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Trump Admin Tries To Clarify Muddled 'Remain In Mexico' Plan

By Suzanne Monyak
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Law360 (May 15, 2020, 9:38 PM EDT) -- Migrants waiting in Mexico for now-canceled immigration court hearings that were scheduled before June 22 should come to the border one month after their original hearing dates, Law360 has learned, after conflicting instructions offered by a government official prompted widespread confusion among border attorneys.

According to the American Immigration Lawyers Association, the U.S. Department of Homeland Security confirmed the correct directions. The confusion arose after DHS issued a public statement May 10 saying that individuals with hearings dates up to June 22 should arrive a month later to receive new dates, only to have a DHS official tell a human rights nonprofit days later that migrants with some June dates should stick to their original dates.

A DHS spokesperson didn't respond to multiple requests from Law360 for comment on the discrepancy Thursday and Friday.

Since immigration court hearings for migrants subject to the Trump administration's Migrant Protection Protocols were suspended in March in response to the coronavirus pandemic, migrants had been required to nonetheless journey through Mexico on the date of their canceled hearing to collect new documentation, called a tear sheet, with the date of their rescheduled hearing.

DHS has sought to temporarily lift that requirement, issuing a statement late on May 10 to suspend the tear sheet collection for the next month. However, a letter sent to Human Rights First by a DHS official days later laid out a different set of directions for migrants with hearings in mid-June, throwing attorneys and legal service providers for a loop.

"It definitely led to just massive confusion, once again," said Taylor Levy, a pro bono attorney based in El Paso, Texas, who represents migrants in MPP. "Are we going to confuse our clients more? Are we going to make a mistake?"

The first message from the government, issued jointly by DHS and the U.S. Department of Justice, stated that individuals "with a hearing date prior to June 22nd should present themselves at the port of entry identified on their tear sheet one month later than the date indicated on their most recently noticed date."

For instance, an individual with a now-canceled May 11 hearing date should instead come to a port of entry on June 11.

The statement also said that in-person document services "will be suspended immediately until June 8th, alleviating the need for aliens to travel within Mexico to a U.S. port of entry during this one-month suspension period."

That statement alone prompted some confusion for attorneys, who debated whether individuals with hearing dates after June 8 but before June 22 should show up in July, as per the former statement, or on their initial canceled court date when document services resumed.

Its timing on a Sunday night also made it difficult to spread the word among migrants in MPP, many of whom do not have counsel, so Levy said more than 100 showed up at the port of entry connecting El Paso to Juarez, Mexico, on Monday morning only to be turned away empty-handed.

Luis Gonzalez, a supervising immigration attorney at the Jewish Family Service of San Diego, told Law360 that after some interpreting, his organization concluded that individuals with hearings scheduled before June 22 should come one month later, and he sent that message to clients and other migrants who call the legal services organization's hotline.

But in a Thursday letter to a researcher at the international nonprofit Human Rights First, DHS official James W. McCament appeared to directly contradict the instructions published by his department just days before.

That letter, published by Human Rights First, states that "migrants with an MPP hearing date between June 8-19, 2020, should appear at the designated [port of entry] on that date to receive their new [notices of hearing] and tear sheets for a future court date."

This appears to conflict with Sunday night's statement that migrants with hearings before June 22 shouldn't come until July, and with what Gonzalez and other attorneys had spread to migrants.

"Suffice it to say, we were very confused, and obviously attorneys trying to advise their clients were very confused about what to tell them," said Kennji Kizuka, the Human Rights First researcher who received McCament's letter.

"We're at a point where we don't know what to tell people," Gonzalez added.

McCament's letter, if followed, would lead to double the number of people crowding at the port on those dates in June, both those with June dates and those with May dates showing up one month later as instructed.

"This alternate interpretation really would lead to an absurd result," Levy said. "It would just double the risk of contagion at a time when the courts are canceled."

The stakes for a mix-up could be high, both for migrants' chances of winning status in the U.S. and for avoiding infection.

If migrants with June dates come on those dates just in case, they could be turned away and forced to make a second journey to the port of entry in July, again risking exposure to the coronavirus and dangers in Mexico.

But if they do not arrive on the correct date to pick up their documentation, either due to a misunderstanding or if an individual is sick or quarantined, they could risk being blocked from entering the U.S. on their actual hearing date. Migrants who do not show up to court are typically ordered deported in absentia.

"At the very least," Levy said, "people are going to be exposed needlessly to more contagion."

Gonzalez also worried that the added confusion could push migrants to abandon their cases.

With MPP hearings essentially suspended indefinitely during the pandemic — even though immigration court hearings for immigrants in U.S. detention have continued — attorneys say that migrants are becoming desperate, particularly as many lose their jobs during the pandemic.

"The messaging is already confusing," Gonzalez said. "And now adding this additional layer, 'Oh never mind that's not the right message, it's this other message,' I think it's going to lead people to even more confusion."

"I'm afraid that this confusion might discourage people from even continuing with their cases," he said.

--Editing by Brian Baresch.

For a reprint of this article, please contact reprints@law360.com.

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