum-seekers.
Andrew Nietor, a San Diego-based immigration attorney who represents asylum-seekers, said attorneys are concerned about adequately representing clients based in Mexico with limited channels of communication. Migrant shelters in Mexico tend to be poor-quality facilities without designated space to have a confidential conversation with an attorney, Nietor said. That can hinder a migrant’s ability to discuss sensitive issues critical to their asylum claims, such as sexual abuse and assault, he said.
To have face-to-face interactions with a client, Nietor said an attorney would, as a practical matter, have to undertake additional expense and time. But even if attorneys are willing to travel to Mexico to meet with clients, there are also no clear guidelines as to whether U.S. citizen attorneys can represent them and engage in the practice of law in Mexico. The Mexican government may require such attorneys to obtain transit or employment visas in order to do so.
“Speaking as an attorney and advocate, the obstacles may winnow down the number of people who are willing to take these cases,” he said. “Some might be afraid to take these cases for fear of what it might mean for their ability to cross the border.”
Nicole Ramos, an attorney for Al Otro Lado, a nonprofit legal service provider, said that since early March, she no longer travels back and forth over the border because of alerts placed on her passport by immigration authorities. She appeared on a watchlist of journalists and lawyers being monitored by U.S. Customs and Border Protection
, which she believes is because she has been a vocal critic of the agency and because her organization is an institutional plaintiff challenging a number of Trump administration immigration policies.
“Traveling regularly is dangerous for me,” she said. “I am a thorn in their side.”
She said that the organization’s office in Tijuana, Mexico, has been overwhelmed with asylum-seekers sent back across the border under MPP given that there are next to no other free legal service providers located in Mexico.
Making international calls to an attorney in the U.S., let alone hiring an attorney in the private bar, is prohibitively expensive for most migrants, she said. Even sending and receiving documents to the U.S. can be problematic, given that migrants likely do not have access to a computer. Al Otro Lado is often their first and last resort.
Migrants have been confused as to why they have been sent back to Mexico and have sought help filling out paperwork given to them by Customs and Border Protection that they do not understand, Ramos said. Oftentimes, she said they have not been given an opportunity to explain to an asylum officer why they may fear returning to Mexico.
The organization has tried to help them determine the next step in their asylum proceedings, but that can prove difficult given that immigration authorities have not appeared to have a clear directive in implementing MPP, she said.
For example, she said some migrants who presented themselves at the San Diego port of entry to attend their hearings in U.S. immigration court were sent away by CBP, even though their attorneys were waiting for them on the other side. Consequently, government attorneys asked immigration judges in those cases to order them removed in their absence.
“This policy really hasn’t been thought out well,” Ramos said. “Much like the family separation crisis, it’s unclear whether the government is keeping track of people.”
What Happens Next
Despite the obstacles the policy has created for attorneys and migrants alike, Trump has made clear that he intends to defend it, and the Friday order reinstating the policy was an early victory for the administration.
The White House
issued a statement on Tuesday accusing the district court of “unilaterally rewriting, suspending or terminating immigration law for the whole nation” and “forcing open borders policies onto an unwilling American populace.” The policy was authorized under federal law allowing for the return of noncitizens found to be inadmissible while they await their asylum proceedings and was “part of a cooperative program extensively negotiated” with Mexico, it said.
“This action gravely undermines the president’s ability to address the crisis at the border with the tools Congress has authorized and disrupts the conduct of our foreign affairs,” the statement said. “We intend to appeal, and we will take all necessary action to defend the Executive Branch’s lawful efforts to resolve the crisis at our southern border.”
The Mexican Ministry of Foreign Affairs pushed back against the notion that the policy was negotiated in a statement on Tuesday, reiterating that it was a “unilateral measure” by the U.S. that is the subject of ongoing discussions.
The Ninth Circuit order reinstating the policy is a short term measure, while the parties submit arguments to the court on the government’s request for the policy to remain in place for the entire appeals process.
Even if the policy is put on hold at that time, the administration will face a practical choice as to how asylum-seekers who would have been covered under the policy should be dealt with going forward, Chishti said.
What to do with immigrants in that circumstance may be dictated by the available space in immigration detention facilities, which are close to capacity, prompting CBP Commissioner Kevin McAleenan to say last month that the “breaking point has arrived.” Chishti said that Border Patrol has been apprehending and releasing migrants on the same day in sectors such as El Paso due to the lack of detention beds, some without being screened for whether they face “credible fear” of persecution in their home countries, as required to obtain asylum.
He said that the administration will on Monday begin using family detention facilities to hold single adults, as well. That may raise concerns as to whether the facilities are complying with federal standards for detention of children, he noted.
Chishti said that Trump, in spite of his tough talk, is not likely to use the ruling as an excuse to carry out his threat of closing down the border entirely. If he did, asylum-seekers could still cross the border between ports of entry.
“The president is more interested in optics than outcome,” he said.
--Additional reporting by Lauren Berg. Editing by Katherine Rautenberg.