ProBAR lawyer recalls immigration tent hearings in Texas

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Your Voice ProBAR lawyer recalls immigration tent hearings in Texas

By Pedro Spivakovsky-Gonzalez

August 3, 2022, 12:01 pm CDT

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Pedro Spivakovsky-Gonzalez.

“Today, I have to make an impact in front of the judge,” the Venezuelan asylum-seeker told me at the tent court in Brownsville, Texas. This was just a few minutes before his hearing in front of the immigration judge who would be appearing remotely on a monitor inside the tent court.

In the few minutes we were given, I had been rushing to explain to him the legal standard for asylum and how to present himself professionally in court, but maybe I had been unclear. I was worried the judge might perceive him as too aggressive in court—it is difficult to find the right balance between passionately advocating for oneself after experiencing terrible suffering—and being respectful to the judge.

Seeing my anxious expression, he added, as though understanding my concern, “I have to make an impact, but serenely.”

His frustration and desperation were understandable. Like many others, he was fleeing violent political persecution in Venezuela, and his scars from being severely beaten by Venezuelan police were still visible. After an arduous and dangerous journey, he had been placed in the Migrant Protection Protocols policy—a cruel misnomer, given its lack of protection of migrants—also known as President Donald Trump’s “Remain in Mexico” policy.

Despite the recent Supreme Court decision, this policy will likely continue for at least a few more months, severely limiting the ability of thousands of asylum-seekers to meaningfully apply for asylum.

The ‘Remain in Mexico’ policy

The MPP policy was started by the Trump administration in January 2019 to force non-Mexican asylum-seekers to wait on the Mexican side of the border as their asylum cases were considered by U.S. immigration courts. Through this policy, over 70,000 migrants, including tens of thousands of children and other vulnerable people, were sent to Mexico between January 2019 and January 2021.

President Joe Biden announced the suspension of the policy in February 2021, but Texas and Missouri then sued, which resulted in its continuation to this day. In the Trump version of the policy (“MPP 1.0”), asylum-seekers waited in dangerous tent encampments in Mexico for their court dates, often falling victims to horrific crimes from cartels and other criminals, as my colleague Lindsay Schenk has described.

Between January 2019 and January 2021, over 1,100 asylum-seekers were reportedly victims of assault, rape, kidnapping, torture, or murder, according to Human Rights First. Between January 2019 and February 2021, only 650 out of 41,844 (less than 2%) of adjudicated cases were reportedly granted asylum, with almost 30,000 other cases pending at that time.

After the Biden administration ended the policy (temporarily) in the spring of 2021, ProBAR staff members traveled to the Brownsville bus station and met with relieved migrants, who had been paroled into the country by Customs and Border Protection. We provided legal orientations for them, glad that they would now be able to at least prepare for their asylum cases in the safety of the United States while living with their family members or friends.

This outcome was far better than risking a horrible fate in a tent camp roamed by cartels and other criminals. Unfortunately, this early suspension of the p0licy did not last, and the Biden administration was forced to restart it due to a district court ruling in August 2021. The Biden administration’s (“MPP 2.0”) version of the policy, which followed the court order, was meant to be “more humane” (with new mechanisms for exclusion from the policy) and the chance to live in a shelter. More individuals were exempted from the policy during MPP 2.0, but it has still left asylum-seekers in extreme danger, as our clients have recounted on many occasions.

The new ‘Remain in Mexico’ (MPP 2.0)

Now, in the days between their tent court hearings on the U.S. side of the border, these asylum-seekers are living in homeless shelters in Mexico, still facing unspeakable conditions and significant barriers to securing representation. They are forced to build an asylum case on their own with limited legal assistance provided over the phone, subject to faulty internet access and almost no privacy.

They report being kicked out of the overnight shelter every morning around 6 a.m. They often go to a local park with fellow asylum-seekers because there is some safety in numbers. Vans of cartel members drive around the neighborhood, looking for vulnerable asylum-seekers who might have a relative in the United States who could pay ransom. But these vans are less likely to kidnap or hurt them if they are in a group, they hope.

