Asylum-seekers in Tucson’s federal court lost one of the few protections they had from a quick deportation when U.S. marshals recently barred them from carrying a one-page document while in custody.
The petition helps asylum-seekers ask for a hearing before an immigration judge and says the holder, who signs the document in front of a witness, fears returning to their home country.
After more than a year of allowing defense lawyers to give the document to asylum-seeking clients, the U.S. Marshal’s Service said the petitions had become a burden in recent weeks.
The marshals, who oversee criminal defendants in federal court, had allowed the petitions when they saw “one or two here and there,” but several weeks ago a trickle of petitions given to border crossers by their lawyers turned into a deluge, said David Smith, assistant chief deputy U.S. marshal for Tucson.
“It happened for two or three days before we said, ‘It’s not going to work for us,’” Smith said.
The move comes as thousands of asylum-seekers try to state their case to U.S. immigration authorities along the border with Mexico. In response, the Trump administration tried in early November to prohibit asylum claims if they are not made at legal ports of entry.
In Tucson’s federal court, thousands of people are criminally prosecuted every year for crossing the border between ports of entry. The petition helps some of them get on a similar track to see an immigration judge as the hundreds of families who turned themselves over to Border Patrol agents in Southern Arizona this year seek to legalize their status.
Defense lawyers in Tucson, including those who work in the fast-track criminal prosecution program for border crossers known as Operation Streamline, were trained in August 2017 and again in June to give the petitions to asylum-seeking clients and follow up with an email to U.S. Immigration and Customs Enforcement.
Under the new petition policy, lawyers can mail the petitions to their clients at the detention centers where they are held after the hearings, Smith said.
“We’re not trying to deny anyone access to any form they need for legitimate purposes,” Smith said. “If we found out defendants weren’t getting the documents, we would find a better way.”
The marshals’ ban on the petitions is an “ongoing issue that we’re still working on resolving,” said Eric Rau, a supervisor at the Federal Public Defender’s Office in Tucson.
Mailing the petitions to detention centers “doesn’t necessarily work” for defendants with asylum claims who are sentenced to time served and will be deported quickly, Rau said.
More than 10,000 first-time border crossers have been sentenced to time served in Tucson since the Trump administration restarted prosecutions of first-time crossers in May 2017, court records show.
If they don’t have the tools or the information to express their fear, “sometimes they get swept up and taken away” before anyone can ask them, said Laura St. John, legal director at the Florence Immigrant and Refugee Rights Project.
If they do not express a fear of returning to their home country, Mexican citizens sentenced to time served can be deported within a day, St. John said.
For those from Guatemala, Honduras, or other Central American countries, the deportation process can take as little as a few days.
St. John said she sees a “really significant number of people on a regular basis who went through Streamline and then expressed a credible fear.”
Some defense lawyers who work in Streamline told the Arizona Daily Star they gave out only a handful of petitions, while others said they gave out dozens or more than 50.
“One of the reasons we had that form was so they had a very clear thing they can show to immigration and say ‘do not deport me,’” said defense lawyer Guenevere Nelson-Melby.
She gave the example of a client last week who wanted to ask for asylum, but couldn’t memorize the words he needed to say.
She gave him a sticky note with instructions, but she didn’t know whether he was able to keep it.
The petition also was important for clients whose primary language was indigenous, rather than Spanish, she said. With the petition, “It’s not just relying upon someone who may or may not speak Spanish very well to say the exact magical words that will trigger asylum,” she said.
Finding a resolution amid new regulations
Court records from Streamline are littered with references to asylum-seekers, such as “defendant claims credible fear and intends to seek asylum” or “defendant making an asylum claim.” In one case from Oct. 24, the minute entry said the defendant was “prevented” from applying for asylum.
In that case, Roseli Juarez Monica and her sister Natividad, both Mexican citizens, were sentenced to time served for crossing the border illegally near Nogales, court records show.
They went to Tijuana to seek asylum in the U.S., but there were too many other asylum-seekers and they could not apply, Roseli’s lawyer, Diana Castillo Reina, told Magistrate Judge Bruce G. MacDonald, according to an audio recording of the Oct. 24 Streamline hearing.
The sisters left Tijuana and went to Arizona to try to apply for asylum, Castillo said. When Roseli was charged in Streamline, Castillo brought her a pamphlet explaining the asylum process.
However, new “regulations” prohibited Castillo from giving the pamphlet to her client, she told MacDonald.
At the start of the hearing, as MacDonald asked the lawyers if they had any questions, Castillo told MacDonald she felt obligated to provide her asylum-seeking clients with adequate information about their case and about the collateral issues of pleading guilty, such as immigration consequences.
“They’re not simple and they are not easily addressed in a 30-minute discussion with an individual,” Castillo said, in reference to the brief meetings lawyers have with their clients in the morning before Streamline hearings.
“We’re being limited by an administrative, and alleged security, issues to not be able to provide individuals information,” Castillo said.
MacDonald said he was only one of seven magistrate judges, but he would bring up the issue with a district court judge or Chief Judge G. Murray Snow, who became chief judge in the District of Arizona in early September.
“I’m not in a position to tell the marshals what they should or should not be doing in that regard, but I will absolutely bring it up and we will try to find some resolution of this issue,” MacDonald said.
“I understand it’s coming up more and more, particularly as we get more people from Central America, so I appreciate that we’ve got to try to get this information to them somehow,” he said.
That same day, the Federal Public Defenders Office sent an email saying the marshals had prohibited defendants from possessing any paperwork, including the asylum petition, according to a copy of the email obtained by the Star.