The immigration agreement reached Friday by the US and Mexican governments has drawn strong criticisms from activists and lawyers, who warn that it will generate more legal problems for migrants who apply for asylum on the border.
Under the agreement, Mexico will allow migrants to stay there “while they wait for a resolution of their asylum applications” by US courts, and the US government “promises to speed up the resolution of their cases and move the process as quickly as possible.”
Despite the optimism displayed by the two governments, lawyers are warning that the migrants who must wait in Mexico from now on will face more difficulties preparing their cases and obtaining legal assistance but also appealing negative rulings.
“It's possible that they will not have the possibility of a “credible fear” interview and will not be able to present their cases to the asylum unit. They will end up directly in the court, and that will make the case much more difficult,” said Rebeca Sánchez-Roig, a Miami immigration lawyer who worked 15 years as an immigration prosecutor at the U.S. Department of Justice.
“They will not have the possibility of appealing denials, because without the money for an appeals lawyer that's not possible,” Sanchez-Roig said.
And time will take its toll, the attorney added.
“There may be migrants who simply get tired of waiting and try to cross the border, using smugglers or other means,” she said. “Some migrants could really find work and a new life in Mexico, if they are allowed to stay there and they don't follow up on their cases. And others will wind up returning to the homes from where they fled, because the waiting will be too long.”
“There's no doubt that waiting in Mexico for the legal process will have a negative impact on the cases. And if they come looking for asylum, like they all do, most of them will not get it because the basis of their claims is not covered by the laws. Political asylum is very complicated, and many migrants don't understand that. The government can process the cases quickly and issue expedited rejections. Or it can also intentionally delay the process so that the migrants get tired and give up,” she noted.
As for the reasons behind the crisis, Sanchez-Roig said President Donald Trump blames Mexico even though the southern neighbor did not cause it.
“The reason is that for every migrants who crosses illegally into the United States there is a U.S. citizen or permanent legal resident waiting to hire them. There are many jobs in the United States that our citizens don't want to do. For example, in the fields, in the farms. It's the undocumented migrant who sows and harvests the fruits and vegetables we consume. They are the ones who spend 10 to 12 hours a day under a withering sun and 100-degree heat so that the people can enjoy tomatoes, strawberries, lettuce, etc. The Trump policy will not only harm the migrants who seek refuge in our country. It will also harm our economy because he does not want to understand that the average American does not want to work harvesting crops.”
The Justice Department has so far kept silent about the process, delays, the return of asylum applicants to Mexico and the US-Mexico agreement.
“The Executive Office for Immigration Review (EOIR) has been extremely silent on any details of the program,” said Dana Leigh Marks, honorary president of the National Association of Immigration Judges. “It has a lot of problems, the worst being the fact that there's no access to free legal advise.”
The activist group Human Rights Watch reported in March of 2016, two years before the border crisis exploded, that the Obama administration had a “schizophrenic” policy about migrants who flee Central America and seek asylum in the United States.
“And everything indicates that those people who seek protection still do not have a real opportunity to prepare and win their cases in immigration courts,” said Clara Long, the group's principal U.S. investigator.
Two months earlier, the Transactional Records Access Clearinghouse (TRAC) at Syracuse University in New York had reported that immigration courts issued 18,697 deportation orders to migrant children and women between July 1 2014 and December 31 2015. Out of those, 16,030 cases involved women who had no legal representation.
TRAC had previously reported that the probability that migrant mothers and children could remain in the country increased 14-fold if they had legal representation.
The Trump administration's “zero tolerance” policy, implemented when he reached the White House, caused serious disruptions in immigration courts. The courts' lack of independence, the imposition of a quota system and the end of judicial discretionality led many judges to think about quitting or early retirement.
“We had been predicting that there would be a real tsunami of retirements because of the increased pressures on the judges,” Marks said in February. “The judges are forced to finish more cases, more quickly than ever and with less support.”
Until the agreement was signed, the United States was returning to Mexico some of the migrants who had applied for asylum, to await their answers in Mexico. The Homeland Security Department reported on May 22 that since its start on Jan. 28 about 6,000 migrants had been returned to Mexico under MPP, a program to return asylum applicants that is “very dangerous,” according to Víctor Nieblas, former president of the American Immigration Lawyers Association.
