When forced by court order to reimplement the Trump-era Remain in Mexico policy, the Biden administration pledged to improve the program by connecting those enrolled with free legal services.
But many of the nation’s nonprofits that provide legal services to migrants have told the Biden team they won’t assist with what they see as an immoral policy, leaving the administration kicking off the first round of hearings for asylum seekers last week without any assurances they’ll be able to secure legal assistance for them.
“It’s actually really more fundamental than ‘We don't like what you’re doing, and therefore we’re not going to help you do it,’” said Eleanor Acer, senior director for Refugee Protection at Human Rights First, whose group provided legal assistance to those enrolled in Remain in Mexico under the Trump administration.
“Many at this point have real concerns that signing up to officially take part in a program that they believe violates U.S. and international law puts them in a position of potentially being complicit with human rights abuses – and I would say massive human rights abuses.”
Under the program implemented by the Biden administration, migrants seeking asylum are blocked from entering the country and sent across the border to Mexico to await their U.S. court date — just as they were under the Trump administration. It’s a system many advocates say has further fueled violence along the border, exacerbating the vulnerability of migrants.
When the Department of Homeland Security (DHS) announced its latest take on what is formally known as the Migrant Protection Protocols (MPP) in early December, it pledged to ensure migrants returned to Mexico would have phone and internet access to connect with attorneys if they are able to secure paid or pro bono legal assistance.
But it also said it would proactively ask migrants in U.S. Customs and Border Patrol (CBP) custody if they have a fear of returning to Mexico. Those who say “yes” would be given 24 hours to secure an attorney ahead of a formal interview to determine their case.
Legal services providers however are broadly disinterested in assisting with what are formally known as non-refoulement interviews (NRIs), even as the Justice Department has put out a call seeking help from attorneys.
And even once asylum seekers are returned to Mexico, many groups say they are hesitant to provide legal assistance, citing what they say is an inhumane program that places lawyers in dangerous situations much like migrants while draining resources from other cases.
DHS has appealed to the Supreme Court to strike down a lower court decision ordering it to implement the MPP policy “in good faith.”
But in the meantime, the administration has held initial asylum hearings for those enrolled in MPP.
As of Jan. 3, the first day hearings were underway, 36 asylum seekers were transported across the border, the administration said, out of some 200 people already enrolled in MPP, according to data obtained by Human Rights First.
At an early January meeting, administration officials expressed hope at being able to secure legal assistance for migrants.
“We have had a number of conversations with legal providers, service providers and others explaining what we are trying to create and the opportunities that we're trying to establish for individuals to meet with and speak with counsel on the other end. I've been encouraged by many of the conversations,” one senior administration official told reporters.
“We are very committed to doing so and we are certainly hopeful that over time that more and more organizations and individuals and entities will step up to provide the representation that we all know is so critically needed.”
But many groups told The Hill they have no such intentions, something that has not changed since 73 legal services providers wrote a letter to the administration in October saying they “refuse to be complicit” in restarting MPP. The same groups also staged a “walkout” of a virtual call with DHS that same month to protest plans to restart the program.
DHS’s main priority right now is lining up assistance with the non-refoulement interviews that serve as one of the few avenues for avoiding enrollment in MPP if migrants can show they have reasonable fears of danger once returned to Mexico.
But advocates say if the administration was serious about providing assistance, they’d give those in CBP custody more than 24 hours to contact and consult with an attorney.
Nicolas Palazzo, staff attorney with Las Americas Immigrant Advocacy Center in El Paso, Texas, said such interviews can last up to six hours.
“To assume that an organization will have the capacity to provide an attorney on the spot – cause they’re being called on a hotline – and drop everything to speak with someone, prepare them, discussing an incredibly traumatizing series of events, while also explaining a confusing legal standard over the phone while the person is in CBP custody and then hopefully represent them on the phone, I mean, there are very, very few organizations, if any, at least on the border, that will have actual capacity to do that,” he said.
