“Maria” and I have been working on her asylum application for three hours. As I furiously write her answers in longhand on the asylum form, Maria asks, “Is it beautiful? Is America beautiful?

These have been tough hours together. Maria has described how she has been assaulted with a gun put to her head and how her gang member assailant threatened to rape her young daughters. She has told me how, as a child, her mother died of AIDs while she slept beside her. 

I look up and say, “yes, the mountains and the seashores are very beautiful”, and she smiles.

However, the only part of the U.S. that “Maria” has seen so far is a U.S. Customs and Border Protection (CBP) holding pen called the “hielera” (icebox) where her common-law husband and her daughters spent uncomfortably cold days sleeping on the floor under Mylar blankets before the family was sent back across the border to Tijuana to wait for their first immigration court appearance in San Diego. And unless there is a successful legal challenge to AG William Barr’s July 22nd policy pronouncement Maria’s only future view of the U.S. will be from the window of a CBP bus bringing her to and from the San Diego Immigration Court. 

Less than 20% of Central American asylum cases were granted in 2018, and it’s virtually certain that since the DOJ implemented the “remain in Mexico” Migrant Protection Protocols (MPP) program this past winter, grants will further decrease. Of nearly 13,000 MPP asylum cases pending, only 1.3% were filed with legal assistance.

By the time migrants from Spanish-speaking countries, other than Mexico, have enrolled on “La Lista they have waited months in Tijuana for their number to be reached. Once they surrender to U.S. authorities, complet a lengthy process of master and individual Immigration Court hearings, they will have spent no less than 7 months waiting in Mexico. But that estimate is based on the very first MPP Central Americans, Cubans, Venezuelans and other Spanish-speakers who were processed earlier this year. Now the projected wait until that final court hearing when the overwhelming majority of asylum-seekers will have their claims denied and be deported back, is likely far more than a year. The present system is absolutely designed to discourage already desperate families to give up their claims and vanish into Mexico or elsewhere.

I interviewed “Juan” today.  He was a successful Guatemalan business who, when facing extortion and murder in Guatemala, fled to Mexico. Last month he and his family were kidnapped at gunpoint outside their hotel. Their assailants drove them south to Veracruz, imprisoned them in a house there, and then demanded $10,000 for their lives. A week after the kidnapping, ransom paid, the family was released in Veracruz and with the aid of strangers managed to make it back to Tijuana for their second U.S. court appearance. “Juan” told the Immigration Judge what had happened and he was passed back to CBP custody for a telephonic “credible fear interview” on why he was afraid to remain in Mexico pending his court proceedings. Found “not credible”, the family was returned to Mexico the next day.

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Virtually none of our migrant clients will be able to secure legal representation at their merits court hearings, drastically limiting their chances of asylum grants. The CBP is required to provide a list of San Diego based immigrant legal advocacy groups for MPP asylum-seekers to call from Mexico. The migrants try. There are never any answers. The listed advocacy groups are already maxed-out, and can’t easily meet asylum-seekers while they reside in Mexico. An AOL intern recently observed an immigration court hearing where one of the four newly appointed immigration judges angrily responded to an asylum-seeker reporting he had repeatedly called all the numbers on the CBP-provided list and had not been able to reach any. The judge, who had once worked for Catholic Charities, said he didn’t believe the agency would fail to respond. By now there cannot be any San Diego judge that continues to believe this yet cases are continued to allow migrants more time to “seek legal counsel” while increasing their stay in Mexico.

What’s it like for asylum-seekers to remain in Tijuana between court hearings? 

Few have funds, and most stay in faith-based or philanthropic shelters where conditions range from abysmal to adequate. Some leave Tijuana to stay in Mexicali where it is cheaper and less dangerous. A considerable number, like “Maria”, have found jobs; she works at a taco stand. Some of the most visible migrants, Haitians and Africans, can be seen working as security guards at businesses in central Tijuana. Early mornings at the PedWest pedestrian crossing into San Ysidro, California, scores of Cameroonians gather, a few to initially enroll on “La Lista”, but most others to socialize. Or to say goodbye to new friends because their list numbers have been reached and they will be transferred by Mexican migration to CBP.

