‘The judges have no control in terms of how many cases are being schedule…’
(Kate Morrissey, The San Diego Union-Tribune) The San Diego immigration court has been overwhelmed by the number of additional cases local judges are hearing under a Trump administration program that returns asylum-seekers to Mexico while they wait for hearings in the U.S.
Normally, asylum-seekers coming to the California border would be distributed to immigration courts across the country, either because they would be held somewhere in the federal government’s national immigration detention system, or because they would be released to reunite with family and friends already in the U.S.
Now, the increasing number of people picked for the administration’s Migrant Protection Protocols, known widely as the “Remain in Mexico” program, across the California border are all being sent to immigration court in downtown San Diego.
“Other than wallow through it, I don’t know what we can do,” said Immigration Judge Lee O’Connor shortly before walking out of his courtroom at 6:21 p.m. one evening last week after hearing a string of MPP cases. Court staff, including security, had left the building long before.
Immigration judges are already working under pressure from performance quotas set by the Trump administration to reduce the immigration court backlog, which has grown nationally to nearly 900,000 cases, according to data from the Transactional Record Access Clearinghouse of Syracuse University.
The San Diego court has more than 5,700 cases pending, up from 4,692 cases in fiscal 2018, a 22.4% increase. Nationally, the backlog has grown about 16.2% in fiscal 2019.
“This is a reflection of the constant double speak we’ve been highlighting. The agency has internally conflicting priorities,” said Ashley Tabaddor, speaking in her capacity as head of the National Association of Immigration Judges. “It creates chaos.”
On a given day, three of San Diego’s seven judges generally have afternoons full of MPP cases. On a recent Tuesday afternoon, 82 people were scheduled to appear before three judges, 28 of those before O’Connor.
“The judges have no control in terms of how many cases are being scheduled,” Tabaddor said.
Border officials who initially receive migrants either requesting protection at a port of entry or after they’re apprehended crossing illegally are responsible for scheduling the first court appearance for returnees.
Customs and Border Protection did not respond to a request for comment. The Department of Homeland Security was unable to respond to questions from the San Diego Union-Tribune in time for publication.
Several of the judges assigned to hear cases in San Diego have pushed back on the government for a laundry list of issues that could be violations of the government’s due process responsibilities under immigration law.
Tabaddor said she’s heard a number of concerns from her union members who are trying to make sure “all of the t’s are crossed and all of the i’s are dotted” in implementation of the new program.
“That’s what the oath of office is,” Tabaddor said. “You’re supposed to make sure all the rules are followed.”
One that has come up over and over again in San Diego courts is the address put down initially on each asylum-seeker’s case documents by border officials. Along the California border, Customs and Border Protection and Border Patrol have written some version of “Domicilio conocido,” or “Address known.”
Some have “Tijuana, Baja California, Mexico.” Others simply say “Baja California” without the city or the country noted.
Having an accurate address on file is key to show that immigrants were given proper notice of their court hearings. That proof of notice is a crucial part of a judge’s decision to proceed “in absentia” and order a person deported if he or she doesn’t show up for a hearing.
“This whole program, I don’t understand it,” said Immigration Judge Jesus Clemente in court on his first day of hearing MPP cases. “How are we ever going to tell this person that he has a hearing?”
Similarly, when a government attorney suggested that it was the asylum-seeker’s responsibility to provide an accurate address, Immigration Judge Scott Simpson responded with incredulity.
“Are you saying the respondent provided this address?” he asked, referring to the asylum-seeker. “Are you saying every respondent in the MPP program provided this address?”
“I can’t speak to that,” the attorney representing Immigration and Customs Enforcement responded. “In my experience, the address the respondent provides is what is put down.”
“That’s how it usually works,” Simpson replied. “But I’m not convinced that’s what’s happening now.”
The Executive Office for Immigration Review, which employs immigration judges, deferred to DHS for most questions for this story. The agency confirmed on background that judges must find proper notice was given in order to make an in absentia ruling. ICE also deferred to DHS.
When asked about the addresses on a recent tour of the San Ysidro Port of Entry, port director Sidney Aki said that migrants don’t often know where they will be staying when they’re first returned.
To prevent any miscommunication, Aki said, they’re told to return to the port of entry at a particular date and time.
