A Firsthand Look at “Justice” at the Border

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We are sitting in a windowless courtroom inside an immigration detention center in South Texas with other members of the American Bar Association (ABA) Commission on Immigration. In front of us are an immigration judge, a Department of Homeland Security (DHS) trial attorney, and a court interpreter. The immigration judge is talking to a television screen, connected by an intermittent video feed to a makeshift courtroom in a tent facility about 30 minutes away and steps from the U.S.–Mexico border.

Waiting in the tent courtroom are dozens of immigrants who had to arrive at 4 a.m. on the Mexican side of the international bridge to ensure that they could be processed by border officers before their hearings. They came to their hearings that day from Mexico, instead of from within the United States, because when they first tried to seek protection in the United States, as they are legally entitled to do, they were told they had to wait in Mexico while their immigration cases were pending. They are part of the Migrant Protection Protocols (MPP), also known as Remain in Mexico. Some have been waiting for months next to the bridge in Matamoros, Mexico, in an unofficial refugee camp that now has over 2,000 individuals without access to adequate food, sanitation, or medical care. 

We observe preliminary hearings for about 50 individuals. Only three of them are represented by counsel. The immigration judge, through the video screen and the interpreter, tells the rest of them that if they want to apply for asylum, they must figure out a way to submit their applications and all supporting documentation within two weeks, in English, and with copies for the judge and DHS attorney. They are then taken back to the Mexican side of the bridge. There are no computers or copy machines in the refugee encampment next to the bridge where they will wait for their next court date. Welcome to what passes for justice in today’s immigration system.

During my volunteer trip with other Commission members in November 2019, I also see firsthand that immigrant parents are still being separated from their children. A few of us work with a father in immigration detention who was forcibly separated months earlier from his severely disabled toddler who is now in a children’s shelter 1,500 miles away. The father’s anxiety and depression over this separation have made it even more difficult to advocate for himself and to explain coherently to immigration officials why he should be entitled to remain in the United States.

While serving as chair of the ABA Commission on Immigration over the last two years, I have witnessed these and many other aspects of our current immigration system that violate my notions of fairness, due process, and justice. But I also have witnessed things that give me hope.

I began to see hope in the eyes of the father who was separated from his young son when he realized that we were going to try to help him. He became more engaged and better able to articulate his legal claim over the course of the week that we worked with him. The power and impact of having counsel in immigration proceedings cannot be overstated.

The work of the Commission’s three projects also gives me hope. The South Texas Pro Bono Asylum Representation Project (ProBAR), where I was volunteering, provides legal education and representation to adults and unaccompanied children in immigration detention in the Rio Grande Valley. Lawyers at the Immigration Justice Project of San Diego work with detained and non-detained immigrants and are appointed to represent those in removal proceedings who are not competent to represent themselves. The Children’s Immigration Law Academy supports lawyers representing immigrant children in Texas by providing advice and technical assistance. These dedicated ABA employees fight every day to uphold the rule of law and to ensure due process for immigrants in immigration proceedings.

The commitment of ABA leadership to speak out on the importance of due process and access to counsel in our immigration system also gives me hope. Most recently, the House of Delegates passed a resolution urging our government to maintain an asylum system that ensures full and fair adjudications for all immigrants and opposing policies such as MPP. Because of the ABA’s powerful voice and longstanding commitment to due process and access to counsel, it is well-positioned to call attention to policies such as these that violate bedrock principles of our legal system.

There is much work to be done. But know that your involvement with the ABA supports the important work the association does every day to fight for a more just and humane immigration system.
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Wendy S. Wayne is chair of the ABA Commission on Immigration.