By Martha Balaguera
This piece is part of APLA’s Speaking Justice to Power Series: On the Gender and the Sexual Politics of Contemporary Patriarchal Ethnonationalist Authoritarianism, edited by María Lis Baiocchi.
I quit my job and (…) moved to Tijuana to learn Spanish and immigration law (…) I felt something needed to be done. People needed information on the other side of the border line before they wound up in a criminal system.
…I was volunteering at a migrant shelter when an asylum seeker from El Salvador [who was with his family] came to me and said: “would you come with me to the line?”
…When we went, we encountered a border official who was very incredulous and said: “Asylum? There’s no asylum here. You have to apply at the consulate or the embassy.”
…I said (…) “No, there is a process, there is a line on the inside of the building.” And he [said]: “well, are you an attorney?” “Yes I am.”
…After… I escorted one family, word spread like wildfire in the migrant shelters. I started getting calls all the time on my cell phone. “Would you come with me to the line?”
Every single time, CBP officers would come up with these amazing excuses about why they wouldn’t process them. And I would stand in the gate with the little section of the Federal Code highlighted in case they were not familiar with it and I would read it to them. And I would refuse to move. Often it would require a supervisor… to come and try to encourage me to move and I said: “No. I’m not going to move.”
– Nicole Ramos, immigration attorney.
Between July 2015 and July 2018, when I did ethnographic fieldwork on the politics of care, hospitality, and solidarity with Central American migrants crossing Mexico, I met several immigration attorneys and activists involved in contemporary networks of what I call “legal accompaniment.” Legal accompaniment includes lawyering and everyday responses to calls such as that of the Salvadoran man mentioned by Nicole Ramos: “Would you come with me to the line?” In the last few years, it has become a crucial form of collective struggle against thickening borders and the criminalization of migration.
Ramos’s words above describe one of the ways in which people have joined these networks. Some people first got involved in volunteerism on the US side of the border, providing pro-bono legal services to detained families seeking safe haven. Others witnessed how border cities on the Mexican side turned into spaces of unsafe, wasteful, and precarious waiting for thousands of people entitled to international protection. One way or another, the punishment and violent exclusion of the displaced, affecting mounting numbers of women, children, and nonbinary individuals, has galvanized people into action, especially many women who are attorneys. In the meantime, asylum seekers themselves have signaled to individuals like Ramos that, apart from legal counsel and representation, they require the physical presence and daily activist work of lawyers, allies, and human rights defenders.
I met Ramos in May, 2017, while conducting participant observation at one of three refugee caravans organized that year. Two of those caravans arrived in Tijuana, where she works as a pro-bono immigration attorney and Refugee Program Director of Al Otro Lado. At the time, I saw Ramos offering legal counsel and know-your-rights trainings to caravan participants, working on the files of her clients until late at night, and walking alongside those who decided to present themselves at the San Ysidro port of entry (POE). Some months later, I witnessed how she also collected refugees’ testimonies of being turned away by Customs and Border Protection (CBP) officers to substantiate a possible legal case over violations of international asylum law. I further watched her giving interviews and speaking at protests and academic events to raise awareness about the grave conditions facing refugees at the border.
Before the 2017 refugee caravans reached Tijuana, Ramos had been going to the POE for several months, using her own embodied presence to expose and challenge US border officials’ violations of the non-refoulement principle of the 1951 Geneva Convention, which protects refugees from being forcibly returned to countries where they may face persecution. As Ramos narrates in her story, she acted in response to refugees’ calls that she accompanied them to the line. To be sure, crossing the line was not then the final stage of refugees’ plight, but rather their entry into a system that criminalizes and incarcerates noncitizens, regardless of their legal claims to asylum.
Mass incarceration in the United States has become normative, not only for citizens but also for noncitizens, including refugees. By 2014, when Ramos moved to Tijuana, the average daily number of noncitizen detainees in the United States was 33,227, that is, five times higher than in the mid 1990s. In turn, the number of incarcerated noncitizens was then almost a quarter of the total population in federal prisons. Yet this carceral expansion at the expense of noncitizens had not yet reached its full potential until, in the spring of 2014, a so-called “child migrant crisis” translated into 66,115 yearly apprehensions of “unaccompanied minors” and about 70,000 of “family units” by the US Border Patrol. Then, the Obama administration responded to what it called an “urgent humanitarian situation” by expanding the confinement of families. According to Donald Kerwin, director of the Center for Migration Studies, “over the course of 2014 and 2015, the family detention system grew from around a hundred beds to 7,000 beds.”
