Asylum Seekers Are Being Misclassified Under Migrant Protection Protocols

Asylum Seekers Are Being Misclassified Under Migrant Protection Protocols

A lawsuit was filed in a federal court in Brownsville, Texas, last Wednesday on the behalf of a 23-year-old woman who fled Honduras and was returned to the streets of Matamoros, Mexico, by U.S. immigration authorities in late July.

The petition filed on the behalf of the woman (identified as X.E.G.M. under conditions of anonymity requested by two San Antonio-based attorneys with San Antonio Region Justice For Our Neighbors) was one of a series of writ of habeas corpus petitions filed on the behalf of migrants in removal proceedings in the Rio Grande Valley this month.

Asylum cases are tried under the jurisdiction of the federal immigration court system and the Board of Immigration Appeals. However, the unilateral implementation of the Trump administration’s Migrant Protection Protocols (MPP) has deteriorated a system that already limits due process rights to an extent that attorneys are asking the federal courts to intervene.

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As detailed in the case filed last Wednesday, X.E.G.M’s manner of entry into the United States stands in contrast to that of other asylum seekers living in camps in Matamoros, many of whom requested asylum upon arriving at U.S. points of entry and were not apprehended having already entered the country.

In the petition, attorneys cited at least one other case in which the asylum seeker’s manner of entry was improperly classified, suggesting that plenty more who have been returned to Mexico as a result of MPP are being subjected to incorrect immigration proceedings in violation of U.S. law.

The extensively detailed, 53-page document compiled by the woman’s attorneys argued that X.E.G.M. should not have been classified under MPP, as she entered the United States on foot and was apprehended on U.S. soil.

Had her case been handled properly, she would have been marked as having “Entered Without Inspection” (EWI), subjecting her to an entirely different removal process called INA 235.

The expedited removal proceedings, put into place by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, apply to undocumented persons who have entered the U.S. and are found within 100 miles of the border within fourteen days.

The proceedings afford those apprehended with a limited set of due process rights, including the right to seek asylum and its related protections. Litigation is currently underway that would expand INA 235 to undocumented persons apprehended anywhere in the country.

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The Trump administration has tailored existing asylum policy in a way that leaves many refugees who attempt to gain entry along the U.S./Mexico border without the ability to appeal if their asylum applications are denied, as they’re returned to Mexico with no future court dates and no way to enter the country to find an attorney.

It can be noted that local attorneys and advocates estimate that less than two percent of refugees living in the tent camps in Matamoros have access to counsel.

The writ of habeas corpus filed on the behalf of X.E.G.M. was accompanied by a petition for a temporary restraining order that would have stayed the woman’s return to Mexico while she was in the United States for an immigration hearing at the tent courts in Brownsville that afternoon.

Attorneys argued that they feared the woman would not be granted a bond hearing or have her case properly dismissed by the immigration judge. Both outcomes would prolong her months-long stay on the streets of Matamoros and prevent her from beginning the process of affirmative asylum over again with United States Citizenship and Immigration Services (USCIS).

Attorneys had an asylum application (form I-589) ready to hand in to the agency should the stay be granted.

“Neither the Immigration Judge nor the Board of Immigration Appeals (while a termination or bond order is under appeal) have any authority to stay the return of Petitioner back to Mexico or order other remedy or relief to fix a problem that the government has created,” they wrote, asking the court to intervene.

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X.E.G.M. fled Honduras as a result of physical violence at the hands of the Honduran military police. She was a member of several student organizing groups and was targeted as a result of her activism, according to the document.

The young woman arrived in the U.S. on July 27 and was apprehended by CBP in Hidalgo, Texas. She requested asylum. Immigration officials returned her to Mexico an entire county East — to Matamoros, just South of Brownsville.

Attorneys wrote that X.E.G.M. was never asked if she was fearful of being sent to Mexico, where the violence refugees are fleeing from countries in Central America has spread North.

Over a month later, the woman arrived the Matamoros side of the Gateway International Bridge at 4:00 a.m. for her first appearance in the tent court system. A judge confirmed that her asylum application had been accepted and moved to schedule a merits hearing.

On Nov. 7, she appeared for a third hearing. Her attorneys claimed that the immigration judge agreed that she was misclassified under MPP. Attorneys specified that a Notice To Appear (NTA) she was given was “deviously blank” regarding her manner of entry.

In the petition filed last Wednesday, attorneys wrote that the woman appeared at multiple hearings in the tent court system and had yet to be granted a bond hearing or to have her case properly terminated by an immigration judge, unduly prolonging her homelessness.

