Immigration advocates try to make sense of chaotic situation at the U.S.-Mexico border

Tear gas, temporary fences, all-important lists thousands of people deep and lots of waiting, waiting, and waiting: it is a mess at the western end of the U.S.-Mexico border, where some 6,000 people arrived last month for a chance at life in the U.S.

The so-called “caravan” of migrants, fleeing violence in central American countries such as El Salvador and Honduras, have gathered in the Mexican border city of Tijuana in order to claim asylum at points of entry into the U.S. It’s an established legal process through which foreigners facing danger back home can try to seek safety in the U.S; more than 3 million have come to the U.S. this way since 1975, and at least 50,000 asylum-seekers have been admitted annually since 2007.

But the administration of President Donald Trump would prefer that number to be smaller. It has targeted the asylum process as part of its broader immigration crackdown, both through policy changes — former attorney general Jeff Sessions decided to narrow the list of conditions for claiming asylum, for example — and through what observers say is uneven enforcement of asylum laws at the border.

In recent weeks, immigration attorneys and advocates, including members of Congress, have traveled to U.S. ports of entry to provide legal assistance to asylum-seekers and to otherwise amplify their cause. Two Minnesota immigration attorneys, Kara Lynum and Ana Pottratz Acosta, traveled to the Otay Mesa port of entry between San Diego on the U.S. side and Tijuana on the Mexico side.

Beginning on Monday night, the attorneys huddled on a patch of sidewalk outside the port of entry with a group of 20 migrants — including Maria Meza, pictured in a now-iconic photo fleeing tear gas fired by U.S. authorities with her children — and two Democratic members of Congress from California, in hopes of securing the migrants a shot at asylum.

After a cold night spent waiting, those migrants eventually were able to begin the asylum process. But thousands of migrants remain in Mexico waiting for their chance to do the same, and recent moves from the Trump administration could keep them there for much longer — sparking continued confusion at an already-chaotic border.

Crisis at the border

After arriving in Tijuana on Sunday, the group of attorneys and advocates identified migrants who they believed might have particularly strong cases for asylum, and ultimately went to work on behalf of a group of 20 people from Central America, which included a family, unaccompanied minors in their teens, and children as young as three.

Their advocates wanted to ensure they were given a chance to ask for asylum in the U.S. “They were not,” said Lynum, a St. Paul-based immigration attorney, reached via phone on Wednesday. Under U.S. law, she explains, it is legal to approach a port of entry and ask for asylum. At that point, an asylum-seeker might be moved to detention facilities until they are interviewed by immigration officials, who assess whether the person has a “credible fear” of being tortured or persecuted in their home country. Alternatively, if a person produces appropriate documents, they could be allowed into the U.S. and given a date to appear before an immigration judge to determine their asylum status, which might entail check-ins with the federal Immigration and Customs Enforcement agency.  

The U.S. Department of Homeland Security says a “credible fear” standard might be met if you can prove a “significant possibility… that you have been persecuted or have a well-founded fear of persecution on account of your race, religion, nationality, membership in a particular social group, or political opinion if returned to your country.” (When he was in office, Sessions narrowed the criteria to make it much more difficult for victims of gang and domestic violence to claim asylum — a decision interpreted as a direct shot at the current wave of migrants. It was struck down by a federal judge on Wednesday.)

After approaching CBP officers at the Otay Mesa port of entry, Lynum and Pottratz Acosta said that they were immediately told that their group could not apply for asylum because there was no “capacity.”

“They didn’t explain what capacity was,” Lynum said. “We assumed it was physical space in the building, which we know was not true … They wouldn’t let members of Congress in to see what the alleged capacity issues were, so we don’t know what they were referring to.”

Pottratz Acosta, who teaches at Mitchell Hamline School of Law, says she was shocked that CBP officials turned them away. “The fact that two members of Congress and a team of immigration lawyers was at a port of entry with a group of asylum-seekers and they were just refusing to admit them is astonishing, such a flagrant violation of the law,” she told MinnPost. “As an attorney, this is just unreal.”

The group proceeded to camp out on pavement just outside the port of entry, but squarely on the U.S. side of the border. They were there for the next 18 hours attempting to get the migrants admitted. During that time, Lynum says that CBP, as well as Mexican border authorities, subjected the group to intimidation tactics: at around 11 pm, officers put up fencing encircling the group, and put two chairs inside presumably for officers to join them, which Lynum says they never did.

