Make ‘em wait in foreign contiguous territory.

Sunday, December 23rd, 2018
By: Jonathan MontagJ.D.

This is yet another week where the huge news overshadows the big news. With a government shutdown, Syria and Afghanistan withdrawal, a stay of new credible fear rules, the stock market tanking, Mattis quitting, and criminal justice reform, you may have overlooked the story of a new policy of applicants for admission to the United States waiting in Mexico until their cases are resolved.

By way of background, people who come to a border inspection station, airport, or seaport, to enter the United States are referred to as applicants for admission. (United States citizens and most permanent residents are not considered applicants for admission.) If an applicant is not eligible for admission either because of a lack of a visa or other entry document or because of conduct that renders them inadmissible, if the person is not an asylee or permanent resident, the person can be ordered removed by the inspecting officers. Permanent residents, refugees, asylees, and people without status in the United States who assert a credible fear of return to their own country are able to see an immigration judge to try to qualify for admission by contesting inadmissibility or seeking relief from inadmissibility, either asylum or other relief options in the law. The Immigration and Nationality Act calls for the detention of most inadmissible non-citizens, but in reality a great many are released into the United States to await their hearings. This hearing process can last from a few months to several years. (Last week a case of mine resolved that began in 2001).

President Trump asserts that he hates the idea of catching people at the border and then releasing them for their hearings, referring to it as “catch and release.” The vast majority of such applicants for admission seek asylum. President Trump has tried to limit the number of people applying for admission by limiting access to the ports of entries, detaining without authorizing release, separating families at the border, stricter interview standards, and more robust internal enforcement. Detention space limitations and legal challenges are proving these strategies ineffective in stemming the flow of asylum seekers.

In a November blog, I discussed the new tactic, announced this week, forcing applicants for admission to remain in Mexico for their hearings. The new policy, announced on December 20, 2018, is entitled, somewhat unintendedly comically, “Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration.”


The statement starts:

Aliens trying to game the system to get into our country illegally will no longer be able to disappear into the United States, where many skip their court dates. Instead, they will wait for an immigration court decision while they are in Mexico. ‘Catch and release’ will be replaced with ‘catch and return.’ In doing so, we will reduce illegal migration by removing one of the key incentives that encourages people from taking the dangerous journey to the United States in the first place. This will also allow us to focus more attention on those who are actually fleeing persecution.

Ignoring all the shit-talk in the announcement – gaming the system, getting into our country illegally, disappearing, and skipping court dates, and how any of this allows for more positive focus on anyone – the announcement invokes INA § 235(b)(2)(C) , which states:

Treatment of aliens arriving from contiguous territory. In the case of an alien described in subparagraph (A) [a person not clearly ineligible to enter the United States] who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 240 [removal proceedings].

Like King Friday, the Immigration and Nationality Act can be overly elegant in how it expresses things, in this case identifying foreign countries. So, we have “a foreign territory contiguous to the United States” for Canada and Mexico. Elsewhere, the Act describes Cubans as “a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations.” For real.

When such a policy was being discussed in November, there was skepticism that Mexico would ever agree to such a thing. The skepticism was misplaced. The Homeland Security chief, Ms. Kirstjen Nielsen, stated, according to the DHS memo:

We have notified the Mexican government of our intended actions. In response, Mexico has made an independent determination that they will commit to implement essential measures on their side of the border. We expect affected migrants will receive humanitarian visas to stay on Mexican soil, the ability to apply for work, and other protections while they await a U.S. legal determination.

Though it appears Mexico has agreed, there is little or no information as to what they agree to or if they have any plans to create infrastructure to support this plan. There is no information as to how the United States will implement the plan either.

Let’s look at the challenges on the Mexican side. People waiting for court dates in Mexico have to live somewhere and eat. Children will need to be educated. People will get sick and will need health care. Infectious diseases will need to be monitored and controlled. People will start families and have babies. People will rob and kill. Is Mexico prepared to deal with tens or hundreds of thousands of the complex, troubled species known as human beings? These same people are capable of being robbed, raped, and murdered. They are subject to forced recruitment into gangs. Is Mexico prepared to protect these people? If the Mexicans expect these people to support themselves but will require that they obtain work permits, is Mexico prepared to set up the infrastructure for processing these people and their work permits? Will there be work for these people? Inasmuch as that for nearly twenty-five years I have represented Mexican citizens who do not want to go home because they assert that their country does not feed them, provide medical care, food, shelter, or safety, education, or provide opportunities to obtain these things, how will Mexico suddenly provide all of this to people waiting for a court date in the United States?

As for the asylum claims, who will represent these people if they are living in Mexico? Will Mexico allow American lawyers into the country to practice law on Mexican territory without being licensed Mexican lawyers or even to enter without employment visas?Will the asylum applicants be reachable? Will they have cell phones provided to them so their lawyers can reach them? Will they have addresses for mail? Does the mail even work in Mexico?

And assuming for a second that all that crap about these non-citizens being rapists and murders and bringers of drugs and crime and dirt (Go, Tucker!) and degrading our society, does Mexico wants large numbers of these people in a holding pattern for months and years concentrated at certain land-border cities while they wait for asylum in the United States?

Are regular Mexicans going to be sanguine about tens or hundreds of thousands of foreigners using scarce resources and potentially getting better services then they ever will get? If one of these migrants kills someone, is the Mexican public going to take it in stride? Is their society going to be more humane than our has emerged to be?

And then there is the logistics on the American side. How will the ports of entry process people heading to court? Obviously there will be armed escorts to court to make sure the non-citizen returns to Mexico at the end of the day in court. What will that cost? Will new courts be built at the ports of entry? Will immigration judges be relocated to these border courts? Can the courts rely on Mexican mail for proper service of documents?

Like that huge, reinforced-concrete, artistically-designed-steel-slatted, see-through, solar-powered wall paid for by Mexico (the one that the government is shut down because of because the key part of the wall promise, the “Mexico will pay for it” part has been forgotten), this does not seem very-well thought out by either the United States or the foreign territory contiguous to the United States. Posted December 23, 2018.


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