While Remain in Mexico court was not in session for the week of June 7, the program remained a key topic of discussion in light of the president’s threatened tariffs on Mexican goods entering the US. Tariffs were threatened to further push the Mexican government to curb Central American migration.

A Joint Agreement

On June 7, 2019, Mexico and the US released a joint agreement that paused the tariff threats. The agreement emphasizes a Mexican enforcement surge. In short:

• Mexico will send 6,000 members of its newly formed National Guard to the Mexico-Guatemala border to prevent further migration to the US;

• The US will expand the Remain in Mexico program across its entire southern border and will accelerate the adjudication of asylum claims; and

• Mexico will allow asylum seekers in this program to stay in Mexico while also offering jobs, healthcare, and education according to its principles.

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The results of these efforts will be evaluated in as early as 45 days (July 22) but no longer than 90 days (September 5).

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Safe Third Country?

The US desire for Mexico to consider itself a “safe third country” largely drives the administration’s threat of tariffs. Under this designation, migrants would first have to seek asylum in Mexico before seeking asylum in the US. The “safe third country” option extends to countries that do not produce asylum seekers of their own or as a place where people can seek asylum free from danger. Mexican human rights advocates and members of the international community question whether Mexico can actually meet the definition of a “safe third country.” The designation may be considered by the Mexican government after the first 45 days of the enforcement surge. 

Week 8 of Remain in Mexico continues to prove dangerous for migrants and challenging for advocates and attorneys. Well over 3,000 migrants have been placed in Remain in Mexico and returned to Ciudad Juárez. As the number of migrants enrolled continues to rise, court hearings have been set out as far as April 2020. Additional immigration judges are expected to begin conducting Remain in Mexico hearings, including via video-conference, as early as next week.

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Migrants Returned to Mexico

• While a large majority of those affected by Remain in Mexico continues to express fear of returning to Mexico, DHS continues to return a large number of migrants back to Ciudad Juárez. Local advocates have successfully worked to unenroll around 25 migrants in particularly distressing circumstances, including families with special medical needs, pregnant women and victims of violence, most of whom should have never been enrolled in the program.

• Migrants in Ciudad Juárez continue to face kidnappings, theft, extortion, and threats.

• For those migrants returned to Mexico despite expressing fear of return, the government has refused to release transcripts of fear interviews for review to attorneys or other determination criteria from asylum officers.

Limited Local Legal Services

• Judge Herbert has encouraged migrants now in second hearings and still without lawyers to request an additional continuance. The government had no objection with the condition that this would be their last continuance. Local pro bono and low-cost legal service providers are simply at capacity.
   

Fear or Shelter Quandary

• Migrants afraid of returning to Mexico are forced to decide between returning a shelter in Ciudad Juárez or remaining in ‘hieleras’ while they await a fear interview and possibly losing their place in shelters.
   

Seized Documents

• Several asylum seekers have requested access to their documents (original passports, birth certificates, etc.) from DHS attorneys. Judge Herbert shared that it is common practice for DHS to keep original documents during proceedings but that asylum seekers can request copies at the port. One migrant reported facing challenges when her son was admitted to the hospital in Mexico and she lacked the paperwork the hospital requested to prove that she was his biological mother.

Children in Court

• In week 8, 23% of people in court are children.

• On Thursday, the court had a nearly two-hour delay after Judge Herbert repeatedly took breaks after he was disrupted by a crying seven-month-old baby.

Deportations In Absentia

• Judge Herbert has issued approximately 150 deportations in absentia for migrants who are not present for their first or subsequent hearings, despite repeated concerns from advocates about the irregularities government notifications and instructions for court appearances.

• A local attorney stressed her client’s exceptional context and expressed her desire to make arguments against the in absentia orders. While DHS attorneys objected, Judge Herbert asked her to submit a brief with evidence on June 21. DHS will have 14 days to respond to the brief.

Questioning Role of Friend of Court

• DHS attorneys have called the role of Friend of Court into question. The Friend of Court exists to support the immigration judge in these proceedings and this function, taken on by local legal service providers, proved essential in helping facilitate court proceedings while engaging with asylum seekers in a culturally competent manner.

Curbing Observers

• Up until this week, Remain in Mexico court observers have been able to access and photograph the court docket (a public document). This week observers were told that they could no longer take photos of the docket or even handwritten notes while viewing it.
   

