the effects of “remain in mexico”...radical changes on asylum seekers, access to counsel, and...
TRANSCRIPT
The Effects of “Remain in Mexico”
Insights into the “Migrant Protection Protocols” and Other
Radical Changes on Asylum Seekers, Access to Counsel, and the Immigration Courts
By Carlos Castañeda and Jodi Goodman
Tribunals with Jurisdiction
• Immigration Courts of San Diego, El Paso, San Antonio, Harlingen (Brownsville/Laredo)
Origins
• 8 USC § 1225, INA § 235 (the expedited removal section) • 8 USC § 1225(b)(2)(C): “In the case of an alien described in
subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a [INA §240, on immigration court proceedings] of this title.”
• Never before used provision from the IIRIRA of 1996.• Does NOT apply unaccompanied alien children (UACs), who are minors
under 18 years old who enter without a parent/guardian.
Recent plans to implement
• January 25, 2017: Executive Order entitled “Border Security and Immigration Improvements.”
• February 20, 2017: implementing memorandum by DHS Secretary Kelly, entitled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies.”
• December 20, 2018: DHS press release, “Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration.”
• Mexico's acquiescence is key to MPP's success. Pressure ensues.
Why implement MPP now?
• After a notable decrease in FY2017, a big increase in FY2018.• December 11, 2018: (tweet) “Our Southern Border is now Secure
and will remain that way.......”
Oct.2017–Sept.2018
Why implement MPP now?
• December 11, 2018: (tweet) “Our Southern Border is now Secure and will remain that way.......” Oct. 2018 – Aug. 2019(Then this happened)
Why implement MPP now?
• December 11, 2018: (tweet) “Our Southern Border is now Secure and will remain that way.......” Oct. 2018 – Aug. 2019Caravans continued in early 2019
Responses by Latin American countries
• January 2019: Mexico begins issuing humanitarian visas to many migrants.
• https://www.wola.org/analysis/qa-analyzing-mexicos-current-migration-and-asylum-policies/
• June 2019: Agreement between Mexico & US to avoid tariffs.• Mexico deploys its National Guard to its Southern border, intercepts two
caravans.
• July 2019: Guatemalan president signs safe third-country agreement with US.
• September 2019: El Salvador and Honduras sign safe third-country agreement with US.
Number subject to MPP
• As of mid-September, “this year, at least 42,000 migrants have been sent back to Mexico under the MPP program[.]” – Washington Post.
Number subject to MPP
• As of mid-September, “this year, at least 42,000 migrants have been sent back to Mexico under the MPP program, and a growing number have opted to return to Central America instead of waiting.”
• “The administration has budgeted up to $155 million to operate five temporary MPP courts along the length of the border.”
• “Two MPP courts have opened this month in South Texas, here in Laredo and another in Brownsville, …. The 50,000-square-foot Laredo facility can handle about 400 migrants per day, authorities said.”
• The San Antonio Immigration Court’s judges have jurisdiction there.
Number subject to MPP
• Long waiting lines• No food provided, two bottles of water, and nowhere for kids to play.
• Ex: Migrants told to line up at border starting at 4:30AM for a 12:30PM hearing.• To compare: ordinary hearings start at 8:30AM and people enter at 8:00AM.
Number subject to MPP
• The number of migrants continues to rise.• As is the number victimized in Mexico while
waiting for their hearings.
Number subject to MPP
• Tamaulipas (northeast border state) in 2018 (SESNSP): • 21.61 "homicidios dolosos" per 100,000 people. • 18,804 crime victims per 100,000 people.
• Migrant shelters are over capacity.
Adequacy of Latin American Responses and “Safe Third-Country Agreements”
• 2002: In the post-9/11 political aftermath, Canada becomes first country to sign such an agreement.
• 2019: Canadian Amnesty International and others file suit opposing continuing that agreement given recent US policies toward asylum seekers.
• The head of COMAR (Comisión Mexicana de Ayuda a Refugiados), Andres Ramírez, says his office needs to double its staff, and have six times its current resources in order to improve its capacity.
• By April 2019, Mexico received >18,000 asylum requests. • COMAR’s $1.2 million budget is not enough.• MPP creates a de facto “safe third-country agreement” with Mexico, despite
major deficiencies in its asylum process.
Impacts on representation
• Clear deprivation of counsel.
Impacts on representation
• No realistic chance of meeting with client unless live in border city. Danger to attorneys too.
• Travel advisories for Nuevo Laredo and Matamoros (in Tamaulipas).
• Impaired ability to obtain supporting documents or affidavits from clients in Mexico (unless they have excellent Internet connectivity).
• Difficulty in knowing which immigration judge is assigned to case.• Financial limitations (ability to hire).
Impacts on judicial efficiency
• Immigration judges who must now do MPP cases, in addition to their existing ones, have complained about this.
• Delays their other cases.
• Ongoing pressure on judges to quickly close cases, or risk poor performance reviews.
Impacts on judicial efficiency/independence, beyond MPP
• AG rescinds judges’ authority to “administratively close” simple cases (even if it would allow person to get lawful status via other means).
• AG limits ability to grant continuances.• Denials of bond and requiring high bonds have become more
common.
Impacts on judicial efficiency/independence, beyond MPP
• Policy-motivated appellate decisions (interim regulation in Aug. 2019)
• Allows the Director of EOIR (immigration courts) to have appellate cases assigned to himself to issue a decision within 14 days, if appeal pending for over 6 months (or 3 months of detained persons).
• “While couched in bureaucratic language, the impact …is to substitute the policy directives of a single political appointee over the legal analysis of non-political, independent adjudicators.” -President of Natl. Assoc. of Immigration Judges (ie union)
• “Trump Administration Seeks Decertification Of Immigration Judges' Union” (Aug. 12, 2019, NPR)
Alternatives to MPP (ie current system)
• Continue using the Credible/Reasonable Fear Interview (CFI/RFI) system for persons detained while entering the US.
• Due process protections already in place. • This allows time for legal representation and actual advocacy.• Non-adversarial (and less traumatic) screening for asylum-seekers.• Safer and more practical for clients and attorneys.
• Continue requiring (lower) bonds and regular check-ins for those persons with positive CFIs who are released.
• ($10,000 bonds after weeks in detention is NOT “catch and release”)
• Litigation against MPP remains ongoing.
Questions?
• Carlos Castañeda• The Law Office of Thomas Esparza, Jr., P.C.• [email protected]
• Jodi Goodwin• The Law Office of Jodi Goodwin • [email protected]