- Removal proceedings for respondents subject to MPP are conducted in prefabricated buildings with heating, ventilation, and air conditioning — not tents.
- Immigration judges are ensuring that respondents under MPP receive their full constitutional rights.
- The BIA just issued a decision holding that respondents subject to MPP who have received notice of their hearings, fail to appear, and are removable should be ordered removed in absentia.
- It appears that many respondents subject to MPP are not appearing for court, and some are reentering illegally. EOIR should publish statistics on the number of those aliens who fail to appear.
On January 1, 2020, and January 13, 2020, I wrote about the temporary facilities that U.S. Immigration and Customs Enforcement (ICE) has set up to hold hearings for alien respondents subject to the Migrant Protection Protocols (MPP, also known as "Remain in Mexico"). From the reporting that was available, I concluded that those courts were likely not much different — and probably just as ministerial and mundane — as any of the other 63 immigration courts around the United States. It turns out I was right, but I did learn that the "tent" courts weren't tents, and the IJs in those proceedings provide more "due process" than is actually due.
On January 22, 2020, I was allowed to enter the port court in Laredo, Texas, and observe the proceedings therein. My entry was not facilitated by the U.S. government, but was part of an initiative by Acting Homeland Security Secretary Chad Wolf "to ensure consistency, clarity, and transparency" by opening those courts to the public. If you find yourself in Laredo, you can go, too.
The court itself is not tough to find — it sits in a parking lot directly behind the La Posada Hotel, the only four-star hotel in the area. Looking out from the back of the La Posada, you can see the facility sprawling below. It consists of a series of pre-fabricated structures and a major power plant, with tenting at the front and in between. Down the stairs from the entrance to the court is a huge parking lot, under the Ventura St. flyover. You enter and exit through Water St., just off of San Dario Ave., where Interstate 35 ends and empties out onto International Bridge Number 2, a major commuter conduit to and from Nuevo Laredo, Mexico.
The parking lot is edged by the La Posada, the border at the Rio Grande, International Bridge 2, and the Gateways to the Americas International Bridge, which is the major pedestrian entry into Mexico, as well as a commuter port. If you are not careful (keep to the left at San Dario), you will end up in Mexico on the trip.
Court begins at 10:30 am and 1:00 pm, so I arrived at noon, expecting a lengthy screening process, and to ensure that I would not miss court. I need not have bothered, as screening and processing were extremely quick.
Physical security in the court is provided by Paragon Security, and I was fully screened by its officers before I entered. No electronics are allowed, so I left my cell phone in the car, and was required to place my Apple watch in one of the tens of small lockers that are provided for that purpose.
I went through a metal detector and then spoke to an officer from Ahtna Security, the contractor that actually runs the security within the courts themselves. I handed over my driver's license and was asked the purpose of my visit. When I told the officer I was an observer, I was given visitor badge number 63, and my name and affiliation were entered into a ledger.
The badges correspond to one of the four master calendar hearing rooms at the facility. Mine had a gold star, so I was told that I would be escorted to the corresponding courtroom, but that I would have to wait in the entry area. The entry area itself is a soft-sided facility, but not what you would think of as a tent. It consisted of strong metal supports, thick plastic walls, and a major ventilation system that pumped air conditioning into the structure. The bathrooms were port-a-potties, with a water station for hand washing and towels, within the structure and located throughout the facility.
Armed agents in vests, from the Department of Homeland Security's (DHS) Federal Protective Service entered and left as I was there, but did not remain in either the entry area or the courts themselves. They apparently provide additional security to the respondents who are appearing in court, lawyers, and visitors. They also likely oversee the contractors who are running the facility.
The cordoned-off area where I sat had about 30 seats, but I was one of only three visitors that day. The other two were a lawyer (with a lawyer badge), and a representative from an NGO who was also observing proceedings. She was given a badge with a red star, so she was off to another courtroom.
The lawyer told me that he was representing a family in court that day, and he was escorted off to meet them at about 12:30. The lawyer from the NGO was escorted in at 1:00, and I was eventually called at 1:15.
The court itself, as noted, was a large pre-fabricated structure, essentially two double-wide trailers that were connected at the middle. There was a sign that stated that the room had a capacity of 105, but there were approximately 120 seats (about 20 stacked in the back) in the room. The room was fully heated and air-conditioned, and comfortable. There was a hardwood veneer floor, and a desk with a computer and scanner that was manned by the two court clerks there with us in Laredo.
