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For the past four months, Charlene D’Cruz has journeyed six days a week from Brownsville, Texas, to Matamoros, Mexico.
One of the only full-time U.S. immigration lawyers working in the city, she acts as the legal equivalent of a triage nurse racing from patient to patient, providing dozens of free consultation each day. If their case isn’t strong, she refers asylum-seekers to a Mexican lawyer. A “fair amount” of them give up and go back, she says.
That is one of the outcomes the Trump administration has hoped for as it has, as attorneys and advocates say, made the American asylum system unrecognizable from its post-World War II origins. While the physical wall President Donald Trump promised in his 2016 campaign as a way to deter illegal immigration remains largely unbuilt, these new policies have created an invisible wall of bureaucracy and secrecy that has made legal immigration into the U.S. through asylum almost impossible.
On a January morning, Ms. D’Cruz finds her first clients before even reaching the border. Dozens more are waiting when she arrives at the office. “We do have some challenges, but at least being on the ground – I mean, there’s no other way to do this,” she says.
It often feels like the only certainty in Charlene D’Cruz’s life these days is uncertainty. But there are always ways to maintain some semblance of routine.
This late January morning starts like most others: with a pot of tea brought from her Wisconsin home steeping next to her hotel breakfast. She’s greeting the hotel staff she is now on first-name terms with, wearing a purple T-shirt from her daughter’s college, University of Wisconsin-Stevens Point. Her black hair is streaked with gray, and as she pours some of her tea she jokes that she’s become her mother. It’s the calm before the storm.
An immigrant herself who, growing up, never wanted to be a lawyer, she is now decades into a career on the front lines of asylum law. In the past, those front lines have been in Guatemala and Greece.
Today, in a fundamentally transformed U.S. asylum system, it has meant working out of a former dentist’s office in Matamoros, Mexico. There are roughly 2,000 migrants (a specific number is difficult to pin down) in the city. Ms. D’Cruz commutes every morning from Brownsville, Texas. She is one of the only full-time U.S. immigration lawyers working in the city.
“We do have some challenges, but at least being on the ground – I mean, there’s no other way to do this,” she says.
She isn’t representing migrants in immigration proceedings, just providing dozens of free consultations each day and connecting them with lawyers around the United States – the legal equivalent of a triage nurse racing from patient to patient. If their case isn’t strong, she talks them through the Mexican asylum process and refers them to a Mexican lawyer. A “fair amount” of them give up and go back, she says.
That is one of the outcomes the Trump administration has hoped for as it has, as attorneys and advocates say, made the American asylum system unrecognizable from its post-World War II origins. While the physical wall President Donald Trump promised in his 2016 campaign as a way to deter illegal immigration remains largely unbuilt, these new policies and programs have created an invisible wall of bureaucracy and secrecy that has made legal immigration into the U.S. through asylum almost impossible.
On the border, attorneys say the year-old Migrant Protection Protocols (MPP) – also known as “Remain in Mexico,” which is requiring more than 60,000 asylum-seekers to wait in Mexico while their cases are pending – is being phased out and replaced with faster and more secretive programs. On Friday, a panel of the Ninth Circuit Court of Appeals called MPP “invalid in its entirety” and ruled that asylum seekers must be allowed in the U.S. while their cases are heard.
A surge in asylum claims has made these programs necessary, immigration agencies have said. From the government’s perspective the programs have helped to relax the burden on border agents, close perceived “loopholes” in asylum law, deter future claims, and resolve existing claims as quickly as possible.
Yet migrants seeking asylum in the U.S. are entitled to due process much like U.S. citizens, and what was once a tough but fair system is being stripped down to a shadowy deportation machine, attorneys say. Even government asylum officers and immigration judges say they are increasingly shut out of proceedings.
“There is a crisis, but they’re making it far worse by doing stuff like this,” says Michael Knowles, the National CIS Council spokesperson, a union that represents asylum officers at U.S. Citizenship and Immigration Services (USCIS). “Our argument is, you don’t deal with a crisis by pouring gasoline onto it. You don’t deter people by being cruel to them.”
“If you go back to World War II and the genesis of the international refugee protection system, it was born in crisis,” adds Mr. Knowles. “You have to properly resource your system to deal with volume and complexity and everything that goes along with running a big program like this. You don’t just shut it down and turn them all away.”
