“Several things cause me concern,” Simpson said toward the end of the hearing, as he weighed whether four asylum seekers who weren’t present should be removed in absentia.
The migrants who appeared at the San Diego immigration court on Wednesday fall under the Migrant Protection Protocols program, informally known as “Remain in Mexico.” The program, which was initially rolled out in January at the San Ysidro port of entry, roughly 18 miles from the court, requires some asylum seekers to stay in Mexico to await their immigration hearings. Immigration and Customs Enforcement manages transportation to and from the border and court appearances.
The requirement that some of those seeking asylum stay in Mexico as they await their US court dates marks an unprecedented change in US asylum policy. As such, it has raised a host of questions among lawyers, advocates and now, immigration judges.
As of March 12, the US had returned 240 migrants to Mexico under these protocols.
The first spate of hearings, which got underway this month, have underscored outstanding issues with the new program, including the challenge of obtaining legal representation while in another country and providing notification of court dates to an individual without a fixed address. They have also revealed glitches in the system, in which conflicting dates are causing confusion among migrants over when to appear at a port of entry for a court appearance.
The largest group to attend court so far came Wednesday. The 12 asylum seekers — five with attorneys, seven without — participated in a master calendar hearing, the first hearing in removal proceedings.
In one case, a man seeking asylum who did not have a lawyer said he had been provided with a list of legal service providers by the government but had trouble understanding it.
“I was confused,” he told the judge. “I don’t know how to read and write. It becomes difficult.” He added: “In Mexico, it’s even more complicated. It’s more complicated than if I were here.”
“I understand it’s more difficult,” Simpson replied. “It’s not lost on me.”
All asylum seekers whose cases were scheduled for Wednesday were set up with merits hearing dates, where individuals provide evidence to substantiate their claims to remain in the US, or are given additional time to find legal representation. The dates were scattered among April, May and July.
In some instances scheduling issues arose, as Simpson explained that his afternoons for the next several months are dedicated to master calendar hearings for Migrant Protection Protocols. Merits hearings, therefore, would need to be scheduled for the mornings.
Given that asylum seekers must wait in Mexico, however, and therefore need time to be processed by US Customs and Border Protection before going to their hearings, mornings were out of the question.
“Immigration officers need four hours,” said Robert Wities, an ICE attorney.
“I can’t do an entire master calendar in the afternoon and merits hearing,” Simpson responded, later asking the ICE attorneys to explain in writing why it wouldn’t be possible for the asylum seekers to attend morning hearings.
In February, a coalition of immigrant advocacy groups asked a federal judge for a restraining order that would block the Trump administration from forcing asylum seekers to stay in Mexico while their cases make their way through the immigration courts. The hearing on the motion is scheduled for this Friday.
In the meantime, the administration may clarify or resolve those issues in the future in documents provided to the immigration court. But for now, immigration hearings for those asylum seekers waiting in Mexico are set to move forward.