A bad day in court

Among all the immigration policies that the Trump administration has implemented, one that’s most frustrating to immigration lawyers and judges is the Migrant Protection Protocols (MPP), also known as the “Remain in Mexico” program. Under MPP, the government is no longer allowing asylum-seekers from Spanish-speaking countries to wait for their court hearings in the United States but is instead sending them to border cities in Mexico for the duration of their immigration proceedings.

The Department of Homeland Security claims that MPP will help “restore a safe and orderly immigration process” and “end the exploitation of our generous immigration laws.” It also claims the policy will protect migrants from smugglers and traffickers. Meanwhile, lawyers and advocates say “Migrant Protection Protocols” is a misnomer: It doesn’t “protect” migrants but places them in danger and strips them of their legal right to due process.

I visited the San Diego Immigration Court to witness for myself how MPP affects asylum-seekers in court. For four hours I sat in during the preliminary court hearings of asylum-seekers whom the government had sent back to Mexico under MPP.

The first thing I observed was how bored and frustrated Judge Lee O’Connor looked. He rested his chin in his right palm, dragging his cheek down as he asked the respondents a question he had been asking all day: “Why are you here without an attorney?”

The respondents, a husband and wife whose young son had fallen asleep on his father’s shoulder, replied in Spanish: “We called everyone on the list of attorneys you gave us.” The list they refer to is a list of immigration law firms that all asylum-seekers receive before their first court hearing. One asylum-seeker in Ciudad Juárez let me read his: It’s a one-page document with the names and phone numbers of pro bono law firms—four based in Washington, D.C., one based in Baltimore. The sheet is useless, as the couple found out: “Everyone we called said we need to be in the U.S. to be represented.”

The judge asked for the umpteenth time: “Did you ask the offices you called for recommendations of other lawyers?”

The husband said, “Sí. But even they all said they can’t represent us.”

The judge’s expression remained bored: “If they say they can’t help you, then you ask them for names of other lawyers to call. Did you do that?”

“Yes, but they also cannot help us.” The husband explained that he would leave his name and phone number with the receptionist, but nobody calls back, despite his numerous attempts to reach someone.

The judge said in a tired voice: “Call anyone else?”

“The answer’s always the same: They can’t help us. Or they recommend the same people on the list.”

The judge sighed: “All right. What would you like me to do? You want additional time to find a lawyer?”

The wife spoke up: “No. We’ve tried and tried. We want to continue with court proceedings”—meaning, she wants to move on to the merits hearing, where the judge will address their legal claims for asylum in detail.

The judge raised his eyebrows: “What about looking for private attorneys?”

“We found one lawyer in Los Angeles through social media. He agreed to represent us, but he said we have to pay in advance.”

The judge searched for that attorney’s name on his database. There’s no attorney by that name in LA, he said: “You sure he’s an actual attorney?”

The respondents looked at each other, then said, “Honestly, we don’t know.”

The judge warned them about scammers. There have been too many cases of notaries public who offer legal assistance for thousands of dollars but aren’t actually qualified to represent people in immigration court. They prey on immigrants because they’re vulnerable, gullible, and desperate. As the respondents realized they may have nearly been scammed, they went still.

The judge reminded them that since they have no legal visa to stay in the country, they’re currently at a master calendar hearing, a preliminary hearing that begins the government’s efforts to remove them from the country. The respondents looked at each other: “We’re confused. We’re asylum-seekers.”

Evidently they didn’t understand that even as asylum-seekers, they have to undergo a removal proceeding, from which they can ask for relief as asylum-seekers. It’s all part of due process, but immigration law is so complicated that even immigration lawyers tell me they get confused.

The judge sighed at their confusion: “If you have trouble understanding this basic thing…. You need to find a lawyer. Immigration law is very, very complicated.”

The woman’s voice sounded strangled: “But we don’t have any resources to pay for an attorney.”

The judge threw up his hands: “Well, ma’am. I don’t know what to tell you. I tell you DHS has charged you with removability from the U.S., and you look confused. I can’t go forward in this case when you don’t even understand that basic thing.”

The woman protested, “But in no point in time did we try to enter illegally.” They had presented themselves at the port of entry, and then the government had sent them back to Mexicali, Mexico, under MPP.

The judge explained to them that even though they didn’t enter illegally, they can still be denied entry because they don’t have a legal visa. “These are things an attorney would be able to tell you,” he said, and declared he was giving them more time to find an attorney, even though everyone knew the likelihood of that happening was near zero.

The couple picked up their son and left the courtroom, still looking confused but now also looking dejected.

A woman stepped up with her teenage daughter. Then a man with his teenage son. Then a woman with her two toddler daughters. A man alone. Another woman alone. Over and over, the judge asked, “Why are you here without an attorney?”

