Vulnerable migrants facing persecution in Mexico are having a difficult time getting out of the Remain in Mexico program because the federal government is limiting their access to attorneys and preventing them from preparing for asylum interviews, according to immigration lawyers and human rights workers.
Under Remain in Mexico, asylum seekers must live in Mexico while waiting for immigration court hearings. People afraid of persecution in Mexico can be removed from the program and wait in the United States if they pass what is known as a fear-of-return interview.
However, immigration lawyers claim that the U.S. government is making it difficult for migrants to pass that interview. Specifically, they say that the Trump administration’s policies limit migrants’ access to legal representation, prevent applicants from preparing for the interview and set an unreasonably high legal standard to prove fear of being persecuted.
“We know that in practice those interviews are problematic,” said Monika Langarica, immigrants’ rights staff attorney for the ACLU of San Diego and Imperial Counties.
“If people request those interviews in court, they are subject to wait in detention for what could be days on end for the interview, they don’t have access to a lawyer while waiting for the interview and, for the most part, they don’t have access to a lawyer during the interview,” she added.
Local immigration lawyers representing people in the Remain in Mexico program say clients with legitimate safety concerns have been denied the chance to wait in the United States. In one instance, a Honduran man received threatening text messages from the same gang he ran away from. Gang members told the man that they knew he was living in Tijuana and that they were coming for him, according to Luis Gonzalez, supervising attorney for Jewish Family Service of San Diego.
That man took printed copies of the text messages to his fear-of-return interview but was ultimately forced back to Mexico.
“I think those people are the ones who need protection,” Gonzalez said. “It shows the persecutors back home can follow them to Mexico and for them Mexico is not a safe country.”
Remain in Mexico is a response to a “security and humanitarian crisis on the southern border,” and the program is meant to discourage individuals from attempting to enter the country illegally and make false asylum claims to stay in the U.S., according to the Department of Homeland Security’s website.
A spokesperson defended the program, saying the secretary of Homeland Security has broad authority to enforce the country’s immigration laws and that the program is in compliance with domestic and international law.
It remains unclear exactly how many people have received fear-of-returning to Mexico interviews and how many have passed.
The Department of Homeland Security has not released statistics about the program and did not respond to a media inquiry from the San Diego Union-Tribune asking for the number of migrants who have been allowed to stay in the United States.
Anecdotally, immigration lawyers say the numbers are slim.
At Jewish Family Service of San Diego, lawyers have had more than 25 clients undergo a fear-of-return interview and only five have been allowed to stay in the United States, said Gonzalez.
Kennji Kizuka, a senior researcher with Human Rights First, estimates that 1% of the more than 20,000 migrants in the Remain in Mexico program have gotten out through the fear-of-return interview.
This week, the New York-based nonprofit released a critical report about the Remain in Mexico program. The report says there have been more than 110 reported cases of rape, kidnapping, assault and other violent crimes against asylum seekers returned to Mexico.
The report criticizes the fear-of-return interviews, calling the process, “a sham that returns asylum seekers to grave danger.”
Specifically, the report says the interviews are “flawed” because migrants are asked to meet a high legal standard but are not granted legal representation and due process necessary to meet that standard.
This is the same argument that the labor union representing federal employees who conduct these interviews made in a legal brief.
That high legal standard is officially known as the “more likely than not” standard — meaning there is a more likely than not chance that they face persecution in Mexico. That standard has traditionally been used in full-scale deportation proceedings administered by an immigration judge where migrants are given an evidentiary hearing, access to counsel, time to prepare, and a right to a review.
However, this interview process removes all of those protections.
“This mismatch between the high evidentiary standard and the inadequate procedures all but ensures violation of [domestic and international law],” the brief states.
In response to criticisms of the high legal standard, Sharon Rummery, public affairs officer with U.S. Citizenship and Immigration Services said that then-Secretary of Homeland Security Kirstjen Nielsen instructed officials to use the “more likely than not” legal standard and noted that the standard is consistent with various international treaties including the Convention Relating to the Status of Refugees and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Unlike criminal court, people in immigration court do not have the right to a free attorney. Instead, they have the right to pay for an attorney or find an attorney willing to take their case for free. However, under Remain in Mexico, some migrants with attorneys have to undergo the fear-of-return interviews without their legal representation.
Lawyers from Jewish Family Service say that they are routinely prevented from sitting in on fear-of-return interviews or speaking with their clients to help them prepare for the interview. Most of the time, the lawyers don’t know where their clients are being interviewed.
“We don’t know if it’s in CBP custody, we don’t know if they take them to the Otay Mesa Detention Center or if they are in a federal building,” said Leah Chavarria, director of immigration services with the nonprofit.
Chavarria has also had difficulties communicating with clients who are in custody waiting for the interview. This is particularly alarming because of the amount of preparation needed to present a strong enough case to pass these interviews, she said.
In one case, Chavarria was unable to speak with a client who was in detention for three days. Chavarria was unsure if her client had been given an interview or even if she was still in U.S. custody.
“We kept emailing and calling to try to find them,” she said. “At one point we said we were going to contact Mexican police because we hadn’t seen them in 72 hours.”
Rummery said the reason some attorneys have not been allowed in fear-of-return interviews is because migrants are not permitted counsel during inspections at the ports of entry and these interviews are considered part of that inspection.
Even though migrants can ask for another interview if they are denied, some are giving up because they don’t want to be held in detention for several days, Gonzalez said.
“They say the detention conditions are so bad that they don’t know if they can handle being detained again,” Gonzalez said. “As time goes by, people find it difficult to make the decision of putting themselves — and especially if they have family members — their children through that process again.”
The policy essentially forced migrants to wait in Mexico until something happens to them, and after it does, there is no guarantee that they’ll be allowed to wait in the United States, he added.
Solis writes for the San Diego Union-Tribune.