“This is a problem of the administration’s own creation. You can’t really blame anyone else but the administration for designing a program that is inherently flawed and then expecting that legal organizations are going to be able to drop everything to assist people on the fly like that.”
While some nonprofits were said to be mulling whether to assist DHS with the interviews, none of the organizations contacted by The Hill confirmed their interest.
Margaret Cargioli, directing attorney with Immigrant Defenders Law Center, said her organization may assist with non-refoulement interviews if contacted by a migrant, but they have no plans to formalize an arrangement with DHS.
“We would strongly consider taking any measures to help anyone be removed from MPP,” she said.
“When you're left with the option of trying to help individuals who are set up to fail it leaves advocates in a lose-lose predicament.”
Meanwhile legal services providers are also skeptical that the interview process is succeeding in removing from the program those that have a fear of being sent to Mexico to await their case. So far, they’ve been unable to get that data from DHS.
“Nonprofit legal services providers have a limited number of resources and a limited number of attorneys and an overwhelming need for services that we can never meet. So does it make sense to divert those already stretched resources to represent migrants in non-refoulement interviews when DHS may be denying a large majority of them anyway? And we can't even get that data,” said Heidi Altman, policy director at the National Immigrant Justice Center.
Erika Pinheiro, litigation and policy director at Al Otro Lado, said asylum seekers interviewed by a partner organization reported being told by CBP agents that they would be sent to Mexico regardless, another discouraging layer for putting work into an already daunting process.
“Trying to within 24 hours work with someone enough to get all the most traumatic things, put them in order, have the person be able to explain them in linear fashion for an interview -- it’s not meaningful,” she said, adding that such efforts take time and trust.
“Even if a lawyer is there for the initial screening and the NRI there it is not enough time to really work with the person, and then once the person is returned to Mexico there is no plan for legal assistance for them.”
Organizations say beyond the non-refoulement interview process, they are hesitant to be involved with representing Mexico-based MPP clients as they work to make their case for asylum.
Human Rights First tracked more than 1,500 kidnappings and other instances of violence against migrants and asylum seekers from 2019 to 2020 during Trump’s oversight of Remain in Mexico.
But attorneys for migrants were also wrapped up in much of the chaos, witnessing kidnappings and being threatened by cartels.
“The statistics for legal representation in Remain in Mexico were miniscule – they were always very, very low – and attorneys who did cross the border to represent them were constantly risking their safety and security to do so, and the situation has only become more dangerous since 2019,” Acer said.
“When you’re sitting there trying to represent people constantly being targeted for kidnapping and torture, which did not just happen to them when they fled to come here but is happening to them while they're waiting to apply for asylum in the U.S. it is a horrific and traumatizing experience for the asylum seekers, but it is also traumatizing for the attorney trying to assist them.”
And nonprofits’ interviews with asylum seekers recently enrolled in MPP cast doubt on the U.S. government’s ability to deliver on its other pledges to improve conditions on the ground, including providing transportation to their hearings on the U.S. side of the border and providing safe and secure housing.
“Living in Tijuana and seeing what people are subjected to here and having had clients who passed away or have not able to access medical care or just are living in horrible conditions like seeing kids not be able to access education for years sometimes–I personally can't perpetuate, prop up a program that does that,” Pinheiro said.
Immigration advocates have called on the Biden administration to be more aggressive in fighting the reimplementation of MPP, stressing that the record of the new White House is being tainted by keeping a policy of its predecessor.
“This is a program that was invented by Stephen MillerStephen MillerAre the legal walls closing in on Donald Trump? On immigration, President Biden needs a re-set The Hill's Morning Report - Presented by Facebook - Biden talks, Senate balks MORE as part of a deterrent- and cruelty-based approach to migration. It’s designed to inflict harm on people. It can't be fixed or modified in any way that would result in meaningful protections because it's set up to return people to an extremely vulnerable place while they're waiting for their hearing,” Altman said.
“So you can give someone a lawyer but that's not going to stop them from being kidnapped or assaulted while they're waiting in Mexico for their United States asylum hearing.”