This is a common experience among asylum seekers in Matamoros, who say that judges are aware that they’re homeless, yet continue to schedule hearings months down the road. The dozens of refugees who cross the bridge to the tent courts are refused entry if they’re not adequately clean while being checked for lice and bruises.

“While in Mexico, Petitioner has daily fended off attempts by individuals in the refugee camp who wish to sexually assault her,” wrote the attorneys, who argued that returning her to Mexico would place her in danger of assault.

The document cited the U.S. Department of State, writing, “violence against migrants by government officers and organized criminal groups” is one of “the most significant human rights issues” in Mexico.

Attorneys also referenced the obligations of the U.S. government to adhere to the non-refoulement obligations found in Article 33 of the United Nations’ Convention Against Torture.

It was under these guidelines that Congress enacted a “withholding of removal” statute as part of the Refugee Act of 1980, intending to ensure that the country could not “expel or return” non-citizens to anywhere they face likelihood of persecution.

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Last Wednesday at the time the petition was filed, the woman remained in MPP proceedings and was considered to be in “detained” status.

Those in the camps who are granted entry for emergency reasons — like the family that was granted entry into Brownsville during a cold front in early November to seek treatment for their critically ill child — must first be paroled by CBP.

Many have been living on the streets for months, waiting between court dates, afraid to miss their hearings as they’ll either be moved to the bottom of “the list” (a document with the names of asylum seekers kept by CBP officials at U.S. ports of entry along the border) and can also be ordered removed by a judge in asbentia.

“The petitioner is in detained status and has remained so for months without any review, or even a bond hearing by an immigration officer and will remain detained until this court intervenes,” the attorneys wrote.

“In other words, they are stuck between choosing to remain in Mexico indefinitely, or risk returning to their certain deaths in their home countries.”

They cited an incident in which DHS allegedly informed an attorney litigating another MPP case that even if an immigration judge were to grant the client bond, the agency would refuse to accept payment.

The attorneys also noted that if asylum seekers attempt to enter the U.S. without inspection (in X.E.G.M’s case, for a second time), they face prosecution in the federal courts for illegal entry/re-entry, detention, and deportation to Mexico and elsewhere without being properly placed in asylum proceedings.

Meanwhile, in Mexico, asylum seekers have no legal status and are subject to even fewer due process rights. Those who have fled violence are rendered stateless, as those impacted by MPP may only remain in Mexico so long as their immigration case in the U.S. has a future court date.

According to the attorneys, DHS officials also confiscate the passports and other identification belonging to MPP asylum applicants, meaning that affected individuals cannot leave Mexico and face difficulty accessing medical care.

They wrote that counsel along the U.S./Mexico border are “overwhelmed and unable to accept new cases”, that attorneys face targeted violence in Mexican border communities, that long lines for pedestrians and vehicles seeking to cross the border inhibit communication with clients, and that a lack of access to cell phones, fax machines, and internet service exacerbate the inability to reach clients stuck in Mexico.

Additionally, the attorneys claimed that U.S. counsel cannot get licensed to practice law in Mexico, that they face harassment from both Mexican officials and DHS (which has allegedly flagged the passports of U.S. immigration counsel), and that petitioners are not able to adequately prepare for hearings given that they’re on the streets trying to survive.

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Last Wednesday, U.S. District Judge Fernando Rodriguez, Jr. denied the petition for the temporary restraining order on the grounds that “the two affidavits attached to [X.E.G.M’s] original Complaint do not include statements regarding this injury or the dangers that Petitioner allegedly faces in the ‘unregulated’ camp in Mexico.”

“Emergency injunctive relief is an extraordinary remedy and cannot be supported by mere allegations,” he wrote.

The attorneys were allowed to move on a preliminary injunction, which would grant X.E.G.M. the ability to provide evidence of her allegations.

However, the denial of her requested stay of removal means that she was returned to Mexico regardless of the outcome of her separate immigration proceedings in the tent court system.

One SARJFON attorney told People Live Here that the two were unable to comment on the woman’s status before speaking with the government prosecutor.

X.E.G.M’s case does not apply to the Tuesday ruling issued by Judge Cynthia Bashant of the Southern District of California preventing the Trump administration from barring those who “transited en route” a third country from seeking asylum in the United States.

The policy, implemented on July 16, targets people from Central American countries who chose not to seek asylum in Mexico and will not apply to those who sought asylum at the border before mid-July.

Listed as respondents in the lawsuit were Attorney General William Barr, Office of Immigration Review Executive Director James McHenry, DHS Acting Secretary Chad Wolf, CBP Acting Commissioner Mark Morgan, ICE Acting Director Matthew Albence, USCIS Acting Director Kenneth Cuccinelli, and CBP Port Director Tater Ortiz.