Many of the asylum seekers who returned to Tijuana to wait for their U.S. immigration court proceedings under a recent Trump administration policy may face those hearings without lawyers.
Weeks after U.S. officials began sending back certain asylum seekers, attorneys are still trying to figure out whether they’re even allowed to practice in Tijuana, let alone whether their organizations have the resources to send staff across the border.
Scores of people, including children with their families, have been returned, according to Mexican immigration officials.
Meanwhile, the first hearings for returnees are about a month away.
They need to be seen immediately to give attorneys time to prepare, said Carmen Chavez, executive director of Casa Cornelia, a San Diego nonprofit that provides free legal representation in asylum cases.
Her organization focuses on helping those who are most vulnerable, such as unaccompanied children, navigate the system. She’d like for Casa Cornelia attorneys to be able to help people returned to Tijuana by the Remain in Mexico program, but she says there are logistical hurdles to navigate before that would be possible.
She criticized U.S. officials for implementing the new policy without infrastructure in place to ensure access to legal representation.
“All I know is the people in Tijuana are facing insurmountable challenges, and the people trying to help them are facing insurmountable challenges,” Chavez said.
She worried about whether attorneys licensed in the U.S. are allowed to practice in Mexico, where they would be able to meet confidentially with their clients in Tijuana and whether their malpractice insurance would cover work that they did across the border. She also worried about how much time staff would lose crossing between countries.
Asylum cases for people already present in the U.S. take between 100 and 200 working hours, she said. Adding in travel to another country would use even more staff resources per case.
She also wondered how returnees would even be able to reach out to the organization’s office.
Returnees are given handouts with lists of pro bono immigration attorneys in California, but Chavez worried that they might not have access to a phone that could call the office’s U.S. number.
What does the U.S. say?
The Department of Homeland Security did not respond to questions about access to counsel for those returned under the new program.
“Consistent with the law, aliens in removal proceedings can use counsel of their choosing at no expense to the U.S. Government,” reads an online fact sheet from the department about the program. “Aliens subject to MPP [Migration Protection Protocols] will be afforded the same right and provided with a list of legal services providers in the area which offer services at little or no expense to the migrant.”
Leah Chavarria, an immigration attorney with Jewish Family Service, another pro bono group on the list given to those who will be attending immigration court in San Diego, said the organization has been trying to determine what capacity, if any, it might have to send staff across the border.
She estimated that if they were able to figure out all of the other logistical concerns, such as having work permits in Mexico, Jewish Family Service might at most be able to take five cases at a time from among the returnees.
If attorneys step up through their volunteer program to help, the organization might be able to take more, she said.
“It’s such a strain on resources because if we’re sending a staff member to Mexico, it’s going to take their entire day to have a meeting with one client just because of the logistical issues,” Chavarria said.
Why having an attorney matters
Not having an attorney can make a big difference in the outcome of an immigration court case.
Between October 2000 and November 2018, about 82% of people in immigration court who didn’t have attorneys were ordered to be deported or gave up on their cases and left voluntarily, according to data from the Transactional Records Access Clearinghouse of Syracuse University. In contrast, of those who had lawyers, only 31% had the same outcomes.
In that same time period, about 53% of those facing immigration court did not have attorneys, according to that same data. Among those held in immigration detention centers, which also present logistical challenges for attorneys trying to represent clients inside, 82% did not have lawyers for their cases, according to the clearinghouse.
Among those detained and released while their cases were still pending, 28% were unrepresented, and for those who had never been held in detention, about 41% didn’t have attorneys on their cases.
Many attorneys believe that those in Tijuana will have an even more difficult time than those held in detention centers.
“There’s certainly more access to individuals that are in detention than individuals who are in another country,” said Adela Mason, director of the Immigration Justice Project, which provides legal orientation to detainees at Otay Mesa Detention Center and is also on the San Diego list of pro bono attorneys.
She said she worries asylum seekers won’t even have access to her group’s legal orientation program for basic help with their cases and understanding the system.
Another group, Al Otro Lado, is trying to provide at least that support to asylum seekers across the border.
“A few attorneys are stepping up that are going to take some of them, but there is no plan to represent these people right now,” said Luis Guerra of the Catholic Legal Immigration Network, which has been supporting Al Otro Lado.
ER-style legal services
Al Otro Lado provides know-your-rights style introductions to the immigration system with the support of volunteer attorneys both at their offices and in the mornings outside the San Ysidro Port of Entry where asylum seekers gather to hear who will be allowed in from the waiting list to ask the U.S. for protection.
“What we do right now are emergency room immigration legal services,” Guerra said.
The organization doesn’t have the resources to represent returnees for their asylum cases, Guerra said.
“It’s really difficult to connect with people who are returned because we have to run all over Tijuana to find them if they don’t already know about us,” Guerra said. “We can’t have someone at all ports of entry 24/7 waiting for people to be returned. It’s unreasonable. Everything about this policy is unreasonable.”
Al Otro Lado is one of the plaintiffs in a lawsuit filed this month by the American Civil Liberties Union challenging the Trump administration policy in federal court.
James Rudolph of Rudolph, Baker and Associates, is one of the few immigration attorneys in the border region with offices in San Diego and Tijuana.
He opened the Tijuana office decades ago and obtained, first, a Mexican green card and, then. citizenship, which allows him to work on both sides of the border. In order to make the logistics work, he partnered with a Mexican attorney, he said.
His office doesn’t take many asylum cases, he said, but focuses on helping people apply for immigrant visas and those whose tourist visas have been denied. He offered to support attorneys trying to figure out how to see clients in Tijuana.
“I know a couple of other attorneys have tried to have an office — it’s just not, economically, very easy to do it,” Rudolph said. “I started a long time ago and plowed through the economics of it.”
Kate Morrissey writes for the San Diego Union-Tribune.