Six days a week
Ms. D’Cruz has been working in Matamoros six days a week for four months. She’s been working in asylum law since the 1980s, when she volunteered in Arizona helping migrants who fled civil wars in Central America. It was similar to MPP, she says, except it was in the U.S., and “it wasn’t as cruel.”
“Not many of them won their cases,” she adds. “But there was an acknowledgement that, yes, there is a movement of people who are fleeing” serious violence.
The Trump administration has also raised the bar for successful asylum claims, including eliminating fears of gang and domestic violence as credible grounds for asylum. Last year, the Departments of Justice and Homeland Security issued a joint Interim Final Rule barring asylum for any migrant who was not denied asylum in a third country first.
DHS did not respond to detailed questions from the Monitor.
In a January speech, acting DHS Secretary Chad Wolf outlined how the department is addressing the border crisis.“We have essentially ended catch-and-release, eliminating the insidious incentive to exploit children for entry into the United States,” he said. “We have more tools than ever before to quickly remove, return, and repatriate aliens who illegally cross our borders. We have cracked down on asylum fraud across the board.”
The number of migrants arriving at the southern border has dropped steadily for the past eight months, according to U.S. Customs and Border Protection (CBP) statistics. Through December 2019, only 187 people had made successful asylum claims in MPP, according to the Transactional Records Access Clearinghouse at Syracuse University (TRAC).
Meanwhile, immigration courts have been slowly working through a backlog exceeding 1 million cases. Immigration judges decided a record number of asylum claims in fiscal year 2019 – with 99% of asylum-seekers attending their hearings – according to a TRAC report.
Almost 47,000 of those applicants, or 69%, were denied asylum or other relief, with applicants represented by an attorney twice as successful as those without representation. Through December 2019, just 4.7% of migrants in MPP were represented, according to TRAC.
Thus enters Ms. D’Cruz. On a late January morning, after leaving her hotel for Matamoros, she finds her first clients before even reaching the border.
A Mexican family – a woman, with two young boys and two girls – are looking for the bus station. They are carrying their belongings in plastic CBP bags, the laces have been removed from their shoes. They’re an indigenous family from Chiapas State, and they have tickets for Georgia, where they’ll be staying while their asylum claim is pending.
They don’t speak much Spanish, but Ms. D’Cruz guides them into the station and gets them situated before she crosses into Mexico. Asylum-seekers from Mexico are, understandably, exempt from waiting in Mexico under MPP. Instead they’re subject to “metering,” a policy that limits the number of asylum claims that can be made at ports of entry each day.
“When they started metering we were all angry, but then when MPP came in suddenly we were like, ‘Meh, metering,’” says Ms. D’Cruz. “It’s a race to the bottom.”
When she finally does cross the border, dozens more asylum-seekers are waiting outside her office.
The Resource Center de Matamoros, about 500 yards into Mexico, used to be a dentist’s office but is now rented out by Lawyers for Good Government, the nonprofit funding Ms. D’Cruz and a colleague, Kim Hunter. Across the street is an encampment where between 1,500 and 2,500 asylum-seekers have been living while their cases are pending.
Tents sprawl out under silk trees from the road to the bank of the Rio Grande, filling soccer pitches and a basketball court. Goal posts are now clothing lines. Smoke drifts up from small wood stoves and camp fires. Some people have been there for 10 months.
It looks peaceful and orderly – there are water purifiers and dozens of port-a-potties and new showers – but there are reasons why the U.S. State Department suggests travelers “exercise increased caution” in Matamoros.
“It’s not safe here,” says Edwin Alvarez in Spanish. He has been in the camp with his son for five months since fleeing their native Venezuela.
There are no lights in the camp, and anyone can walk into any tent at any time. When Ms. D’Cruz meets with asylum-seekers, they tell her they often expect to be kidnapped.
Yet one of the most urgent features of her work is helping migrants who should never have been put in MPP at all. “Vulnerable populations” like sick children are supposed to be exempt from the policy, yet Ms. D’Cruz regularly accompanies them to a border station to get them paroled into the country.
“I still see, and have seen, more due process in Greece – which is a poor country infrastructurally, economically, and everything. They seem to be stepping up, or trying to step up, to the task,” she says.
The U.S., she adds, “literally picks these folks up and dumps them [in Mexico] ... knowing full well that most of them are not going to stay there. It’s too dangerous.”
