Fighting for Due Process in Immigration Courts

On the banks of the Rio Grande River, across from Brownsville, Texas, there is a tent city that now has about 2,000 homeless men, women, and children. They are poor, hungry, and desperate, yet somehow they remain hopeful as they await their day in court—a U.S. immigration court. Their treatment provides a glimpse into everything that is wrong with the U.S. immigration system.

I visited that tent city last summer. During my one-week visit to Texas in August—and for one week the previous summer—I volunteered to help immigrants and asylum seekers fleeing violence in their home countries. What I saw violated my sense of justice and the bedrock principles of the American Bar Association.

In 2018, I saw mass court hearings for immigrants and asylum seekers who had no meaningful access to lawyers and who appeared to have little understanding of what was going on around them.

In 2019, I saw courtrooms constructed in temporary tents and trailers with 60 small rooms for asylum seekers to meet with lawyers—but no way for those migrants to actually find lawyers or meet with them for any meaningful amount of time.

And I saw the tent city of Matamoros, Mexico, where some families bathed in the Rio Grande River and feared kidnapping and other harms while wondering if they would ever see a U.S. immigration judge.

The tent city is a direct result of the Remain in Mexico policy (formally known as the Migrant Protection Protocols). It forces asylum seekers to stay on the other side of the border—in tents, shelters, or simply on the street—for months at a time while their court cases are pending in the United States.

Remain in Mexico is not working. Since it began one year ago, it has produced a humanitarian and legal crisis. More than 56,000 immigrants and asylum seekers—including thousands of mothers, fathers, and children—have been forced to fend for themselves with virtually no help from the Mexican or U.S. governments, while fleeing persecution and pursuing safety that should rightfully be available to them under international and U.S. laws.

This is not a legal system that most Americans would recognize if they saw it with their own eyes. This is not what they would call justice if they had to endure it themselves. How, then, can we call it “justice” for those who come to our shores, as many of our parents and ancestors did? As my husband and his parents did.

The ABA believes the United States needs an immigration system that will protect our borders while also sorting out the claims of people seeking asylum in a fair, unbiased, and humane manner. This is not it.

We need a system of independent immigration courts that are not under the authority of the U.S. Department of Justice—a system where judges are not subject to arbitrary numerical quotas from the U.S. attorney general, and procedural and substantive due process is not subject to the changing political winds of every new administration. The ABA supports creating a system of independent Article I immigration courts, where judges are removed from potential political pressures.

We need a system where immigrants and asylum seekers have meaningful access to counsel. Only 4 percent of people in the Remain in Mexico program have lawyers, and, even then, their right to representation is severely limited. They are only allowed to meet with their lawyers for one hour before court hearings, and often not at all afterward. Who among us, faced with unfamiliar court proceedings spoken in an unfamiliar language, would be able to comprehend what had transpired on our own? We have to ask ourselves if this is an effort to achieve justice or an effort to check the box that a process has been completed. If the latter, we must then ask ourselves if this is justice that is worthy of bearing our country’s name.

We need a system where immigration courts have live, in-person interpreters. The Remain in Mexico courts in Brownsville and Laredo, Texas, do not. The interpreters—like the judge and the government attorneys—appear only by video, and they translate only direct questions from the judge to the asylum seeker. That is not due process. Without reliable and accurate interpretation, unrepresented noncitizens have no ability to meaningfully participate in court proceedings.

Meanwhile, it is dangerous for U.S. attorneys to visit clients in Matamoros and other Mexican border cities where asylum seekers are forced to wait. Kidnapping and other violence are common. The U.S. Department of State advises U.S. citizens not to travel to the Mexican state of Tamaulipas, which includes Matamoros and Nuevo Laredo, because of persistent crime and kidnapping. Tamaulipas is under a Level 4 State Department travel warning—the same level as war-torn Syria and Yemen.

An ABA staff attorney recently had a terrifying experience in the Matamoros tent city. While the lawyer was visiting a client, several Mexican military trucks with heavily armed soldiers rolled into the camp. U.S. lawyers and aid workers fled. The lawyer returned days later to consult with her client—a mother and young child—on a narrow sidewalk during a heavy rainstorm.

That is not meaningful access to counsel.

In February 2020, the ABA House of Delegates adopted a resolution expressly opposing Remain in Mexico and rejecting any restrictions that prevent migrants from remaining in the United States during the adjudication of their asylum claims. The resolution also opposes limits to asylum eligibility based on how and where migrants enter the United States.

The ABA has many recommendations for improving the immigration system. Ten years ago, the ABA Commission on Immigration published a landmark report on immigration reform, including the recommendation to create an independent immigration court system. The Commission updated that report in 2019 and, sadly, found many of the same problems that existed in 2010.

The ABA is working hard in Washington, D.C., to make immigration reform a reality. In January, I testified before the U.S. House Subcommittee on Immigration and Citizenship. I explained why it is crucial to create an independent immigration court and why Remain in Mexico is a legal and ethical disaster. Last September, the ABA joined with immigration judges’ and immigration lawyers’ associations to speak out at the National Press Club, carrying our message to the nation’s immigration reporters.

Our staff talks frequently with senators and representatives on Capitol Hill. Two years ago, then ABA President Hilarie Bass testified before a Senate subcommittee on the need for independent immigration courts. In November 2019, our pro bono counsel with the ABA Commission on Immigration, Laura Peña, testified to a different House subcommittee on our concerns about Remain in Mexico. Between their testimonies, then ABA President Bob Carlson brought attention to the failures of the immigration system and the separation of children.

But what has most convinced me that our collective work on behalf of the ABA is imperative is going down to the border, twice now, with our Commission on Immigration Director Meredith Linsky, most recently joined by ABA President-Elect Trish Refo. I interviewed individuals in detention, hearing firsthand accounts of the brutality, rape, and fear they endured until they could endure no more while fleeing their country for asylum into ours. Knowing that a father whom I interviewed and his two-year-old son were reunited after separation for six months because they were given access to counsel gives me the same hope that I saw in the individuals’ eyes on the streets of Matamoros when we told them we were American lawyers. It is a sense of hope that I want more of my colleagues in the law to experience as they join in this effort and see the faces I have seen.

Effecting change is a long struggle. It doesn’t happen in one year or one presidential administration. As Tolstoy wrote, “The strongest of all warriors are these two—time and patience.” To which I would add one more: perseverance.

I strongly believe in the power of seeing problems with my own eyes. That’s why I visited the Texas detention centers and interviewed detainees, observed the federal court proceedings, toured the Brownsville port courts, and walked the Matamoros tent city. I wanted to see and hold in my heart the quiet desperation of mothers, fathers, and children firsthand, and to remember and share with you their sense of hope upon seeing lawyers so that you will know what the ABA is fighting for and help them in some small way.

If you have time, I urge you to see our immigration system for yourself. You can find an immigration legal services organization near you by consulting the Immigration Advocates Network. If you are interested in representing a migrant in removal proceedings at the border, please consult the ABA Immigration Commission’s website for more information on how to volunteer.

When you do, you will know why the ABA advocates for immigration justice. Not everyone who applies for asylum is entitled to it—but all who seek refuge are entitled to due process, an attorney to represent them, and impartial justice. 

Judy Perry Martinez is President of the American Bar Association and of counsel with Simon, Peragine, Smith & Redfearn in New Orleans. for the past two summers, she has volunteered to help immigrants and asylum seekers in Texas with the ABA ProBAR project.