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Bay Area Legal Groups Challenge Trump's 'Remain in Mexico' Asylum Policy

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A woman holds a child as they wait to hear their position on a list of people waiting at the U.S.-Mexico border to seek asylum in the U.S. on Nov. 21, 2018, in Tijuana. (David Maung/KQED)

Bay Area legal aid organizations and a group of asylum-seekers are suing the Trump administration to block a new policy that has forced dozens of Central American migrants to return to Mexico while their immigration cases snake through U.S. courts.

The legal challenge comes just weeks after the federal government began implementing the dramatic policy change, which the administration calls “Migrant Protection Protocols,” at the San Diego-Tijuana border crossing.

U.S. immigration authorities returned the 11 individual plaintiffs to Tijuana, where they fear for their lives, according to the complaint filed Thursday in federal court in San Francisco.

The organizations also suing the federal government claim the new policy, known informally as "Remain in Mexico," violates international law and thwarts their mission to provide legal services to asylum-seekers who are physically removed from the U.S.

“It severely limits who we are able to represent and how effectively we can prepare a case,” said Barbara Pinto, immigration policy director at Centro Legal de la Raza, one of the plaintiffs.

Legal representation is key to winning asylum. Without an attorney, only one out of every 10 asylum-seekers succeed in their claims, according to researchers at Syracuse University.

Pinto said her organization provides legal representation to about 2,000 people a year who are fighting deportation, including more than half who are also applying for asylum.


As the Trump administration expands "Remain in Mexico" to other border crossings as planned, Pinto said more potential clients will be pushed back into Mexico.

It will be extremely difficult for many Central American asylum-seekers, who don’t have any resources or are homeless in Mexico, to find and keep a U.S. immigration attorney to win their case, she said.

The U.S. Department of Justice will defend the policy in court.

"Congress has explicitly authorized the Department of Homeland Security to return aliens arriving from a contiguous foreign territory to that territory during that alien’s immigration court proceedings,” said Steven Stafford, a DOJ spokesman.

Previously, migrants seeking asylum could wait in the U.S. for their claims to be resolved by an immigration judge, which can take years due the severe court backlog of more than 760,000 active cases.

U.S. Department of Homeland Security Secretary Kirstjen Nielsen said the new policy aims to discourage illegal immigration by removing the “key incentive” of being allowed into the country.

“Aliens trying to game the system to get into our country illegally will no longer be able to disappear into the United States, where many skip their court dates,” said Nielsen while announcing the new policy in December. “Instead, they will wait for an immigration court decision while they are in Mexico.”

This week, a DHS official said "Remain in Mexico" would be expanded to ports of entry in Texas.

In the 1990s and 2000s, the majority of those arrested by the Border Patrol along the southern border were men from Mexico, who authorities could easily deport.

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

The lawsuit says that "Remain in Mexico" is exposing asylum-seekers to greater danger in Mexican border cities that are among the most violent in the country.

Research shows Tijuana had the highest number of homicides in Mexico in 2017 and 2018.

“Asylum-seekers at the border are fleeing horrendous conditions in their home countries and they have the right under our law and international law to seek protection and refuge in the United States,” said Pinto. “And by not allowing them to do so we are endangering their lives.”

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