New border tent courts create a 'faux process' for asylum-seekers, attorneys say

"This system is set up to turn people away," said the director of an immigration clinic about the expansion of new DHS protocols in Texas.
A short distance from the Rio Grande, the Migrant Protection Protocols Immigration Hearing Facilities in Laredo, Texas, are adjacent to the Gateway to the Americas International Bridge. Hearings for immigrants seeking asylum are set to begin Sept. 16, 2019.Ricardo Santos / The Laredo Morning Times via AP
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By Nicole Acevedo

The fate of over 42,000 migrants waiting in Mexico for asylum hearings in the United States is being decided by a judge, in a remote location, calling into a court recently erected at the border, some consisting of a shipment container or tent.

The Department of Homeland Security erected more of these tent courts this week in two Texas border towns, Brownsville and Laredo, as part of the Department of Homeland Security's expansion of the Migration Protection Protocols — also known as the "remain in Mexico" policy.

But attorneys say this process diminishes asylum-seekers' chances of getting their claims approved.

"It's ridiculous to call these tents a court," Ashley Huebner, the associate director of legal services at the National Immigrant Justice Center, said during a call with reporters on Thursday.

Under the protocols, individuals seeking asylum at the southern border are required to wait in Mexico for the U.S. immigration court date at the border.

As part of the protocols' rollout in Laredo, 20 asylum hearings are expected to take place this week at these new courts, attorneys said. The idea is to have about 700 hearings per week in both Laredo and Brownsville.

Attorneys say migrants with hearings scheduled at these facilities arrive early in the morning. They then present their case to a judge who is in a different state but listens via video conference.

"These are deeply problematic hearings," said Denise Gilman, director of the immigration clinic at the University of Texas, Austin. "Imagine people speaking about the deepest traumas they are fleeing from while the video feed is cutting out."

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Huebner described instances where attorneys faced difficulties reaching their clients at these border courts.

"They essentially have to wait for a security officer and hail them to see if they can let them in," she said, adding that some were not allowed to go in with interpreters or legal assistants.

"Interpreters are crucial. Many lawyers cannot speak their client's language," Huebner said.

After the hearing is over, individuals are returned to Mexican border towns such as Matamoros in the state of Tamaulipas, which has a "Do Not Travel" Level 4 advisory, lawyers said. Once there, migrants either wait for their fate to be decided or wait for their next hearing.

"The U.S. is directly endangering asylum-seekers by making them stay in Mexico, " Gilman said.

On average, asylum-seekers would have to go to three or four hearings before their cases are decided, Gilman said.

People who miss their court date face the risk of being deported to their country of origin and returned to the conditions they fled in the first place. They are also barred from getting any kind of immigration relief for five to 10 years.

The latest protocol expansion comes months after the Trump administration started processing asylum claims in makeshift tent facilities in El Paso, Texas, and San Diego, California.

Attorneys concerned over the new expansion described tent court hearings as a "faux process."

"This system is set up to turn people away," Gilman said, adding that legal counsel is critical to win asylum cases.

Under the current system, "individuals are not able to get full legal information," Huebner said. It also makes it more difficult for asylum-seekers to keep up with court dates and get hold of a lawyer in the U.S.

"It poses serious barriers to counsel and an inherent inability to build trust with clients before life or death hearings," she added.

Homeland Security did not return a request for comment.

A confusing start

Jodi Goodwin, an immigration attorney in Harlingen, Texas, said she witnessed the protocols' rollout in Brownsville on Thursday morning, saying there was "confusion among migrants, confusion among the staff. ... Many things were confusing."

"There's no clarity on how documents are supposed to be filed," Huebner said. "What are you supposed to do if you are in a tent, the judge is in a remote location and your clients are in Mexico?"

While sometimes a fax machine is available to send documents, Huebner said this is not a sustainable way to guarantee an organized process, especially when the volume of cases start to rise.

Goodwin added that existing backlogs across all immigration courts will likely be exacerbated because of the program's expansion, since judges from across the country are being pulled from their normal dockets to conduct virtual hearings.

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Nicole Acevedo

Nicole Acevedo is a staff reporter at NBC News Digital where she reports, writes and produces content for NBC Latino and NBCNews.com.