Analysis

'Remain In Mexico' Changes Spark Confusion At The Border

By Suzanne Monyak
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Law360 (May 12, 2020, 10:11 PM EDT) -- Texas attorney Taylor Levy was cooking dinner on Mother's Day in El Paso when she got a text message alerting her to new changes in immigration policy: Hearings for migrants stuck in Mexico under the Trump administration's controversial immigration program would be postponed again, and there were new procedures to get new hearing dates.

"I was like, no!" Levy told Law360. "I spent the next three hours dealing with it and went to bed at like 10, when I have to go to the bridge at 3:45," she said, referring to the Paso del Norte International Bridge, where migrants in the area must report early in the morning.

The U.S. Department of Justice and U.S. Department of Homeland Security had blasted out the update just after 8 p.m. EDT — 6 p.m. in El Paso — not only extending yet again the postponement of hearings for migrants in Mexico in light of the coronavirus pandemic, but also announcing that border agents would no longer be handing out new hearing dates notices, or tear sheets, for the next month.

Migrants subject to the "Remain in Mexico" program, also known as the Migrant Protection Protocols, have had to present themselves at the border on their original hearing dates since MPP hearings were first suspended in March. But under the new procedures, they must now come to the port of entry one month after their initially scheduled hearing date instead to receive notice of the new date.

Levy, one of the few pro bono immigration lawyers still representing asylum-seekers at the border in person during the COVID-19 pandemic, immediately got to work that night analyzing the update, having it translated into Spanish and Portuguese, and distributing it to as many shelters and legal services organizations in Mexico as possible.

Hours later, in the early hours of Monday, she reported to the bridge, where she said about 120 migrants, including children and babies, had gathered to receive their new hearing dates — which, under the new procedures, they would not be getting. The following morning, more than 100 migrants showed up, Levy said.

"Almost everyone, both yesterday and today, had not heard about it," she said. And even those in shelters who had been alerted to the change had come "just in case," afraid that they may have misunderstood or that they could be deported if they didn't show up, Levy said.

The U.S. government has explained the change as an effort to spare migrants from having to travel during the pandemic, saying the move is "alleviating the need for aliens to travel within Mexico to a U.S. port of entry" through mid-June.

But according to Levy, in practice, many migrants will end up having to make the trip twice, putting them at additional risk of contracting the coronavirus. Those who showed up at the border early on May 11 and May 12 were turned away empty-handed and must now return for their new notice on June 11 and June 12.

"Asylum-seekers already subjected to MPP are vulnerable and afraid," Marketa Lindt, president of the American Immigration Lawyers Association, said in a statement Monday. "This latest announcement will only create more confusion for them and likely result in people making additional unnecessary and dangerous trips to the U.S. ports of entry."

Even some attorneys were confused by the language in the government's latest update.

Levy said that she wants more clarity on the government's statement that migrants "should" report to the border a month after their canceled hearing for the new date, raising the question of whether asylum-seekers with attorneys who can access rescheduled hearing dates online are actually required to show up at the border in a month.

"What happens if you don't show up that day?" Levy asked, "It's not 'shall' and it's not 'must,' but it's also not 'may.' So what does 'should' mean under the law?"

She said she is advising migrants without attorneys to show up a month after their hearing date to get the new notice, although she said that some of her colleagues believe that the migrants should try to get their hearing dates another way and not travel to the port of entry at all to protect themselves from contracting the virus.

Joyce Noche, director of legal services at the Immigrant Defenders Law Center, a California-based legal services organization representing about 30 migrants in MPP, similarly said the center is advising clients to come to the border to obtain their hearing dates only if the attorneys are not able to confirm them on their own.

If the attorneys are not able to get the new court date notices and the asylum-seeker does not show up to the border at the scheduled time, either for fear of the coronavirus or from troubles with transportation, Noche said that migrants may find themselves without the necessary documentation to be allowed to enter the U.S. on their actual court date.

"I would think that they would probably have an issue coming back then if they weren't able to get new documentation," Noche told Law360. She said she was unsure how many migrants, if any, showed up at the port of entry at Mexico's shared border with California this week, since her organization has worked remotely since mid-March.

Sunday's announcement was the third time DHS and the Justice Department's Executive Office for Immigration Review, which oversees the U.S. immigration courts, have extended the postponement of MPP hearings, which are now delayed until June 22, although attorneys anticipate further extensions.

Late-night announcements aren't uncommon for EOIR, and the office has drawn flak from immigration lawyers for frequently announcing coronavirus-related immigration court closures on Twitter after business hours.

But Sunday night's announcement exposes a "central flaw" of the MPP program, said Benjamin Johnson, AILA's executive director: It's nearly impossible to track down migrants to give them updates on their cases once they've been sent to Mexico to wait out their immigration court proceedings.

Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council, also saw that as an issue.

"One of the many fundamental flaws with MPP is that there is literally no way to get notice to people in Mexico about changes to their court hearings," Reichlin-Melnick said. "The only way to do it is to require people to physically travel to the port of entry to obtain the new information."

"What this means," he said, "is that the confusion at the border just gets worse."

Levy thought that DHS may be requiring migrants to show up to cover its bases and ensure it has properly served migrants with their court notices.

"They're trying to fit a square peg in a round hole because none of MPP was ever actually imagined by the drafters of service [rules]," she said.

In the meantime, migrants are left waiting in Mexico, stuck in limbo for longer, separated from relatives in the U.S. and at higher exposure for the coronavirus in crowded shelters and encampments, Noche said.

"I think they're at the highest risk," she said. "Imagine hundreds of people together and unable to maintain that social distance."

And the coronavirus isn't all they fear. In January, Human Rights Watch tracked more than 800 reports of violent attacks on migrants waiting in Mexico, including more than 200 reported kidnappings or attempted kidnappings of children.

The Trump administration has said that it will consider migrants' claims that they fear being returned to Mexico, but both Noche and Levy said that they did not know of any interviews about fear being given in more than a month.

In early May, Levy said, she tried to help one migrant request an interview from a border agent to evaluate his fear of persecution in Mexico after kidnappers held him for ransom and cut off his finger when he couldn't pay, but the officer refused him an interview.

And as migrants see their court dates pushed farther and farther back, Levy said some are considering crossing into the U.S. without permission.

"People are so desperate, and they see it as, 'This is never going to change. They're never going to open back up,'" Levy said. "There's so much loss of hope."

A spokesperson for EOIR deferred comment on the changes to DHS, which didn't respond to a request for comment on Tuesday.

--Editing by Jill Coffey and Brian Baresch.

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

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