Michelle Hackman and Alicia A. Caldwell report for the Wall Street Journal:
Immigration Tent Courts at Border Raise Due-Process Concerns
Michelle Hackman and
Alicia A. Caldwell | Photographs by Verónica G. Cárdenas for The Wall Street Journal
Dec. 14, 2019 9:00 am ET
BROWNSVILLE, Texas—Each morning well before sunrise, dozens of immigrants line up on the international bridge here to enter a recently erected tent facility at the U.S. border.
Inside a large wedding-style tent, the government has converted shipping containers into temporary courtrooms, where flat screens show the judge and a translator, who are in front of a camera in chambers miles away.
The tents, which appeared at ports of entry here and up the Rio Grande in Laredo in late summer, are the latest manifestation of the Trump administration’s evolving response to a surge of migrants seeking asylum at the southern border.
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Migrants are ushered to these courts dozens at a time, allowing them access to the U.S. legal system without admitting them onto U.S. soil. They are already part of yet another Trump administration experiment, the Migrant Protection Protocols, which requires migrants to live in Mexico for the duration of their court cases.
The administration says the tent courts are designed to help the immigration system move more quickly through cases, providing asylum faster for qualified applicants and turning away the rest—many of whom, the administration says, have submitted fraudulent claims.
In the past, nearly all families and children arriving at the border were allowed into the U.S. to await hearings. But now, tens of thousands of asylum seekers must wait months in Mexican border cities that have some of the highest crime rates in the Western Hemisphere.
Asylum seekers waited in line to attend their immigration hearings on the Gateway International Bridge in Matamoros.
On a recent Friday, Judge Eric Dillow connected with the Brownsville tent via videoconference from his courtroom in Harlingen, Texas, about 30 miles away. The migrants, seated at a folding table, were shown on a large screen.
Judge Dillow planned to hold hearings for 28 migrants that morning, but only 17 appeared at the bridge the requisite four hours before their 8:30 a.m. hearing. Only two brought a lawyer. The rest were read their rights as a group, and when asked if they had questions, none raised their hands.
James McHenry, head of the Executive Office for Immigration Review, the Justice Department agency that oversees immigration courts, said temporary courts adhere to the same procedures and offer the same rights to people as other immigration courts. “In all cases, a well-trained and professional immigration judge considers the facts and evidence, applies the relevant law, and makes an appropriate decision consistent with due process,” he said.
But immigrant-rights advocates and the union representing immigration judges—who are Justice Department employees—say the unique conditions of the tent courts deny migrants due process by depriving them of meaningful access to lawyers or interaction with judges, making the setup essentially a rubber stamp for deportation.
“It’s a system that’s designed in its entire structure to turn people away,” said Laura Lynch, senior policy counsel with the American Immigration Lawyers Association.
The judges union has expressed concern over numerous issues: Judges can’t interact with applicants face-to-face, which the union says is important to assess credibility. Immigration court officials aren’t in the tents, which are operated by U.S. Customs and Border Protection. Judges can’t hand migrants documents directly to ensure they contain no errors. Unlike most U.S. courts, the tents are closed to the public and press.
A Cuban asylum seeker waited in Matamoros to present his documents to the agent who will be escorting him to his immigration hearing.
“The space of the court is supposed to be controlled by the court,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges. “But the tents, we don’t have any control over.”
Most migrants who cross the border near Brownsville are sent to Matamoros, Mexico, just across the Rio Grande, where they live in shelters or tents near the bridge.
They are returned with little more than a sheet of paper stating their first court date and a list of lawyers to contact. But those contacts aren’t very useful because they have either U.S.-based or toll-free phone numbers that don’t function in Mexico.
Of the 47,313 people whose cases were filed between January and September, only 2.3% have legal representation and only 11 have been granted asylum or other legal status, according to the Transactional Records Access Clearinghouse at Syracuse University, which tracks immigration court data.
Pro-bono lawyers who work with these migrants are fearful to travel far beyond the U.S. border into Mexico. Inside the tents, lawyers are typically permitted 15 minutes to meet clients before hearings. In most other U.S. courts, lawyers are free to visit clients, and detention facilities provide more opportunities for meetings.
On two recent days in the tents, migrants appearing alone spent about five minutes each before a judge, while migrants with lawyers took between 20 and 30 minutes each.
“The system is dependent on individuals not finding representation because they can be deported much easier and faster,” said Jeff O’Brien, a California-based immigration lawyer representing several Brownsville clients pro bono. “If everyone had a lawyer, it would essentially come to a halt.”
A U.S. Customs and Border Protection agent checked documents presented by asylum seekers.
Documentation errors are a common hurdle. Applicants’ addresses are often listed on forms as simply “domicilio conocido,” which roughly translates as general delivery, or sometimes a Matamoros shelter that many migrants avoid because they are scared to travel farther into the city.
Tent camp residents also had notices for hearings when courts aren’t open: one at 1 a.m. and another on a Saturday.
It isn’t known how the government notifies these migrants about changes in their cases without valid addresses. Migrants who aren’t at the bridge for hearings are assumed to have abandoned their cases. Government lawyers ask judges to deport absentees—ending asylum requests and barring them from the U.S. for a decade.
Asked about how address discrepancies are handled, a Justice Department spokesman said judges follow the Immigration Court Practice Manual. The manual requires migrants in the U.S. to notify the court of address changes, and in cases where they are detained, it requires the government to notify the court where. Neither scenario applies to migrants in Mexico.
Without lawyers, applicants routinely make paperwork errors—such as submitting documents in Spanish, or documents translated into English without a form certifying the translator is English-proficient—that advocates say they have seen judges use to order them deported.
At a recent hearing in Brownsville, a Honduran woman and her baby daughter appeared before Judge Sean D. Clancy in Harlingen. A CBP officer in Brownsville had faxed the woman’s asylum application to Harlingen, where a clerk handed it to the judge.
A Central American asylum-seeking mother hugged her child on a November morning in Matamoros.
“Are you afraid of returning to Honduras?” Judge Clancy asked the woman. A translator beside him repeated the question in Spanish. “Very much,” came the translated reply.
Judge Clancy looked at her application and noted a different response. “One question here says, ‘Do you fear harm if you return to your home country?’ And you checked ‘no.’”
The woman appeared confused. Judge Clancy told her to return to court with a properly completed application on April 15, when a date for her full asylum hearing would be set.
Write to Michelle Hackman at Michelle.Hackman@wsj.com and Alicia A. Caldwell at Alicia.Caldwell@wsj.com