Jurisprudence

Trump Is Attempting to Prevent Most Asylum-Seekers From Having Access to Legal Representation

Migrants sitting on a concrete wall cast long shadows.
Central American migrants sit along the concrete waterway of the bordering Tijuana River right across the El Chaparral border crossing point in Tijuana, Mexico, on Sunday.
Guillermo Arias/AFP/Getty Images

Last week, Donald Trump claimed that a deal had been reached on a plan that would keep asylum-seekers on the Mexico side of the border until immigration judges in the United States approve their cases. Incoming Mexican President Andrés Manuel López Obrador denied that a deal had been reached on the subject, but it appears that some agreement to hold asylum-seekers in Mexican border states may be in the works.

How such a policy would be implemented remains unclear. Perhaps the idea would be for Mexico to house asylum-seekers in existing shelters run by churches or charities, or to set up what would essentially amount to a refugee camp on Mexican soil. Maybe the plan is merely to let asylum-seekers languish on the southern side of the border until they give up. Regardless of the details, however, it is clear that such a policy would damage our already broken immigration system beyond repair and all but eliminate the ability of asylum-seekers to find an attorney.

Currently, asylum-seekers arriving at the border either present themselves at a port of entry and request asylum from agents stationed there, or attempt to enter the United States without inspection. Many who enter without inspection surrender to Border Patrol immediately. Either way, most asylum-seekers are then processed into immigration detention. Officially, the asylum-seeker is then put in removal proceedings. Some are released shortly after processing with a notice to appear in immigration court at a later date, but many remain detained.

After they are detained, they must speak to an asylum officer who vets their fear of return to their country. At the detention center where I most often work, those interviews, which are supposed to be confidential, take place in cold rooms where guards stand outside, listening and loudly talking with each other. The phones sometimes used for translations during the interviews are perpetually broken, issuing an ever-present hissing noise over the low voices on the other end. Asylum-seekers must pass this interview in order even to present their asylum claim to a judge. After this interview, some of these detained asylum-seekers become my clients.

As a nonprofit deportation defense attorney, though, the most challenging part of my job is navigating the endless and ever-changing policies that are seemingly put in place to frustrate my detained clients’ chances at asylum and make it impossible for me to represent them effectively. Immigration and Customs Enforcement constantly shuffles immigrants between detention centers, and sometimes those who request our help are moved before we can even see them. Sometimes, people just disappear from the online locator that is supposed to detail their location, and we have to call each jail, asking if they’re detaining a client.

Even when our clients remain in the local detention center, however, we do not have easy access to them. Although attorneys can technically visit a client all day, in practicality those visits are limited by the realities of twice-daily counts—when all movement in the detention center stops so that officials can count all of the detainees—and mealtimes, during which I cannot visit my clients. On a recent trip, guards told my paralegal that she would not be allowed to see our client because it was raining. Our access to our clients is guided mostly by the whims of whatever officer happens to be working the front desk. It gets more complicated if you don’t speak the same language as your client. To bring in my cellphone to call a translation service, I must get permission from an immigration supervisor in advance.

After a recent trial, one client waited in a holding cell for 45 minutes while I pleaded with the guards for permission to use my cellphone to communicate with him. I had followed the most current protocol to request permission to use a translator, but no one had ever replied. After being told that no one could approve my cellphone use, I eventually used Google to translate a message to my client, which I had to write out by hand in his native language on a yellow legal pad. I told him that I would come back to see him in a few days—if I could get clearance for a translator.

Similarly, my clients often have trouble collecting evidence because they cannot pay for the expensive phone minutes needed to call their loved ones to request affidavits of support for their cases. Although the detention center technically should supply stamps to indigent detainees, detention center mail can be unreliable, and messages frequently get lost. Detained clients who don’t speak English or Spanish are left without assistance to fill out the complex asylum application.

All of these inconveniences add up to a reality in which it is difficult to do the one thing they must: write an asylum application and collect evidence supporting their claim. To have a shot at asylum, my clients must show that they have a well-founded fear of returning to their country based on persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion. To meet this narrow definition, the asylum-seeker must fill out a lengthy application, available only in English; submit a detailed affidavit, in English; and present corroborating evidence and country conditions to support their claim, also in English. If someone is unable to turn in their asylum application because they do not read or speak English, the immigration judge can simply find that they abandoned their claim and order them deported. Without enough evidence, the judge can likewise order them removed.

As a result, a large part of my job as an immigration attorney is merely doing the things that detained people can’t do for themselves, like researching country conditions on the internet, calling their family members to obtain statements and evidence, and getting documents translated. These are the tasks that give my clients a shot at asylum. Most detained migrants are not lucky enough to find a lawyer, and the results are clear: not having a lawyer makes deportation much more likely. Those who are fortunate enough to be allowed to await their asylum cases safely in the interior of the United States have a much better chance of finding an attorney and of winning their cases.

But for all the difficulty I go through to assist my clients while they are detained, I can at least access them. Under the proposed remain in Mexico policy, asylum-seekers would be cut off from legal services in the United States. Being banned from entering the U.S. would effectively bar immigrants from finding and retaining U.S. attorneys. Even if some asylum-seekers were able to hire private attorneys, it is unclear how an attorney would be able to present an effective asylum case on their behalf. The attorney would have to either travel into Mexico to meet with their clients, an unrealistic option for most attorneys spread throughout the country, or try to assist their clients entirely by phone and mail. That is if the asylum-seekers would even have access to such forms of communication. Those of us working on the border may be able to assist clients in Mexico, but how will we be able to develop an effective asylum claim for someone who has no home, no way to collect evidence, no stability? How can we expect asylum-seekers to meet the incredibly difficult burden our immigration system sets before them if they are forced to live under blankets on our international bridges? Perhaps that is the point of the proposed policy from a president and administration that have done everything in their power to decimate our asylum system. But those of us who still care about our basic humanitarian obligations, and even those who prize “law and order” above all else, should not let this happen without a fight. A policy that pushes asylees out undermines not only our humanity but the legitimacy of our legal system.

Serving asylum-seekers is not easy and is made more difficult by our byzantine system of immigration laws and the ever-expanding immigration jail system. But a system that forces asylum-seekers to fight their cases from our doorstep won’t just make my job harder; it might make it impossible.