How you can support BORDER/LINES + a Q&A with attorney Taylor Levy
Immigration news, in context.
Dear readers,
Thank you for reading BORDER/LINES. It’s been four months since we launched this project with the goal of providing a useful, comprehensible resource for everyone who wants to learn more about immigration policy, from casual readers to immigration professionals.
We put in a lot of time and effort researching, interpreting, writing, and editing, because we believe that the significance of these seismic shifts — which affect the social, economic, and cultural trajectory of this nation and the world — should be accessible to all.
If you feel you’ve learned something from BORDER/LINES, you now have a chance to support this work. Our supporters will allow us to keep growing and refining the newsletter as we head into an election year where immigration policy is at the forefront.
In addition, starting this week we will roll out additional content for paid subscribers several times a month, including Q&As with relevant experts and extra analysis of immigration-related policy and its potential impact.
The first such Q&A features Taylor Levy, an immigration attorney in the El Paso area who has been advising colleagues on new policies affecting asylum seekers, such as the Migrant Protection Protocols. You can find it below, as a preview of the kind of additional content paid subscribers will receive.
Our standard weekly breakdown of federal immigration policy will remain free for all readers.
We’re so grateful for your readership and your support, and can’t wait to keep improving the newsletter in 2020 and beyond.
As always, if you have any questions, comments, tips, or otherwise want to get in touch, reach us at borderlines.news@protonmail.ch.
Sincerely,
Felipe De La Hoz & Gaby Del Valle
The Trump administration rolled out the Migrant Protection Protocols, a program requiring some asylum seekers to wait out their cases in Mexico, only entering the U.S. for court appearances, in January 2019. Since then, more than 59,000 migrants have been enrolled in the program, more commonly referred to as “Remain in Mexico” — despite concerns over migrants’ safety and due process rights.
The program has been expanded to several ports of entry along the U.S.’s southwestern border over the past year, and this January, DHS announced that Brazilian nationals would soon be subject to the MPP as well (initially, only nationals of Spanish-speaking countries were to be included).
Taylor Levy, an El Paso, Texas-based immigration attorney, is one of a handful of lawyers who regularly travels to Mexico to represent MPP clients. We spoke with Levy about how Remain in Mexico has affected the courts, lawyers’ workloads, and migrants themselves.
This interview has been edited for length and clarity
Q: What are some of the logistical challenges for asylum seekers in MPP to secure legal counsel?
I meet people sometimes, in Mexico, who have money to pay [an attorney], but there's not enough attorneys able and willing to take these cases, even for money. Even though the vast majority of people can't afford it.
The average cost for some cases, for a good, competent attorney, is going to be between about $7,000 to $10,000 for the entire case. That's for one person. You might charge more if it's a family [with] multiple family members. That's a very inaccessible amount of money for people. These cases are incredibly difficult from a legal perspective. In El Paso, we have some of the harshest judges in the entire country. We have judges who deny an average of 95% of all cases, so you only have about a 5% chance of winning as it is, which means to win you need to do a very, very strong application that involves just massive numbers of hours of work.
On top of that, when someone’s in Mexico, you're not going to be able to meet with them in your normal fashion, you know, have them over to your office, work with them several times. You have to go to Mexico to meet with them at pretty significant danger to yourself, or you have to try and do everything over email and WhatsApp and video chatting, which is what most people end up turning towards.
Lawyers don't want these cases because they don't want to go to Mexico, because it's dangerous. And it's logistically very frustrating. There're very long lines at the border. There's a lot of questions about whether or not American lawyers need Mexican work permits to be going into Mexico to do this work. It's pretty well established that most likely you don't if it's every once in a while, but if you're doing it very frequently, maybe yes. Physically finding a space where you can meet and not be eavesdropped on, where you can have appropriate confidentiality, where you can be safe making copies, all of those things are just logistically very difficult.
Then there's a psychological component as well. These cases are very difficult for attorneys. I've had multiple attorneys tell me that they're not going to take them anymore, because they themselves can't deal with the psychological, emotional trauma of worrying about their clients possibly being kidnapped. Every time you come in for a court case you're kind of lost in CBP custody for a couple of days, and then you don't know where your client is, and you're worried and stressed out, their family members keep calling you, “Where are they? Where are they?” And you get very stressed out until that moment when you finally hear from them again on the other side, when you finally see them connect on WhatsApp, because people get kidnapped immediately upon returning to Mexico so frequently.
Q: What are some of the issues you’ve observed in court itself?
One of the biggest issues for attorneys is that [court staff have] decided that attorneys go last for whatever reason. We have to be on time for the hearings, so if the hearing is scheduled at 8:30, we're going to be heard very last on the docket. So that means we usually have to wait there three to four hours before it's our turn. That's a huge time suck.
On top of that, we've had multiple instances of attorneys being allegedly forgotten and actually not allowed to represent their clients, even though they were there on time and were sitting in the waiting area where they've been directed to sit by court staff. That's happened to me personally, and to two of my colleagues here in El Paso.
The biggest issue in the court is the court simply is not opening the mail. They say they have bins and bins and bins full of mail. They're trying to open the mail, but the MPP docket is huge, and they've had virtually no extra staff assigned to doing these cases. And so something like 15,000 or more cases have been filed with El Paso when El Paso’s entire docket was 9,000 before. So when you start court, the judge doesn't have whatever you filed. If the judge is [appearing over video conference] in particular, they don't have whatever you filed, because even if the local clerk could find it perhaps, in the piles of mail, then they have to take the time it takes to send it over to the judge via email. It makes everything go very slowly.
We do have two judges in El Paso, who are actually applying the asylum ban in a broader sense than was even permitted or planned by the government. They're saying that the controlling entry [ed note: an asylum seeker who enters the U.S. after July 16, 2019 and hasn’t applied for asylum in any country of transit is considered subject to the asylum bar] isn't the first entry, the controlling entry is subsequent entry for MPP. So Judge Herbert and Judge Mahtabfar are both denying asylum to people who entered prior to the asylum ban because their eventual MPP court date was post-asylum ban.
DHS has actually briefed, in these cases, saying “No, that's not our policy, the original entry controls.” And then both of those judges have, on their own said :”No, our interpretation of the [rule] is such that...”
All people can do is appeal, and sometimes the respondents aren't super excited about doing the appeals because they're in detention or they're in Mexico. They've already been suffering for so long, the appeals are going to take maybe six or eight months.
Q: What are some additional things people don’t realize about these cases?
It seems like they packed the dockets full of so many people, because they expected higher absentia rates. The dockets are absolutely bursting at the seams with how many clients are supposed to show up, which means a lot of times people show up for their first court hearing only to be told that the judge ran out of time and to please come back again in five months, or four months, or whatever, and given a new hearing date. You have hallways full of people sobbing because they've already waited three to four months for their court date and they were excited to have their chance in front of the judge, only to be told to come back again.