Eyes on the Border but Shut Out of the Tent Courts

In mid-November, the American Immigration Lawyers Association (AILA) sent a delegation to the border to see firsthand the tent courts where Remain in Mexico cases are being heard, as well as the tents in which asylum seekers turned back at the border are trying to survive after having been forced back into Mexico. The delegation included Andrew Nietor, chair of AILA’s Border Taskforce, AILA President Marketa Lindt, and AILA Executive Director Ben Johnson. Huge thanks to Andrew Nietor for leading the effort to put this experience into words:

“Here comes Maria*.  She’s a hugger,” our local guide Jodi Goodwin said, letting out an “Umph!” as little Maria, about 6, ran into her and wrapped her arms around Jodi’s waist.  Maria was one of about 10 children who came running up to our group as we stepped off the bridge and into the migrant camp in Matamoros, Mexico, right across the border from Brownsville, Texas. As we continued walking among a crowd of asylum seekers, we were overwhelmed by people who just wanted to talk to us, explain why they fled their home countries, and ask us what was happening because they were given practically no information by officials at the border.  We saw row after row of small tents, open fire pits, a collection of portable bathrooms and showers – not nearly enough for the more than 2,000 people living at the camp. Our group was simultaneously overdressed for the muddy encampment and underdressed for the biting wind and rain.  We thought we were prepared.  We were not.  What we witnessed in that sprawling misery; what we were told by families about why they fled their homes; what we came to understand were now the daily threats of hunger, disease, and kidnapping by cartels infiltrating the camps; all of this was more than any of us could bear without feeling overwhelming despair and returning to our hotel rooms that night badly shaken.

The next day, shock at the misery of the humanitarian crisis to the south gave way to outrage at the due process violations to the north.  We were outright barred from entering the tent courts that had been set up at the port of entry for the sole purpose of the Remain in Mexico (or as the officials call it Migrant Protection Protocol or MPP) hearings.  No amount of advance notice, flashing of bar cards, or offers to follow whatever procedure was in place would get us in (hint: there is no procedure in place).  We ultimately travelled to the location where the Immigration Judges (IJ), Department of Homeland Security (DHS) counsel, interpreters, and everyone else were physically located, miles from the tent courts and the isolated respondents whose lives were being decided.  What we witnessed was shocking.  Certainly, a different type of shock than what we experienced at the camps, but just as jolting to our sense of fairness and due process.  A mere portion of the proceedings were interpreted and heard by the respondents; the IJ and DHS counsel traded documents and comments about the cases; rulings were made based on evidence the respondents never saw or had translated. All this while the respondents appeared on video from the tent court looking exhausted, confused, and scared.  In the final five minutes of the calendar, the IJ ordered about 12 men, women, and children removed in absentia without any substantive inquiry as to whether they weren’t in the tent court because Customs and Border Protection hadn’t brought them, or they were subject to medical quarantine, or hadn’t gotten their notices in the camps.

So, what was the value in our AILA delegation going to Brownsville to observe? We got the first hint when we met a quickly organized yet well-attended chapter meeting on our last day.  Speaking with the warrior advocates on the ground in Texas, we expressed not only what we saw but how we felt. There was a consistent nodding of heads, a collective “Welcome to our world.”  But there was also a very clear directive: “Now go tell people.”

There is a reason the administration has decided to keep legitimate asylum-seeking families in Mexico, and to set up closed tent courts in the U.S. where attorneys, the press, and ultimately the American public can’t see what is happening.  The first thing we need to do is pull back the curtain to see the human faces, to hear their stories, to understand both what conditions led them to flee and what conditions we are now subjecting them to.  We also need to lift the rock to see the abuse of power, the illegal programs, and the inhumane policies that are being implemented. We then have to take all this back to our colleagues at work, our friends at the park, our legislators on the Hill, our families at dinner, and our contacts with the press.  What’s happening is an existential threat to our way of life, made possible by keeping the issue out of sight and letting others frame it.

This certainly calls for tireless advocacy and aggressive litigation. There needs to be more coordination among advocates, more aggressive litigation in each immigration courtroom, more petitions and class actions in federal court.  But for us, right now, it’s also about little Maria.  We want to start by making sure you know about Maria, about the refugee camps, about our closed courts.

Now go tell people.

*Name changed

by Ben Johnson, Marketa Lindt, and Andrew Nietor