Normally, if a judge believes that the government violated an asylum-seeker’s due process rights, the judge can terminate immigration proceedings against that person, said attorney Lindsay Toczylowski, executive director of Immigrant Defenders Law Center. Then the asylum-seeker can apply for protection outside of immigration court in a process that is less adversarial.
For returnees who are ultimately hoping for asylum in the U.S., termination won’t help them because they’ll be returned to Mexico with no access to the U.S. asylum system, she said.
“It essentially removes their ability to vindicate their due process rights,” Toczylowski said.
Among other issues, the dates on instructions given to returnees that explain when to come back to the San Ysidro Port of Entry to be taken to court don’t always match the dates on their hearing notices. Or, the government failed to file the preliminary paperwork in the case, and the immigration court doesn’t have a hearing scheduled for the person when he or she shows up.
“I’m sure you’re frustrated,” Simpson said to a man whose paperwork had not properly been filed by the government, resulting in a delay in the start of his case. “I share your frustration.”
Asylum cases typically have several preliminary hearings, known as “master calendar hearings,” before the “merits hearing” where evidence is presented for the judge to make a decision on the person’s claim. During those master calendar hearings, asylum-seekers are given time to look for attorneys, are told their rights in immigration court, and are given applications to fill out and submit.
Juan, a doctor who fled Honduras after facing threats for his participation in political protest, filed his asylum application in mid-May. His merits hearing was scheduled for November.
He will have to wait more than half a year longer in Tijuana.
Where to live and how to sustain themselves in the large border city south of San Diego is becoming a larger and larger issue as more asylum-seekers are returned. Despite its promises at the program’s outset, Mexico has not given many of the returnees permission to work while they wait, meaning that they are not able to legally make money to pay rent or buy food.
Tijuana’s migrant shelters are already at or near capacity, and most of the people staying in them are not returnees from the program.
Some returnees have managed to find jobs under the table to pay rent. Others have found themselves homeless for periods of time while they try to juggle survival with preparing their immigration court cases.
One returnee who had become homeless and tried crossing illegally only to be returned again to Tijuana said he was planning on going back to his country in the coming days. It would be better to die there, he said, than to continue living as he’s been living in Tijuana.
Juan is one of the lucky ones. He is staying at a shelter near the border. Still, he’s worried about the long wait ahead.
“The policy’s name is migrant protection, but they send you to the most dangerous city in Mexico,” Juan said.
Erick Orlando Aquino Hernandez and his family were returned to Mexicali after coming from Guatemala. They managed to find a place to stay with the relative of a friend they made on the journey north while they wait in Tijuana for their court hearings.
Without being able to work, Aquino Hernandez is worried about feeding his children and grandchild. He also worries about the danger they are still in because of Tijuana’s gangs.
His cousin, Oscar Gomez, lives less than 20 miles away from the border. Two of Gomez’s sons are in the U.S. Navy, their bedrooms in his spacious Lemon Grove house unused.
Gomez, a U.S. citizen who came from Guatemala in the ‘80s, wants to be able to help his cousin. Instead of being able to welcome his family members into his home, he’s been taking money, food and clothing down to them in Tijuana.
Gomez himself fled political persecution in Guatemala and asked for asylum when he got to the U.S. Getting through the immigration system at the time took years, but he was eventually allowed to stay.
“I would like people to see that we’re human,” Gomez said, “that we want a peaceful life. I’m proof.”
He’s trying to find a lawyer for his cousin. He knows having an attorney was instrumental in his own immigration case.
Aquino Hernández had already been living in the U.S. for a few years when he learned that his wife and children back in Guatemala were having problems with the gangs there. He went home to help them, but it soon became clear that they could not safely stay in the country.
Strangely, the paperwork documenting interviews between Aquino Hernandez, his wife and a Border Patrol agent don’t reflect the family’s story. The agent wrote that Aquino Hernandez had never before been in the U.S. and that the family was not afraid to return home. Still, they were placed in MPP, a program meant for asylum-seekers.
Border Patrol deferred to DHS when asked for comment for this story.
Aquino Hernandez will have to convince the immigration judge that the information as documented by the agent is not accurate and was not provided by him as part of his case.
Aquino Hernandez and his family have had one hearing so far, and their next one is scheduled for later this month, on his son’s birthday.
Knowing that means another trip into the port of entry’s holding cells and being escorted by armed guards to a packed courtroom, his son told him that it will be a sad one.
©2019 The San Diego Union-Tribune. Distributed by Tribune Content Agency, LLC.