Locked Out

Until June 2009, U.S. citizens crossing the border from Mexico could present a driver’s license or certified copy of their birth certificate for entry. With the implementation of the Western Hemisphere Travel Initiative, citizens must now carry a passport or passport card—if they can obtain one, that is.

The U.S. Department of State does not make it easy. As the story of the Castro sisters illustrates, the U.S. is denying passports to many Mexican-Americans birthed by midwives in Texas. Others are also caught in the legal snare, including people with delayed birth certificates or clerical errors in their birth certificates. The burden is on the Castros and others to prove they were born in the United States. That can be difficult, especially for older U.S. citizens, since the State Department requires such evidence as prenatal records and pay stubs, not to mention testimonies from parents and relatives—some of them deceased.

Those denied entry also include U.S. citizens who live in Mexico and are applying for a passport for the first time. The State Department estimates that demand for U.S. passports in Mexico will peak at nearly 3 million by 2011. U.S. citizens living in Mexico often are left scrambling for paperwork that can only be located in the United States.

The sweeping authority granted by Congress to border agents, coupled with tighter security measures and the initiative’s stricter requirements, is contributing to the increasing number of U.S. citizens being denied entry, according to immigration attorney Jaime Díez. With their clients barred from the country, attorneys are going to extraordinary lengths to gain access for their clients to U.S. courts.
“Imagine you are a U.S. citizen, but the Customs and Border Protection agent doesn’t believe you. You end up on a park bench in Mexico with no money, and your home and family is on the other side of the river,” says Díez.

The Castro sisters were among those with a compelling case that required a hearing in a U.S. courtroom. The problem was, they were stuck in Matamoros. Díez got in touch with San Benito immigration attorney Lisa Brodyaga. The seasoned attorney is known in immigration law circles for inventing a procedure for filing writ of habeas corpus claims for U.S. citizens who have been barred from the United States.

Brodyaga has the client meet Díez halfway across an international bridge. Once the client steps across the marker that denotes U.S. territory, the lawyer has the person sign the habeas corpus court documents, which demands that the U.S. government give her a hearing before a federal judge. He then phones Brodyaga, who submits the documents online while Díez waits with the client on the bridge.

“I’ve only used this procedure a handful of times,” Brodyaga says. “And I only resort to it in the most outrageous cases.”

Attorneys once could meet clients in waiting rooms at ports of entry. Since 9/11, security has become tougher, and now border agents won’t allow people to linger in waiting rooms. So Brodyaga has clients meet her, or Díez, on the bridge.

“Sometimes Border Patrol gets prickly about people standing on the bridge, so they send us back to Mexico,” she says. “Then we come back to the middle of the bridge after they’ve gone. Sometimes it’s like a dance.” Sometimes, as in the Castros’ case, it works.

Brodyaga says her bridge procedure has never been tested in the 5th Circuit U.S. Court of Appeals, so it’s risky. The court could rule that standing in U.S. territory on an international bridge does not qualify as U.S. jurisdiction. But she feels she has no other choice as long as U.S. citizens are left with no access to the U.S. court system.

“When I started 30 years ago, I represented undocumented Mexicans. Then in the ’80s it was mostly Central Americans seeking asylum. Now the majority of my cases are U.S. citizens,” Brodyaga says. “That tells you a lot about what’s going on in this country right now.”

Brodyaga says there are no statistics on how many U.S. citizens have been denied entry into the United States. “But I am convinced it’s fairly common,” she says.

Both U.S. Customs and Border Protection and the U.S. Department of State said they do not track statistics on the number of people claiming U.S. citizenship who are denied entry.

Part of the problem is a lack of judicial or legal oversight at ports of entry. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act. The legislation gave immigration agents at the border sole authority to determine whether a person can enter the United States. Prior to this legislation, people denied entry could request a hearing before an immigration judge.

“This is basically putting all of the authority regarding whether or not a person is eligible to be admitted to the United States in the hands of U.S. Customs and Border Protection,” says Kathleen Walker, general counsel for the American Immigration Lawyers Association. “People have no right to counsel and no right to a phone call even.”

Increasingly, security issues at the border have pre-empted U.S. immigration law, says Díez. This means anyone with a more complicated immigration claim is detained or simply refused entry into the United States.

“They don’t allow for gray area anymore. The order seems to be, ‘err on the safe side,’” he says. “I think most people are for that if it means keeping the country safe—that is, until they are denied entry into the United States. Then you realize you are fighting the U.S. government. It’s a very scary situation.”

Díez says he’s sympathetic toward the plight of border agents. There is high turnover and a lot of burnout. Every year Congress requires that they do more.

“They have a lot of pressures on them,” he says. “Not only are they supposed to keep terrorists out, but also look for drugs, fake documents, and understand all of the difficult laws that apply to immigration.”

With the influx of new agents being assigned to the southern border, many come from northern states and aren’t familiar with border culture, Díez says. “They don’t understand families with mixed citizenship or why they cross the border so many times.”

Walker says immigration agents should at least videotape their interactions with U.S. citizens and immigrants at the border, much like police officers do. “There is no true accountability for these government officials who are able to insulate themselves from oversight,” she says.

Brodyaga and Díez hope the lawsuit they filed will force the U.S. government to establish due process for citizens like the Castros who find themselves in immigration limbo.

“You shouldn’t be interrogated alone in an office for 11 hours, then have your papers seized,” Díez says. “You should at least have the right to a hearing and legal counsel.”  

Melissa del Bosque is a staff writer and a 2015-16 Lannan Fellow at The Investigative Fund.

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Published at 5:59 pm CST