Part 1 of 4
To all:
Good evening (now morning) from Matamoros. That would mean a lot to me, and I think to those Asylum Seekers we are supporting here.
For this report I would like to discuss the “calendar” court observations of our Witness at The Border group, who has observed probably over 250 cases this week with close to 200 people hours of court witness. First, some general observations and then a couple of specific cases that I became engaged in just by embedding in the encampment and talking with asylum seekers (AS) there and by volunteering to help with an NGO. First a disclosure that I am not an attorney, but I have studied this process and our team includes many lawyers with which we debrief after witnessing.
I will use these cases not because they are unique, but because they are representative of so many similar stories we have heard witnessing in the camp. These are some of the ones I was directly involved after just a few days on the ground. Not all but then this would be too long for you. To me these encapsulate the core of the danger and the capriciousness of the asylum process here which seems not to be well understood by many, including Mr. Morgan of the CPB based in the first case below (The Two Cubans).
Calendar Court Hearings:
The only hearings that the public is allowed into are “calendar” hearings, which are similar to arraignments. The public is NOT allowed into “merit” hearings which is where the AS plead their actual cases for asylum. In these “calendar” hearings they are presented with their charges, generally entering without documents (most at a port of entry) and they stipulate they are not citizens. They are advised they could be removed for those charges and asked if they want to ask for relief (generally by entering the asylum process) after which the judge establishes the next hearing date. Again, these are the ONLY hearings open to the public. From this point on there is no public transparency to the courts.
General Court Observations:
- The most important hearings are NOT open to the public
- Almost no AS have representation, or any legal advice at all. It has been reported in the TRAC data base that only 4% of all MPP enrollees have representation, and our witness is fully aligned with that number. Witnessing and understanding the immense complexity of this process, the language barrier, and the education level and familiarity with navigating processes of the AS it is crystal clear that it is virtually impossible to be successful gaining asylum with even the most meritorious case without some representation or support. Just one key example is that, the most basic requirement is completion of Form I-589, Application for Asylum must be completed in English. If it is completed in Spanish or an Indigenous language it must be translated by a certified translator and stamped as such. Most of these AS live in a squalid encampment in Matamoros and have little to no access to such resources for help with even that most basic of requirements. Some NGOs and a couple of Nuns I admire greatly try to help but they are overwhelmed and many people are transient volunteers and not lawyers. That is a key, but only a very small piece of the process. They receive in court a short page pro bono lawyers. They would not give us a copy but it appeared to be relatively short list and they are overwhelmed and take only a minuscule percent of the cases.
- I believe the lack of available representation is the biggest single reason that as of November, only 11,(.1%), of 10,000 MPP asylum cases completed have been successful (TRAC).
- It appears that most AS (many, many children) will probably be in MPP in Mexico in dangerous and ramshackle conditions for 5-9 months. The less prepared they are for court (lack of representation) the longer. AS generally wait 2-3 months for the calendar hearing. We witnessed next hearing dates of those not represented (no preliminary work done) of 2-4 months following their first hearing. Most will then have a final hearing another 2-3 months later.
- The video courtrooms themselves are functional. Open, good acoustics, clear video. The CPB staff are respectful and considerate, with just a couple of exceptions, but that’s true in any organization. That said, there is a very real electronic barrier to the human connection and the discernment of moods, fear, anxiety and honesty which are much clearer in person. I know this from my work experience as I had a video monitor in my office and used it for hours a day. Justice would be more effective in a live setting, in my view.
Now I’ll discuss two specific representative cases or experiences that I have been engaged in directly that illustrate the lack of due process. We have heard many similar stories, but these I have first-hand knowledge of with only a few days on the ground this trip.
The Two Cubans (no names to protect their identity). After we served dinner in the camp one night they were riddled with fear about Mexico and they told 3 of us their story. An immigration lawyer from Maryland was in our volunteer group.
I want to overlay a direct quote of Mr. Mark Morgan, Head of CBP, before the HSGAC in Nov 2019. “If at anytime, anybody, any person that is enrolled in MPP, if they have any concern or fear at all, all they have to do is to come to a Port of Entry and express that and they will be given due process. “ Please reflect on the words and the spirit of this quote as you read the following:
- Two Cuban men enter US about 2 1/2 months ago and are enrolled in MPP. Court date set for 13 Jan at Brownsville tent courts.
- They get their permits and go to Monterrey, Mex to find work and they found jobs
- One day they were stopped by the Mexican Federal Police. they took almost all of their documents. they put hoods over their heads and they turned them over to kidnappers.
- They were held for 5 days. No food, little water. ransom demand of 4k(US) in total (typical is 2 -3 k per person)
- One man’s wife lives in NYC. They sent her a video as proof of life. and photos, She had a friend in Monterrey, Mexico who fronted the wife the money and wife flew down to pay back friend.
- Once delivered men were released and told that they needed to leave Mexico or they would be killed, or kidnapped again because they would know where they were (Federal Police collusion and they had their docs) and that they had money.