Respondents sat at a table that faced a large TV screen that appeared to be at least 100 inches diagonally. The volume was loud and clear. On the TV screen, appearing via video teleconference from San Antonio, was the immigration judge (IJ), the IJ's clerk, the interpreter, and the ICE attorney (who represented the government), as well as a box in the corner that showed the respondents themselves and the others in the courtroom. There were, as mentioned, two court employees, three Ahtna Security officials in polos, and 10 respondents — four related individuals, a family of five, and a single male. I was seated in a section in the back that is apparently reserved for observers, apparently for the security of the respondents and court staff, but I could see all of the proceedings (and myself on the screen) clearly.
The attorney whom I had met was representing the first four — a mother, father, and son, as well as another male adult (the exact relationship was not clear) who were staying in Guadalupe, just outside of Monterey, Mexico, about 140 miles to the south. They had previously been in master calendar proceedings, and were in court to file an asylum application (Form I-589), as well as a change of address for each, and amended entries of appearance for the attorney showing the new address (they had previously been staying in Nuevo Laredo). The attorney handed each of the documents to one of the two court clerks who were present in Laredo, who then scanned the documents and sent them to the IJ in San Antonio.
The IJ went into great detail about the rights that the four had in the removal proceedings and the consequences of filing a frivolous asylum application — which was somewhat unusual given the fact that they had appeared before, and were represented by counsel. There was also an extended discussion about assigning the merits court date — did the respondents want an afternoon slot given the fact that they had to travel so far, did the adult male want a separate court date, and did they want an earlier morning slot?
The adult male asked whether they would be detained if their case was successful. The IJ stated that she was unsure whether they would be released if they were granted asylum, and that sometimes respondents who receive relief are returned to Mexico (likely if ICE reserves appeal). She told the four that they would be returned to Mexico to file an appeal if their cases were denied, but did not know whether they would be taken into custody and removed if their cases were denied and they waived appeal.
They eventually agreed to a joint April 2, 2020, date at 1:00 pm. The whole hearing took about an hour, or approximately 50 minutes longer than I would have taken on a similar videoconferencing (VTC) case when I was an IJ.
The second family consisted of a mother, father, male toddler, 17-year-old daughter, and a 12-year-old son, all from Cuba. They had failed to bring their notices to appear ("NTAs", the charging document in removal proceedings) with them, but opted to proceed with their case, on their own without counsel.
Again, the IJ went into a lengthy explanation of the purpose of the proceedings, the rights that the five had in the proceedings (including the right to counsel), and the possible outcome of the proceedings. They were placed under oath, and a drawn-out pleading to the charges ensued. The five admitted they had crossed the border illegally, they conceded alienage and removability, and the mother (the primary respondent addressed by the court) stated that they had brought asylum applications and change of address forms with them.
Again, those documents (along with the evidence that they had brought with them, which had been translated into English) were scanned in by the court employees in Laredo, sent to the IJ, and returned to the respondents.
At one point early in the proceedings, the 17-year-old daughter had a question, and thereafter the IJ insisted on questioning her directly as well to ensure that she also understood the proceedings, her rights, and the available relief, a procedure not normally followed in a case involving a minor with parents. The IJ repeated on numerous occasions "I really want you to understand what is going on." They did.
The IJ also asked whether any of them had been trafficked, or forced into prostitution (she apologized profusely for having to ask the question) or labor. This is, again, an unusual set of questions (I would normally only ask it any of them if the facts in the case suggested that such trafficking had occurred), which reflected the fact that the IJ was going to great lengths to protect the due process rights of the respondents.
Those cases took an hour-and-a half, or about an hour longer than I would have taken in a similar scenario.
The third case involved a Venezuelan national who had sought entry at a port of entry on September 9, 2019. He had previously entered the United States in 2016 on a tourist visa, remained for two months, and returned. He came back in 2017, but was deported because he was determined to be inadmissible at Dallas-Fort Worth International Airport.
Again, he opted to proceed pro se, and the IJ began the process again. He was given an extensive explanation of his rights, the purpose of the proceedings, and his right to counsel. He had the NTA, and the IJ began an exhaustive questioning involving the four allegations and one charge therein. Were his parents or grandparents citizens? Did he have a spouse or parent who was a citizen? Had he been trafficked, forced into prostitution (the IJ apologized again for having to ask the question) or labor? He replied in the negative to each, denied citizenship, admitted alienage, and conceded removability, but stated that he had brought an asylum application, along with evidence (all again translated into English), which was (again) scanned and sent to the IJ and returned to the respondent.
His case (after an hour) was reset to a merits hearing at 8:00 am on April 21, 2020. Again, I would usually have completed such a case in about 15 minutes.
There were apparently a number of failures to appear on the docket, and the IJ told the ICE attorney that she had concerns about service on a few of them (meaning that she would not order them removed in absentia). The VTC link was thereafter ended, and I was escorted out.
