Supreme Court assesses Mexico’s migrant-waiting policy

A man waits at a migrant shelter Thursday, April 21, 2022 in Tijuana, Mexico.  A critical Trump-era policy that forces asylum seekers to wait in Mexico for U.S. immigration court hearings will be argued in the U.S. Supreme Court on Tuesday.  (AP Photo/Gregory Bull)

A man waits at a migrant shelter Thursday, April 21, 2022 in Tijuana, Mexico. A critical Trump-era policy that forces asylum seekers to wait in Mexico for U.S. immigration court hearings will be argued in the U.S. Supreme Court on Tuesday. (AP Photo/Gregory Bull)


When a woman slashed her leg in mountains populated by snakes and scorpions, she told Joel Úbeda to take her 5-year-old daughter. Úbeda refused to let the mother die, despite the advice of their smuggler and another migrant in a group of seven, and helped bring her to safety by shining a mirror in the sun to signal a customs and police helicopter. US border protection near San Diego.

The motorcycle mechanic, who used his home in Nicaragua as collateral for a $6,500 contraband charge, says the worst day of his life was yet to come.

Arrested after the encounter with American agents, Úbeda learned two days later that he could not seek asylum in the United States despite living with a cousin in Miami. Instead, he is expected to wait in the Mexican border town of Tijuana for hearings in US immigration court under a Trump-era policy that will be argued in the US Supreme Court on Tuesday.

President Joe Biden ended the “Stay in Mexico” policy on his first day in office. A judge forced him to reinstate it in December, but just 3,000 migrants were registered at the end of March, which had little impact during a period when authorities stopped migrants around 700,000 times at the border.

Úbeda, like many migrants in a Tijuana shelter, had never heard of the policy, officially called “Migrant Protection Protocols”. It was widely known under President Donald Trump, who recruited around 70,000 migrants after its launch in 2019 and made it a centerpiece of efforts to deter asylum seekers.

“It’s a scary experience,” Úbeda said after a phone call with her mother to consider returning to Nicaragua to reunite with her, his wife and daughter. He was puzzled that a large majority of Nicaraguans were being released into the United States to seek asylum, including the woman he rescued and her daughter.

Nearly 2,200 asylum seekers, or 73% of those registered through March, are from Nicaragua, with almost all of the rest from Colombia, Cuba, Ecuador and Venezuela. Yet even among Nicaraguans, politics is small-scale. US authorities arrested Nicaraguans more than 56,000 times from December to March.

Criticisms of the policy are the same under Biden and Trump: Migrants are terrified in dangerous Mexican border towns and Mexican lawyers are extremely difficult to find.

US Homeland Security Secretary Alejandro Mayorkas, in an October order ending “staying in Mexico,” reluctantly admitted the policy had led to a drop in low asylum claims under Trump, but said that she did not justify the damages.

Emil Cardenas, 27, said he bloodied his foot and drank his urine after running out of water during a three-day hike in the mountains near San Diego with a smuggler who took a $10,000 deposit for his expenses and stole his passport, phone and other identification. .

Cardenas had hoped to live near her brother, a Catholic priest from New Jersey, while seeking asylum, but is awaiting her first hearing in San Diego at the Tijuana shelter on May 18. He is discouraged to see other people at the shelter on their third or fourth hearing. .

“You have to find a way to cross,” said Cardenas, a Colombian who had twice tried to enter the United States. “I’m thinking about what to do.”

While waiting for hearings, the men at the shelter are connected to smartphones – reading, watching videos and occasionally calling friends and family. A large television facing rows of plastic tables and chairs helps beat boredom.

Many have been robbed and assaulted in Mexico, making them too scared to leave the shelter. Some chat in small groups but most stay to themselves, lost in thought.

Carlos Humberto Castellano, who repaired cellphones in Colombia and wants to join his family in New York, cried for two days after being sent back to Tijuana to await a court date in San Diego. It cost him around $6,500 to get to Mexico and pay a smuggler to cross the border, leaving him in debt, he said.

“I can’t leave (the shelter) because I don’t know what could happen,” Castellano, 23, said, recalling his smuggler taking his picture. “Getting kidnapped is fear.”

The question before the Supreme Court is whether the policy is discretionary and can be removed, as the Biden administration argues, or is the only way to comply with what Texas and Missouri say is a congressional order to not releasing migrants to the United States.

Without adequate detention facilities, states say the administration’s only option is to make migrants wait in Mexico for asylum hearings in the United States.

The two sides are also at odds over whether the administration’s manner of ending the policy complies with a federal law that requires agencies to follow certain rules and explain their actions.

A decision is expected soon after the administration ends another key Trump-era border policy, lifting pandemic-related authority to deport migrants without the ability to seek asylum on May 23. The decision to end the authority of Title 42, named for a 1944 public health law, is being legally challenged by 22 states and faces growing division within Biden’s Democratic Party.

Due to costs, logistics, and strained diplomatic relations, Title 42 has been difficult to apply to some nationalities, including Nicaraguans, which is why the administration favored them to “stay in Mexico.”

The administration made some changes at Mexico’s request, which may explain the low enrollment rate. He pledged to try to resolve the cases within six months and agreed to pay the cost of transporting migrants to and from the Mexican border for the hearings.

As under Trump, finding a lawyer is a tall order. US authorities give migrants a list of low-cost or free lawyers, but the phone lines are overwhelmed.

Judges warn migrants that immigration law is complicated and they face longer risks without a lawyer. Migrants respond that calls to lawyers go unanswered and that they cannot pay the usual fees.

‘I’ve seen a lot of people in your situation who have found lawyers, often for free,’ Judge Scott Simpson told a migrant this month in a San Diego courtroom before granting more time. to hire one.

Victor Cervera, 40, has given up on cheap lawyers after his appeals went unanswered. The Peruvian’s online search for those taking “Stay in Mexico” cases yielded a find — a Miami attorney who charges $350 for an initial phone consultation.

Almost all migrants tell US authorities they fear waiting in Mexico, which entitles them to a phone interview with an asylum officer. About 15% are spared when the officer acknowledges that their concerns are valid, while others are excused for reasons considered to make them vulnerable in Mexico, such as gender or sexual orientation.

Those returned wonder why they were chosen when so many others are released to the United States to pursue their claims.

“It’s a raffle,” said Alvaro Galo, 34, a Nicaraguan who cleans and prepares meals at the shelter to keep his mind occupied.


Associated Press writer Mark Sherman in Washington contributed to this report.

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