In parks during the day, and in shelters at night, these migrants fill out their asylum applications, prepare for court, and do their best to obtain photos or documents from family members and friends back home—all of which they also need to translate into English. This all follows the exhaustion and trauma of their journey north and the reasons they fled in the first place. More than one Nicaraguan asylum-seeker has told me that the conditions in the MPP policy are “a living hell.”

While “remaining in Mexico,” MPP respondents are still being kidnapped, beaten, tortured and even killed. This made news headlines again recently, but it is unfortunately a common occurrence we have heard reported by MPP respondents.

One man told me as recently as this month that this had happened to him, showing me photos of bruises from beatings he had sustained in captivity. The photos were useless in his asylum case because the injuries did not happen in Nicaragua, and he was ordered to be deported that day.

Incidents of violence will likely continue to happen, at least for the next few months, to asylum-seekers subject to this brutal policy, despite the Supreme Court decision on June 30. In Biden v. Texas, the Biden administration challenged a court of appeals ruling that had forced it to continue the policy, but the decision from the highest court simply remanded to a lower court the question of whether the Biden administration properly ended MPP in 2021, so the policy—and our work at the tent courts—will have to continue, taking precious resources away from other pressing cases.

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ProBAR’s work at the tent courts

Every day, attorneys and paralegals from ProBAR go to the tent courts in Brownsville to meet with asylum-seekers who have been placed in this new MPP 2.0, but our small staff is not able to help everyone. Asylum-seekers are shuttled for hours on a bus from a shelter in Mexico and brought across the border by CBP for their court date, which is held via teleconference.

Before their hearings, a small group of ProBAR staff provides group orientations to dozens of asylum-seekers, and then meets with several of them individually, moments before their hearing. These migrants frequently report suffering terrible threats in Mexico, but only some succeed in getting excluded from the MPP policy based on certain extraordinary circumstances, such as severe medical issues or disabilities, or their fear of identity-based persecution in Mexico.

According to the Transactional Records Access Clearinghouse, or TRAC, at Syracuse University, between December 2021 and May 2022, over 5,000 migrants were placed in MPP 2.0 (with Department of Homeland Security figures indicating it is over 7,000), and only about 1,000 of those cases have been adjudicated. Out of those 1,109 cases, only 27 applicants have been granted asylum nationally through May (around 2%), including at least 15 people that our team assisted at the tent courts in Brownsville. One of them was the Venezuelan man who told me he would have to “make an impact, but serenely.” Apparently, he did so serenely enough.

What happens next

The recent Supreme Court decision means that the Biden administration has the authority to end the policy, but a lower court will determine whether the way it did so was legally sufficient. Even if the policy is formally ended, what will happen to the thousands of others who have been ordered to be deported in the past year between the time the Biden administration tried to end the policy in early 2021 and now?

Most of these people, over 1,000 of whom our team has met with at the tent courts, have been deported. In some cases, this was because they were deemed to have arrived at the border with insufficient documentation of their suffering in their home country. Many are fleeing political persecution from dictatorships in places like Nicaragua, Venezuela and Cuba, but most were not able to take documents with them or protect the documents on their journey. Many would have been at grave risk if they had been found with those documents in their home country, so they were not focused on creating a record for trial.

It is tragic to meet with people who would seem to qualify for asylum but understandably lack detailed documentation of their claims, only to find out that they were ordered to be deported. Since the Supreme Court agrees that the Biden administration has the authority to end this policy, will immigration courts now also look more leniently upon motions to re-open or appeals filed by people who should have been given a full opportunity to present their claims in the first place? When exactly will the MPP policy end? How many people could be excluded from this policy before then? These and many other questions remain about “Remain in Mexico,” a policy, which despite the recent Supreme Court decision, continues with tragic consequences.

Editor’s note: This column originally appeared on the ABA’s Generating Justice Blog on July 13.

Pedro Spivakovsky-Gonzalez is a senior staff attorney with ABA ProBAR. Spivakovsky-Gonzalez assists adult asylum-seekers who have been placed in the Migrant Protection Protocols policy in the tent courts in Brownsville, Texas, and takes on a range of immigration cases. He is also a lecturer on law at Harvard Law School. Prior to joining ABA ProBAR, Spivakovsky-Gonzalez was a staff attorney and a Skadden, Arps, Slate, Meagher & Flom fellow doing civil legal aid for low-income veterans in Massachusetts.

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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