The next day, I went to San Antonio to watch the IJ-side of the MPP afternoon docket, in a different court with a different judge. Again, the IJ could see the whole courtroom in Laredo from the large VTC monitor in his courtroom.
There were 36 cases on the IJ's afternoon docket (there had been 59 on the morning docket), but only about half that number of respondents were in the MPP court. The docket (posted outside of his courtroom door) included nationals of Guatemala, Honduras, Ecuador, Cuba, and Venezuela. Only five were represented — a single male from Cuba, and a family of four Venezuelans.
The proceedings were similar to the ones that I had seen on the Laredo side, but the IJ was more efficient than the one I saw the day before — still well within the bounds of due process. He fully explained the purpose of the proceedings and their rights to each respondent, took pleadings from the respondents who opted to proceed pro se, and in each of the cases that I saw, the respondent either asked for time to find counsel, or filed an asylum application. The asylum applications were again scanned in with evidence from Laredo, and sent to the IJ and ICE counsel.
The IJ had carefully sorted out the cases that were ready to proceed, and the ones in which he had issues. One respondent, a female from Ecuador, expressed concerns about being in Nuevo Laredo, but not fear per se. Rather, she stated that she had previously had heart surgery, and was limited in her ability to go out. She stated that she relied on her son (who was apparently on the American side of the border) to travel, and in particular to travel to court. The IJ asked the ICE attorney to have the respondent interviewed by an asylum officer before she was returned to Mexico that day, and the attorney began making the arrangements while she was in court.
I was unable to remain for the completion of the proceedings, and therefore do not know how many of the cases ended in in absentia orders of removal. Border Patrol agents with whom I spoke in Laredo told me, however, that they had apprehended respondents who were in MPP proceedings crossing the border illegally again and that, in those cases, the asylum applications had been deemed abandoned.
I will note that in a decision issued on January 31, 2020, the Board of Immigration Appeals (BIA) issued a decision that made clear that where a respondent subject to MPP has received sufficient notice from DHS about a removal hearing, but the respondent fails to appear, the IJ should order the respondent removed in absentia.
The respondent in that case had sought admission at the San Ysidro (California) port of entry, but had been deemed inadmissible. He was given an NTA, which listed his hearing date and time (an afternoon slot in San Diego), which he had signed. He was also given an "a document entitled 'Migrant Protection Protocols Initial Processing Information'" ("MPP Sheet"). The MPP sheet was written in English, but included a courtesy Spanish translation (copies of which were signed by the respondent), which instructed the respondent to arrive at the San Ysidro port at 9:00 am on the hearing date so that he could be transported to court in San Diego.
The BIA explained:
The respondent did not appear for this hearing, and the DHS requested that the Immigration Judge enter an in absentia order of removal. The DHS argued that the respondent was provided with adequate notice of his hearing and that the MPP Sheet advised the respondent of the procedure for obtaining transportation to his hearing. Citing due process concerns, the Immigration Judge concluded that the DHS did not provide the respondent with sufficient notice of his hearing and terminated the respondent's removal proceedings without prejudice. The Immigration Judge did not allow the DHS to present evidence regarding the respondent's removability.
The BIA agreed with ICE that the IJ had erred in terminating the proceedings. The respondent had been given adequate notice of the hearing, and advised of the consequences of his failure to appear. While the IJ had "expressed concern that the respondent may not have understood the instructions contained in the MPP Sheet," the BIA concluded that there was no reason to believe that the respondent had not:
Both the MPP sheet and the courtesy copy of the MPP Sheet in the Spanish language contain the respondent's signature, and there is no requirement that an alien in immigration proceedings be provided with a notice to appear or any other document in their native language.
The BIA rejected the arguments of amici that other aliens had problems obtaining and communicating with their lawyers while they were in Mexico, finding that their "arguments and anecdotal evidence" failed to show that the MPP as applied in the case under consideration had violated the due process rights of the respondent.
The BIA vacated the IJ's decision and remanded the case to allow ICE to offer proof of removability.
News reports indicate that more than 57,000 migrants have been returned to Mexico under MPP as of early January to await their removal proceedings, even as DHS is considering changes to the policy that are aimed at speeding up the proceedings in those cases. From what I have seen, those cases are being conducted not only within the bounds of due process, but well beyond applicable constitutional standards.
It would be helpful, however, if the Executive Office for Immigration Review, the Department of Justice entity with jurisdiction over the immigration courts, published statistics on the number of in absentia orders issued in the MPP courts. If, as I suspect, most of the respondents in those courts are not appearing, it would suggest that their primary motive in entering the United States illegally was to live and work — not to flee persecution.
Between Laredo and San Antonio, I stopped to tour the South Texas Family Detention Center in Dilley. My next post will focus on that well-run facility.