On a chilly morning in mid-April, two Central American families piled out of an Uber and joined the long line of pedestrians waiting to cross the Paso del Norte Bridge from Ciudad Juárez into El Paso. Other folks in line were on their way to school, work, or errands in El Paso—the everyday stuff of binational cities. But these two families—each with a father, pregnant mother, and child—had a different destination: U.S. immigration court.
The day before, the two young fathers, Edwin Escobar from El Salvador and Ronaldo Garcia from Guatemala, said that after leaving their church shelter for food, they had been kidnapped by three men at gunpoint, held for three hours, beaten, and robbed. The men broke Garcia’s finger and stole the five pesos—about 25 cents—that he had to his name. Now, as the parents guided their children toward the international bridge, they spotted something both familiar and alarming: a man and woman staring at them, talking on their phones, and looking around. “When we were kidnapped, we saw people acting just like that,” said Edwin. He said the suspicious man followed them into a bathroom and onto the bridge, and only left after they turned themselves into U.S. Customs and Border Protection agents. The families feel lucky to have made it to court that day.
The Garcias and Escobars, whose last names have been changed, are among the first group of asylum seekers to return to El Paso for court hearings since the Trump administration put into place a controversial new policy requiring some asylum seekers to stay in violent Mexican border cities while their cases are heard in the U.S. Immigrants, shelter operators, and human rights groups have warned that the policy, called the Migrant Protection Protocols, endangers the lives of migrants and deprives them of due process. MPP is currently in place in El Paso and California, though DHS has said it plans to expand the program across the Southwest border. Opponents are challenging the plan in court; on Wednesday, the Ninth Circuit Court of Appeals heard oral arguments on whether to issue an injunction to halt the program, at least temporarily. More than a thousand asylum seekers have been returned to Mexico under MPP, including four to five hundred from El Paso in just over two weeks.
On April 17 and 18, at court hearings in El Paso for 42 asylum seekers, including 15 children, the major concerns of critics of the “remain in Mexico” plan unfolded: migrants faced violence in Mexico and had little or no access to attorneys; the already limited humanitarian relief network was strained beyond capacity; and the court system was at times chaotic—even the judge acknowledged he didn’t know all the rules of the program.
At the hearings, immigration judge Nathan Herbert explained that under MPP, the decision to send asylum seekers back to Mexico to await a ruling on their ultimate fate was up to the Department of Homeland Security, not him. His job was to decide whether they’d be deported to their home countries. He acknowledged that the MPP hearings were “uncharted territory.” Over two days, he repeatedly tried to make the asylum seekers feel at ease and encouraged them to ask questions. He wished one little girl a happy birthday after her mother told him she was turning three in a few days. He made a Spanish interpreter available in the courtroom, and he twice phoned an interpreter of Quiché, a Mayan language spoken in Guatemala. Herbert also ensured that every asylum seeker in court had their cases reset for May to give them time to meet with an attorney, if they could find one.
Despite Herbert’s accommodating style, the limitations of MPP were apparent. Of the 42 people on the docket, only the Garcias and Escobars were represented by attorneys—volunteers with Las Americas Immigrant Advocacy Center, who took mercy on the pregnant mothers.
At the first set of hearings on April 17, several parents pleaded with Herbert not to be sent back to Juarez, where many of them said they’d been robbed, or worse. “Yesterday, I stepped out [from a Ciudad Juárez shelter] to buy my lunch, and a man tried to take my son,” said Riccy, a 24-year-old Honduran woman who held her 4-year-old, Binsel. She didn’t provide more detail, and Herbert didn’t ask. “If you leave [the shelter] to buy food or something, they tell me to hold my daughter’s hand tightly because there are bad people out there,” said Yessenia, 31, of her 7-year-old.
That same day, Edwin and Ronaldo relayed their kidnapping story to Herbert. “I do not want to go back to Mexico because I don’t feel safe, and they broke my finger,” said Ronaldo, who kept his swollen right index finger elevated throughout the three-hour hearing.
MPP guidelines call for immigration agents to provide extra screening to any asylum seeker who expresses fear of being sent to Mexico. The burden is on migrants to raise the issue, and he or she must prove that it is “more likely than not” that they will face persecution in Mexico. Prosecutors told Herbert that each person or family who appeared in court April 17 or 18 would be given a fear interview regardless of whether they had expressed fear. But when Rivas asked Herbert if her clients were allowed to have an attorney present for their fear interviews, the judge responded, “I don’t know.” Later, Rivas said she was allowed to call into her clients’ interviews but wasn’t allowed to be physically present.
During the hearings, the asylum seekers repeated a number of common concerns. Several said they couldn’t possibly hire an attorney because they were limited in shelters to two three-minute calls per week. Several said they were told that their beds at the shelters wouldn’t be available to them when they returned because demand is so high. Many said their sixteen-day Mexican tourist visas would soon expire, possibly subjecting them to deportation by the Mexican government. Herbert listened to the concerns but reminded them that the decision on where they would go after the hearing was out of his hands.
On Saturday, only the Garcias, Escobars, and one other family—a father and son from Guatemala who required a Quiché interpreter during the hearing—were released in El Paso. Rivas said she was given no explanation for their release. The Escobars are now with family in Maryland, the Garcias with relatives in New York, and the third family is in Boston.
As to the fate of the other families: the Escobars said that while they were in detention they witnessed six families being returned to Mexico on Good Friday. Because of confusion in Juarez, the families were then put out on the street, realizing their worst fears, Rivas said. (Shelter officials have promised to find space for any MPP families in the future.)
Homeland Security officials didn’t respond to numerous questions. Instead, the agency provided a series of links to descriptions and guidelines of MPP.
The pace of MPP hearings in El Paso is expected to increase this week. Migrant advocates warn that the legal system isn’t prepared for what is coming. Taylor Levy, the legal coordinator for the El Paso nonprofit Annunciation House, has been serving as a “friend of the court” during the MPP hearings, trying to make sure migrants at least get all their paperwork, and she drew parallels to the family separation crisis. “It was so incredibly difficult to try and represent people from a legal point of view when all they cared about is, ‘Where’s my child?’ And here, trying to speak to people in more depth about their cases, so much of what they wanted to talk about is, ‘Don’t you understand? I have nowhere to sleep tomorrow night, and I’m in danger.’”