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Three young men stand in line to add their names to a waiting list for people seeking asylum on Nov. 21, 2018, in Tijuana, Mexico. David Maung/KQED
Three young men stand in line to add their names to a waiting list for people seeking asylum on Nov. 21, 2018, in Tijuana, Mexico. (David Maung/KQED)

As U.S. Starts Returning Asylum-Seekers to Mexico, Questions Remain

As U.S. Starts Returning Asylum-Seekers to Mexico, Questions Remain

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Even as the Trump administration ramps up a new policy forcing asylum-seekers to return to Mexico while their cases move through U.S. courts, immigration judges and attorneys say they’ve received scant information about how the dramatic change will be implemented.

At least a dozen asylum-seekers had been returned to Tijuana as of late last week under the policy, known informally as “Remain in Mexico.”

But immigration lawyers question whether the administration has a reliable system to notify migrants — who are often in temporary shelters and lack a fixed address — of their court dates. And the president of the National Association of Immigration Judges, Ashley Tabaddor, said ensuring asylum-seekers in Mexico are informed of hearings is a "potential issue."

Tabaddor said she received no advance notice of the new system from the Department of Justice, which is in charge of immigration courts. Instead, Tabaddor, an immigration judge in Los Angeles, one of the nation's busiest courts, learned about the changes from reading the news.

“It would have been nice if the department had told us judges in a formal way what’s happening so that at least we are aware of it before it becomes public,” she said.

The policy, which the administration has dubbed Migrant Protection Protocols, or MPP, is so far only in place at the San Ysidro Port of Entry, south of San Diego.

Officials with the Department of Homeland Security say before asylum-seekers are returned to Mexico they are given an “individualized notice” with a court date, so they know when to return to the border crossing. U.S. Immigration and Customs Enforcement will then transport them to immigration court in San Diego.

In December, the immigration court system, known as the Executive Office for Immigration Review, made its computerized scheduling system accessible to DHS officials, including U.S. Customs and Border Protection agents, allowing them to set court dates for people being sent back to Mexico.

Previously, immigration agents did not have such access to court schedules. So they gave migrants a Notice to Appear, which either included a “placeholder” date or simply said that the court date was “to be set.”

Individuals would then receive a second notice in the mail with a legitimate court date. Or they could call a court hotline to find out when to appear.

Kate Mahoney, an immigration attorney at Centro Legal de la Raza in Oakland, is skeptical that U.S. officials can now reliably inform migrants in Mexico of court appearances.

“How is the government possibly going to notify people of their new hearing dates if they're homeless?” Mahoney asked. “Maybe they don't have a working telephone. They don't have a fixed address.”

Asylum cases often require several hearings before a judge. While applicants are usually told the date for their next proceeding when at court, they’ll be mailed a notice if the hearing date changes. And changes in court schedules are frequent in the overburdened system, said Mahoney.

“Hearings are rescheduled all the time in order to accommodate other cases, in order to accommodate personnel changes, and most recently, because of the government shutdown,” she said.

During the 35-day government shutdown, an estimated 86,000 hearings were canceled as most immigration judges were furloughed, according to researchers at Syracuse University.

The shutdown also led to another problem for thousands of immigrants who showed up at courts around the country, bearing notices to appear for hearings on Jan. 31. It turned out that was a “placeholder” date given to them by ICE, but the hearings had not actually been scheduled because most of the court staff were furloughed.

A spokesman for U.S. Customs and Border Protection said the Department of Justice, along with the State Department will come up with a way to notify asylum-seekers under the MPP of rescheduled court dates.

Tabaddor, the immigration judge, said asylum-seekers returned to Mexico must be alerted about when to attend hearings.

“With every case the issue of notice is always paramount,” Tabaddor said. “Certainly I can imagine that there would be issues or questions that would be raised, but I don’t really know how those particular cases or questions are going to be addressed by the Department of Homeland Security.”

If a person fails to show up at immigration court, they can lose their claim to protections.

DHS Secretary Kirstjen Nielsen said the new protocol aims to reduce illegal migration by removing what she called a “key incentive,” because asylum-seekers would not be allowed to live in the U.S. while their case is decided.

Other DHS officials said in press call last week that they are focusing on individuals from Central America for the program. But as the program expands, they will also send parents traveling with children back to Mexico to wait for their asylum case to be resolved. They also plan to implement the MPP at other ports of entry along the border.

The launch of the policy comes as a new caravan of about 2,000 people from Honduras is approaching the Texas-Mexico border.

Central American families and unaccompanied children are a growing share of those arrested by Border Patrol along the southern border. From October through December 2018, families and unaccompanied minors represented almost 60 percent of border apprehensions. Many of them say they are fleeing violence in their home countries.

Thousands of migrants seeking asylum are currently waiting in Tijuana for a chance to request U.S. officials for protections. Many are Central Americans who arrived with a caravan last November.

Critics of the "Remain in Mexico" policy say the Trump administration is increasing the danger migrants face. Tijuana is Mexico’s most violent city, with 1,618 homicide cases in 2017, according to official statistics.

Mahoney and other lawyers say keeping asylum-seekers in Mexico will also make it more difficult for them to find U.S. immigration attorneys. Research shows it's almost impossible to win an asylum case without legal representation.

An official with the Executive Office of Immigration Review said asylum-seekers affected by the MPP can expect a fair process in the courts.

“As we do with all cases, EOIR will process and adjudicate cases filed under the MPP in accordance with applicable law and consistent with due process,” said Kenneth Gardner, with the agency’s regional office in San Francisco, in a statement.

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