- Men went into hiding at the house of the friend in Monterrey. For 2 months did not leave house.
- Returned to Matamoros where we met them just in time for court date. Extremely fearful. Camped right next to the road which is a horrible place, but safe because police are close and present.
- Lawyer and I discussed non-refoulement violation with this case and Cubans agreed to try. Of course they had no idea what that was before and were never asked if they had a fear of returning to Mexico- but asking is not a CBP requirement. However, a few judges in court asked the question at first hearings which was good…but not most…and AS already are there 2-3 months before 1st hearing.
- We attended court with Cuban – in my case I was not his lawyer so I had to go through 3 supervisors to observe in the court room that his case would be heard in, but eventually my persistence was successful.
- Lawyer filled out representation forms and represented in the hearing. When adjourned she asked the DHS prosecutor on video for a non-refoulement interview after discussing the rationale. It is a DHS responsibility, not the court. The request for an interview was granted.
- The interview was held that afternoon.
- The case was denied and he was returned to Mexico. In the interview they did not let him present any evidence like the video or the photos. I would have understood questioning and placing the burden of proof on him as to their validity, but to not even let him present is not due process. Counsel was not present because she had to fly home, and it was unclear to us if she would have been able to attend in any case. Just not sure based on indirect comments, but she had spent hours preparing him for his interview and he is a very intelligent man. Here is a very recent and relevant decision regarding counsel at these hearings: http://www.union-bulletin.com/tncms/asset/editorial/d2bf3a70-c696-5ef4-adef-be1769441a15
So,
- we have a strong case for risk of future violence (test is more than likely) in that Federal Police colluded and have his docs, know where he is, and that and he was threatened with future violence.
- he has video and photos (validation may be required)
- he is an intelligent person and well prepared
- he had legal counsel
- they are Cuban and as such they are highly targeted by the cartels. Easy to spot as migrants, and usually with families with some money in the US.
He was denied – if he could not succeed who can? – no one, and basically no one actually succeeds, based on discussions with several lawyers here who specialize in this work and who have never won a case. Non-refoulement is against international law yet basically no one succeeds here in their requests. That no one ever succeeds at asserting non-refoulement rights does not seem to be consistent with the law and it certainly is not even close to the spirit of Mr. Morgan’s sworn statement to the HSGAC, in my view. If someone here has statistics to counter my lack of success assertion I’d be happy to take a look.
The 9 babies (0-3 months) and their Moms.
- Today at 9 am My friend Alessandra and I participated in the presentation of 9 Moms and their young babies on the bridge asking to be paroled into the US and out of MPP to go to family member sponsors already identified.
- The Moms are Honduran and Guatemalan, but the babies were born in Mexico and as such they are Mexican citizens.
- As you all know, Mexican’s are not subject to MPP and we should not be separating Moms from babies so they have a legal right to be paroled into the US rather than to remain in MPP.
- CPB examined birth certificates and let 6 walk across to their processing area. They said they only had room for 6 and that the other 3 needed to come back at 3 pm. Disappointing but not totally unreasonable.
- Of the 6, one was paroled and the other 5 chose the very odd option of changing their minds and remaining in MPP following their interview by CBP. No one is allowed in that discussion so no one knows what they were told, but it certainly does not seem to be a rational decision.
- Why would any young Mom with a 3-month old baby choose to stay in extremely dangerous conditions in a tent outside with no hope for legal support or family support over moving into a house/apt with family as a support unit to continue their asylum process. If anyone wants to help me with that decision feel free to weigh in.
- So back we went at 3 pm today with 3 moms and babies, one baby with pneumonia accompanied by young woman volunteer doctor who said the baby needed immediate care they could not provide in the volunteer med trailer.
- We were told they still had no room. The doctor made a strong case on the bridge for the sick baby and the Doc was allowed with an expert to go talk to a supervisor. They pushed back based on some “against the policy” basis so the Doc asked quite forcefully asked foo see the policy. It could not be produced – after more discussion the doc was successful and they were allowed in to be paroled in and to be treated in the US. So not easy (especially since it was illegal to deny entrance based on Mexican citizenship), but a good result.
- We waited several more hours on the bridge with the other 2 Moms but still “no room” so we will try again tomorrow, along with another medical issue.
- We were cautioned by the expert there that only Alessandra and I should take them back to the tents for fear that they would be prime candidates for the cartels as women with babies. And, if too many people were with them the cartels, who have hawks that watch all activities around there, would surmise they were trying to cross which would mean they had people in the US with money. So we went alone with them. That was about 5 pm and we went back about 8 pm to check and they were ok.
Other than being making lawful entry complex, painful and unnecessarily traumatic the main concern I have is about the secret conversations and decision to return by the 5 Moms which is, to me, an absolutely irrational reversal of something they very much wanted to do and which would be in her, and her babies, best interest. Not knowing what they were told and not having the ability to advise in their decision is no way a fair to these women and babies. It may or may not be legal, but it certainly is not ethical or fair to not allow all counsel to be allowed.