DHS Cites 'Internal Disconnect' For Migrant Hearing Mix-Up

By Suzanne Monyak
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Law360 (May 29, 2020, 3:13 PM EDT) -- A U.S. Department of Homeland Security official blamed an "unintentional internal disconnect" after the department sent out conflicting guidance on how migrants stuck in Mexico can pick up their rescheduled U.S. immigration court dates, causing confusion at the border.

In a Friday letter to nonprofit Human Rights First, DHS official James W. McCament wrote to "correct immediately" his initial description of how migrants under the "Remain in Mexico" program can collect their new hearing dates, after their initial immigration court hearings were pushed back due to the coronavirus pandemic.

McCament's initial description, sent in a letter to an HFW researcher earlier this month, had contradicted an earlier set of directions sent out in a DHS press release regarding how migrants subject to the Trump administration's Migrant Protection Protocols, or MPP, should collect their new hearing dates and paperwork, known as a tear sheet.

"Upon further review of your observation, I confirmed there was indeed an unintentional internal disconnect resulting in my response conflicting with the DHS press release," McCament wrote. "It is very important that we preclude any future confusion regarding streamlining the process for those individuals subject to MPP."

Migrants waiting in Mexico while their immigration court cases continue saw their hearings postponed in March as the coronavirus spread across the U.S. and the government clamped down on its borders.

Stuck in Mexico with their cases in limbo, these migrants were previously required to travel to the ports of entry on their initial hearing dates to receive a notice with their new hearing date and tear sheet.

But on May 10, the DHS sought to temporarily lift that requirement to spare migrants the journey while Mexico enforces a stay-at-home order, stating 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."

But that first statement alone, issued on a Sunday night, had prompted some confusion for migrants and their lawyers, who said they found the statement's phrasing confusing. They also questioned what migrants should do if the date one month after their initially scheduled hearings falls on a weekend or holiday.

Taylor Levy, a pro bono immigration attorney based in El Paso, Texas, told Law360 earlier this month that more than a hundred migrants showed up at the entry port on both May 11 and May 12, requiring some to journey long distances through Mexico during a global pandemic, only to be turned away empty-handed.

And days later, in response to a letter from HFW seeking more clarification on the directions, McCament caused further confusion.

Contradicting the press release's mandate that migrants with hearings scheduled before June 22 come instead in July, McCament told the nonprofit 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."

Law360 confirmed earlier this month that the DHS press statement contains the correct directions, not the letter. A spokesperson for U.S. Customs and Border Protection also confirmed to Law360 on May 20 that the "instruction applies even if the date falls on a weekend or holiday."

McCament's second letter to HFW, dated Friday, clarifies that migrants can collect tear sheets on weekends and holidays, and that anyone with an initially scheduled hearing before June 22 should come one month later.

McCament also states that migrants do not need to travel to the border to collect the new hearing date and accompanying tear sheet if they are represented by attorneys who can access their case information online. Some attorneys had worried that if migrants misunderstood the directions and failed to collect the new tear sheet, they could be barred from entering the U.S. on their new hearing dates and deported in absentia. 

"Neither the [notice of hearing] nor the tear sheet is required for entry to the United States," he wrote. "Although these documents speed the entry process for the individual, CBP will process him/her into the United States to attend his/her removal hearing so long as CBP is able to confirm the individual's identity and validate that s/he is on the docket for a given day — as has always been the case."

Leidy Perez-Davis, policy counsel at the American Immigration Lawyers Association, said Friday that while the DHS' latest clarification is "helpful to some degree," she lamented that the clarification came in the form of a letter to a nonprofit and was not issued in an official statement or distributed to the migrants in the MPP program.

"Though it is helpful that DHS has corrected their initial error in interpretation, this letter still does not address the fundamental issue that there is no proper notice being given to migrants in MPP," Perez-Davis wrote in an email to Law360 on Friday.

A spokesperson for DHS did not respond to a request for comment on the mix-up.

--Editing by Alyssa Miller.

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

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