Attorneys are refusing to be added to a list of pro bono legal aid providers the Biden administration is planning to give immigrants whom it places in a Trump-era program that forces them to wait in Mexico.
The immigration attorneys say they won't be complicit in the relaunch of the Migrant Protection Protocols, also known as MPP or the "Remain in Mexico" program, which they say is not only dangerous but takes away the due process rights of immigrants and asylum-seekers. Organizations that help immigrants at the border will continue their work, including helping those put in MPP, said Sue Kenney-Pfalzer, director of the border and asylum network at HIAS, the Jewish nonprofit that aids refugees. But signing on to a list created by the administration that will send more immigrants into squalid border camps and crowded shelters than they can represent is a "farce" and a "hollow gesture," she said.
"For all of us, our duty is to the migrants, not the US government," Kenney-Pfalzer told BuzzFeed News. "What we're not going to do is be complicit with the government in trying to make MPP somehow more palatable, because there's no way MPP can be made more humane. It's illegal and inhumane."
The program was created in January 2019 under former president Donald Trump and forced more than 71,000 immigrants and asylum-seekers to wait in Mexico for months, and in some cases years, while a US judge considers their case. In June, Homeland Security Secretary Alejandro Mayorkas formally ended the policy, but a federal judge then ordered the administration to restart it, which could happen as soon as mid-November.
Immigration advocates have said the administration hasn't done enough to fight the court order, and they've criticized how lists of pro bono attorneys have been used by officials when MPP was previously running.
When an immigrant would show up to their court hearing without an attorney, judges would give them more time to find representation, postponing their case for months and referring them to a list of pro bono attorneys. The problem was that many legal aid organizations were already overwhelmed with thousands of immigrants asking for help and couldn't take on most of the new cases. The pro bono list, advocates said, became a false beacon of hope for immigrants and asylum-seekers.
Felipe, an asylum-seeker from Honduras who was placed in the MPP program with his family, said he was handed a list of pro bono legal aid providers when he attended his first court hearing. The hearing took place in a tent in Brownsville, Texas, and the judge presided remotely, appearing via a screen.
"I called the numbers on the list, but no one ever picked up," Felipe told BuzzFeed News.
Without a lawyer, it's hard to figure out how to fill out asylum paperwork and know what to tell a judge, Felipe said, and it's only made more difficult for immigrants who live under the constant fear of being kidnapped, attacked, and extorted by criminals at the border who see them as easy targets.
"The judges were deciding MPP cases unjustly because we didn't know how to do things correctly," Felipe said. "We didn't have a chance."
Only about 10% of the 71,044 immigrants placed in the MPP program were able to get representation, according to the Transactional Records Access Clearinghouse (TRAC), and having a lawyer makes the chances of winning an asylum case significantly higher.
The Justice Department’s Executive Office for Immigration Review (EOIR), which oversees the nation's immigration courts, declined to say how many organizations had so far agreed to be a part of the pro bono list that will be given to immigrants in MPP.
On Oct. 28, EOIR sent an email saying it was still seeking providers to be added to a list of pro bono legal services interested in offering aid via "remote technology." The list, EOIR said, will be given to immigrants in MPP who have hearings in San Diego and the three Texas cities of El Paso, Harlingen, and San Antonio.
"We will be expediting the application process due to the urgent need for pro bono legal services among the MPP population," the email said.
Refusing to be on the pro bono list is not the first time advocates have refused to work with the Biden administration on the reimplementation of MPP. On Oct. 16, border organizations "walked out" of a virtual meeting with White House staff over upcoming plans to restart MPP, saying they could no longer have conversations in good conscience with the Biden administration because it has continued to preserve policies enacted by Trump, including a policy that allows the US to quickly expel immigrants at the border.
Last week, the administration issued a second memo rescinding MPP, months after its first attempt was thwarted by a judge for not complying with the Administrative Procedure Act. Advocates have criticized the amount of time that passed between the two memos, which DHS officials acknowledged took "some time" to go through necessary materials in a recent call with reporters.
In spite of the new memo, the officials said, the Biden administration may still be obligated under the court order to restart MPP.
"If and when Mexico agrees to accept returns and the injunction has not yet been lifted, we will be bound to begin to place people back into MPP," a DHS official said. "We are hopeful that there will be groups and entities that will come forward and provide the access to counsel that we all know is so urgently needed."
The Mexican government, which has to agree to take back immigrants returned across the border before MPP can be restarted, has expressed concerns about due process and receiving vulnerable people sent back to the country, administration officials said.
Taylor Levy, an attorney who would regularly go to Ciudad Juárez to help immigrants in MPP, said advocates don't want to be added to the pro bono list because it could be used by the Biden administration to demonstrate to Mexico that the new version of the program will include increased access to legal counsel.
Organizations and attorneys that provide legal aid to immigrants will help those in MPP once it starts again, Levy said, but she will no longer be one of them. In her time working with immigrants in MPP, Levy said, she was threatened by cartels.
"I watched a family get kidnapped in front of me, and I was told point-blank to my face to step aside or else I was going to have problems,” Levy told BuzzFeed News. "I watched a mother and father with a toddler in their arms sob and beg for help, and all I could do was watch because I needed to protect my life."
She remembered one family who was trying to attend their MPP hearing show up bloody, bruised, and dirty to the border after they were kidnapped on the way to court. Ciudad Juárez police beat them and orally raped the pregnant wife in front of her husband and mother-in-law, Levy said.
She tried to help the family, even though she knew she was putting her own life at risk by attracting attention from Mexican police and the cartel, whose lookouts told her they knew who she was. From February 2019 to February 2021, Human Rights First counted at least 1,544 public reports of murder, rape, and other attacks committed against people in MPP across the US–Mexico border. After two years of working with immigrants and asylum-seekers in MPP and facing hours of questions about her work by US Customs and Border Protection officers, Levy said, she was diagnosed with PTSD and couldn't go back to doing the same work.
"I am not willing to or able to emotionally and physically continue to put my life at risk, because the Biden administration has broken its promise and decided to reinstate this utterly evil program," Levy said. "There is no way to make it humane. There is no way to ensure due process."
Nicole Morgan, family detention attorney for the immigrant advocacy organization RAICES, said the group will remain on the general pro bono list that immigration courts provide immigrants, but the group will not be on the MPP list.
"We are not going to legitimize this program by giving them the veneer of providing access to counsel or due process," Morgan said in a statement to BuzzFeed News.
Felipe, the immigrant previously in MPP, and his family were able to reopen their case and enter the US after initially losing their asylum case while waiting in Mexico in January 2020. He blamed the initial loss on his unfamiliarity with the US's asylum laws and how to properly fill out the family’s application. He hopes that now that he’s in the US he'll be able to find an attorney and win their case.
As the Biden administration prepares to restart MPP, Felipe thinks about the families placed in the program under Trump who are still in Mexico.
"I know mothers and fathers living in shelters for years who are still waiting in Mexico for an opportunity," Felipe said.