In pigtails and a bright red letterman jacket, Carmen looks just like any other 7-year-old girl. But she suffers from a rare brain disorder called lissencephaly, and can experience seizures at any moment.
Up until about two months ago, Carmen and her mother Jenny, asylum seekers from Honduras, lived in a makeshift refugee camp in Matamoros for a year, an encampment on the banks of the Rio Grande river across the border from Brownsville, Texas. Despite official guidelines to U.S. Customs and Border Protection (CBP) that anyone with “known physical/mental health issues” are exempt from the Trump Administration’s Migrant Protection Protocols (MPP), otherwise known as “Remain in Mexico,” a policy that keeps asylum seekers in Mexico throughout the duration of their legal proceedings, they are still being forced to wait in Mexico for their case to be heard.
Carmen is listed as one of 22 individual plaintiffs named in a class action lawsuit filed at the U.S. District Court for the Southern District of California in San Diego Monday against the federal government. Additionally, the nonprofit legal aid organization Al Otro Lado has joined as a 23rd plaintiff. The lawsuit alleges the government has violated laws that protect people with disabilities from discrimination and administrative procedure laws. Lawyers involved in the case hope the lawsuit could allow hundreds of asylum seekers with physical disabilities or mental health conditions to wait out the remainder of their asylum proceedings in the U.S. rather than in Mexico.
Jenny spoke to TIME on the condition that their names be changed for fear that speaking to the media could impact their pending asylum case. They, along with all other asylum seekers involved in the lawsuit, are being identified in the legal documents by their initials.
After COVID-19 began to spread in Matamoros, Carmen and Jenny moved into a shelter farther away from the port of entry to the U.S. to try to provide a more stable environment for Carmen and limit her exposure to others. They are among more than 24,500 asylum seekers waiting to have their cases heard, according to the Transactional Records Access Clearinghouse. COVID-19 has slowed down hearings and many are waiting in dire conditions, living in shelters or in tent encampments exposed to floods, extreme weather and violence in the region.
“This population of folks are clearly delineated in CBP’s own policy,” says Erin Thorn Vela, a senior attorney at the Texas Civil Rights Project (TCRP) that has assisted with locating plaintiffs for the lawsuit. “It says explicitly, do not place these people in MPP, and [CBP] continuously, with this group of people, do it over and over again.”
A CBP spokesperson tells TIME the agency does not comment on pending litigation. Along with CBP, the Department of Homeland Security, DHS Acting Secretary Chad Wolf, and Mark Morgan, the Senior Official Performing the Duties of the Commissioner of CBP, are named as defendants in the case.
For Jenny and Carmen, winning this lawsuit could mean a chance for them to reunite with family already in the U.S., and for Carmen to have access to American doctors and special education she hasn’t been able to receive so far in her home country of Honduras or in Mexico.
In Mexico, Jenny relies on free medical services provided by American NGOs and couldn’t otherwise afford to see a doctor. She also has not been able to work because she cannot afford reliable child care for a child with a disability.
“I’m afraid to leave her alone without me because here I don’t have any family,” Jenny tells TIME in Spanish. “At times I feel very nervous, because this is hard, with children.”
Jenny and Carmen are among the individually named plaintiffs in the lawsuit, all of whom are waiting to enter the U.S. at ports of entry along the border region from Texas to California.
Though the lawsuit has been filed a day before the presidential election in the U.S., those involved say it’s a necessary step to help to asylum seekers with disabilities as quickly as possible. The Supreme Court will hear a challenge to MPP, and an additional lawsuit was filed last Wednesday arguing that MPP has limited asylum seeker’s access to lawyers. The Biden campaign has promised to end MPP, but lawyers who spoke to TIME said they were concerned that it could take months for the policy to be reversed.
Monday’s lawsuit, however, is the first to address asylum seekers with disabilities.
“These things take time and they’ll play out over time,” says Robert Shwarts, a partner at Orrick Herrington & Sutcliffe, the law firm representing all of the plaintiffs and is lead council in the lawsuit. “The thing is we’re hopeful that we can reach a resolution with the government, an amicable resolution that provides relief for our clients. Ultimately that’s the goal, whether that’s through settlement, or through ultimate success in the litigation…but the election may well bring a successful conclusion to our litigation faster.”
The lawsuit originated as part of an ongoing effort by immigration lawyers to get asylum seekers paroled out of MPP and admitted into the U.S because of their disabilities. For months, Charlene D’Cruz, an immigration attorney who also has a background in disability law, made it a part of her practice to present asylum seekers with health conditions to CBP officials at the port of entry to the U.S. armed with a copy of CBP’s MPP guidelines. When she was successful, her clients would be allowed to wait out the remainder of their asylum proceedings in the U.S. and get access to the medical treatment they needed. However, many times the clients would be sent back to Mexico.
Jenny, for example, says she has tried at least four times to present herself and her daughter to CBP officials at the port of entry with a lawyer and a doctor to explain Carmen’s medical condition, but they were turned away each time despite being eligible under the guidelines to be allowed into the U.S.
COVID-19 put a halt on even this possibility. Most lawyers aren’t able to visit with asylum seekers in person anymore, and even if they tried presenting clients with disabilities to CBP officials at the ports of entry, the implementation of “expulsions” at the border that began as a response to COVID-19 mean that anyone trying to enter the U.S. could immediately be sent back to their last country of transit without a hearing.
So together with TCRP, D’Cruz began planning a lawsuit. “We reached out to our other partners along the border in California, in El Paso, and we realized that there were so many people,” D’Cruz tells TIME. “MPP is using Mexico as a detention center, essentially…Here, out of sight is out of mind, and that is what the Administration wanted.”
Asylum seekers in Mexico under MPP can access to the Mexican health care system when they can afford it, but lawyers including D’Cruz, and several asylum seekers who have spoken to TIME say they can’t afford health care or are discriminated against by doctors because of their refugee status (the Mexican Department of Health did not respond to TIME’s request for comment).
Juan, 52, an asylum seeker from Cuba who now lives in Matamoros, has hypertension and a growth in his heart that requires him to wear a pacemaker that he has not yet been able to access in Matamoros. “The days have been really hard during this pandemic,” Juan says in Spanish. Juan also spoke on the condition that TIME withhold his true name for fear that speaking publicly could harm his asylum case. Juan and his wife are now also plaintiffs in the class action lawsuit filed Monday. “We’re stuck inside a house day after day… We don’t want to come into contact with the coronavirus, any of us, because if any one of us get it, the person who would suffer the most would likely be me.”
The family depends on money sent from relatives in the U.S. to make ends meet in Matamoros. “With the right treatment I could work—not anything physically intensive—but I could work,” Juan says. “Here in Mexico I can’t get that treatment. I’ve tried, I’ve gone to the hospital here, but then they say, ‘no, we can’t do anything for you.'”
Juan and his wife spoke to TIME via Zoom from D’Cruz’s office in Matamoros, an office space she rented across the street from the tent encampment. Juan chose to wear a pull over sweater decorated in bald eagles and the American flag.
“We do feel happy. We think we’ll get a positive result,” Juan says of the lawsuit. “Because here, if I can’t get the treatment I need, my condition will get worse.”
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