“Asylum applicants who are returned to Mexico faces dangers and discrimination,” Nieblas said. “Lawyers who want to help refuse to go to Mexico, because the labor laws there bar U.S. citizens from working illegally in Mexico. And the U.S. government, together with Mexican authorities, bring together the lawyers who have gone to Mexico to help the asylum applicants and negatively affect their probono efforts along the border. We fear being targets of both governments for arrest or deportation, and there have been recent examples of that.”
Nieblas said that “until a federal court puts an end to the MPP, it will continue to have an enormous negative impact on asylum applicants, who are forced to stay in Mexico until their court hearings in the United States are scheduled.”
The 9th Circuit Appeals court early last month ruled that the Trump administration can continue to send back some asylum applicants while their cases are decided in immigration court, overturning the ruling of a judge who had blocked the measure. The agreement signed Friday would allow U.S. authorities to send to Mexico all those who entered the country legally and ask for asylum.
The real crisis
Immigration lawyer Andrew Nietor recalled a case in San Diego of a married Central American couple waiting for a reply to their asylum application. “I went to one of the hearings for the MPP program. The first was a couple with two small children, scruffy and disoriented and with the smell of homeless people, just like the dozens of other people in the waiting hall,” he said.
“The judge asked them if they had their asylum petition ready, which he had requested the previous month. The couple looked at each other and the woman then bent quietly toward the microphone and said in Spanish, 'We are living on the streets of Tijuana. We have been attacked and robbed. We have nothing,'” he added.
“It was horrible, and I assume I was not the only one who wanted to cry. The judge gave them another month. DHS did not oppose it. As I write this, they are boarding a DHS bus to return to the border and the streets of Tijuana.”
Soraya Vásquez, director of the Mexican branch of the organization Families Belong Together, said that on the Tijuana side of the border “we are not prepared. There's work in the maquiladoras, but no inclusion programs. This is not magic. It cannot be fixed with words alone. As if the migrants have no emotions, feelings, diseases.”
“They are people. This is not magic. The shelters are jammed. They are getting no help. Mexico also does not guarantee them legal advise in the United States. And the U.S. probono lawyers cannot work here,” she added.
“The first information that the migrants receive is about what they will find over there. But when they go to the first interview they are asked if they have a lawyer. They say no, because there are none, and then they are given two months to find one. But the U.S. lawyers can't work here. And the few lawyers that are here are not enough for the thousands of migrants seeking asylum.”
Aside from the more than 6,000 migrants returned by DHS to Mexico as of early May, there are thousands of others who are waiting for their court hearings along the border and thousands more who continue to fill the lists of people who fled their countries because of violence and poverty and who want to look in the United States for an opportunity to rebuild lives destroyed by misery and violence.
“It's all a circus, what they've done to make these people stay in Mexico,” said Liliana Velásquez, a San Diego immigration lawyer and adjunct law professor at the University of California. “There are lawyers who are going to the other side, and I don't believe that Mexico denies them entry or that there are (Mexican?) immigration officials in the shelters who tell them that they cannot work. I don't believe that Mexico does that against the U.S. lawyers and asks for their papers. The probono lawyers are not representing the migrants before Mexican courts. They are U.S. immigration attorneys who represent clients in U.S. courts.”
What's worse, she added, is that the lawyers “are just a few, very few, and the asylum seekers are thousands, and their number increases dramatically each day.”
“It changes nothing and there's nothing new because the return of people who are asking for asylum up north have been happening since January,” Vásquez.
What's more, he warned, Mexico “does not have an infrastructure sufficient to receive them, or a government strategy. (Mexican President Andres Manuel) Lopez Obrador says he does not agree with the United States but will take them back for humanitarian reasons. The point is that people arrive here without any protection whatsoever. They are alone, extremely vulnerable. They are people, human beings, and they are treated like packages.”
“Look, we don't have the infrastructure to take care of them all and give them the protection they deserve. There are not enough shelters, not enough medical attention. There's a shortage of legal counseling and the asylum process takes years because the courts are full,” the activist said.
“Yesterday I met a person who has a third court appearance in December, in six months. Imagine that. Maybe they will speed up the cases, not to protect them but to speed up their deportations. And they can't be deported just like that, because the law does not allow it. They have to respect the process,” she added.