EL PASO, Texas — Defendant #5 was sleeping in his father’s arms when his name was called.
Three-year-old Josué couldn’t be roused from his slumber to take note of Judge Nathan Herbert. “He’s currently taking a nap,” Herbert noted from the bench.
Instead, Josué’s dad, Edwin, did the talking, as his wife, seven months pregnant, sat by his side. “We don’t want to go back to Mexico,” Edwin told the judge, explaining that the day before he had been kidnapped in Mexico.
Behind him, 21 other Central American asylum seekers sat in the small El Paso courtroom, all but two women and children. They, too, had been sent back to Mexico to wait out their cases in Ciudad Juárez, and are among the first to have a hearing before an immigration judge.
Edwin and his family fled El Salvador in March after being threatened by MS-13, made it to the U.S. to claim asylum, and then, to their shock, were sent back to Mexico to wait while their case winds its way through the U.S. immigration system.
Known officially as Migrant Protection Protocols, but colloquially as “Remain in Mexico,” the policy is one of the most sweeping changes to U.S. asylum law in decades. Trump administration officials say it’s meant to deter migrants from claiming asylum under false pretenses and then disappearing into the U.S. before their case is decided.
Around 60 to 75 percent of undocumented immigrants who are released attend their court hearings, according to Justice Department data, and a PolitiFact analysis of available data suggests the rate is higher for asylum seekers. In hard numbers, Trump officials are right that thousands are ordered deported annually because they don’t show up to court.
Immigration advocates say the policy is a cruel attempt to punish Central American migrants and get them to give up on their cases, or discourage them from coming at all.
Most of the asylum seekers returned to Mexico are sent to violent border cities like Juárez and Tijuana, where they are living in overpacked shelters and cheap motels, vulnerable to exploitation and health risks and largely without access to attorneys. Administration officials say their asylum cases could take up to a year to be decided.
In recent weeks, the Trump administration has aggressively expanded the policy’s reach, pausing only for a few days when a federal judge blocked it. On April 12, the liberal-leaning 9th Circuit Court of Appeals overruled that decision and said the program could temporarily continue — suggesting that the policy will likely be upheld.
Since January, around 1,500 asylum seekers have been sent back to Mexico, over half of them in the last month. They comprise just a fraction of the migrants showing up at the border — more than 100,000 arrived in March alone — and immigrant rights advocates say the decision of who to send back is arbitrary. Migrants say it feels like a cruel twist of bad luck. “It was like we were a grain of sugar in a big jar, and they picked us to go back,” said Roberto, who crossed into the U.S. with his family and a big group of other migrants. After being held in Border Patrol custody for several days, he said agents told him a law had been passed that day — March 29 — prohibiting asylum seekers from staying in the U.S. “But the law didn’t apply to the other migrants.”
As the policy is being rolled out with new urgency, its day-to-day execution is still being hammered out.
There are a few general guidelines: The policy doesn’t apply to Mexican citizens, unaccompanied minors, people likely to be persecuted in Mexico, or those with health issues — although pregnant women and a transgender woman are among those who have been sent back. Both migrants who cross legally, at ports of entry, and those who cross illegally are subject to the policy.
Customs and Border Patrol agents have broad discretion to decide which migrants to return. Those selected are given paperwork telling them the day and time of their first hearing, which is to be held within 45 days. They are handed over to Mexico immigration agents, who bring them to a shelter and give them documents that allow them to temporarily live and work in Mexico.
On their court dates, the migrants cross into the U.S. at a designated port of entry and are transported to their hearing. Afterwards, they are sent back to Mexico until an immigration judge rules on their asylum claim.
“I don't know why they sent us back”
In practice, the policy is cumbersome and seemingly impractical, which may achieve the administration’s goal of dissuading migrants from coming.
“I don’t know why they sent us back,” said Yessenia, who fled Guatemala with her 9-year-old daughter because of violence. “I wouldn’t have risked the trip if I had known they were going to send me back to Mexico. But now we are here, so we are going to wait and see what happens next.”
She and her daughter were among the asylum seekers who had their first court hearing last week in El Paso.
On the first day, the 23 scheduled migrants made it to court. But on the second day, when another 24 were scheduled to appear, eight didn’t show up to the port of entry and missed their hearing. It’s unclear if they got confused or purposefully didn’t show, and the government had no way of reaching them.
Just two families had secured attorneys, and that’s because a legal aid group actively sought to represent them because the women are pregnant. The judge encouraged the other migrants to call a list of legal aid groups in the area who provide free or low-cost representation.
But how, one migrant asked, was she supposed to call when the shelter only gave them three minutes per day to use the phone.
“Señora, do your best to try and contact an attorney”
“Señora, do your best to try and contact an attorney,” the judge responded, momentarily flummoxed. “I encourage you to do your best to try and call one of the attorneys.”
Several of the migrants told the judge they were scared to return to Mexico. Edwin said he and another migrant, whose wife is also pregnant, were kidnapped after leaving a grocery store; they were taken to a house, robbed and beaten for several hours before being released.
The judge referred them to a second interview with an asylum officer to determine if they were safe in Mexico, as the policy requires. But, he said, “There are no regulations on this type of interview.”
The two men convinced the asylum officers to let their families stay in the U.S., but a woman who said a stranger tried to kidnap her son was sent back.
Throughout the hearings, the judge patiently read the migrants their rights — his instructions pierced by the squeals of kids playing at their parents’ feet — and asked if they had questions. But most were unable to focus on their cases; they had more immediate concerns.
“My children have been sick because of the food and water,” one mom said.
“My boys have been throwing up and have diarrhea,” another added.
“Where am I supposed to go?”
Plus, they didn’t know where they were going to stay if they were returned to Juárez. The migrant shelters are packed, and they said they'd been told even coming to court was a risk because their spot could be gone when they returned.
“Where am I supposed to go?” asked one indigenous Guatemalan woman who spoke almost no Spanish and had been planning to join her boyfriend, who was already in the U.S. But it was outside the judge’s control.
“The issue of where you are going is not before the court,” he said.
Hunched over in defeat, she picked up a plastic bag with a smooshed white-bread sandwich as guards accompanied her out of the courtroom to return to Mexico.
Cover image: Janeth and her 3-year-old daughter, from Honduras. After Janeth's mom was murdered, she took her daughter and fled to the U.S. They were sent back to Juárez on April 1. (Photo: Emily Green/VICE News)