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Early this year, the Trump administration began forcing thousands of migrants seeking asylum to return to Mexico, to wait there for immigration court hearings that would decide whether they could settle in the United States. New government figures show the policy is rapidly flooding some courts assigned to handle the cases.
The numbers from the Executive Office for Immigration Review, the agency within the Department of Justice that runs the immigration court system, show that so far this year, nearly 17,000 new asylum cases for migrants waiting in Mexico have been assigned to border courts through the end of August. And the numbers have been growing. More than 6,000 were filed in August alone.
These figures are likely an undercount of the number of people affected by the policy. According to data compiled by the Transactional Records Access Clearinghouse at Syracuse University, 26,000 people had received notices to appear in these courts by the Department of Homeland Security through July.
In the past, people who came asking for protection from political persecution, or gang or domestic violence, would be held in U.S. detention centers or released to friends and family while pursuing their claims. But as a result of the new policy, tens of thousands of migrants have been stalled in Mexico until their asylum cases are processed. Lawyers on the ground and policy analysts say that this policy is overwhelming the courts.
Tent courts have been constructed at several hearing locations designated to handle cases under the government’s new “Migrant Protection Protocols,” known informally among immigration lawyers as “Remain in Mexico.” Those in Brownsville and Laredo have been fitted with video-teleconferencing technology, so that judges from across the country can be conferenced in to hear these cases.
Four immigration courts are seeing large spikes in the numbers of Remain in Mexico cases at hearing locations in Texas and California. The court in Harlingen, Texas, which is close to the border town of Brownsville, saw an almost three-fold increase last month in the number of cases it was receiving, driven almost entirely by asylum seekers in Mexico. In essence, the cases of those waiting in Mexico have overwhelmed all other new business in these courts.
In an unexpected turn recently, the U.S. Supreme Court struck down an injunction that had halted a policy requiring migrants to first seek asylum in one of the countries they cross on their way to the U.S. The decision will likely decrease the number of new asylum applications, but border courts will still have large caseloads to work through.
Even as cases have sharply increased, the exact number of people still waiting in Mexico is unknown. Customs and Border Protection estimates show that as of early September, 42,000 people have been told to wait on the Mexican side of the border, according to reporting by Reuters and the Wall Street Journal, but not all of them have made it into the courts yet. What’s more, some migrants may have returned home or accepted offers from the Mexican government to be bused into the interior of that country.
The Executive Office for Immigration Review declined to answer questions about the “Remain in Mexico” courts for this story.
These new cases are being assigned to judges under pressure to complete cases quickly, in places where migrants have little hope of finding lawyers. On average, migrants wait nearly three years for their cases to be completed, due to an unprecedented backlog, and this fiscal year, the denial rate for asylum claims reached 48 percent. But for people waiting across the border in Mexico, speed is critical. They are in dangerous areas, like the states of Chihuahua and Tamaulipas, places that the U.S. Department of State has deemed unsafe for U.S. travelers.
Jessica Vaughan, director of policy studies at the Center for Immigration Studies, a think tank that seeks to reduce immigration, says that it’s too early to say whether the “Remain in Mexico” policy is a success. But she thinks the administration has done well in launching the program first with a pilot in the spring and then by building tent courts to hold hearings near the border. “The Department of Justice planned for this upsurge,” she said, referring to the sharp increase of cases in August. “That’s why they allocated videoteleconfering and assigned judges to these specific dockets.”
Lawyers in Texas representing migrants, however, are less optimistic. Jodi Goodwin, an immigration attorney at the Harlingen court, is rounding up lawyers from across the country to represent asylum seekers waiting across the border. She said the willing lawyers she has found are afraid to go to meet their clients in Mexico. Across the Rio Grande from Brownsville in Matamoros—where most of Goodwin’s clients are—there are frequent reports of shootings and other forms of violence. She said she is also concerned about due process for these asylum seekers in courts she described as understaffed and overworked, citing nearly 4,000 applicants over the last two months.
“I can’t find enough lawyers to take on all these cases,” she said.
This article was originally published by the Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for the newsletter, or follow the Marshall Project on Facebook or Twitter.