Originally published by The New York Times
One by one, asylum-seekers from El Salvador and Honduras who are waiting in Mexico for court hearings in the United States appeared before Judge Lee O'Connor to explain why, after months of effort, they couldn't find an attorney.
One man said he repeatedly tried names on a list of free or low-cost attorneys that U.S. Customs and Border Protection provides. No one answered, and he began looking for attorneys in Tijuana, who struck him as dishonest. The judge warned that Mexican attorneys may not be licensed to practice in the U.S.
Through sobs, a Salvadoran woman with three children said phone calls “rang and rang and rang and nothing happened.” She said no one responded to a voicemail and she once heard nothing but music.
“Our law is very complicated,” O'Connor told her in November before offering her a third extension to try to track down an attorney. “Immigration law is considered one of the most complicated areas of the law there is. ... Even lawyers struggle.”
Such courtroom exchanges are common under the Trump administration's “Remain in Mexico” policy, which forces asylum-seekers to wait across the southern border in often dangerous cities as their cases wind through backlogged immigration courts. The policy, which has been applied to about 60,000 people, has become a key plank of U.S. border enforcement. The Supreme Court ruled this month that it could stay in effect during a legal challenge.
Only 5.3% of asylum-seekers subject to the Migrant Protection Protocols, as the policy is officially known, had lawyers through the end of January, compared with 85% for asylum-seekers nationwide, according to Syracuse University's Transactional Records Access Clearinghouse.
The scarcity of attorneys helps explain why only 4% of Remain in Mexico decisions resulted in asylum, while the nationwide grant rate was 29% during the 2019 fiscal year.
The coronavirus presents more hurdles as lawyers contend with potential exposure in small courtrooms and a ban on nonessential travel to Mexico for least 30 days. The Justice Department's Executive Office for Immigration Review has closed many courts but continued with Remain in Mexico hearings.
Hearings in San Diego were canceled without explanation Friday, hours after California Gov. Gavin Newsom ordered 40 million residents to stay home indefinitely, but the court remained open.
The San Diego judges postponed hearings through next Friday due to the coronavirus, said Ashley Tabaddor, president of the National Association of Immigration Judges, which has called for a complete shutdown. She didn't know if judges in other border courts canceled hearings.
The courts, asked about the cancellations, said in a statement that it doesn't comment on whether judges violate law or policy or deny rights to those “seeking to have their day in court.”
Before the virus struck, The Associated Press contacted all 21 attorney's offices on U.S. government lists of free and low-cost providers in courts that handle Remain in Mexico cases and found only two have taken on a large load. Jewish Family Service of San Diego has represented 68 people and Las Americas Immigrant Advocacy Center in El Paso, Texas, has taken 76 cases.
Some legal aid groups on the lists have taken a small number of cases, and a few offer free “know your rights” talks. Jewish Family Service suspended those talks held inside San Diego courtrooms due to the pandemic and prohibited staff from going to Mexico.
To make the list, an office must commit to 50 hours of free service a year. The Justice Department, which vets applicants, lists seven in San Antonio, six in El Paso, five in San Diego and three in Harlingen, Texas.
Asylum-seekers who are sent back to Mexico and given hearing dates at a tent court in Laredo, Texas, get the list for San Antonio, more than two hours' drive away. None of the seven legal organizations there take Remain in Mexico cases, but they stay on the list to avoid being cut off from other clients.
Phones ring regularly with pleas from asylum-seekers. Employees sift through hundreds of calls and messages. Their families in the U.S. spend hours calling and following up.
"It's a waste of everyone's time," said Erica Schommer of the St. Mary's University School of Law Immigration and Human Rights Clinic, one of the San Antonio providers. “I feel worse for the people who are calling here to have their case placed.”
Asylum-seekers are entitled to hire attorneys but, unlike criminal court, the government won't pay for anyone who can't afford it. A private attorney typically charges around $7,000.
For attorneys, meeting clients in Mexico is a huge commitment. O'Connor, the San Diego judge, quizzed an attorney on how long she waited in her car to cross back to the U.S. after a client visit, marveling that it took two hours.
El Paso attorney Taylor Levy, who takes limited cases referred by Mexican migrant shelters, said she rushed to Ciudad Juarez to help a client who just escaped kidnappers. U.S. authorities allowed the client to remain in the U.S. but they spent more than three hours in line on the Mexican side of a border bridge while the woman's kidnappers sent her text messages, threatening to pursue her.
There are a host of other obstacles, from lack of malpractice insurance in Mexico to safety concerns. Some asylum-seekers don't have phones and move often.
Jewish Family Service of San Diego, which fields 20 to 30 calls a week from Remain in Mexico asylum-seekers, requires employees to go to Tijuana in pairs for safety. Finding a safe place to meet can be challenging.
Kate Clark, the group's senior director of immigration services, once went to a Tijuana shelter to meet four families who were clients and found many more demanding to know why she couldn't represent them.
“It's difficult because you're most likely going to have to say no,” she said.
Fatigue is also a factor. A U.N. survey taken last fall of around 650 asylum-seekers waiting in Mexico found 6% reported being kidnapped. Reports of migrants being raped or assaulted are common.
“I’ve had a lot of lawyers tell me they will not take these cases anymore because they're gut-wrenching,” Levy said.
A group of Homeland Security officials last November made improved access to attorneys one of its recommendations to address the policy's shortcomings. Asked last month for an update, acting Secretary Chad Wolf told lawmakers that authorities began showing a “know your rights" video on immigration law.
Rep. Nita Lowey, a New York Democrat, told him she watched the video on a small television at a Laredo, Texas, holding facility over fans "so loud that it was very difficult to hear or understand.” Wolf promised to look into it.