Kafka in Real Life
I now know what a “kangaroo court” is, for I've been to one.
Surrounded by a razor-wire topped chain-link fence, this one sits under a series of circus-style big-top tents, covering a warren of rooms constructed from converted shipping containers. A constant thrumming of portable air-conditioners pumps frigid gusts into both courtrooms and waiting areas. Those who’d been there before wore jackets, despite the balmy 70°F temperatures outside. Unfortunately, I was not in the know, so my time on the inside was spent shivering and blowing warmth into my cold, cupped hands.
"Tent courts” such as this one have been shrouded in secrecy since they opened for business in September 2019. Press and public are largely barred by contracted security guards employed to keep prying eyes (like mine) out. Internal proceedings are shielded from scrutiny. Picture-snapping drones patrol the perimeter, ensuring there’s a record of all those who protest.
I got in by attaching myself to an Iranian-born political refugee turned immigration lawyer, who’d flown in from Washington, DC, the day before. She agreed to present me as her “translator.” By the time we’d passed through metal detectors; waited for a fat-fingered guard to approve us for admission; surrendered our passports; and been “invited” to leave our phones, cameras, notebooks, and pens in a lock-box; we had less than 30 minutes to consult with “our" client. That was just enough time for her to express, through tears, the threats she and her baby sons faced everyday in Matamoros, Mexico, where she’d been forced to remain for the last two months.
Marisol (not her real name) was afraid to return, she said. It was no better than the situation she’d fled back home in Honduras.
International Asylum
A credible fear of persecution because of one’s race, religion, nationality, social group, or political opinion is reason enough to be granted asylum under international law, and Marisol and her children should have been paroled and released to their sponsor long before now. But we were in Trump’s America where justice has become a crap shoot. What would happen to Marisol and the boys today was anybody’s guess.
When she arrived at the US border in early November 2019, Marisol followed internationally recognized procedures for requesting refuge in El Norte: she presented herself to US Customs and Border Patrol and asked for asylum. But she was sent back to Mexico with her children and a court date. Since then, she’s been stuck in a place closer to hell than purgatory — a limbo that straddles international law and the Trump administration’s shape-shifting immigration policy.
By the time I met her, Marisol and her little ones had been on their feet for hours, waiting to get to the Brownsville, Texas side of the Customs and Border Patrol checkpoint on the Gateway International Bridge. When she and her attorney were finally introduced, her 1-year-old was draped heavily over her left shoulder, fast asleep. She gripped her 3-year-old tightly in her right hand. His complaints of hunger and exhaustion threatened to hijack the meeting. The only “food” between us was a Milky Way bar the attorney found buried in her briefcase.
Despite the fact that Marisol and her sons had been living for two months in a tent, the boys were smartly dressed in clean, pressed white button down shirts, blue slacks, and tiny little man-like loafers. Marisol was freshly coiffed and remarkably well pulled together. We complimented her outfit. She said she’d splurged on it out of respect for the process she was about to enter into.
This was Marisol’s first tent-court hearing. She was hopeful that on this day she’d be paroled and released, at long last, and on her way, far away from the primitive encampment she shared with 2500 other asylum seekers also awaiting their moment for justice. Marisol’s case should have been a slam dunk. Her husband was already in the US. It was he who had hired the attorney to clear the way for the rest of his family.
But things didn’t go as planned for tent-court hearings are unique in many ways…
“Beam ‘Em In, Scotty”
For starters, the “Judges” aren't even there. They’re beamed in via videoconferencing. They’re swamped, processing 40-50 people per session, or “docket.” And they operate under strict quotas regarding how many asylum seekers they are allowed to let in per year. In 2019, that number amounted to 0.1%, meaning for every 10,000 asylum requests, only 11 were granted. And even these lottery winners suffered through an average of five tent-court hearings spaced over the course of many months.
Nor are tent court “judges" independent. They are Department of Justice employees ordered to consider asylum seekers guilty of trying to game the system and worthy of deportation before their hearings even begin.
Among the 50-or-so claimants in our courtroom that day, Marisol was only one of two to have legal representation. Most Central American migrants stranded in Mexico under Trump’s Migrant Protection Protocol, or Remain in Mexico, policy — roughly 96% — are forced to negotiate the confusing and ever-changing immigration system on their own, and in a language few speak. Without knowledgeable support in completing the myriad legal forms they must produce on arrival in tent court, many are bullied by uniformed border patrol officials into signing here and initialing there, often condemning themselves to their own detention or deportation.
Even with representation, however, Marisol was going nowhere this day but back to Matamoros. She’ll likely remain there several months more, unless her attorney can perform magic — or if she doesn’t give up and go back to Honduras first. Indeed, that is exactly the point: to hold out hope of a pathway to entry, to suggest there is a system, while wearing asylum seekers’ patience so thin, they’ll just give up and go home. If they can afford to. If they aren't kidnapped and held for ransom, or pressed into work as cartel runners — or worse — first.
Becoming fluent in such legal structures as non-refoulement — a principle of international law that forbids any country from returning asylum seekers to any place they fear the danger of persecution — was the furthest thing from my mind when I arrived in Brownsville, Texas with my husband, Jim, as 2020 dawned. It certainly wasn’t on Marisol’s mind when she picked up in the middle of the night and fled with her boys after gang members killed her husband’s brother and said they’d be back for her next.
When our turn finally came, Marisol’s attorney requested her client be given a non-refoulement interview, hoping this judge would see both the danger of sending her back to Matamoros and the logic of reuniting with her husband, allowing her asylum claim to be adjudicated in the US. That’s how the immigration system should work. That was standard practice before Trump.
The “judge” granted the interview request, then had Marisol’s attorney and me promptly removed from the tented facility to wait on the other side of the inhospitable razor-wire topped barrier. The advocate was not allowed to prepare her client for a critical procedure to come. There was not even an attempt at transparency.
Kafka’s Trail, Large as Life
What I witnessed at US immigration tent court that morning was not just. It was not legal. It was a sham, a dystopian, Kafka-esque travesty of jurisprudence that hops — like a kangaroo — right over legal due process.
What none of us foresaw that late January day, 2020, was the coming of something still further outside the boundaries of human decency and international law. Not even members of Congress knew, for that’s how Trump and company operate. The Migrant Protection Protocol policy which had ensnared Marisol and 60,000 others, and out of which the border tent cities and kangaroo tent courts sprung, was in the process of being replaced by something more insidious.
And it was about to land just a 30-minute drive away, at the Brownsville-South Padre International Airport.
“Let us be reminded that before there is a final solution, there must be a first solution, a second one, even a third. The move toward a final solution is not a jump. It takes one step, then another, then another.”