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Fall 2019

Protecting Asylum Seekers: A Report from the Border

TIJUANA, MEXICO, JUST ACROSS THE U.S. BORDER, is well known for its tourism and commerce. Today, it is also an overcrowded bottleneck for asylum seekers, thanks to the Trump administration’s ironically named Migrant Protection Protocols, known more accurately as the “Remain in Mexico” policy.

Responding to a call for volunteer lawyers from Al Otro Lado, a nonprofit that helps families from Honduras, Guatemala, Cuba, Venezuela, and elsewhere who have been prevented from applying for asylum in the United States, we had the opportunity to observe conditions at the border firsthand. Because they are not authorized to work, these families live in shelters, depend on handouts for food, have little or no access to health services, and are unable to enroll their children in school. They exist in limbo.

Many asylum seekers are families with small children. They did not try to evade the Border Patrol, but were put into detention. After spending one or more days in hieleras (“ice boxes,” holding cells maintained at very cold temperatures), the families were returned to Mexico. They huddle in Tijuana, carrying their identity documents, children’s birth certificates, letters from school principals about gang threats at their elementary schools, and news articles about gang murders of family members. These are not stereotypical economic migrants attempting to slip undetected across the border, nor are they gang members.

The current Trump administration policy, which deters, delays, and discourages asylum seekers, defies U.S. laws that provide for due process. At pre-dawn hours, entire families are bused to Immigration Court proceedings in San Diego and returned to Tijuana that same day. Almost all the asylum seekers we met had been to San Diego Immigration Court at least once, and were destined to return multiple times—in nearly every case without a lawyer and forced to articulate their claims through randomly assigned interpreters.

A typical case may involve four or more visits to Immigration Court, each separated by weeks or months. After multiple trips, which involve formal notice of the charge that the asylum seeker has attempted to enter the United States without prior approval, a formal request for asylum, and submission of evidence that supports the application, the immigration judge finally schedules a court hearing on the merits of the asylum claim. Not until the fourth journey, on average, will the asylum seekers be able to testify—usually pro se—and the judge begin to review and assess the evidence. Meanwhile, the asylum seekers—adults and children—languish in Mexico. This dilatory pace ensures that many will give up and leave.

Noncitizens in Immigration Court proceedings do not have the right—as do criminal defendants—to appointed counsel, but they do have the right to be represented by an attorney if they can find one. The Remain in Mexico policy undercuts this legally guaranteed right to the assistance of counsel, because forcing asylum seekers to remain in Mexico effectively ensures they will never find an attorney. The Immigration Court, required to provide information to indigent individuals on sources of free or low-cost legal assistance, distributes a standard list of California nonprofit legal organizations. These organizations and pro bono lawyers, however, do not have the capacity to handle the volume of asylum seekers or the ability to properly prepare the applications. Even more fundamentally, the asylum seekers cannot cross the border to consult with U.S.-trained attorneys who might be able to help them.

Al Otro Lado tries to fill this gap with “know-your-rights” presentations in Tijuana, referrals to social services, document translations and—once a month—a volunteer legal clinic where lawyers who can make their way to Mexico try to help asylum seekers fill out applications. But Al Otro Lado cannot provide direct representation to the flood of people essentially blockaded from U.S. legal assistance. And legal representation matters: studies show that 60% of those represented by a lawyer in Immigration Court are successful, compared to 17% of those who are unrepresented.

Although we cannot return to Tijuana every month, we are committed to making a contribution. We encourage law students to do the same. Our prior work with the New York Immigrant Representation Study has increased legal representation of immigrants in New York and has proven the enormous benefit that legal assistance can provide.

by Stacy Caplow and Maryellen Fullerton

Stacy Caplow is associate dean of experiential education, overseeing all aspects of clinical and experiential education and is codirector of the Safe Harbor Project. Maryellen Fullerton is Suzanne J. and Norman Miles Professor of Law and former interim dean of Brooklyn Law School. Both are experts in asylum and refugee law.