Everyone gave the same answer: No attorney would represent them when they’re not based in the United States.

I also saw the judge berate respondents over and over again for not filing a home address.

One respondent answered, “I don’t have a specific place I’m living in.” Like many migrants stuck in Mexican border cities under MPP, he’s homeless. He and his son are hopping from place to place, sometimes landing a bed in a shelter, or sleeping on the streets.

The judge asked: “Why is it so difficult to get a post box somewhere?”

The man said that for a while he couldn’t find a stable job, so he couldn’t afford a post office box. Another woman, when the judge asked her the same question, said she’s unfamiliar with Tijuana and got lost looking for a post office. Another man said he moves from place to place, looking for a job so he can survive the many months he has to stay in Mexico.

The judge asked each of them, “Then why not find someone you trust and use their address?”

Again—that’s not possible for many migrants. They don’t know anyone they trust in Mexico.

“Well, I told you numerous times what you have to do,” the judge said. “It’s up to you. I can’t force you to do it. You’re putting yourself in jeopardy.”

Not submitting an address is a serious due process issue: Without an accurate address, the government will mail any notices that the respondents need—the “notice to appear” letter, the charging documents, court dates, possible changes to court dates, copies of transcripts and appeals, the judge’s written ruling—to “No Domicilio Conocido” or “Unknown Address.” That mail will obviously go nowhere.

That’s also a consequence of MPP. If the asylum-seekers had been allowed to stay in the United States, they would have given the address of their sponsor—typically a family member, relative, or friend living in the United States. But most of them don’t know anyone in Mexico.

At times, the judge turned his frustration toward the DHS attorney in court. Too often, he said, the government is charging the respondents with the wrong charges, mixing people who entered at port of entry with those who entered between ports of entry. People who sought admission at a port of entry should be charged as “arriving aliens,” while people who cross the border between ports of entry should be charged as “Entry Without Inspection.”

Because the judge can only rule when charges are accurate, he has to dismiss any cases with wrong charges. That day, he did so in the case of at least one respondent—a man and his young son. That hurts the man, because it means his case will restart from scratch, further prolonging his wait in Mexico, in his case Mexicali.

About half the respondents in court came from Tijuana, while others traveled to San Diego from Mexicali, which is about 110 miles away from the port of entry in Tijuana. The respondents are responsible for showing up at the port of entry on time. Some have to appear at the port of entry as early as 4 a.m. Those who don’t show up on time run the risk of the judge ordering their removal in their absence. For those who arrive on time, a bus and armed detention officers will take them to the San Diego Immigration Court and then escort them right back to Mexico.

These detention officers keep watch on them the entire day: I even saw one officer stand guard by the door as a female asylum-seeker and her daughter used the restroom.

Most of the respondents also showed up in court with their kids. It’s tough for the children—they’ve been waiting for court for up to eight hours, which is boring and tedious even for adults. The DHS attorney was sympathetic—she passed out drawing paper and crayons to fidgeting kids. The judge did not seem as sympathetic. When one little girl kept interrupting her mother, the judge snapped, “This is why you don’t bring young kids to court.” But where would parents leave their kids for a whole day in a foreign city?

Later, I met up with Margaret Cargioli, a San Diego-based immigration attorney for Immigrant Defenders Law Center, a law firm that takes immigration cases pro bono. Her firm is one of two or three immigration law firms that regularly send lawyers to Tijuana to take MPP cases—that’s a handful of lawyers for the 7,000 people sent back to Tijuana under MPP.

Cargioli said MPP has made her job as a lawyer extremely challenging: It’s hard to develop trust with her clients when they’re mostly communicating via phone calls or text, and many are so engrossed in simply surviving in Mexico that they’re unable to focus on gathering the necessary paperwork for their asylum case. She said one client’s son almost got kidnapped. Another client had to bribe local officers because they were harassing him on the streets. Yet another got caught in a shootout while visiting a store in Tijuana.

But very few migrants dare report such incidents to local police. One woman in the United States called Cargioli on behalf of a family member under MPP in Tijuana. The woman said her family—a mother and child—had been kidnapped in Tijuana, and thus the mother probably couldn’t make it to her court date. She asked how she could explain to the judge what happened, and Cargioli encouraged her to report it to Mexican authorities. “But she was too afraid,” Cargioli recalled. “She said, ‘How do you know the police there will actually help?’ She never called back.”

Cargioli said she doesn’t think MPP achieves anything positive: “I think it’s a deterrence policy. The idea is that if we make this an extremely miserable process for people, we’ll stop getting the number of individuals coming. That’s not taking into account the reality of the circumstances these people are fleeing.”

—This story is the third in a series. The first story is “We offered the love of Jesus.” The second story is “No safe haven.”