While Recognizing the Danger the Mexican Cartels Pose to US Citizens, Trump Ignores the Same Danger Posed to Asylum Seekers Forced to Remain in Mexico

A few years ago, my cousin was looking forward to her first trip to Mexico.  I asked if she bought her kidnapping insurance yet. She laughed, but then noticed I was being serious. She looked at me and said “That’s not a thing, is it?”  I told her to look it up.  A few days later, she called me absolutely surprised that kidnapping insurance existed for people taking trips to Mexico.

I don’t mean to impugn all Mexican people.  But we cannot pretend that all areas of Mexico are safe. The sad reality is that criminal organizations known as the cartels dominate the northern areas near the border with the United States.  Their main goal is to profit off of the illicit drug trade with the United States.  But they have their hand in any potentially lucrative criminal enterprise.

As an immigration lawyer, when you listen to your client’s stories of how they braved the cartels, you instantly feel anger, sadness and admiration at the same time.  Anger that such powerful and dangerous forces of evil exist.  Sadness that living with this evil is the reality for people who just want to escape the violence of street gangs in their home country.  And admiration that your clients faced this evil, and survived.

A Central American migrant simply cannot plan to journey north without considering the hold the Mexican cartels have over illegal border crossings.  Typically, a migrant hires a guide, known as a “coyote,” to lead them on their journey.  The coyote supposedly knows the terrain and how best to navigate the many obstacles that exist before reaching the border.  But each coyote is associated with one of the Mexican cartels.  The cartels have the territory just south of the border carved out.  If a coyote strays into territory belonging to a rival cartel, it can mean extortion, and even death to those is his group.

But even traveling through the territory controlled by the cartel associated with their coyote is not necessarily a guarantee of safety.  Coyotes have been known to lead groups of migrants right into the hands of cartel members, armed with automatic weapons, who in turn beat, rape and rob the migrants just when they reached the border.  Female clients of mine have told me that they expect this, and for that reason start taking birth control pills before their journey.  Women who are naive have wound up pregnant as a result of the rape.  Indeed, it has been reported that cartel members hang the underwear of their rape victims on trees, called rape trees, as a sign of their power.

At times, the cartels will kidnap the migrants trying to seek safety in the United States.  They may hold migrants for ransom. They may force females to satisfy their sexual desires, and do the cooking and cleaning for the cartels.  They may sell the migrants into slavery.

President Trump recently recognized the danger present in northern Mexico because of the cartels.  After nine members of a family of US citizens were murdered by the cartels, Trump tweeted an offer of US assistance with cleaning up the cartels to Mexican President Andrés Manuel López Obrador.  

But while Trump recognizes the danger the cartels pose to US citizens (the victims of the cartel violence were related to Mormons who settled in Mexico after the Church of Jesus Christ and Latter Day Saints abandoned the practice of polygamy in 1890, and maintain dual Mexican-American citizenship), he ignores the same danger those cartels pose to Central American migrants he has forced to wait in Mexico while their asylum applications pens in US Immigration Court. 

Last Winter, the Trump Administration began its “Remain in Mexico” program, also known as the Migrant Protection Protocols or MPP.  Not wanting the migrants to stay in the United States while their asylum cases worked their way through court, Trump reached an agreement with the Mexican Government permitting asylum seekers to remain, temporarily in Mexico, only permitted into the United States when there were court hearings in their cases.  But the migrants would live in the very area of Mexico dominated by the cartels.

Already, it has been reported that migrants have been kidnapped by the cartels, as soon as they return to Mexico after a court hearing.  Nonetheless, keenly aware of the danger the cartels pose, the Trump Administration continues to force asylum applicants to face this danger, rather than permit the applicants to be released on bond within the United States.

As has often been argued, it is the cruelty of the Trump Administration towards migrants fleeing violence at home that is the point of the policy.  By demonstrating to potential migrants that the United States will compel them to live in dangerous situations while waiting for a decision on their asylum applications, which can often take years, the Administration hopes to disuade migrants from making the trip north. 

Whether such cruelty works as a deterrent to asylum seekers is questionable at best.  When the cruelty of ripping children away from their parents who crossed the border was the official policy of the Trump Administration, the number of Central Americans seeking the safety of the United States only increased significantly.  So far, in 2019, CBP statistics show a large increase of apprehensions at the border as compared to last year, despite the implementation of the MPP.

By:  William J. Kovatch, Jr.

Temporary Restraining Order Blocks Trump Administration from Implementing Rule Requiring New Immigrants to Have Health Insurance

On November 2, 2019, Judge Michael Simon of the U.S. District Court for the District of Oregon issued a nation-wide temporary restraining order ("TRO"), preventing the Trump Administration from implementing its new policy of requiring aliens applying for visas to become lawful permanent residents to demonstrate that they will be covered by an approved health insurance plan within 30 days of entering the United States.  The Trump Administration was set to implement the policy on November 3, 2019.

A group of plaintiffs filed a lawsuit challenging the policy on October 30, 2019.  The followed up by filing a motion for a TRO on November 1, 2019.  The Court held an emergency hearing on November 2, 2019.  The parties presented oral arguments at the hearing, but did not have time to file written arguments.

The Government had argued that the plaintiffs made their own emergency, by delaying until a few days before the policy was to go in effect to file their complaint and motion.  Judge Simon disagreed, noting that the Presidential Policy announcing the new policy was published on October 4, 2019, and that under the circumstances, filing a complaint twenty-six days after the issuance of the Proclamation was not an unreasonable delay.

Pursuant to the Presidential Proclamation, if an applicant for an immigrant visa could not show that he or she would be able to purchase an approved health insurance policy within 30 days of entering the United States, they would be deemed inadmissible as likely to become a public charge, and barred from entering the United States.

The Court first noted that Congress had addressed the public charge grounds of inadmissibility in the Immigration and Nationality Act ("INA").  Congress provided that a number of factors should be examined to determine whether a person is likely to become a public charge, which include the alien's age, health, family status, assets, resources, and financial status, and education and skills.  No one factor was to be determinative.  The statute did not mention a person's health insurance status as one of those factors.

Moreover, the Proclamation listed a number of health insurance plans that would acceptable.  The Court found that almost all of the listed types of insurance plans would be unavailable to most intending immigrants.  In addition, the Proclamation excluded any health insurance plan purchased through a state's marketplace pursuant to the Affordable Care Act (also known as Obamacare) if the state subsidized the plan.  Thus, the Court noted that the Proclamation excluded the one type of health insurance plan many intending immigrants would be able to afford.  Furthermore, the Court noted that Congress had rejected a proposal to consider the receipt of non-cash benefits from the government in making the public charge consideration.  The Presidential Proclamation, therefore, was inconsistent with the congressional intent as expressed through the INA.

Because this was an extraordinary measure being taken by the Court at such an early stage in the lawsuit, Judge Simon limited the TRO to 28 days, unless extended by the Court.  The Court further scheduled another hearing on November 22, 2019.

By:  William J. Kovatch, Jr.