A new lawsuit aims to end the controversial “Remain in Mexico” program, which has sent over 60,000 asylum-seekers back to Mexico since its implementation in early 2019. From Mexico, asylum seekers must then pursue their asylum claims and locate immigration lawyers, while commuting to the United States for their court hearings.
The lawsuit, filed Wednesday morning in federal court, claims that asylum-seekers sent back to Mexico cannot access lawyers, and since the pandemic, have been unable to move their asylum cases along as they deal with dangerous and unsanitary conditions in cities like Tijuana and Mexicali.
The program is run by the Department of Homeland Security under the formal title "Migrant Protection Protocols," or MPP. The agency has not responded to a request for comment on the lawsuit, but on its website, DHS says MPP is intended to "restore a safe and orderly immigration process, decrease the number of those taking advantage of the immigration system, and the ability of smugglers and traffickers to prey on vulnerable populations."
Some in the program say they are not safe while waiting in Mexico.
“One day there was a shootout, a battle, and sadly the bullets hit the house where we were, the shelter where we were. The bullets hit there,” said Nicholas, one of the plaintiffs in the lawsuit. He is being identified by his first name only because he fears for his safety. Nicholas is from Nicaragua, and was sent back to Mexico from the U.S. His Spanish-language comments were provided to KPBS by the organizational plaintiffs. He continued, “I honestly am in danger, many of us who are here under [Remain in Mexico] are in danger. God willing, it would be good in the not so far off future if they could get rid of [Remain in Mexico] so that all of us who are waiting for our process here in Mexico could enter the United States to await our process there inside [the US], because it’s very dangerous [in Mexico].”
The lawsuit was filed by the Southern Poverty Law Center, among others, on behalf of both asylum-seekers and legal service organizations. It doesn’t only seek to end the Remain in Mexico program; it also seeks to allow asylum-seekers in the program to return to the United States, where they can access legal counsel and pursue their asylum claims while residing in the country.
The lawsuit is being filed in the Central District of California, where one of the plaintiffs plans to reside while pursuing their asylum claim from inside the U.S.
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“This policy is unlawful because these attorneys have not had meaningful access to their clients,” said Luis Gonzalez, the supervising immigration attorney at Jewish Family Service of San Diego. Jewish Family Service is one of the few legal service providers in the area assisting individuals in the Remain in Mexico program, and one of the organizational plaintiffs in the lawsuit.
Gonzalez said even before the pandemic, the border placed an insurmountable hurdle between clients and their U.S.-based attorneys, who navigate a legal grey area when they travel to Mexico to practice law and place their clients on the radar of kidnappers and traffickers. Legal consultations were being mostly done by phone, while many asylum-seekers lacked access to international calling plans.
“There was really no access to counsel at any time,” Gonzalez told KPBS. “When individuals came to court, it was very difficult to talk to them, specifically because the only time we had was in the courtroom with everyone around. There was no privacy to be with our clients.”
The Remain in Mexico program is currently being challenged in the Supreme Court in a separate case. A hearing is set for this spring, but that case focuses on how the program was rolled out — not on access to counsel. Both aim to end the program.
“There are tens of thousands of people languishing in Mexico and struggling to survive,” said Melissa Crow, an attorney at the Southern Poverty Law Center, which also brought the case challenging Remain in Mexico that is now before SCOTUS. “We felt that we needed to do something for those people yesterday, so this suit is much more focused on how the policy impacts individuals in practice and deprives them of a meaningful right to apply for asylum.”
Lower federal courts, including the Ninth Circuit Court of Appeals, have repeatedly ruled the program unconstitutional, but the Supreme Court issued stays allowing the program to continue, pending appeals by the Trump administration. The Biden campaign has pledged to end the program but has not gone into specifics of how it would treat the thousands of individuals who have been sent back to Mexico under the program, or those who have already failed in their asylum claim through it.
“MPP has been a nightmare for us because they separated me from my eldest son, and [organized crime] tried to kidnap another one of my sons,” said Jessica, a Honduran woman who was sent back to Mexico along with her husband and sons. (She is only using her first name because she also fears for her safety). She said they’ve faced danger and discrimination in Mexico. “The program...keeps us in a place we haven’t asked to be.”
For the past seven months, all hearings in the program have been postponed, because of the COVID-19 pandemic. This has led to confusion among asylum-seekers as to when their cases will resume.
“Many of them are very very desperate to continue with their case. They believe in the American system. They believe in access to justice,” said Margaret Cargioli, an attorney with Immigrant Defenders Law Center, one of the plaintiffs in the case. “They want to go to court. They want to present themselves, they want to share their stories, and present evidence. And so they find themselves emotionally wrenched with what’s happening. Month-to-month they don’t know whether they’re going to be able to continue on with their case. They are really suffering.”
