Attorneys Challenge ‘Remain in Mexico’ Program, Case Could Impact Ruling
DONNA – More than 10,000 migrants were sent back to Mexico under the Migrant Protection Protocols this year, so far. That's just through the Brownsville port of entry alone.
Local attorneys are asking the government to reconsider its interpretation of the law for one client. That has the potential to shape the legal course of other migrants under MPP.
Attorneys Natalie Cadwalader-Schultheis and Richard Newman work for the San Antonio Region Justice for Our Neighbors, SARJFON, out of the Harlingen office located in the second story of the First United Methodist Church. They are representing a migrant woman under MPP in Matamoros.
Cadwalader-Schultheis explained, "That's all we're asking for. She wasn't supposed to be put on MPP; take her out of MPP. She has a right to a bond hearing; give us a hearing so we can ask for bond."
They filed a complaint and petition in federal court. They're asking the government to reconsider applying two sections of the Immigration and Nationality Act. One portion, Section 235(b)(2)(C), regulates the removals of immigrants from the U.S. The other, INA Section 240, grants the ability to keep the government from enforcing removals under certain circumstances.
Currently, if a migrant is placed under MPP, they are sent to Mexico. They'll live there and be allowed into the U.S. only to attend immigration court at the tents in Brownsville. The attorneys believe their client shouldn't be in MPP, because of the way she came into the U.S.
"So, as their own regulation stands, our client was not supposed to be returned because she's not an arriving alien," says Cadwalader-Schultheis.
An "arriving alien" is someone who comes to the port of entry asking for asylum. Their client was in the U.S. when she made her asylum claim. They believe that grants certain rights like that to speak to an asylum officer.
Furthermore, "if you enter without inspection and you are detained, you have a right to request a bond hearing," according to Cadwalader-Schultheis.
They are arguing their case before a federal judge, but it's also before an immigration judge which falls under the Department of Justice. The immigration judge said in the last hearing he doesn't have jurisdiction. Even if the federal judge allows the migrant woman, the petitioner, to receive a bond hearing with the immigration judge, there's no guarantee it will help.
Richard Newman, SARJFON project managing attorney, says, "The most interesting declaration of all, more recently, where they said 'even if an immigration judge did grant them a bond, we, the Department of Homeland Security, would refuse to accept the bond.' So, this is brand new ground that the United States is tilling."
Newman and Cadwalader-Schultheis say there are other cases disputing the legality of MPP as a whole. Their case is a less popular strategy looking at the interactions of those two sections of the law to try and bring forth a reinterpretation.
For now, the petitioner is scheduled to have her merits hearing soon – that’s when an immigration judge determines if there's a valid asylum claim to prevent removal from the country.
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