New lawsuit to challenge Trump's 'Remain in Mexico' policy

©The San Diego Union-Tribune

SAN DIEGO — As one legal challenge to the Trump administration’s “Remain in Mexico” program heads to the Supreme Court, a new one is being launched in California.

The program, known officially as Migrant Protection Protocols, requires most asylum-seekers from Latin American countries to wait in Mexico while their immigration court cases progress in the United States. The lawsuit, which aims to become a class action, was filed Wednesday morning in the Central District of California.

It is brought by several asylum-seekers who were returned along the California border along with organizations that employee their attorneys — San Diego-based Jewish Family Service and Los Angeles-based Immigrant Defenders Law Center.

The lawsuit argues that the program is designed to ensure that as many asylum-seekers as possible are deported rather than protected. It says that the program requires asylum-seekers to stay in dangerous situations that prevent them from having access to the tools and information they need to successfully present their cases to U.S. immigration judges. It also says that the way the federal government has handled the pandemic with regard to the border has worsened the already-problematic situation.

One of the main arguments is that the program does not allow people in it access to legal representation, said Luis Gonzalez, an immigration attorney with Jewish Family Service.

“As attorneys, the access to our clients has been extremely limited,” Gonzalez said.

Gonzalez recalled struggles to find safe and confidential locations to meet with clients in Tijuana. Once he had to prepare a woman for her final asylum hearing sitting at a Starbucks.

“It was very challenging because we were talking about very sensitive information, and we were forced to do it in a public place and just do our best to make sure that people around us couldn’t hear what we were discussing,” Gonzalez said.

Also, there is no confidential meeting space for attorneys to meet with their clients while they’re on the U.S. side of the border for court.

Meeting with attorneys is only a small piece of the added difficulties that asylum-seekers in the program face because they are in Mexico. Even finding a lawyer to represent an MPP returnee is much harder than it would be if the person was in the United States.

According to government data obtained by the Transactional Records Access Clearinghouse from Syracuse University, about 7% of asylum-seekers who were placed into the Remain in Mexico program have had legal representation.

Judges have already blocked the program’s implementation, but appeals have left Remain in Mexico in place for now. The Supreme Court recently agreed to hear the original case against the program, which was filed soon after MPP began.

Trump administration officials have vigorously defended the program and celebrated it as an essential tool in accomplishing the president’s goals at the border.

“This process helps promote a safer and more orderly process along the Southwest border, discourages individuals from making meritless asylum claims, and enables quick immigration results,” said Chad Wolf, acting secretary of the Department of Homeland Security, in a recent speech.

The first lawsuit called into question the program’s validity on three grounds — whether it was legal under immigration law, whether its implementation was legal under laws for procedural changes and whether it kept U.S. obligations under international human rights law.

Stephen Manning, executive director of Innovation Law Lab, one of several organizations representing the plaintiffs and itself one of the plaintiffs in the case heading to the Supreme Court, said that this new lawsuit is different because it is based on a broader range of information gathered by observing the program in action since its announcement in December 2018 and implementation in January 2019.

“The biggest distinction is that we now have more than a year of real-time watching the impact of the Remain in Mexico policy on people and the danger, the despair, the trauma and deaths that it’s causing that we didn’t have before,” Manning said.

A Nicaraguan man represented by Jewish Family Service said he was extorted by Mexican police. Gonzalez said another of his clients, a woman from Guatemala, was nearly kidnapped while walking back from taking her children to school.

“In Mexico, we have been discriminated against due to our condition, for not belonging to this country,” said a Honduran asylum-seeker given the pseudonym Benjamin in transcripts provided to the San Diego Union-Tribune. “It has been very difficult to find work because we don’t have the documentation they ask of us. Being in the MPP program has affected us so much as a family. They separated me from my eldest son, and they’ve tried to kidnap another one of my sons. My children haven’t been able to have a stable life because they fear they will be kidnapped.”

Manning pointed to numerous reports from human rights observers and journalists about people in the program facing kidnappings, assaults and even death while forced to wait in the program.

“What the policy has done is it has trapped thousands of people in dangerous zones and taken away their ability to access the basic means to survive,” Manning said.

The situation has only grown more dire under the pandemic.

Hearings in all MPP cases have been paused since COVID-19 began shutting down the country. While President Donald Trump has pushed the United States to reopen in many ways, the Department of Homeland Security has left little hope that Remain in Mexico hearings will start up again anytime soon. Dates are scheduled and rescheduled.

“People are trapped in Remain in Mexico with no way out,” Manning said. “They are being essentially indefinitely stuck in Mexico with no way to vindicate their right to asylum.”

He said the government should allow these asylum-seekers into the United States if it’s not going to have hearings for them during the ongoing pandemic.

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©2020 The San Diego Union-Tribune