She also says that CBP officers took photos and videos of the group even though they asked them not to, and that they approached them in the middle of the night to demand the names of congressional staffers and other non-migrants in the party.

U.S. Rep. Nanette Barragán, who represents a Los Angeles-area congressional district, spent the night with the group, and told MinnPost that CBP used “military-style” tactics to make sure that the migrants and their lawyers did not sleep. She also said that CBP officers spoke to the group in Spanish, saying migrants were bad people coming to the U.S. to commit crimes.

“I don’t think those are people who are going to treat people with the dignity and respect that they are entitled to, as any human being,” Barragán said.

A ‘significant’ new development

Ultimately, the group of migrants the Minnesota lawyers were assisting were allowed to enter, and their asylum cases will be heard on U.S. soil.

They were lucky: thousands continue to wait on the Tijuana side of the border as a third-party organization calls the numbers that each migrant was assigned when they arrived at the border. Lynum said she was assisting people who were given numbers around 1,300; thousands more remain on the list, many of whom are without shelter on the Mexican side of the border. Some existing shelters have been shown to be unsafe: over the weekend, two teenage girls from Honduras, traveling with the caravan, were murdered outside a shelter in Tijuana.

The list was created to give some semblance of order to the process of migrants coming forward to claim asylum, due to the slow pace at which U.S. officials are handling claims. Homeland Security Secretary Kirstjen Nielsen said CBP is processing 100 asylum claims at the border per day; Lynum said it was more like 40 per day when she was at Otay Mesa.

CBP says that it is processing asylum claims as efficiently as it can given limited resources and the significant uptick in the number of people arriving at the border. In fiscal year 2018, 93,000 people claimed asylum at the southern border, a 70 percent increase from the previous fiscal year. The agency denies that it is prohibiting migrants the right to seek asylum, and says that conditions can change quickly at its processing facilities due to a variety of factors. (CBP did not respond to specific questions about the lawyers’ claims.)

On Thursday, the Trump administration announced a move that could have major consequences on the situation. DHS officials told reporters on Thursday that migrants would have to wait in Mexico — not the U.S. — until their asylum cases are investigated by U.S. officials and determined by a judge. An administration official said it was “one of the most significant border security developments in decades.”

The Trump administration has consistently targeted the asylum process over concerns that it contributes to illegal immigration. Trump has spoken frequently of a “catch-and-release” phenomenon, which suggests that asylum seekers choose to disappear in the U.S. once they arrive rather than wait for a date with a judge to formally determine their immigration status. “We release them. They go someplace into our country. They’re supposed to come back within two or three years for a court case, but nobody ever comes back,” Trump said at a rally this year. (Thousands of migrants do skip court dates every year, but Vox reports that the majority of them do show up for a hearing before a judge, even if it means deportation.)

The new administration move would ensure that asylum seekers are forced to wait in Mexico for months, even years, as they wait for a date with a federal judge to determine their fate. Many experts expect a swift challenge to the decision, which Lynum characterized as illegal.

Barragán said “there’s a lot of danger involved in having people remain in Mexico,” citing the deaths of the two teenage girls. She is a member of a House committee that provides oversight of the Department of Homeland Security, and she predicted that Democrats will quickly move to hold hearings and consider investigations into the administration’s handling of border issues when the party takes the House majority in January.

In testimony in front of the House Judiciary Committee on Thursday, Nielsen, the DHS secretary, framed the agency’s decision to make asylum-seekers wait in Mexico as a consequence of Congress’ inability to pass laws reforming the immigration system or granting more funds to immigration agencies. She said the recent deaths of migrants, including a 7-year old who died in DHS custody, illustrate the current danger of migrating to the U.S. In the past, Trump officials have explicitly emphasized those dangers in order to deter immigration.

“The laws are not keeping up with the migrant flows and the legal loopholes are obvious,” Nielsen said. “Despite congressional inaction, we will not wait. We won’t stand by as the crisis worsens and the human toll grows along the route to the border.”

While confusion reigns at the border, lawyers like Lynum say the law has not changed. “People should know we have immigration laws, and our immigration laws say asking for asylum at a port of entry, anywhere on the border, is a completely legal way to enter the U.S.,” she said.

“There’s a common misconception what they’re doing is illegal. It’s not.”