Julia and her 7-year-old son were granted asylum in San Diego’s immigration court Tuesday afternoon – but it wasn’t the joyful turn of events you might expect.
Since the end of April, the single mother from Guatemala had been waiting in Mexico under the Trump administration’s Migrant Protection Protocols – or the so-called Remain in Mexico policy – which requires asylum-seekers at the border to await their proceedings in Mexico.
After Immigration Judge Rico Bartolomei found that Julia had met her burden of proof and shown she had suffered past harm and persecution related to her political beliefs in Guatemala, allowing her asylum in the United States – Julia and her son were returned to the San Ysidro Port of Entry. Almost 24 hours later, neither Julia’s attorney, her family nor I had heard from her. Late Wednesday, her attorney finally confirmed that she was in Border Patrol custody. Despite winning her case, she has yet to be released.
Julia’s case is a glaring example of the chaos surrounding the MPP policy. Even in a rare case in which an asylum-seeker had family in the U.S. to help her financially while she was forced to stay in Mexico and to pay for an attorney, and even after winning her case, she was still met with continued detention, bureaucracy and confusion.
The MPP program went into effect nearly eight months ago, when the pilot began at San Diego’s border. The program has since expanded to other parts of the border, and roughly 45,000 people have been returned to Mexico under the program to await their asylum hearings.
In late August, the Los Angeles Times found that the policy appears to violate the law. In May, a federal appeals court ruled that the policy could continue until October, when the hearings on its legality would occur.
At least 141 migrants under the MPP program have publicly reported cases of rape, kidnapping, sexual exploitation and violent assault while in Mexico, according to Human Rights First, a nonpartisan advocacy group. Only a couple of cases are publicly known in which migrants actually won asylum under the policy. Data from the Transactional Records Access Clearinghouse, a think tank at Syracuse University, showed that from January to June, only 14 people of the 1,155 MPP asylum cases decided in that window had legal representation.
Julia’s case offers a glimpse of how that chaos has looked on the ground, and the burdens it’s placed on asylum-seekers – even those who have resources.
Julia and her son crossed illegally into the United States at the end of April to request asylum, after fleeing Guatemala. Julia, who was a well-known church leader in her small village, said the village’s mayor had threatened the lives of her and her son after she refused to support his brother’s campaign.
“They’ll kill me and my son,” Julia said, crying, during her hearing, when asked what she thought would happen if she was returned to Guatemala.
One of Julia’s sisters has been in the United States for roughly 20 years. She paid for Julia’s attorney, Nanya Thompson, and helped find a church near Tijuana, which found a place for Julia and her son to live near Tecate. Her sister paid for cab rides to help her meet with her attorney and to make it to the port of entry – which was almost an hour away from where she was able to find housing – on the days she needed to go to court.
“Are you aware what will happen to them later this afternoon?” Bartolomei asked Thompson and the Department of Homeland Security attorney after he made his decision. Neither had any idea, then after speaking with the Immigration and Customs Enforcement and Customs and Border Protection officers who had brought the MPP migrants to court, everyone was told that Julia and her son would be brought back to the port of entry, where a decision would be made, and then released. Thompson wasn’t told what “the decision” was, and never found out.
Two other people who won their MPP cases in San Diego were also returned to the port of entry prior to being released into the United States. The first person to win his case under the program was only released after the Union-Tribune reported that he might be sent back to Mexico despite being granted asylum. The other was also sent back to the port of entry after his hearing, but was released later that day.
Since Julia is with her son, who is a minor, there are limits on how long they can be detained. The Trump administration issued a new rule at the end of August allowing the government to detain families for longer, but it requires approval from a federal judge before going into effect.
The government reserved the right to appeal Julia’s case and has until Oct. 17 to do so. The government has already filed an appeal for at least one of the asylum-seekers who won his case under MPP, the Union-Tribune reported recently.
Thompson’s phone calls and messages to CBP and ICE went unreturned the day after Julia won her case and was taken back to the port of entry until after 5 p.m. – more than 24 hours after the decision. Her family in the United States, said Thompson, managed to speak with someone at the port of entry earlier in the day, who told them Julia should have been released directly from court.
I called U.S. Customs and Border Protection’s local press office to both ask about Julia and about what should happen after someone wins their case. A spokesman was out, and his voicemail directed me to a general number. When I called that number, a Border Patrol agent told me he doesn’t deal with the port of entry and couldn’t give me even general information.
The confusion around what happened to Julia demonstrates the logistical nightmare MPP has been for her and her attorney. And Julia is one of the lucky ones who has the support of family members in the United States. In other places along the border, like Nuevo Laredo, Mexico, asylum-seekers have been kidnapped and faced other violence.
On Monday, when Thompson went to Tijuana to prep Julia for her hearing, she had to use her assistant’s sister-in-law’s office space. When she had gone down previously to prepare Julia for an earlier hearing, she had rented space, but nothing was available the day before Julia’s hearing because it was Mexico’s Independence Day.
As she started prepping Julia, she explained a recent Supreme Court decision allowing the Trump administration to implement a policy that bans people from seeking asylum in the United States if they passed through a third country, like Mexico, and didn’t request asylum there first. Julia crossed into the United States in April, before the July date that government said it would retroactively apply the ban to, but Thompson said she wasn’t sure whether the government might try to apply the policy to Julia anyway.
“Based on what I’ve heard, I don’t think it will be applied to you, but I’m prepared to make arguments as to why if shouldn’t be,” Thompson told her Monday. “I just want you to know the lengths the government is going to shut down asylum-seekers.”
Thompson had to prepare for dozens of contingencies. The government hadn’t responded to her call about whether Julia’s biometrics – her fingerprints and other information taken to physically identify her – were done as of the end of the day Monday. Would that force the judge to push her case out and send her back to Mexico again? If the government appealed her case, would she have to go back to Mexico?
Leaving the courtroom on Tuesday, Thompson told me that she hadn’t even prepared for the possibility that if Julia won, the government might try to detain her and her son again.
And now, even though Julia won her asylum case even after all the logistical and safety obstacles thrown her way by the MPP program, Thompson spent Wednesday putting together a parole packet so the government would release Julia from custody, and hoping for the best.