February 12, 2020

Midyear 2020: Consequences of Trump immigration policies to be explored

Since the Donald Trump administration implemented about a year ago its new Migration Protection Protocols immigration policy, more than 55,000 asylum-seeking migrants from Central America have been sent back to Mexico to remain there until they can get a court date in the United States.

And hundreds more are being shipped to wait in a so-called “safe third country” as the Department of Homeland Security in November expanded the MPP program, also called “Remain in Mexico,” to include Guatemala, Honduras and El Salvador.

While the administration is touting Remain in Mexico as an early success, critics say otherwise.

They contend that asylum-seekers face safety issues and lack access to legal counsel while waiting in dangerous towns in these countries. And they say very few will ever receive asylum, pointing to data from Syracuse University's Transactional Records Access Clearinghouse that show that out of the tens of thousands of migrants who have arrived at the southern border in recent months, just 117 have been granted protection by a judge.

These issues and others facing lawyers working on the southern boarder will be discussed during a program titled “To the Border and Back Again” on Friday, Feb. 14 from 3:30-5 p.m. CT at the Omni Austin Hotel Downtown during the ABA Midyear Meeting in Austin, Texas. The program is sponsored by the ABA Criminal Justice Section and the Center for Public Interest Law.

Speakers include Alejandro Guadarrama, Skadden Arps, Washington, D.C.; Cynthia Hujar Orr, Goldstein & Orr, San Antonio, Texas; Bruce Zagaris, Berliner Corcoran & Rowe, Washington, D.C.; Pedro Villalobos, an assistant district attorney in Austin; and moderator Tyler Hodgson of the World Bank in Washington, D.C.

From a criminal and international law perspective, the panel will trace the journey of the asylum-seekers from leaving their home country and traveling to the border, the processing of refugee claims at the border or other designated countries, and the collateral consequences faced by both documented and undocumented migrants who face the U.S. criminal justice system once they have crossed the border.

“This program is important to present because as attorneys we must stay up to date on issues affecting the criminal justice system,” said Villalobos, who in addition to be a district attorney is a recipient of the controversial DACA (Deferred Action for Childhood Arrivals) immigration program that is now before the U.S. Supreme Court. “The policies adopted by the federal and state government affect attorneys, clients, and the people that interact with the criminal justice system. If we remain up to date on the latest issues and trends, we will better serve the people, community, and organizations we serve.”

Panelist Bruce Zagaris is a partner with Berliner Corcoran & Rowe, where he has served as a consultant, counsel and lobbyist for 14 governments on various subjects. His role on the panel will be to discuss international agreements between the United States and other countries to process asylum claims in safe third countries.

Those safe third countries, Zagaris said, are not so safe for the asylum-seekers. “The U.S. State Department’s own international human rights report and travel advisories say there are serious risk to safety due to transnational gangs, human trafficking, drug trafficking and other dangers.’’

But beyond safety concerns, Zagaris said that programs like Remain in Mexico violate international law, specifically the Refugee Convention of 1951 and the Convention against Torture of 1994.

“There was a recent European Court of Human Rights case, showing that international law requires due diligence before the prospective asylum country sends applicants to so-called safe third countries," Zagaris said.

Because asylum-seekers are forced to return to their home countries or these safe third countries to await a court date, Zagaris said many of the migrants miss their court dates and most don’t have access to legal counsel while outside the U.S.

“For immigration lawyers and asylum lawyers, the policy means that their clients will not be able to communicate with them and vice versa and applicants will not have counsel and will not know how or where to file for asylum in the United States,’’ Zagris explained. “The ACAs (asylum cooperative agreements) require them (migrants) to file for asylum in the countries where they are returned, but until now they are not informed when they reach these countries where and how to file for asylum.  The Northern Triangle countries (Guatemala, Honduras, El Salvador) do not have the capacity to fairly adjudicate a lot of asylum applicants nor do they have capacity to adequately shelter and care for the applicants.”

Immigrant advocates have criticized the deal, saying the Northern Triangle countries are not equipped to handle large numbers of asylum-seekers.  Since the agreement with Guatemala was implemented in November, an estimated 128 Hondurans and Salvadorans have been sent to Guatemala, according to the Guatemalan Migration Institute. Of those sent, less than 10 have applied for asylum, with the rest choosing to go back to their home countries.

“Many asylum-seekers will be at the mercy of human traffickers and gangs, who will prey on the asylum-seekers,” Zagris said. “Many of them will never be able to apply for asylum or have their cases fairly adjudicated.  They will be refouled or sent to places where they will be subject to persecution, inhuman treatment, discrimination, all in violation of international law.”