March 03, 2020

Senators Warren, Merkley, and Harris Raise Concerns That DHS-Operated "Tent Courts" Violate Asylum Seekers' Due Process Rights

Lawmakers renew call for termination of Remain in Mexico policy, which has stranded 59,000 asylum seekers in dangerous conditions in Mexico as they wait for immigration court hearings

Text of Letter (PDF)

Washington, D.C. -- United States Senators Elizabeth Warren (D-Mass.), Jeff Merkley (D-Ore.), and Kamala D. Harris (D-Calif.) sent a letter to the U.S. Department of Justice (DOJ) and the U.S. Department of Homeland Security (DHS) raising concerns about the lack of access to appropriate legal services and lack of transparency at DHS-operated "tent courts" at the U.S.-Mexico border. The lawmakers questioned whether these conditions violate asylum seekers' due process rights and hinder critical oversight of those courts. They also renewed their calls to the Trump Administration to end its inhumane -- and potentially illegal -- Remain in Mexico policy, which has forced tens of thousands of asylum seekers to wait in extremely dangerous conditions while their asylum claims are processed.

"We are concerned that DHS and DOJ's current operation of the tent courts violates the due process rights of those seeking refuge at our borders and prevents meaningful oversight of the asylum adjudication process," wrote the lawmakers. "As a result, we request that you provide additional information regarding the operation of these courts and the steps DHS and DOJ are taking, if any, to protect the rights of migrants seeking asylum."

The lawmakers' letter emphasizes several concerns first raised by immigration lawyers, activists, journalists, and asylum seekers themselves:

  • Asylum seekers in tent courts have inadequate access to information about their legal options. For instance, tent courts do not provide a Legal Orientation Program, a resource provided in most immigration courts that educates asylum seekers about the asylum process and their available legal options.
  • Asylum seekers have poor access to counsel. Tent courts impose severe challenges to obtaining an attorney. Asylum seekers that do have counsel are often unable to meet with their attorneys outside of the tent courts and are often given as little as 15 minutes to meet with their attorneys inside the tent courts. Once inside the courtroom, DHS further handicaps migrants' attorneys by denying them access to technology in the courtroom, while DHS attorneys are granted full access.
  • The tent courts function as "virtual immigration courtrooms," where judges remotely conduct hearings by video teleconference, denying migrants meaningful interaction with their judges.
  • Members of the public and the press have been granted only restricted access to observe proceedings in tent courts.

Senators Warren, Merkley, and Harris have requested responses to their questions about the operations at the tent courts by March 16, 2020.

The letter is part of Senator Warren's ongoing oversight efforts to protect the rights and wellbeing of migrants and asylum seekers:

  • Earlier this month, Senator Warren and Senate Committee on Foreign Relations Ranking Member Robert Menendez (D-N.J.) led 19 of their Senate colleagues in a letter to Secretary of State Mike Pompeo, Attorney General William Barr, and Acting Secretary of Homeland Security Chad Wolf questioning the legality of three international "asylum cooperative agreements" used by the Trump Administration to expel asylum seekers to Guatemala, El Salvador, and Honduras. 
  • Following a DHS Inspector General (IG) report regarding unsafe conditions and mistreatment of migrants at a number of privately-run immigration detention centers, Senator Warren opened investigations in November 2018 into two of the country's largest private prison contractors and the contractor responsible for auditing detention facilities. In April 2019, she released findings that revealed that none of the companies had taken responsibility for egregious failures identified by the DHS IG and demonstrated an ongoing dispute between the auditor and the IG about the quality of the auditor's inspections. 
  • In October 2019, Senator Warren sent a letter to DHS's Office for Civil Rights and Civil Liberties (CRCL) requesting information about its oversight of U.S. Immigrations and Customs Enforcement (ICE) detention facilities and ICE's reported misuse of solitary confinement at those facilities. In July 2019, she also requested an investigation into reports of solitary confinement being used to coerce participation in "voluntary" work programs at immigration detention facilities.
  • In January 2020, Senator Warren joined a congressional amicus brief urging the Ninth Circuit to uphold the Flores Settlement Agreement, which provides safeguards for children in immigration detention. In September 2018, she joined Senator Durbin and her Senate colleagues on a letter to DHS and the Department of Health and Human Services, opposing the proposed rollback of the Agreement.
  • In December 2019, Senator Warren joined a letter led by Senator Cory Booker (D-N.J.) expressing concern about the termination of the National Immigration Detention Hotline, which allowed detained individuals to report abuses and request support.
  • Also in November 2019, Senator Warren joined Senator Merkley in requesting the public release of a DHS report detailing the flaws in the Remain in Mexico program.
  • In August 2019, Senator Warren joined Ranking Member Menendez and colleagues in calling on the Trump Administration to end the Remain in Mexico program.
  • Senator Warren and Senator Tammy Baldwin (D-Wisc.) wrote to DHS, ICE, and U.S. Customs and Border Protection (CBP) in October 2019, citing reports of abuse and neglect of transgender migrants and asylum seekers and urging the Trump Administration to reverse policies-including misuse of solitary confinement-that are harming these vulnerable populations.
  • In May 2019, the senator opened an investigation into the accreditation process for private detention operators following widespread reports of mismanagement and poor conditions for detainees in facilities nationwide.
  • In December 2018, Senator Warren sent a letter to DHS after reports of the death of a child in CBP custody. She followed up on these concerns after the death of five children in custody in the span of six months. She also joined Senator Brian Schatz (D-Hawai'i) and seven other senators calling for the federal government to investigate federal contractors after disturbing reports of hungry, sick, and unbathed children being held in federal contractor facilities near the border were made public. She also wrote to CBP requesting answers to questions on steps being taken to protect children and called for the Homestead Temporary Shelter for Unaccompanied Children to be shut down. 
  • In September 2019, Senator Warren expressed serious concerns over DHS's announcement that migrant families currently detained at CBP holding centers would not be vaccinated for the flu ahead of the flu season. She and Representative Rosa DeLauro (D-Conn.) followed up with another letter in December 2019.