Supreme Court weighs policy for migrants to wait in Mexico

When a woman gashed her leg in mountains inhabited by snakes and scorpions, she told Joel Úbeda to take her 5-year-old daughter. Úbeda refused to let the mother die, despite the advice of their smuggler and another migrant in a group of seven, and helped carry her to safety by shining a mirror in sunlight to flag a U.S. Customs and Border Protection helicopter near San Diego.

The motorcycle mechanic, who used his house in Nicaragua as collateral for a $6,500 smuggling fee, says the worst day of his life was yet to come.

Arrested after the encounter with U.S. agents, Úbeda learned two days later that he could not pursue asylum in the United States while living with a cousin in Miami. Instead, he would have to wait in the Mexican border city of Tijuana for hearings in U.S. immigration court under a Trump-era policy that will be argued Tuesday before the U.S. Supreme Court.

President Joe Biden halted the “Remain in Mexico” policy his first day in office. A judge forced him to reinstate it in December, but barely 3,000 migrants were enrolled by the end of March, making little impact during a period when authorities stopped migrants about 700,000 times at the border.

Úbeda, like many migrants at a Tijuana shelter, had never heard of the policy, officially called “Migrant Protection Protocols.” It was widely known under President Donald Trump, who enrolled about 70,000 migrants after launching it in 2019 and making it a centerpiece of efforts to deter asylum-seekers.

“It’s a frightening experience,” Úbeda said after a telephone call with his mother to consider whether to return to Nicaragua to reunite with her, his wife and his daughter. He was perplexed that a vast majority of Nicaraguans are released in the U.S. to pursue asylum, including the woman he saved and her daughter.

Nearly 2,200 asylum-seekers, or 73% of those enrolled through March, are from Nicaragua, with nearly all the rest from Colombia, Cuba, Ecuador and Venezuela. Yet even among Nicaraguans, the policy is small in scope. U.S. authorities stopped Nicaraguans more than 56,000 times from December to March.

Criticisms of the policy are the same under Biden and Trump: Migrants are terrified in dangerous Mexican border cities and it is extremely difficult to find lawyers from Mexico.

U.S. Homeland Security Secretary Alejandro Mayorkas, in an October order to end “Remain in Mexico,” reluctantly conceded that the policy caused a drop in weak asylum claims under Trump but said it did not justify the harms.

Emil Cardenas, 27, said he bloodied his foot and drank his urine after running out of water on a three-day hike in mountains near San Diego with a smuggler who took a $10,000 installment toward his fee and stole his passport, phone and other identification.

Cardenas hoped to live near his brother, a Catholic priest in New Jersey, while seeking asylum but waits at the Tijuana shelter for his first hearing in San Diego on May 18. He is disheartened to see others at the shelter on their third or fourth hearing.

“One has to find a way to get across,” said Cardenas, a Colombian who had attempted twice to enter the U.S. “I’m thinking about what to do.”

While waiting for hearings, men at the shelter are attached to smartphones — reading, watching videos and occasionally calling friends and family. A large television facing rows of tables and plastic chairs helps defeat boredom.

Many have been robbed and assaulted in Mexico, making them too scared to leave the shelter. Some chat in small groups but most keep to themselves, lost in thought.

Carlos Humberto Castellano, who repaired cellphones in Colombia and wants to join family in New York, cried for two days after being returned to Tijuana to wait for a court date in San Diego. It cost him about $6,500 to fly to Mexico and pay a smuggler to cross the border, leaving him in debt, he said.

“I can’t leave (the shelter) because I don’t know what could happen,” said Castellano, 23, recalling that his smuggler took a photo of him. “Getting kidnapped is the fear.”

The issue before the Supreme Court is whether the policy is discretionary and can be ended, as the Biden administration argues, or is the only way to comply with what Texas and Missouri say is a congressional command not to release the migrants in the United States.

Without adequate detention facilities, the states argue the administration’s only option is to make migrants wait in Mexico for asylum hearings in the U.S.

The two sides also disagree about whether the way the administration ended the policy complies with a federal law that compels agencies to follow certain rules and explain their actions.

A ruling is expected shortly after the administration ends another key Trump-era border policy, lifting pandemic-related authority to expel migrants without a chance to seek asylum on May 23. The decision to end Title 42 authority, named for a 1944 public health law, is being legally challenged by 22 states and faces growing division within Biden’s Democratic Party.

Due to costs, logistics and strained diplomatic relations, Title 42 has been difficult to apply to some nationalities, including Nicaraguans, which explains why the administration has favored them for “Remain in Mexico.”

The administration made some changes at Mexico’s behest, which may explain low enrollment. It pledged to try to resolve cases within six months and agreed to shoulder costs of shuttling migrants to and from the border in Mexico for hearings.

As under Trump, finding a lawyer is a tall order. U.S. authorities give migrants a list of low- or no-cost attorneys but phone lines are overwhelmed.

Judges warn migrants that immigration law is complicated and that they face longer odds without an attorney. Migrants respond that calls to attorneys go unanswered and they can’t afford typical fees.

“I’ve seen lots of people in your situation who have found attorneys, often for free,” Judge Scott Simpson told a migrant this month in a San Diego courtroom before granting more time to hire one.

Victor Cervera, 40, gave up on low-cost attorneys after his calls went unanswered. The Peruvian’s online search for those who take “Remain in Mexico” cases yielded one find — a Miami lawyer who charges $350 for an initial phone consultation.

Nearly all migrants tell U.S. authorities they fear waiting in Mexico, entitling them to a phone interview with an asylum officer. About 15% are spared when the officer agrees their worries are well-founded, while others are excused for reasons deemed to make them vulnerable in Mexico, like gender or sexual orientation.

Those sent back wonder why they were chosen when so many others are released in the U.S to pursue their claims.

“It’s a raffle,” said Alvaro Galo, 34, a Nicaraguan man who cleans and cooks meals at the shelter to keep his mind busy.

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Associated Press writer Mark Sherman in Washington contributed to this report.