Limiting “Know Your Rights” Presentations

• Local advocates have provides asylum seekers with brief Know Your Rights presentations before families go into court. The time allotted for this presentation continues to be reduced. There is no space available for presentations other than the court waiting room.

HOPE has observed seven weeks of Remain in Mexico court proceedings in El Paso and conducted interviews with immigration attorneys and Mexican migrant shelters. Approximately 3,120 individuals have been returned to Ciudad Juárez as a result of the Remain in Mexico policy. These are the real implications of this practice.

• Deportations in Absentia. Judge Herbert has issued over 100 deportation orders in absentia meaning that asylum seekers who do not appear for their RIM court dates are ordered deported and face a ten-year bar should they try to re-enter and seek asylum another time.
  
  This signals a shift in practice for Herbert, who up until two weeks ago had not acted on the cases of individuals who had not shown up to court. On week two of the program, Judge Herbert asked the government for a brief outlining how they had met their burden of notifying migrants about their court hearing. Despite questionable arguments, Judge Herbert found the government had met its burden. His decision was retroactive, quickly elevating the number from 17 to over 80 deportations in absentia in one week.
   

• Pregnant Women. Six pregnant women who expressed fear of returning to Mexico were allowed to stay in the US through their proceedings and were released from custody.
   

• Family Separation. An eight-months pregnant woman spent her 21st birthday in the Remain in Mexico program while separated from her husband and 10-month old baby. She expressed fear of returning to Mexico, especially because she was due any moment.
   

• Non-refoulement Interviews. The majority of migrants express fear of returning to Ciudad Juárez and Mexico in general during their court hearing. Judge Herbert has repeatedly asked the government to refer these cases for an interview (known as non-refoulement) before an asylum officer before being returned to Mexico. These interviews were created for this program and have an incredibly high burden of proof and standard of fear. Many if not most families are ultimately returned to Mexico despite fear claims.
   

• Language Barriers. A Conjobal speaker, also pregnant, was unable to access a phone interpreter during court proceedings. Her case was rescheduled for the following week. Language barriers have long been a cause for delays and prolonged detention for migrants.
   

• Rates of Return. Each week more migrants scheduled for first, second and third hearings have not been present at their hearings. Second and third hearings have had a significant drop as entire families do not return.
   

• Deputy Secretary of DHS visits El Paso. The newly appointed deputy secretary, David Pekoske, visited El Paso to witness Remain in Mexico hearings on Thursday, May 23, 2019. He observed the hearings for less than five minutes before departing the court.

HOPE has observed six weeks of Remain in Mexico court proceedings in El Paso and conducted interviews with immigration attorneys and Mexican migrant shelters. Approximately 2,800 individuals have been returned to Ciudad Juárez as a result of the Remain in Mexico policy. These are the real implications of this practice.

• Family Separation. A grandmother who was the primary caretaker for her grandchildren was separated from her children and returned to Mexico.

• Pregnant Women.  Several pregnant women were returned to Mexico after attempting to arrive to the court for their first hearing. CBP took them into custody and returned them to Mexico the following day.

• First Deportations. The first deportations under the program took place with the removal of a Guatemalan mother and her child. The mother expressed fear of returning to both Mexico and Guatemala but preferred facing possible death in Guatemala because she knew her children had family there to support them.  On May 17, Judge Herbert began issuing in absentia deportation orders. These migrants will be subject to a 10-year immigration bar.

• Kidnappings. A mother and her five-year-old daughter from Honduras were kidnapped shortly after being returned to Juarez. The mother had expressed fear of returning to Juarez to the judge.

• Stolen Documents. After requesting to withdraw his case, an El Salvadoran national was returned to Mexico without his identity documents needed to travel.

• Growing Dockets. Only one judge, Nathan Herbert, has been assigned to Remain in Mexico hearings. At least one more judge is expected to hear cases beginning in September, in person and through video-conference, raising concerns about due process.  Second hearings are now being scheduled out as far as August 2019 and first appearances for new cases are being scheduled as far out as February 2020.

• Access to Courtroom Denied. Advocates and media were denied access to court on May 15, 2019 because of the growing number of migrants present in the courtroom. Court authorities have indicated that space will be limited in the immediate future, meaning that Remain in Mexico cases will be heard outside of public view.

If you are an attorney, reach out to local organizations with pro bono programs. If you are already in an area with Remain in Mexico, go observe the courts or serve as “Friend of Court.”