A Salvadoran Woman Missed Her U.S. Court Date. What Happens Next?
President Trump signed a proclamation for the deployment of National Guard troops to the southern border last week, seemingly in reaction to a so-called "caravan" of Central American migrants traveling through Mexico, some to the U.S. to seek asylum.
Many of these migrants are women and children, fleeing violence in their home countries, like one El Salvadoran woman and her son who NPR has been following for more than a year.
She and her then 17-year-old son arrived at the Mexico - U.S. border in south Texas in early 2017. The mom recounted how she'd fled El Salvador because of threats by one of the most dangerous gangs in the world, the Mara Salvatrucha — better known as MS-13.
NPR is not using her name for her protection.
The gang wanted her son to join them. "I had to hide him at a friend's house. ... They threatened that, if he didn't [join], they would kill both of us," she told NPR.
For many Central American families fleeing gang violence, the only path to legal immigration is asking the U.S. for asylum as this mother did for her and her son. After crossing the border, she was processed, and released to her family in Los Angeles in March 2017 with an ankle bracelet and a court date that would decide if she and her son would be granted asylum.
This February, the woman described her past year to NPR. She said she had been checking in with Immigration and Customs Enforcement, or ICE, as she is required to do. Money has been tight — she isn't allowed to work — and her son dropped out of school after being bullied for his lack of English-speaking abilities.
On the day of her hearing, the asylum seeker showed up on time — but to the wrong court house. The hearing was scheduled the same day as a meeting with her ICE officer, in a different building. By the time she found the right court, the judge assigned to her case had already deemed her a no-show and issued a deportation order for her and her son.
She asked the judge to hear her case later that day. The judge said no. The asylum seeker and was given 30 days to file a motion to reopen her case, but she had no lawyer, and certainly no money to hire one.
She was fearful about her chances of reopening the case, and for good reason: Asylum seekers are five times more likely to win a case for asylum if they have legal counsel, according to Judy London, the directing attorney for the Public Counsel's Immigrants' Rights Project.
Since that interview, Nexus Services, a pro-bono firm that offers legal services to immigrants, took her case. They filed the necessary paperwork for the motion to reopen, and now, she'll have her day in court, where a judge will reconsider her and her son's case for asylum.
People aren't guaranteed a lawyer in immigration courts as they are in criminal courts. "I believe that's unconstitutional," said Mike Donovan, CEO of Nexus Services. "The constitutional right to counsel engages when you are charged with a crime that can lead to a loss of liberty."
Donovan says that the way that immigration courts get around this is by defining the detention as civil instead of criminal.
"The only difference between civil jail and criminal jail is the use of the word 'civil' to justify the affront to human rights that is denying counsel to these people," he said. "The reality is that most people can't [be granted asylum in court] if they're not represented."
Attorney General Jeff Sessions has been using his authority to change the law on who qualifies for asylum and can receive court hearings, in an attempt to cut into a massive backlog of immigration cases. One reason for that backlog, he's said, is that many migrants fail to show up to their hearings. In 2016, there were 700 percent more deportation orders issued in absentia for cases that began with "credible fear claims" than in 2009.
"The reason why the government fails in returning people to court is crystallized in the individual we're talking about right now," Donovan said, citing the asylum seeker's multiple legal meetings in different locations on the day of her hearing.
Donovan also says that backlog exists not because of fraudulent asylum claims, but because many migrants are forced to proceed with their cases without a lawyer — resulting in mistakes with their paperwork.
"That's a very confusing system, and you know, if you make something confusing enough, sometimes people just give up," he said. "We have to understand that our broken immigration system is only going to become more broken if we don't help guide people through it."
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