So on Feb. 26, 2020, she woke up early and put on her best blouse. She said a short prayer. But not long after her bus left for Laredo, Tex., gunmen stopped the vehicle. They kidnapped Carolina and her 15-year-old daughter, took them to a stash house packed with other kidnapped migrants and demanded thousands of dollars in ransom.
By the time they were released a few days later, Carolina had missed her day in court.
Her asylum case, it turned out, had been closed in absentia because she hadn’t shown up. Of the 68,000 asylum cases processed under the Trump-era Migrant Protection Protocols, the policy also know as “Remain in Mexico,” 28,000 were closed for the same reason: Because asylum seekers didn’t present themselves.
Many missed their court dates because they were kidnapped and held hostage, or detained by Mexican officials, or because they couldn’t find a safe way to get to the border in the middle of the night, when most were told to arrive for their hearings, according to lawyers, advocates and the migrants themselves. Some had medical emergencies related to the conditions in which they waited. An untold number, their asylum cases now closed, remain in hiding in northern Mexico.
The Biden administration ended MPP in February and is now bringing those whose cases remain active into the United States. But unwinding the policy has proved complicated.
Attorneys and advocates are asking the administration to reopen MPP cases that were closed in absentia and give asylum seekers a chance to continue their applications.
“This program returned tens of thousands of asylum seekers into harm’s way and as a result many never got their day in court,” said Cindy Woods, the managing attorney of PASA Project. “The Biden administration announced it would end MPP, but efforts to remedy the damages it caused have only just scratched the surface.”
But while officials contend with the growing number of children and families arriving at the border, it’s unclear how likely the White House is to revisit individual cases derailed under a Trump-era policy.
“The system to process individuals with active MPP cases is the first phase of a program to restore safe and orderly processing at the Southwest border,” said Sarah Peck, a spokeswoman for the Department of Homeland Security. “The U.S. is currently prioritizing individuals with active MPP cases, generally based on their MPP enrollment date, while also considering prioritized access for certain highly vulnerable individuals. At this time, we do not have any new announcements regarding populations who do not have active MPP cases, and the border remains closed.”
Carolina, who like others in this article spoke on the condition that her last name be withheld out of security concerns, arrived at the border in September 2019. She and her daughter have been waiting in northern Mexico for more than a year and a half; they seldom leave their rented apartment.
They’ve watched as friends and acquaintances who were also processed under MPP are brought into the United States, but their own fate is unclear. When a U.S. court closes an asylum case in absentia, it issues a removal order that bans the migrant from seeking U.S. immigration relief for 10 years.
“It’s hard to think because I was kidnapped on my way to my court hearing, I missed my only chance to make an asylum case,” Carolina said.
MPP was started by the Trump administration on Jan. 25, 2019, and ended by the Biden administration on Feb. 11 of this year. During that period, the New York-based advocacy group Human Rights First says, it documented “at least 1,314 public reports of violent attacks against people subjected to MPP.”
Biden himself called the policy “inhumane.” Since February, his administration has brought 7,853 migrants whose MPP cases remain open into the United States and enlisted the help of the United Nations to process them. About 25,000 MPP cases remain open.
But there are more migrants whose MPP cases were closed in absentia — 28,000 — than those with active MPP cases. Some migrant families include members with open asylum cases who are permitted to enter to the United States and members whose cases were closed in absentia.
Beatriz, a 37-year-old mother of three who fled threats of violence in El Salvador, brought her children to the border in the hope of gaining asylum in the United States. Her son, Luis, 17, was kidnapped in northern Mexico in early 2020. Beatriz attended her court date with her other children. She told the judge that her son had gone missing and that she had filed a missing person’s report. But Luis’s case was closed, even as Beatriz’s remained open.
Luis has since been released. Now the family wonders if they’ll be able to cross the border together.
“I don’t want us to be separated,” Beatriz said. “It would be terrible.”
Some of the asylum seekers processed under MPP decided to return to their countries of origin rather than waiting in northern Mexico. Others crossed the border illegally and are now living in the United States as undocumented immigrants. Because their asylum cases were closed, they have no clear path to legal status.
Many asylum seekers remain unaware that because they missed their court dates, their cases have been closed. Because many have no fixed address in Mexico, U.S. authorities did not mail their removal orders. Immigration decisions are available online, but many asylum seekers do not know how to access them.
Some migrants have returned to the border to ask immigration officials about their cases, but have been given little clarity.
Viviana, a Cuban asylum seeker waiting for her hearing in Matamoros, missed her court date because she was in the hospital, where she suffered a second-trimester miscarriage. She was bedridden for two weeks.
When she was released, she said, she went to the border to speak to U.S. Customs and Border Protection agents.
“I told them, ‘Listen, this is what happened to me. This is why I missed my court date,’ ” she said. “And they just said, ‘Sorry, there’s nothing we can do. We don’t have any information.’ ”
Through an advocacy group, she was able to connect with Haiyun Damon-Feng, the director of the Adelante Pro Bono Project and assistant director of the William H. Gates Public Service Law Program at the University of Washington School of Law.
Damon-Feng informed Viviana that her case had been closed in absentia.
Viviana was allowed into the United States earlier this month. But her case has not been reopened, meaning she is unable to apply for asylum and is subject to deportation.
“It’s a huge relief that some people who were issued removal orders under extreme circumstances in MPP have been allowed into the United States, but they still don’t have access to asylum,” Damon-Feng said.
“MPP deprived people of due process and fundamental fairness,” she said. “In order to restore access to asylum in a meaningful way, the Biden administration needs to reopen cases for people ordered removed under MPP and allow them to pursue their claims safely from within the United States.”