Trump’s new border courts are designed to fail
The Trump administration’s latest efforts to block as many asylum seekers as possible from entering the U.S. have expanded exponentially with the implementation of “port courts.”
Tens of thousands of refugees have been forced to remain in Mexico in order to request any protection from persecution, rather than be permitted to enter the U.S. to await their hearing dates. For their hearings, they enter port courts, which are literally in tents and trailers that have been hastily put up in southern border cities.
We are part of a group of attorney volunteers who recently returned from assisting asylum-seekers in Matamoros, Mexico. One of us accompanied two new clients to the port court in Brownsville, Texas. Neither the judges nor government attorneys are physically present, instead appearing by video and hidden from public view as press and observers are barred.
The Department of Homeland Security (DHS) is solely responsible for this. The Department of Justice (DOJ), which employs the immigration judges, notes that the Justice Department will follow the regulation that requires hearings to be public. However, since DHS operates the port courts, DOJ has capitulated to the ad hoc rules which deny transparency.
At every step of the way, refugees and the handful of attorneys who represent them are reminded that this “system” is designed to fail. There are no marked entrances to the Brownsville court, which resembles a concentration camp in its design and layout.
Instead, attorneys must already know where the entrance is and ask to be let in by privately contracted guards who monitor it for DHS. Forms with client signatures are required to gain entry. Attorneys are escorted by guards from the front gate to client meetings, to attend court and even to access the restroom.
Attorneys are not allowed to bring electronics into the tent complex, which means they cannot access their calendars or legal research. Meanwhile, DHS lawyers maintain access to their technology as they sit off-screen. Only the immigration judge and interpreter are video streamed into the port courtroom.
In order to even schedule the next hearing, the attorney must request a recess so that they can leave the court complex, go to their car to access their calendar on their phone and go through the security process all over again to get back to their hearing.
Immigrants with hearings and their children are also subjected to security screening in order to enter. Their shoelaces are confiscated by DHS and not returned. Some refugees report being subjected to cavity searches just to attend court.
Unless the immigrant is represented, the families wait for a “group advisal” of their rights, which is interpreted only in Spanish. Many refugees speak indigenous languages and have no way to communicate that in the face of a video link via a Spanish interpreter. Yet, in order to secure a full hearing on their claim, they must submit applications and all supporting documents in English.
Individuals with attorneys do not have their full hearings interpreted. At most, procedural matters are translated at the very beginning and end. For a client to know what is happening, their attorney must translate for them while making legal arguments and responding to the DHS attorney and the immigration judge.
At the conclusion of one of our clients’ hearings, the contracted guard tried to force counsel from the courtroom without giving him an opportunity to explain the non-interpreted hearing that had just taken place.
The attorney had to involve the judge, who intervened and asserted some control over the courtroom to allow our client access to counsel. Meanwhile, DHS’s position is that attorneys have enough time to speak to their clients before the hearing, and can meet their client in Mexico later to explain what happened.
To meet with clients in Mexico, attorneys must violate the State Department’s travel advisories, which categorize Matamoros as a level 4 security risk, which is the category reserved for the most dangerous places on earth, including active war zones like Syria.
As volunteer attorneys we were allowed to cross the border exclusively in a group during daylight hours. We conducted our work within 100 yards of the border crossing point which makes client confidentiality impossible. In case of cartel violence, we were instructed to drop everything and sprint for the crossing on our group leader’s signal.
The harms refugees suffer due to our official U.S. government policy of rendering them homeless includes deaths by drowning in the Rio Grande (even while bathing), multiple documented instances of kidnappings within minutes or hours of being returned from the U.S. The toll of surviving on the streets of Mexico is amplified by the due process farce refugees face in post courts.
As tempting as it is, we cannot give in to our exhaustion and cynicism: We must hold this administration accountable for the ongoing illegality that is engulfing the border. It may take decades or longer to repair what we have lost under this administration and there is no time to waste.
Kim Hunter, Katharine Gordon and John Bruning are immigration attorneys working on behalf of Lawyers for Good Government.