What is “La Lista”?

Here in Tijuana the only process that gives asylum-seekers an opportunity to surrender themselves to U.S. authorities at the border is through a metering system. Potential asylum-seekers must be enrolled on “La Lista”, a list maintained by the Mexican migration authorities, known as Grupos Beta. They recruit helpers—volunteers from among the migrants who are already registered and are waiting for their list number to be reached—to process the new asylum-seeking individuals and families who arrive each morning at “Chaparral”, more formally known as PedWest, the western-most pedestrian entrance to the U.S. linking Tijuana to San Ysidro.

”La Lista” has now reached the number 2769. Each number represents 10 people. These are migrants who have been able to present acceptable identity documents for themselves and family members to the volunteers and the Grupos Beta authorities. There is no legal authority for this metering system, but it has remained in place because it serves the purposes of CBP to assure that only a small, seemingly arbitrarily chosen number of asylum-seekers, will be permitted to pass into their custody each day. Yesterday, July 31st, only 31 people whose names were on La Lista were permitted to cross. Today it was 41.

Mexican migration policy forbids unaccompanied minors from having their names on the list. They have to be brought to PedWest by AOL volunteers to surrender there to the U.S. border officials who examine visitors at this pedestrian entrance. The volunteers have been harassed and threatened by CBP.

As of August 1, 2019, 37,590 people had signed onto La Lista in Tijuana since it’s initiation this past winter; in other words, 3,759 numbers had been given out. The people who crossed today signed onto the list on April 9th or 10th and had almost a four-month wait to cross over. Along the entire southern border, there are reportedly some 25,000 MPP migrants waiting; nearly 13,000 of their cases have already been filed with the San Diego immigration court. 

The Grupos Beta agents who supervise the list sometimes reject identity documents for spurious reasons and will not allow some migrants to put their name on the list. For instance, the identity document of a man from an African country was rejected because he was told the photo did not look like him. 

Asylum-seekers whose numbers have been called on a particular day are taken in a Grupos Beta van to PedEast, the CBP entry point a few miles away. Once in CBP custody, the migrants are placed in the “hielera” (icebox), a detention cell deliberately kept at an uncomfortably cold temperature for a stay from 2 days to 2 1/2 weeks. Food consists of one sandwich or a burrito 3 times a day. Adults are allowed only one layer of clothing; children are permitted to have a second layer. They will sleep on the floor with Mylar “blankets” nearly on top of one another because of limited space.

At the end of their “hielera “ confinement, the migrants will be separated into two main groups. Those who are nationals of Spanish-speaking countries, but for Mexico, will be designated as MPPs (Migrant Protection Protocols), processed and returned to Mexico to await Immigration court dates. CBP officers will conduct only basic intake interviews with MPPs rather than the “credible fear” interviews the rest of the Tijuana asylum-seekers will have. The interview is recorded in a Q&A form and reflects both the bias of the interviewing CBP officer and their disinterest in the long asylum narratives that the migrants try to relate.

The actual “credible fear interviews” are normally conducted by U.S. Citizen and Immigration Services (USCIS) Asylum Officers after non-MPP Tijuana asylum-seekers are transferred from CBP custody to ICE detention facilities. Because they fear returning to Mexico Mexican nationals seeking asylum are not included in the MPP program. Instead they will be kept in detention with Tijuana migrants who are mostly from Africa, predominately Cameroon. Those migrants that seek to cross over in Tijuana rarely include citizens of Asian countries or Brazil. They have included Haitians who’s numbers have declined.

Before the CBP transfers the designated MPP migrants back to Tijuana they will be given a “Notice to Appear” in the San Diego Immigration Court in 2 to 4 months for a master calendar hearing. 

