Week 12: Asylum seekers sent back to Mexico with fake future court dates

Immigration news, in context.

This is the twelfth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

This week’s edition:

  • In The Big Picture, we explain why some migrants in the Remain in Mexico policy are being sent back to Mexico with fake court dates, even after they win their asylum cases or have proceedings terminated.

  • In Under the Radar, we delve into November’s border apprehension numbers, which dropped for the sixth consecutive month; the reason migrants detained along the border aren’t given flu shots; and the fact that green card applicants are being directed to doctors with sketchy histories for official medical exams.

  • In Next Destination, we discuss a Congressional effort to provide a pathway to citizenship for hundreds of thousands of immigrant farmworkers and their families, and the impending implementation of asylum deals with Honduras and El Salvador.

The Big Picture

The News: Migrants put into the Migrant Protection Protocols program are being returned to Mexico with fake future court dates even after they have already been granted asylum or had their cases terminated. 

What’s happening?

In January, the Trump administration invoked section 235(b)(2)(C) of the Immigration and Nationality Act to begin forcing some non-Mexican asylum seekers to wait in Mexico while their cases were decided by U.S. immigration courts, as part of a new program known as the Migration Protection Protocols (MPP).

The San Diego Union-Tribune first reported in early November that Customs and Border Protection was giving fake court dates to some migrants in enrolled in MPP whose cases had been terminated, as well as to the few migrants who had been granted asylum by an immigration judge. Although immigration court system under the Justice Department is responsible for scheduling hearings, CBP issues “tear sheets” to migrants with hearing dates and other information as part of the MPP program itself, pursuant to the implementation memos prepared by the agency.

Prior to the program’s launch, the Mexican government had only agreed to permit “temporary entrance of certain foreign individuals” who had “received a notice to appear before an immigration judge” in the U.S. If proceedings ended in a denial and removal order, the government could simply deport the migrants. However, for asylum grants and terminations, with no order of removal and no future hearing date, there was no basis for the Mexican government to accept returnees. The fake court dates seem to be a way to get around this obstacle.

At that time, CBP did not comment on this practice. In a new report by BuzzFeed, a spokesman claims that, given the fact that the government has 30 days to appeal an asylum grant, “[i]mmigration proceedings remain underway” and therefore, under MPP, migrants can be returned to Mexico. This logic seems to have been applied after the fact and is legally dubious; if and until such an appeal is filed, there is no further action on an asylum case, and it is closed. The explanation makes less sense for cases ending in terminations; often it’s the government itself that requests them, making it unlikely that they have any intention of appealing. More fundamentally, it implies that federal agents are not acting alone, but in fact being officially instructed to lie not only to asylum seekers, but to the Mexican federal government.

A few topline points to understand about the MPP: 

  • People in MPP are presenting an asylum claim while in removal proceedings, despite being kept outside of the U.S. for these proceedings. 

  • Of the about 47,000 MPP cases filed through September, around 37,000 were still pending, according to data compiled by the TRAC project at Syracuse University. Of the remainder, most (over 5,000) resulted in removal orders. Only 11 resulted in a grant of asylum, for a grant rate of about 0.001 percent of resolved cases.

The rest are mostly terminations (about 4,500 as of September), which means a case is closed without an ultimate decision on the merits of the asylum claim, typically due to technical or procedural reasons. Many terminations appear to be a result of the government's failure to prove that migrants in Mexico were successfully served with notices for their hearings; some, however, seem to have had their cases terminated when they were in the U.S. for a hearing, for reasons that aren’t immediately clear.

Termination of removal proceedings for a migrant in the U.S. doesn’t give them status, but it means the government will stop its attempt to deport them. On the other hand, if they are sent to Mexico, a termination is effectively as good as a loss in court, similar in practice to a voluntary departure: they are left outside the U.S. without an active asylum process and no ability to reenter, though they’re technically able to apply again, as opposed to the more long-term consequences of a deportation.

How we got here

In December 2018, the Trump administration announced its plan to begin sending some asylum seekers to Mexico while their cases proceeded in U.S. immigration courts. The policy, called the Migrant Protection Protocols, is possible because of section 235(b)(2)(C) of the INA lets the government return people who arrive from a “foreign country contiguous to the United States” to that country while they await their removal proceedings.

The scheme, commonly referred to as the Remain in Mexico policy, began in January as a pilot program at the San Ysidro port of entry in California. Over the past year, the Trump administration has expanded the MPP to other ports of entry and Border Patrol sectors along the southwest border.

From a humanitarian standpoint and a due process standpoint, the Remain in Mexico policy has been a disaster. 

