Asylum-Seekers Waiting In Mexico Navigate A Shifting U.S. Court System

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Editor's Note: Since this story published, the Honduran family we interviewed has been removed from Migrant Protection Protocols and allowed to stay in the U.S. to pursue their asylum claim. Read the family's update here.

Months after witnessing the slaying death of her mother, a Honduran woman is finally getting a chance to make her case for asylum in the United States. She and her family will have to get through a process that is often chaotic, constantly changing and often dangerous.

Tania, Joseph and their three children have been placed in the Trump administration's "remain in Mexico" program, formally called Migrant Protection Protocols, which requires them to live in Juárez, Mexico, while an immigration judge in El Paso, Texas, decides whether they qualify for asylum in the U.S. (NPR is not using migrants' last names in this story because these are people who are in the middle of immigration proceedings.)

Their past is terrifying, their present is confusing, their future is uncertain.

"My mom was shot nine times, and even after the murder they weren't satisfied with having killed her. Her body was slumped on the ground, and they ran over her with a motorcycle," Tania told Morning Edition host Noel King at the family's shelter in Juárez.

Tania and her sister-in-law witnessed the killing and agreed to testify in court. Her sister-in-law was slain and her infant daughter left in a dumpster. Then Tania got a chilling note on her front door.

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"They left a note where they said we had 45 minutes to leave the house. They signed it 'Sincerely, the Mara Salvatrucha' " — the notorious MS-13 gang, Tania said. She gathered her husband and three children and fled north, hoping to live with family in the U.S. while they made their asylum claim. Instead, they were sent back to Juárez shortly after entering the United States in April.

They've lived for months in shelters with their two young daughters and son, waiting for their time in court. They say they were threatened three times in Juárez, a city dominated by violent drug cartels. Their youngest daughter, 3-year-old has a scar on her chest from heart surgery. El Paso's Catholic bishop tried to help them win permission two weeks ago to stay in the United States. But after a few days in El Paso, they were again sent back to Mexico.

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They got their first hearing in immigration court on Wednesday.

A day in court

They left their shelter early in the morning and crossed the international bridge shortly after 8 a.m. They had a 1 p.m. court date, along with 36 other migrants making their first appearances — too many to fit into the courtroom at once. Half the group was brought in for one two-hour session, while the rest remained in a waiting room outside; then they changed places.

The "respondents," as they are called in court, were mostly families with young children, all from Central America. The judge and Spanish interpreter frequently had to speak up over the sound of babies crying in the courtroom.

Unlike most of the others in the court, Tania and Joseph were represented by an attorney — Linda Rivas, executive director of Las Americas Immigrant Advocacy Center, an El Paso nonprofit.

In court, Rivas tried to get Tania and her family taken out of Migrant Protection Protocols because of the daughter's heart condition. Department of Homeland Security guidelines say people with "known physical/mental health issues" are not supposed to be sent back to Mexico. She presented medical records that showed the daughter had previously suffered a heart attack.

"The child?" immigration Judge Nathan Herbert asked.

"There is a history of a heart attack for this very young child," Rivas responded.

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Herbert, as he often does in cases involving Migrant Protection Protocols, said whether the family stays in Mexico is not his decision to make. He asked the Department of Homeland Security attorney to take note of Rivas' concerns about the young girl.

Rivas later said she expected the family to be returned to Mexico yet again. Herbert set the family's next hearing for Aug. 15, when Rivas will begin presenting their asylum case.

Changing rules

Once sent to Mexico, it is very difficult for migrants to get out of Migrant Protection Protocols and be allowed to pursue their immigration cases in the U.S. Migrants must prove they have a "reasonable fear" of returning to Mexico — a high legal bar — or demonstrate that they shouldn't have been placed in the program in the first place. More than 19,000 people have been sent back to Mexico under MPP since April, including about 9,000 sent from El Paso to Juárez.

Rivas said she has been able to get about 40 people taken out of the MPP program. Those included people who were kidnapped in Mexico, had a physical illness, were pregnant or LGBTQ. Rivas has helped seven pregnant women and a family with a 4-year-old girl with a severe neurological impairment get removed from MPP.

A major frustration for Rivas and other attorneys trying to help families in MPP is the constant changing of rules around the program. Before late June, they were able to meet with clients and other asylum-seekers before court, to talk about their cases and tell them about their rights.

"Today, they didn't even let me into the waiting room. There were guards that were physically standing at the waiting room. I was not even allowed into the waiting room of a court, an immigration court, that I've been practicing in for five years," Rivas said.

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Another El Paso attorney, Taylor Levy, was at the court on Wednesday offering free legal assistance to asylum-seekers and giving children crayons and coloring books to keep them occupied in the strange environment. In the past, she and other attorneys were allowed to meet with migrants for an hour before their court session to give them a "know your rights" presentation to prepare them for the process. In late June, Justice Department officials ordered an end to the presentations.

"It's ridiculous. I am here to help people for free. They are going to be here all day. There's a free attorney willing to talk to them, wanting to help orient people, and we are being told that we are not allowed to speak to them," Levy said.

A Justice Department official said the "know your rights" presentations were stopped because they weren't being done by people authorized under the department's Legal Orientation Program. Ending the sessions was necessary "to ensure that the aliens were not misled or confused about their proceedings or otherwise taken advantage of, and to maintain the integrity of each respondent's proceeding."

"We're attorneys," Levy said, waving her hand.

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Immigration attorneys aren't the only critics of the remain in Mexico program.

The president of the union for immigration judges said the program is putting incredible stress on the judges in El Paso. The city has four judges for the "non-detained court," which hears cases of people not in custody of Immigration and Customs Enforcement. The judges have been told to expect to handle 50 cases in the morning and 50 cases in the afternoon, said Ashley Tabaddor, president of the National Association of Immigration Judges.

"The expectation is that the numbers are going to be quite high, that the judges are expected to be on the bench all the time, and that they are just expected to go through these quickly and swiftly," Tabaddor said. "And that's been one of the big challenges is that they have essentially sped up the process in the guise of trying to attack the backlog, but speeding up the process really places the judge in a very untenable position of having to uphold his or her oath of office while worrying about whether they're meeting quotas and deadlines."

The union representing the asylum officers who administer the "reasonable fear" interviews for migrants has called Migrant Protection Protocols "fundamentally contrary to the moral fabric of our Nation." That claim came in a court filing in a lawsuit that aims to block MPP from going forward.

In a tweet, U.S. Citizenship and Immigration Services Acting Director Ken Cuccinelli, who oversees the asylum officers, said "the complaining union leaders are choosing to deny reality."

National Immigration Judges Face Challenges As Cases Pile Up Immigration Judges Face Challenges As Cases Pile Up Listen · 6:54 6:54

Rivas said immigration attorneys were told this week that Cuccinelli issued orders prohibiting them from sitting in on phone interviews between their clients and asylum officers. She has previously been allowed to listen in on the interviews, with a chance to advocate for her client at the end. No more.

Rivas said she took the case of Tania and her family because she thought they had a strong asylum claim. She still thinks so. But she's growing weary.

"How much longer can we do this? Are we really making a difference?" she said.

Robert Moore is a freelance journalist based in El Paso.

Bo Hamby, Amara Omeokwe and William Jones produced and edited the broadcast version of this story, with Mónica Ortiz Uribe contributing.