On the day of their hearing migrants must arrive at the Chaparral/PedWest entry point at 4:30 AM to cross into the U.S. and then transported to San Diego for a 9 AM court appearance. At the end of day, they will be transported back to Tijuana where they will wait for their next court date.

The Master Calendar Hearing

What happens at the first master calendar hearing varies depending on which of the four San Diego-based Immigration Judges is handling the case. All asylum-seekers (called “respondents” in the courtroom) are asked if they have legal counsel, and if not whether they want additional time to obtain counsel. Some “respondents” knowing it will be virtually impossible to secure representation ask to proceed without an attorney. Some judges will reschedule the appearance anyway insisting the “respondent” search harder. All will be instructed to submit a completed and complex asylum application form (I-589), in English, providing the legal basis for their asylum claim. At a second or third master calendar hearing the judge may take pleadings, meaning the “respondent” must admit or deny the allegations of illegal entry and removability. Eventually the judge will set a court date, likely many months hence, for an individual “merits” hearing—a trial. Judges have been scheduling two hearing times per day, but warning applicants that multiple asylum-seekers will have the same slot and therefore it is entirely possible that their individual hearing may be re-scheduled for a far-off future date. Thus, for most current applicants, the process from first to last court may well take far more than year during which the MPP asylum-seeker must remain— often without any resources and in dangerous circumstances— in Mexico or elsewhere.

Documents, Lawyers, Detention

The court documents given to applicants by CBP, called “Notices to Appear” (NTAs), are largely defective because one of the three boxes, arriving alien; present in the U.S. without inspection; or lawfully admitted but removable; are being deliberately omitted on many NTAs. Nevertheless, Immigration Judges are taking pleadings and moving forward on these cases based on the factual allegations and charge of removability.

In San Diego no immigration court “merits hearing” of a “remain in Mexico” MPP asylum seeker’s case has yet been held. The first of these final hearings are scheduled for October 2019. However court proceedings for more than 1000 MPP cases have already been terminated because the respondent failed to appear. Or found Mexican employment and decided to remain there. Or never received notice of a changed hearing date. Or the NTA was deemed defective. As reported in the LA Times and NY Times, of the terminated cases, only 14 respondents (1.3%) had legal representation). In the 12,997 cases yet pending, only 163 (1.3%) were able to file asylum applications with legal assistance.

Most all non-MPP asylum seekers surrendering or caught crossing through Tijuana or elsewhere on the California-Mexico border are transferred to Immigration and Customs Enforcement (ICE) detention centers anywhere in the U.S. There they will have “credible fear” interviews (CFIs), albeit telephonically, with USCIS Asylum Officers. The time frame between their arrival at the detention center and the CFI interview varies widely, from a few days, to over a month. If successful the applicant will remain in detention until the master and individual hearings in the nearest Immigration Court are concluded, or will be released to a sponsor: a relative or friend with legal status and permission to work in the U.S. and they must check in with the local ICE office. 

Since March of this year when the MPP program was expanded to Texas, asylum-seekers returned to Mexico from El Paso, and now Laredo, have experienced the same difficulties and injustices Tijuana MPP migrants.

What is most hopeful, in a seemingly hopeless situation, is the continuing advocacy and dedication of hundreds of attorneys, paralegals, and volunteers from organizations assisting migrants in border areas — Al Otro Lado in Tijuana, RAICES in Texas, Catholic Legal Immigration Network, Inc. (CLINIC) countrywide, Immigrant Defenders in Los Angeles, Proyecto Corazon, Immigrant Resource Legal Center ( ILRC), , and many more. 

If you are wondering how to help, and you are an attorney, or proficient in Spanish, even if you do not have immigration law experience, consider volunteering at Al Otro Lado in Tijuana, or RAICES in Texas. Fundraising, especially to benefit Al Otro Lado in Tijuana, is especially needed. This wonderful non-profit desperately needs more staff to assist and represent the Tijuana migrant community. Feel free to contact me for more information about volunteer opportunities or funding. Or go to alotrolado.org

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