In this first-hand account, leading immigration attorney David Leopold, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, recounts his recent trip to the border, providing in-depth analysis of the deadly impacts of the Trump administration’s “Return to Mexico” policy and revealing Trump and Stephen Miller’s true motive: “to end asylum protections and turn America’s back on men, women and children who have fled to the U.S. in fear for their lives.”
David Leopold’s “Bearing Witness at the Southern Border” below is also available here.
I recently traveled to the southern border to bear witness. I volunteered at migrant shelters, met with faith-based religious leaders and community activists on both sides of the border and walked the streets of El Paso and Juarez. What was clear to me as I visited the southern border is that Trump’s immigration policies have little to do with border security or the integrity of the asylum system. The goal of the Trump administration is to end asylum protections and turn America’s back on men, women and children who have fled to the U.S. in fear for their lives.
Under the law and process that’s been in place for decades asylum seekers who cross the southern border, either at or between designated ports of entry, are detained by U.S. authorities and given a “credible fear” interview to determine whether there is a “significant possibility” they are entitled to asylum in the U.S. Those who pass present their full case in a hearing before an immigration judge. Those who do not are deported on an expedited basis.
On January 24, 2019 the Trump administration changed all that when they announced the Migrant Protection Protocols (MPP). Under MPP, asylum applicants found to have a “credible fear” of persecution are sent back across the border to Mexico to wait for their hearings before an immigration judge in the U.S. which could take months or years. The Department of Homeland Security claims that MPP will restore integrity to the asylum process, keep asylum seekers safe and protect their access to apply for asylum in U.S. immigration courts.
Nothing could be further than the truth. MPP is a dangerous, chaotic mess which subjects asylum seekers to life threatening danger and robs them of the statutory right to apply and be fairly considered for asylum as required under U.S. law.
Let’s start with the safety of the migrants. MPP sends vulnerable families back across the border into Ciudad Juarez, a city teeming with human smugglers, cartels and other dangerous criminals, a city where travel by U.S. government employees is restricted to certain areas and where the U.S. State Department warns Americans to “reconsider travel” due to “widespread” violent crime and gang activity. As detailed by Vice News in a shocking exposé about “David,” an asylum seeker who was kidnapped by a cartel five hours after he was returned to Mexico, MPP “has led to a brutal wave of kidnappings in some of Mexico’s most dangerous border cities.”
Despite DHS’s claims, the Mexican government does not provide returned asylum seekers with protection. Approximately 42,000 migrants have been returned to Mexico since MPP began. In Juarez alone, there are an estimated 20,000 migrants, only 1,000 of whom have some kind of temporary housing. The several migrant shelters opened by the Mexican government have been infiltrated by cartels, human traffickers and other criminals who target asylum seekers for kidnapping, often scouting out those with cell phones to better enable kidnappers to extort ransom from family members back home.
MPP also effectively denies asylum seekers the right to an attorney. Despite DHS’s claim that migrants subject to MPP will have access to counsel, U.S. attorneys and advocates on the ground in El Paso and Ciudad Juarez report that access to counsel for migrants waiting in Mexico is all but cut off. Asylum applicants remaining in Mexico are prohibited from entering the U.S. to consult with U.S. attorneys. Nor may U.S. attorneys cross into Mexico to counsel migrants. The Mexican government, advocates report, has threatened U.S. lawyers with arrest for practicing law in Mexico without a license. While U.S. lawyers may appear with asylum seekers at the U.S. immigration courts in El Paso, they may only do so if their representation has been arranged in advance, which is all but impossible given the barriers to access. Not surprisingly, Syracuse University’s Transactional Records Access Clearinghouse (TRAC) found that of 1,155 MPP cases that had been decided by the end of June 2019, just 14 or 1.2% of the individuals in the MPP program had legal representation.
Nor, despite DHS’s claims, do asylum seekers have access to the U.S. immigration courts. DHS directs asylum applicants to appear at the El Paso side of the international bridge where U.S. Border Patrol will “escort” them to court. Yet advocates and attorneys report most asylum seekers never make it. Immigration attorneys, Christina Brown and Kara Lynum, who recently traveled to El Paso and Ciudad Juarez, reported that of “93 people scheduled for hearing only 5 were able to present themselves at the port of entry successfully and get into court. Four others had tried but Customs and Border Protection had deemed them ‘medically inadmissible.’ The five that appeared in court beat the odds: they had survived three months in Mexico and found their own food and shelter, transported themselves to the port of entry in Juarez, avoided kidnapping on the way to court, got through the Mexican immigration side, and presented themselves to CBP at the bridge over the Rio Grande sometime around 4 a.m. for their 1 p.m. hearing. The remaining 84 people were ordered removed from the United States for failing to appear in court without regard to the endless obstacles they faced.”
Other examples of migrants’ inability to cross from Ciudad Juarez to El Paso are common. Katia, a Nicaraguan woman, waited two months in Mexico for her asylum case to be heard in U.S. immigration court in El Paso. On the day of her hearing she arrived at the Mexican side of the border three hours in advance of her 7:30 a.m. hearing. According to Reuters, U.S. Border patrol didn’t even escort her to the U.S. side of the border until 9:00 a.m. The immigration judge dismissed her asylum case and ordered her deported in absentia for failure to appear at her hearing. Case closed.
Bearing witness at the southern border transforms the horror of the Trump administration’s asylum policies from headlines and chyrons to reality: children, women, and men who are desperate and fleeing for their lives are being subjected to danger, cruelty, and a Kafkaesque asylum application process under MPP.
We must bear witness for the policies our government is instituting. And, we must bear witness for our fellow human beings. As Elie Wiesel said, “I swore never to be silent whenever and wherever human beings endure suffering and humiliation..[f]or the dead and the living, we must bear witness.”