EL PASO — After being detained in a U.S. Border Patrol processing facility for more than seven weeks, a young Central American woman was finally able to tell immigration Judge Nathan Herbert the most harrowing part of her journey to the United States.
“I was separated from my daughter. I need to be with her,” the woman, who had requested asylum, told Herbert. “I’ve never been [apart] from her.”
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Later, another female asylum seeker asked Herbert if she’d be sent back to Mexico the way several thousand others have been under a program called the Migrant Protection Protocols.
Herbert had the same response for both women: “That decision is not mine to make.”
More than three months after the MPP program was expanded to include the El Paso-Ciudad Juárez border, confusion about the program still dominates the proceedings in federal immigration court. And attorneys and advocates said the confusion has become worse this week after the government ended the main tools it had used to help migrants navigate a complex judicial system.
In late June, the U.S. Justice Department stopped allowing attorneys or immigrant rights groups to give “know your rights” briefings to asylum seekers before their initial court hearings. The short seminars included overviews of the asylum and removal processes, as well as other topics, like the MPP program.
Then, earlier this week, the department stopped allowing advocates known as “friends of the court” to assist the judge and the asylum seekers during the hearings, immigration attorney Taylor Levy told The Texas Tribune on Monday. Lawyers say the friend of the court program was essential in helping asylum seekers who hadn’t found or couldn’t afford legal representation to understand the asylum process better.
Friends of the court can be lawyers or other people; they are authorized to do things like explain court procedures, help translate for migrants who don't speak English and relay relevant information to the judge.
Levy, who represents one of the migrants in her family separation case but not in her asylum proceedings, said the move makes the MPP program more confrontational.
“It really feels like MPP couldn’t get much worse, but that’s what is happening,” she said.
On Monday, Mike Breen, the president of Human Rights First — an independent, nonprofit advocacy group — was in the courtroom as an observer and said the chaos was apparent.
“It’s pretty clear that these folks have not been advised of their rights,” he said. “The confusion in the courtroom is palpable. I think the fear in the courtroom is equally palpable.”
Levy and other observers have said Herbert, who was appointed to the bench less than a year ago, is fair and doing his best under the circumstances as the backlog of cases keeps growing and he is forced to walk migrants through the process now that friends of the court are banned.
“The resources that have been devoted to the adjudication system have been cut steadily, so there is a huge backlog of people waiting for their day in court,” Breen said.
Through May, more than 908,500 cases are pending in the country's immigration courts, including more than 132,200 in Texas, which has the second-highest backlog in the country, after California’s 161,281.
Officials at El Paso’s immigration court referred questions about the changes to the Justice Department’s Executive Office for Immigration Review. A spokesperson said the office would be unable to meet the Tribune’s deadline for comment.
Levy said she was told by El Paso court personnel that the friend of the court program was discontinued because of ongoing litigation surrounding the MPP. A federal judge in California temporarily blocked the program April 8, but a three-judge panel of the 9th U.S. Circuit Court of Appeals later put that order on hold while the case plays out.
“We were told we are third parties and are not allowed to serve as friends of court because we’re a third party,” Levy said.
The government’s reasoning for eliminating the know your rights briefings, Levy added, was that asylum seekers are technically in federal detention, and only their attorneys are allowed to speak with them while they are in custody.
She said halting the briefings could violate the Sixth Amendment to the U.S. Constitution, which guarantees people access to counsel and knowledge of the charges against them, among other things. Levy said under normal circumstances, she'd be allowed to talk to a person in custody to determine her ability to help with a case.
"I can go to any of the jails or detention centers in the country [now], and I can get in and talk to potential clients,” she said.
But Levy said she was told that if attorneys want to interview asylum seekers to see whom they might want to represent, they have to do it in Mexico.