Yael Schacher: Remain in Mexico: A Year of Deliberate Endangerment and Evasion

February 7, 2020 – Two weeks ago, I traveled to the U.S. southern border for the tenth time in the last year to monitor the implementation of the Trump administration’s Remain in Mexico policy. The policy, which is a year old today, requires that asylum seekers wait in Mexico while they pursue their cases in U.S. immigration courts. About 60,000 people so far have been returned through the program to Mexico where they lack basic necessities, security, and legal help.  

Everything I saw on my recent trip belies the U.S. government’s portrayal of the policy as a successful deterrent of meritless claims, a restoration of integrity and efficiency to the immigration system, and provision enhanced protection for migrants. Instead, I witnessed an exacerbation of problems with coordination, scheduling, and due process in asylum hearings and the endangerment and refoulementof asylum seekers that I had seen on previous trips. 

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I began my trip in San Diego, CA, the city where the Remain in Mexico policy began. I was there for what I hoped would be the last of many asylum hearings for a Honduran woman I had met in a Tijuana shelter almost a year earlier. 

Anna* was the victim of brutal domestic violence at the hands of her husband who was affiliated with a powerful gang in Honduras. Though she had reported the abuse to the police twice and had moved to different parts of the country to escape, her partner followed her and continued to threaten to kill her even after she fled to Mexico. She asked for asylum at a California port of entry in March 2019 and was placed in the Remain in Mexico program. 

Anna is one of the less than five percent of those subject to the Remain in Mexico policy who have an attorney. Her attorney prepared an elaborate brief and lengthy record (including supporting documents and country condition reports) to explain why she should be granted asylum despite the limits placed by Attorney General Sessions on domestic violence related claims. 

Because of over-scheduling of Remain in Mexico hearings in the San Diego immigration court, Anna’s hearing began late. In the middle of her traumatic testimony, the judge told her he would have to adjourn and continue Anna’s hearing in March. Having spent several months living in fear in Tijuana, Anna was shaken and devastated at the delay in getting to a final decision. But what came next was worse. The Mexican government refused to re-admit Anna, and she spent ten nights in a U.S. Custom and Border Protection (CBP) cell at the Port of San Ysidro. 

While there, CBP refused to provide Anna with any medical care or a chance to call her attorney. A woman in a fragile mental and physical state—who has never done anything legally wrong and has been diligently pursuing her asylum case—was thrown into a freezing cell for no apparent reason and with no way to get out. Once she was finally released, her shelter in Mexico had given her bed to another needy asylum seeker. Anna had no place to go. 

This kind of experience would make anyone wary of pursuing their asylum case. For a woman who suffered twenty years of brutal abuse and struggled to find the courage to seek protection, it was devastating.

On my next stop in El Paso, TX, the Remain in Mexico immigration court docket was so large—218 people on one judge’s list, none of whom had attorneys—that there was no room for me or any observer to watch the proceedings. Even attorneys had to wait downstairs. To make matters worse, the week after I left, additional asylum seekers returned to Mexico from as far away as Nogales, AZ—where the Remain in Mexico program had newly rolled out—began having their hearings in the El Paso court. The flood of new cases further congested the dockets and frustrated court personnel, attorneys, observers, and asylum seekers alike. Moreover, the U.S. Department of Homeland Security (DHS) announced last week that it planned to imminently subject Brazilians to the policy for the first time too, starting in El Paso.  

Next in Brownsville, TX, I saw the impact of new policies limiting protection at the border, particularly the ban on asylum seeking by anyone who transited third countries without first making a claim there. The ban means that those who seek protection at the U.S. border are only eligible for a grant of withholding  of deportation—a form of relief that is both harder to prove worthy of and that confers no permanent status or ability to sponsor relatives. Still, DHS has subjected those who have managed to win this form of relief to prolonged detention (while seeking a third country to deport them to) or return to Mexico (with fake notices for further court hearings). 

In Harlingen, TX immigration court, I watched the case of a Mam speaker (Mam is an indigenous language from western Guatemala). She was never given notice of her hearing in her language. She tried to tell the judge that she was being mistreated in an encampment in Matamoros, Mexico where she was made to wait for her claim. The judge cut her off. Meanwhile, the attorney for DHS had no access to the electronic files in her case. They could not make any progress on her case. Her sons are living in the United States and have won their asylum claims. But, because of the third country ban, she is ineligible for asylum, and, while stuck in Matamoros, it will be close to impossible for her to get help filling out her application for relief or getting her supporting documents translated into her native language.

Finally, I also visited the two tent courts set up near the ports of entry in Laredo and Brownsville, TX. In Laredo, the individual hearing that I was planning to observe was canceled without notice, effectively dumping the asylum seeker back into Nuevo Laredo, one of the most dangerous cities along the border in Mexico. People in the Remain in Mexico program there have been kidnapped from the parking lot of the Mexican immigration office after their hearings.

In the Brownsville tent court, a Venezuelan asylum seeker won her case, despite the odds. This was her second individual merits hearing with a different judge than her first. The judge could not listen to the testimony she gave at her earlier hearing because the court’s digital recording was corrupted. I sat with the asylum seeker, her attorney, an interpreter, and a court clerk in a tiny cubicle in the tent court. The attorney for DHS was on one side of a video screen, and the judge, who was in the Fort Worth, TX adjudication center, was on another. The connection to the DHS attorney was poor and kept cutting out. This tent court, staffed with countless guards, is faulty, costly, and provides attorneys and observers with no opportunity to advise the vast majority of asylum seekers who lack representation.   

Even the limited access to counsel and a few won asylum cases are too much for this administration. There are indications that DHS may soon phase out the Remain in Mexico policy and instead expand other policies that speed up screening at the border, provide asylum seekers with no access to attorneys, and swiftly send them to Mexico and the Northern Triangle. The Remain in Mexico policy has already made the border an increasingly frustrating, cruel, and dangerous place for asylum seekers. Now the administration wants to end asylum there completely. 

*Refugees International used a pseudonym to protect the identity and security of the asylum seeker.

Refugees International advocates for lifesaving assistance and protection for displaced people and promotes solutions to the displacement crisis. www.refugeesinternational.org