Migrant shelters run by nonprofits and religious organizations are at or beyond capacity — and migrants who stay in these shelters are often preyed upon by gangs, who see them as easy targets for kidnapping and extortion. A Salvadoran asylum seeker was recently murdered in Tijuana while his family awaited their court date in the U.S., according to NBC San Diego. In several Mexican border cities, migrants sleep in crowded encampments set up near ports of entry; even though sleeping outdoors is objectively dangerous and unsanitary, many feel that there’s safety in numbers. (That said, not all the migrants forced to wait in Mexico are in the MPP; some are being “metered,” meaning they haven’t even been allowed to cross into the U.S. to make an asylum claim yet. Once they do cross, it’s likely they’ll be put in the program.)

The danger and instability of day-to-day life, coupled with the shoddy implementation of the program — BuzzFeed News reported in September that Border Patrol agents have written “Facebook” as the street address on some asylum seekers’ paperwork, for example — have made it that much more difficult for asylum seekers in the MPP to have a fair day in court. Of the 17,326 cases that were heard between January and September, 6,799 were decided in absentia, meaning 39% of migrants in the MPP are missing their hearings, often due to factors beyond their control. 

Put simply, it’s nearly impossible for a migrant in the MPP to win their asylum case, and these recent reports suggest that the Trump administration is doing everything in its power to keep any asylum seekers on the MPP docket out of the U.S.

Though the MPP is unprecedented, immigration officials have given immigrants fake or unspecified court dates in the past. In 2018, the Supreme Court ruled that notices to appear in court, the document issued by immigration authorities that initiates removal proceedings, must include a time, date, and location to be valid. Before this ruling, immigrants were often given notices with the date or location of their hearing unspecified.

In response, the government issued “dummy” dates on hundreds of notices to appear. And on one day in November 2018, hundreds of immigrants showed up to court for hearings that weren’t actually scheduled

Though notices to appear are different from the “tear sheets” given to migrants on the MPP docket, the fake dates appear to be part of a larger pattern of disorganization at best and willful misinformation at worst.

What’s next?

Attorneys are strategizing over how to respond. In the Union-Tribune story, one attorney described a threat to sue the government when her client was sent back to Mexico with a fake future hearing date after being granted asylum. Following the threat, her client was paroled into the country, a type of entry that doesn’t technically constitute an admission to the U.S., but allows someone to physically enter. CBP’s quick capitulation in the face of the possible lawsuit is a big sign that the agency itself is unconvinced the practice would withstand legal review.

It’s a murky area. These tear sheets aren’t specifically codified in law or regulation, and, as we’ve elaborated on in the previous section, the administration has felt at ease issuing bogus hearing dates before. While asylum seekers can be held in detention while the government appeals a successful asylum grant, a removal to another country is arguably fundamentally different, and not provided for in the asylum statutes. Similarly, section 235(b)(2)(C) gives the government the ability to remove a migrant to an adjacent country while removal proceedings are pending; if proceedings are terminated, they are by definition not pending, and arguably the government wouldn’t have the authority to remove an asylum seeker without a removal order. 

The issue here is mainly one of scale: only about two percent of all asylum seekers in MPP have legal representation There have already been about 3,000 more terminations than there are total asylum seekers with an attorney. Because these fake hearing dates aren’t an official, distinct category but an apparently ad hoc initiative, they aren’t being counted anywhere. No one seems too sure about how many times migrants with have been sent to Mexico despite having no further hearings scheduled.

Cases we do know about are because the affected migrants had legal representation. This may set up a catch-22 situation where those migrants most likely to challenge the fake hearing practice in court, i.e. those with lawyers, could be the ones who don’t need to, as the very threat of legal action will get them paroled back in. Meanwhile, the thousands of others who might have standing to sue almost certainly can’t do so without legal guidance.

The other wildcard here is the Mexican government. It’s been pretty silent on this issue so far, having only provided a statement in the first story affirming that it “only accepts foreigners who have a court appearance hearing date.” U.S. officials creating fake dates to get around this stipulation seems like a violation of Mexico’s sovereignty, and the López Obrador administration could step in. However, it has been relatively deferential to the Trump administration when it comes to matters of migration at the shared border.

Under the Radar

Border apprehensions drop for the sixth consecutive month 

Customs and Border Protection apprehended 33,150 migrants at the border in November — a 75% drop since May — according to government data released this week. Of those, 21,189 were single adults, 9,000 were part of families traveling with underage children, and 3,321 were unaccompanied minors. As the Wall Street Journal pointed out, apprehensions typically drop in the summer and winter and rebound in the spring, but the decline is still notable. The drop in overall arrests is likely the result of several policies that have made it more difficult for migrants to reach the U.S., including the Mexican government’s deployment of troops to its border with Guatemala. Mexico didn’t decide to ramp up enforcement along its southern border on its own; the recent crackdown was its attempt to appease the Trump administration, which threatened to impose tariffs on Mexico if border crossings didn’t drop. 

