Joel Martinez/The Monitor/AP Photo
A section of the border wall under construction south of Donna, Texas, in November 2019
After months of trying and failing to gain entry to hastily-erected immigration tent courts in south Texas, Amnesty International representatives Charanya Krishnaswami and Justin Mazzola finally observed them in January.
The two have been following the expansion of the Trump administration’s Migrant Protection Protocols, otherwise known as ‘Remain in Mexico,’ since the policy was unrolled last year. Under MPP, the U.S. has forced more 60,000 people to wait in Mexico for their asylum hearings. The Department of Homeland Security and the Department of Justice opened two tent courts in Laredo and Brownsville to conduct immigration and asylum hearings. While in Mexico, asylum seekers participate in the hearings via videoconferencing with immigration judges.
“Each time it opened, we would go to try and observe the courts,” said Mazzola, the deputy director for research at Amnesty International. But unlike brick-and-mortar facilities, the tent courts were closed to the public in their first few months.
Amnesty International observed three proceedings in Brownsville and Laredo last month, and were invited to tour the facilities by Customs and Border Protection. Mazzola and Krishnaswami observed initial and final hearings for 49 people; only five cases (comprising six adults and two children) had legal representation. Finding an attorney is especially hard when asylum seekers are forced to remain south of the border. Krishnaswami said that only between four and five percent of asylum seekers in the MPP program have legal representation.
Without an attorney, asylum seekers often must mail evidence about their cases to the MPP courts themselves. According to Krishnaswami and Mazzola, lawyers they spoke to while in south Texas told them that the courts were so overwhelmed with cases that nobody was even opening the mail. In fact, they told me, the only way to ensure the presentation of the evidence is for attorneys to personally drive it to a court, despite the courts being located hours from where most immigration attorneys are based. Even then, some attorneys have had trouble ensuring their evidence reaches the judges. According to Mazzola, at least two attorneys confirmed this phenomenon. In virtually every way, the Amnesty representatives told me, justice is not served for these asylum seekers.
“When MPP first started I was mailing my stuff to the courts, the first few cases I had, they never called me,” said Rolando Vasquez, a private immigration attorney based in Miami. He said that he’s seen this problem in San Antonio and heard of it in other courts as well. “I have everything proving that [the documents] arrived,” Vazquez said, adding that because the courts aren’t opening the mail and passing on the evidence, some of his clients have lost faith in him.
Vasquez gave an example where he personally went to the window in San Antonio and handed evidence to the courts in person. Two weeks later, when his client appeared for his hearing, there was nothing on record, forcing the client to reschedule—which, in the case of MPP asylum seekers, means they must find accommodations for weeks or months in Mexico with few resources. Vasquez said that he’s heard this was a problem from clients and other attorneys.
Vasquez says that the ‘Remain in Mexico’ policy has amplified problems in already-overburdened immigration courts. “These courts were not set up to handle this amount of workload,” he said. “El Paso has three or four immigration judges and there are thousands of people showing up at the border every day.”
Before observing the courts physically, Mazzola and Krishnaswami said that they had observed the hearings through videoconferencing, the way asylum seekers would experience the cases. Sometimes the feed would go out, it was difficult to hear people clearly, and there were other sounds that come through. Plus, Krishnaswami said, the camera would focus on one part of the courtroom, making it difficult to see who was speaking or “even the person who is prosecuting you.” The focus is instead on the judge and the interpreter, with occasional shifts in the camera angle to the government attorneys doing the prosecution.
An Amnesty International spokesperson noted that during the tour of the facilities, officials discussed how ‘Remain in Mexico’ was supposed to work—but what Mazzola and Krishnaswami saw directly contradicted these statements. To aggravate these problems, there are several government departments—including the Department of Justice and the Department of Homeland Security—vying for control of the tent courts, making it difficult to discern just who’s in charge. The Justice Department did not immediately respond to a request for comment.
“Who is responsible for what? Who has ultimate decision-making responsibility? Who are the gatekeepers?” said Mazzola. “It’s an absolute bureaucratic mess.”
Krishnaswami told me that she spoke to a transgender woman from Guatemala who was seeking asylum in an MPP court. The asylum seeker had legal representation but, as Krishnaswami pointed out, trans individuals—because of elevated risk they might be exposed to in Mexico—are not supposed to be part of MPP. Similarly, multiple officials told Amnesty that only Spanish speakers would be subject to ‘Remain in Mexico’ and that other populations, such as indigenous language speakers, would “not be enrolled” and would instead go through the asylum process in U.S. brick-and-mortar courts. Yet, Amnesty International observed multiple MPP hearings with indigenous language speakers who did not seem to speak or understand Spanish.
As The New Yorker reported in December, there are few indigenous-language translators and even fewer in MPP courts. Without legal representation and with no understanding of Spanish, the obstacles to indigenous asylum seekers to fill out an English-language asylum application or understand instructions from immigration judges, in English or Spanish, is virtually impossible.
“I think that there are massive concerns with the fairness of these proceedings,” said Krishnaswami. “They are an absolute sham and they don’t protect people in need of safety.” She added that there needs to be more transparency, oversight, and awareness of what’s going on in these courts.
Krishnaswami explained how a typical procedure—in a tent court or brick-and-mortar court—proceeds. Via videoconferencing, the judge explains to a group of asylum seekers for 25 to 30 minutes about their rights. “Think of it like an arraignment in a criminal proceeding,” she said. The judge explains the right to present evidence in court, to cross-examine evidence, call witnesses, the right to appeal, and procedural rights. “It’s pretty barebones,” she said, “It’s not easy for legal observers to understand”—let alone asylum applicants relying on an interpreter.
Then, the immigration judge calls up each asylum seeker one-by-one to ask if they want an attorney. Some say yes, but some say no because they don’t want the proceedings to go on any longer, forcing them to remain in dangerous border towns in Mexico.
Krishnaswami explained that it’s difficult to speak with asylum seekers. Observers need permission from an applicant’s attorney and from the client to speak with them, and fewer than 10 percent of asylum seekers have representation. Also, clients are essentially in ICE custody during their hearings, further complicating any communication.
“I can understand having some separation but just not being able to talk to other observers while waiting to go into the court is absolutely ridiculous,” Mazzola added.
The secrecy seems to be just one of many problems plaguing MPP courts across the country. Under the Trump administration, the rules have changed for how immigration judges are allowed to manage their dockets, increasing the number of cases they must manage simultaneously. A nationwide backup has fueled calls from the immigration judges’ union for court reform, namely making immigration courts independent from the Department of Justice. Ultimately, it’s asylum seekers that pay the biggest price.
“This isn’t real and genuine access to asylum and it’s violating international law,” Mazzola said.
