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“The Policy Wall:” The covert creation of barriers in U.S. immigration policies

By Sara K. French, University of Dayton School of Law ’20

The city of El Paso, Texas in the summer is exactly what you would imagine: hot. However, as I walked into the dimly lit El Paso Processing Center, I suddenly became chilled to the bone both literally and figuratively.  I would soon learn this feeling was representative of not only an overactive air-conditioning unit, but also the proceedings that occurred within the gloomy walls of the center. I was led by a guard into the courtroom, where I quietly took a seat in the back and waited for the immigration hearings to start. About two minutes later, at 8:00AM sharp,  a line of detained individuals, women on the left, men on the right, were shuffled into the courtroom wearing a myriad of colorful prison uniforms. A young woman, summoned to the front of the courtroom by the bailiff, immediately asked the immigration judge, “Dónde están mis hijos? (Where are my children?) The woman and her children had been separated upon their arrival at the US-Mexico border months before. 

As I sat observing master calendar hearings at immigration court, part of my duties while interning at Hope Border Institute in El Paso, Texas, I found myself holding back tears of my own as the immigration judge, annoyed and irritable, simply said, “I don’t know, that’s really not my problem.” 

Since his presidential campaign’s inception in 2015, then candidate Donald Trump has been vocal about expanding “the wall” along the U.S.-Mexico border. In fact, many of his supporters rallied behind his signature campaign promise: “I will build a great wall, and no one builds walls better than me.” While Mr. Trump’s promise to build an all-encompassing physical barrier between the United States and Mexico has not fully come to fruition, he has successfully constructed another type of wall, a policy wall. 

While the politicization of immigration is by no means a new development in U.S. politics, as injustice has pervaded immigration policies over more than the past 30 years with the support of both Democrats and Republicans. The steady weaponization of U.S. immigration has created an invisible wall through the adoption of punitive policies that ultimately bar immigrants with valid claims for asylum entry into the United States. As such, the U.S. southern border has been transformed into a front-line battle ground by U.S. policymakers. 

Through the support of the Human Rights Center Graduate Fellowship, I had the opportunity to travel to El Paso, Texas, located along the U.S.-Mexico border and work with a prominent immigrant advocacy center, Hope Border Institute (HBI). My time at HBI was invaluable in cementing my passion for immigrant rights advocacy and providing me with useful connections to other advocates in the frontera (border) region. Through daily court observations at the local detention center, I witnessed first-hand the unfolding of the current administration’s policy wall. 

Unlike the obvious physical exclusion of “the wall,” the U.S. government’s policy wall consists of practices which enable the state to sow chaos, while deflecting culpability for migrant suffering and exclusion. They include deferral of asylum claims through “metering,” the outsourcing of immigration enforcement through the Southern Border Plan, and the flouting of due process in immigration court hearings. Metering is the practice employed by Customs and Border Patrol agents along the U.S. Southern Border of limiting the number of individuals who are permitted to cross into the United States to begin the asylum process, leaving many asylum seekers stranded in Mexico waiting in dangerous conditions. The outsourcing of immigration enforcement duties, while not a new political phenomena, has expanded with increased funding and support to Mexican state officials to increase immigration enforcement in Mexico along the migrant trails. This blog focuses specifically on the alarming due process concerns I encountered. 

This “weaponization” of the immigration court system actively strips immigrants of a full and fair hearing, turning a legal avenue into a deportation tool. In fact, the first line in my observation notebook, one of the only items permitted in the immigration courtroom, reads, “no lawyers in the room?” Unlike in criminal court, an individual placed in immigration proceedings is not afforded the same guarantees under the Sixth Amendment of the U.S. Constitution and only has the right to an attorney “at no expense to the Government.” In reality, this results in roughly 14% of detained immigrants securing legal counsel despite the fact that legal representation is one of the most important factors in whether families will ultimately win their immigration cases. Studies show that having legal representation to help navigate the complexities of the removal process significantly enhances the chances of gaining relief from removal proceedings. In fact, on most days I spent observing master calendar hearings in the courtroom I was the only individual there aside from the court staff, judge, and immigrants awaiting their hearings. 

On my third day of observations, I was escorted down the dimly-lit hallway into a courtroom with a large TV placed in front of the judge’s chair. Thinking the situation strange, I sat in the back row of a line of cold, musty-looking plastic chairs and opened my notebook. I would soon learn about the harsh realities of teleconference immigration hearings. Conducted through the TV, the judge administered a full docket of master calendar hearings from the El Paso courtroom with detained immigrants located at the Otero Detention Center in New Mexico, over three hours away by car. While initially thinking these virtual hearings were more efficient, I soon realized such hearings were ladened with substantial problems. A spotty internet connection interfered with almost every individual’s hearing and, in some cases, the system had to be re-booted in the middle of the hearing. Moreover, because of the connection problems, at times the judge was unable to hear the interpreter, who was located with the detained individual at the Otero Detention Center. In practice, these telephonic hearings further strip immigrants of due process rights and serve as a loophole in the state’s obligation to provide an immigration hearing. An immigrant’s “day in court” turns into maybe two minutes in front of a screen, with or without sound. 

Behind the semblance of “equal justice under law,” the current landscape of U.S. immigration courts casts immigrants seeking entry to the United States into a high-stakes legal game, blindfolded and with their hands tied behind their backs. By creating highly dysfunctional court processes, the U.S. government evades its human rights responsibilities through an elaborate regime of deterrence. As a result, both qualified immigrants and their allies are exhausted and often deterred from pursuing legal recourse. In short, while there may not be a completed border wall physically preventing immigrants from entry into the United States, the covert creation of a policy wall through the courtrooms has proven more effective, quietly rejecting and deporting immigrants with valid claims to asylum under U.S. and international law. 

Sara is a recent graduate from the UD School of Law in May 2020. After taking the bar exam, she hopes to continue working as an immigrant and human rights advocate. During her time at UDSL she was a Human Rights Center Graduate Fellow and Chief Justice of the Moot Court team.

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