Shift at the southern border
The Trump administration says these changes are necessary to manage a crisis caused by a wholesale shift in immigration trends at the southern border.
In 2006, only 5% of unauthorized immigrants at the border expressed fear of being deported to their home country – the first step in the asylum process. In 2018, 42% of unauthorized immigrants at the border expressed that fear.
That increase could be a result of “push” factors like political crises in Venezuela and Honduras, gang violence in El Salvador and Mexico, and Guatemala’s worst drought in 40 years.
But it could also be a result, as DHS wrote in an October 2019 assessment of MPP, of asylum becoming “nearly a default tactic used by undocumented aliens to secure their release into the United States.”
So with its new policies, the government has made some subtle but significant tweaks – including not asking migrants if they fear being sent to Mexico.
“Affirmatively drawing out this information from aliens rather than reasonably expecting them to come forward on their own initiative could well increase meritless fear claims,” the assessment said.
That feature alone should render MPP illegal, says Mr. Knowles, spokesperson for the National Citizenship and Immigration Services Council 119, a union that represents some 13,500 USCIS employees, including asylum officers.
Specifically, the policy could violate non-refoulement – an obligation under international law that forbids the involuntary return of refugees to a territory where their lives or liberty might be at risk.
They are undoubtedly helping to turn away people with frivolous claims, says Mr. Knowles, “but it’s also deterring people who do have a [legitimate] claim from having their cases fairly heard.”
Asylum officers feel they are being “made to be complicit in” programs that may not be legal, he adds. MPP “flies in the face of our humanitarian traditions, the character of our country. It also violates international and U.S. law.”
A new era
Lawsuits challenging MPP’s legality are working their way through the courts, but the program is already being phased out, attorneys say.
Hundreds of migrants, before making an asylum claim in the U.S., are now being flown to Guatemala to have their claims heard there, under an asylum cooperative agreement (ACA) between the two countries. (The U.S. has also signed ACAs with Honduras and El Salvador, but they haven’t begun taking asylum-seekers.) Unaccompanied children are not subject to these agreements, nor are migrants who can show they will be more than likely tortured or suffer persecution in the third country.
CBP also launched the Prompt Asylum Claim Review (PACR) program and the Humanitarian Asylum Review Process (HARP) in the El Paso sector in October 2019, with PACR expanded to the Rio Grande Valley last month.
Under PACR, according to reports, after being apprehended migrants are taken to a CBP facility, where they will receive a decision on their asylum claim in 10 days or less. They are given one day to call family or a lawyer, and then they have a credible fear interview with an asylum officer. (HARP operates in a similar fashion, though that program is used only for asylum-seekers from Mexico.)
Lawyers are not allowed to access CBP facilities, so migrants removed under the new programs never see an attorney and never talk with an immigration judge.
They’re “rapid deportation machines,” says Erin Thorn Vela, a staff attorney with the Texas Civil Rights Project.
“PACR and HARP and ACA, they all happen, from start to finish, under the auspices of CBP,” she adds. “I don’t think that that’s a mistake. I think that’s intentional, to keep lawyers away from this.”
“Taking its toll”
MPP was implemented in part to reduce dangerous overcrowding in detention facilities, conditions that saw five migrant children die in CBP custody in late 2018 and early 2019. The policy “naturally lessens the number of detainees in CBP stations,” the government argued in a lawsuit targeting the overcrowding late last year.
Lawsuits have been filed challenging PACR and the ACAs as well, but as those lawsuits work through the courts, the policies remain in place.
“We were angry at MPP, and now I’m like, at least with MPP I saw folks. PACR, HARP – I don’t even see folks,” says Ms. D’Cruz.
It’s another late January morning, and another hotel breakfast. Her tea is again steeping by her plate. She misses Wisconsin, the snow especially, but she is buoyed by the prospect of her kids visiting – and helping – her over spring break.
“This has been their lives,” she says. “When they were young they thought camping meant that we had to go camp and give free legal services.”
“I signed up for it knowing this. This is not something I was surprised about, it just takes its toll,” she says. “We’re just trying to stay loose, and do what we need to do now, with an eye to what’s going to happen.”
Editor's note: This story was updated on Feb. 28 to include the Ninth Circuit Court of Appeals ruling against MPP.