Bureaucratic Tensions Over ‘Remain in Mexico’ Keep Boiling Into Public View

Almost a year after the Department of Homeland Security began requiring that asylum-seekers at the San Diego-Tijuana border to wait for their asylum proceedings in Mexico, immigration judges in San Diego continue to voice frustration with the program.

The Migration Protection Protocols – or the so-called “Remain in Mexico” policy – has upended San Diego’s immigration courts. And immigration judges aren’t happy about it.

For months, the judges have been speaking out during proceedings, highlighting paperwork and process errors and other mistakes that clog up the system. Cases for asylum-seekers waiting in Mexico have completely overtaken the court, forcing all other cases scheduled for the past few months to be pushed to 2020 and 2021, the Union-Tribune reported.

The MPP program went into effect at the end of January, when the pilot began at San Diego’s border. The program has since expanded to other parts of the U.S.-Mexico border, and roughly 45,000 people have been returned to Mexico under it to await their asylum hearings.

In May, a federal appeals court ruled that the policy could continue until October, when hearings on its legality would occur. Some aspects of how the policy is being carried out appear to violate the law, the Los Angeles Times found in August after interviews with dozens of experts and officials.

Every day, immigration judges in San Diego have dozens of MPP cases scheduled – sometimes up to 50 – though often many of those individuals don’t show up. Some decide against waiting in Mexico; some face obstacles making it to court, like obtaining transportation to get to the port of entry.

Immigration Judge Scott Simpson made clear in his courtroom Wednesday that the schism between immigration judges and DHS over the policy remains as deep as ever.

Though Simpson had dozens of cases on his schedule, only three families showed up for their hearings. These were initial hearings, in which the asylum-seekers learned more about their rights and the process they were about to go through, and made initial decisions on how their cases would proceed.

Because immigration judges often preside over cases where individuals don’t have an attorney, they’re used to acting as educators along the way – but that role has been elevated with MPP cases, where asylum-seekers come to court with even less familiarity with the process than those who go through proceedings while in the United States.

Simpson asked the heads of each family if they’d like more time to seek legal assistance. If they faltered while responding, he emphasized that it’s in their best interest to at least consult with an attorney, even if they can’t find someone to come to court with them.

“You’re only limited by your own creativity,” he said.

“What happened is … we were not well informed about the process,” one father explained to Simpson.

That’s why we’re here today, so I can explain the process, Simpson told him. Everyone eventually decided to take more time to see if they could find an attorney.

Then Simpson went a step further, advising them on something specific he said they should take note of.

The government has given you all a document, he said. The document, a “Notice to Appear” in immigration court, lays out the allegations against the person made by DHS.

Typically, Simpson said, DHS is supposed to check one of three boxes at the top of the form:

• You are an arriving alien.
• You are an alien present in the United States who has not been admitted or paroled.
• You have been admitted to the United States, but are removable for the reasons state below.

But the government hadn’t checked any of those boxes on any of their forms, Simpson noted. That meant he could find that the government failed to do its job and terminate the case, he told the families.

“I haven’t made a decision yet, but I want to give you that information in case you meet with an attorney,” Simpson said.

He then went on to explain the next steps in the process but eventually circled back to the forms, to remind the families that they could utilize DHS’s bureaucratic error in their favor.

He then asked if any of the families were afraid to return to Mexico, but made a point to say he had little power to help them.

“I’m not the person who is sending you back to Mexico,” he told them. “It really falls on deaf ears because I’m not the person who decides that. That’s part of the government that I don’t work for.”

Simpson’s warning demonstrates how the tension between immigration judges and the government officials initiating the cases sometimes spills into public view.

Immigration judges’ authority has been targeted in multiple ways under the Trump administration, even by the Justice Department, which oversees the agency they work for, the Executive Office of Immigration Review.

The administration set performance quotas on the judges to try and reduce the immigration court backlog, which reached 1 million nationwide in fiscal year 2019, according to data from the Transactional Records Access Clearinghouse at Syracuse University. In San Diego, there are roughly 14,500 pending cases, according to TRAC.

Then in August, the Justice Department made moves to potentially decertify the immigration judges’ union.

Locally, MPP has been a sore spot for judges. In June, the Union-Tribune reported that Simpson and other judges were speaking out about other issues with the program that were impacting court hearings, like the fact that asylum-seekers’ case documents lacked addresses where they could be reached.

“I’m sure you’re frustrated,” the Union-Tribune reported that Simpson told one asylum-seeker whose paperwork had not properly been filed by the government, delaying his case. “I share your frustration.”

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