In December, after months of advocacy by AILA, the Wall Street Journal (WSJ) reported that the Department of Homeland Security (DHS) would open the tent court hearings conducted in Remain in Mexico cases to the public. AILA had already sent two delegations to visit the tent “courts” at Laredo and Brownsville, Texas and been denied access. After the WSJ story we wondered: Would DHS grant meaningful access?
On January 24, we attended a tour conducted by the federal agencies at the Laredo facility and saw nearly all of the physical spaces, including processing and waiting areas and the courtrooms. We were encouraged that the agencies provided the tour as a step toward transparency. The officials answered many of our questions, but many remain unanswered. Months after their opening, DHS and the Department of Justice (DOJ) have not yet published any written guidance. Severe restrictions still make it extremely difficult for the public or press to observe proceedings and for attorneys to access their clients and represent them effectively. AILA’s policy brief further details AILA’s understanding of the tent court policies and you can watch a video taken after our visit here: Facebook Live.
On January 23, the day before the tour, we requested access and were allowed to enter one of four master calendar courtrooms and had the opportunity to observe 33 cases. We had also asked to see proceedings in the other rooms but were denied without any explanation. This denial was inconsistent with the policy that observers would be given access to master calendar hearings. During the tour the next day, agency officials stated that access would be given for master hearings.
Whether the agencies will grant reasonable access to individual merits hearings is still in question. The day before the tour, we were denied access to an individual merits asylum hearing and given no explanation for the denial, even after the attorney representing the respondent had consented. We raised the concern again with DHS and DOJ officials and also asked for help from congressional offices in obtaining access. During the tent court tour, the Immigration and Customs Enforcement (ICE) representative stated that the denial on January 23 was a mistake and that the public would have access to a merits hearing under the following conditions that (1) the individual must obtain consent approval from the client or the client’s attorney; (2) there is enough space in the modified shipping container where the hearings are held; and (3) the judge agrees. Observers can only request permission on the day of the hearing, and the agencies have not provided a point of contact to resolve questions about access, which the on-site DHS contractor typically cannot answer.
Greg was able to observe a merits hearing involving a Venezuelan family that had been targeted because of the man’s involvement with the party opposing the Maduro regime. In the 8-foot by 20-foot space, the interpreter could not sit beside the counsel and the respondent and, as a result, had to shift his chair to sit opposite the respondent. A couple of times the video feed cut or paused, compelling the judge who was sitting in San Antonio to suspend proceedings. After more than three hours of testimony by the lead respondent and his wife, the judge granted withholding of removal and relief under the Convention Against Torture. The respondents were not entitled to asylum due to the country transit ban.
During the tour, AILA and other non-government organizations raised a host of concerns about the due process protections and safety of asylum seekers who are stranded in Mexico for months while waiting for their hearings. Several families described being abducted in Mexico, including one 19-year-old woman who had been burned all over her body with cigarettes by her abductors. The asylum office representative told us that attorneys would be allowed to attend non-refoulement interviews designed to protect those who fear return to Mexico, but other advocates reported that people being interviewed were cut off during their testimony and left unable to explain their fear.
Attorneys are also prohibited from bringing laptops or cellphones into the hearing and private meeting rooms making it very difficult for them to represent their clients. ICE trial attorneys have complete access to these forms of technology and the internet during hearings, placing respondents’ counsel at an unfair disadvantage. The ICE chief counsel representative also said currently policy will remain in effect to give only one hour for counsel to meet with clients before hearings regardless of space availability.
Compounding concerns about the tent facilities, DOJ has also increased the use of facilities that are completely closed to the public where judges sit remotely to conduct merit hearings. Based in Dallas/Fort Worth, the Immigration Adjudication Center (IAC) is hearing cases all over the country via video teleconferencing. Though there are many concerns with IACs, they are amplified in the case of tent courts because observers can only view hearings at the tent court facilities. During the tour AILA asked how many cases are being heard at IACs and other questions about their use, but the agency officials were unable to answer them.
AILA remains deeply concerned that the tent facilities impose such significant roadblocks for asylum seekers as to fundamentally deprive them of due process and a fair day in court. The population subject to Remain in Mexico is, by definition, at extreme risk due to their long waits in regions of Mexico that are rife with criminal gang and cartels. It is virtually impossible for these asylum seekers to find attorneys, as detailed in a letter AILA sent to the DHS Acting Secretary in June 2019. New Transactional Record Clearing House data published by the American Immigration Council indicates only 5% of respondents in the Remain in Mexico program have a lawyer. Every day these systemic injustices go uncorrected, the lives of more than 55,000 people waiting in Mexico are further jeopardized. Even as AILA will continue to push for improved access to tent facilities, we reiterate our demand that the agencies must end the use of tent courts and the Remain in Mexico program.