It’s possible that the Trump administration’s Remain in Mexico policy, formally called the Migrant Protection Protocols, has had an indirect effect on the total number of border crossings by deterring migrants from making the trek in the first place — or that more migrants are crossing the border between ports of entry instead of asking for asylum at the border. In any case, the administration’s hopes that the MPP would have a deterrent effect seem to have materialized.

Migrants in Customs and Border Protection custody still aren’t getting flu shots 

A group of doctors in California were arrested while protesting outside Border Patrol’s regional headquarters in Chula Vista, California this week. The protesters, part of a group called Doctors for Camp Closure, have been spent a year trying to get the government to agree to a pilot program that would give flu shots to migrants detained by Customs and Border Protection, according to the New York Times. CBP recently turned down the offer, saying it’s not currently “feasible” to administer flu shots in its facilities.

The government’s stance has long been that there’s no reason to give migrants in CBP custody flu shots or other vaccinations, since Border Patrol facilities aren’t intended for long-term detention. Border Patrol stations are supposed to function as temporary processing hubs: Migrants who are apprehended at the border or who present at ports of entry are supposed to be held there for just a few days before being transferred to ICE detention in the case of single adults and some families; shelters operated by the Office of Refugee Resettlement in the case of unaccompanied minors; or released into the interior, a practice the Trump administration has decried as “catch and release.”

But migrants often spend weeks in Border Patrol stations. Illness spreads quickly in these facilities, which often get crowded and which aren’t equipped with showers. Several people — including children and teenagers — have died of the flu or other illnesses while in CBP custody.

USCIS lets shady doctors fill out necessary paperwork for green card applicants

Applying for a green card is a long, expensive endeavor. Prospective immigrants have to jump through several hoops to obtain permanent residency in the U.S., one of which is undergoing a medical evaluation conducted by a government-affiliated doctor. Last year, an Inspector General report found U.S. Citizenship and Immigration Services’ list of approved practitioners included several doctors with histories of professional misconduct — and according to a new report by Univision and ProPublica, at least 150 of those doctors are still allowed to conduct these sensitive exams. 

The doctors’ offenses range from hiring a hitman to kill a patient to providing substandard care to immigrants applying for green cards. According to the report, many of these doctors remained on USCIS’s list of approved practitioners until ProPublica contacted the agency. Despite their past misconduct, the doctors were allowed to continue administering exams that help USCIS decide whether to approve an immigrant’s application for a green card.

Next Destination

Farmworker bill passes house, is DOA in Senate

The House passed a bill that would provide a path to citizenship for hundreds of thousands of immigrant farmworkers and their families. It passed 260-165 in the House, though just 23 Republicans voted for it. The bill, called the Farm Workforce Modernization Act of 2019, would give special “Certified Agricultural Worker” status to immigrants who have worked in agriculture for at least 180 days over the past two years. The status would be renewable, and workers with at least four years in the industry — who also pay a $1,000 fee for being in the country without authorization — would get a pathway to a green card and, ultimately, citizenship.

The details are ultimately unlikely to be relevant, as this bill is set to join the proud lineage of “bipartisan” legislation that will arrive in the Senate to collect dust on desks. Despite valiant efforts to include sweeteners for viewpoints along the political spectrum — including appeals to business-minded conservatives — the legislation is almost certainly dead on arrival. As far as the odds of it making headway in 2020, a major election year in which immigration is an animating force, they don’t look good.

Administration will move on implementing asylum deals with El Salvador, Honduras

After putting into practice its bilateral asylum deal with Guatemala, the administration is hoping to move forward with similar signed but not yet implemented deals with El Salvador and Honduras. According to a government document obtained by BuzzFeed News, Homeland Security has been directed to put the Honduras agreement into practice by next month. The functioning of the Guatemala deal so far provides a blueprint for how the others will go.

According to the Los Angeles Times, families are now among the migrants being sent to Guatemala to seek asylum there as opposed to the U.S. It’s not clear that any of these migrants have been granted asylum in Guatemala yet, but we do know some have chosen to return to the countries they were fleeing — which have until now been El Salvador and Honduras, the other two countries now deemed safe by these bilateral agreements — instead of seeking asylum in Guatemala. Once all of the deals are fully implemented, it could become technically impossible to seek asylum in the U.S. at all.