In 2019, the average daily population of immigrant detainees in the United States grew to 47,000. Between April and June 2018, when the Trump administration implemented a “zero tolerance policy,” the criminal prosecution of adult border crossers entailed the separation of more than 2,000 children from their families. The policy officially ended after public outcry, and a judicial order to reunify parents and children. However, we know today that the practice of separating families started before April 2018 and has continued thereafter. In 2019, the United States detained nearly 70,000 children including so-called “unaccompanied minors” and children separated from their parents.
Against this backdrop, the rights of refugees have become a crucial battlefield for opposing a regime of border enforcement that confines noncitizens at large. By being “on the other side of the border line,” Ramos had hoped to help people access legal protections before being criminalized and incarcerated. Yet, while volunteering at migrant shelters in Tijuana, Ramos realized that legal advice was not enough. As US CBP officers repeatedly dismissed refugees’ requests and returned them to Mexico, refugees were left stranded in the border city of Tijuana. As a result, Ramos and others have been compelled to support refugees in a number of ways beyond practicing immigration law.
For instance, even before family separations generated mass public outrage in 2018, legal accompaniment networks had already begun organizing to raise awareness and hold US Immigration and Customs Enforcement (ICE) accountable for illegally taking away migrant children from their parents. In November 2017, Ramos’s organization Al Otro Lado collaborated with Pueblo Sin Fronteras in a successful campaign called #GiveMateoBack for the liberation of a 1-year-old boy separated from his father by ICE.
As the asylum regime has become more punitive, lawyers and activists have organized campaigns for the abolition of immigrant detention, protests against the practice of family separation and mechanisms of direct aid to detained asylum seekers. Lawyers’ collectives and organizations have also litigated collaboratively in class action lawsuits that challenge Trump’s “anti-immigrant agenda” to confront the ravaging legal attacks on refugees, and have created new networks such as the El Paso Immigration Collaborative, EPIC, which brings together technology and pro-bono lawyering “to demolish the detention industrial complex on the border.” Through these efforts, legal accompaniment networks dispute the legality, legitimacy, and concrete embodied effects of the contemporary border regime, pushing the limits of the law as a terrain of struggle.
Legal accompaniment has thus become a counter-hegemonic endeavor in response to US lawfare, by which I mean the violation and weaponization of the law against refugees and immigrants. Usually a pejorative term that denotes nonstate actors’ legal efforts to restrict states’ military conduct, “lawfare” in Eyal Weizman’s view refers also to how states transgress international law while seeking to stretch its limits. In Latin America, “lawfare” has come to signify the misuse of the law as an instrument of political persecution, an unconventional form of warfare waged against leftist political figures to undermine their popular support. In defining lawfare as a set of tactics for dismantling refugee protections, I underscore how legal accompaniment networks contend not only with violations of international asylum law by US officials, but also with the attempt to make legal actions hitherto deemed contemptible violations.
US lawfare has entailed specific policies that render tenuous some important legal limits on the treatment of refugees. First, through the “metered system,” the US discretionarily restricts the number of asylum requests that can be processed on any given day at US ports of entry, which keeps people stranded at the border. As Ramos recounts, this system was first implemented in Tijuana in 2016 in response to a dramatic increase in requests of protection:
…In the spring of 2016, we saw a dramatic increase in migration from countries in Africa and from Haiti. And so, then, the U.S. government and the Mexican government decided to collaborate and develop this wonderful ticket system, where you could get an appointment ticket from Mexican officials to speak with the U.S. officials, essentially delegating their processing to a foreign government with its own human rights problems.
Under Trump, the metered system became official policy in April 2018. Second, the “Migrant Protection Protocols” (MPP) establish a process through which US Customs and Border Protection returns asylum seekers to Mexico where they should await their court hearings. By February 2020, the combined waiting time for an asylum seeker stranded in Tijuana varied between fifteen and twenty-one months as a result of the metered system and MPP. Third, the Trump administration imposed an “asylum ban” on those who have not previously applied for asylum in countries of transit, including El Salvador, Guatemala, and Honduras, even as these countries do not meet the standards that a “safe third country” agreement would require. These policies have expanded and made official what Ramos narrates as individual CBP officers’ refusal to process asylum seekers at ports of entry. They have also amplified the conditions of confinement refugees experience in border cities and not just within US detention centers.
In response to these policies, networks of legal accompaniment have challenged the erosion of asylum rights, and have contested a punitive system that should protect refugees. These networks have created a promising avenue not only to claim rights, but also to demand the abolition of migrant prisons and the punishment of refugees. Network members do so by seeking to uphold the rule of law and acting in concert with refugees. Legal accompaniment takes the form of pro-bono lawyering, class action litigation, embodied political action, and material care to avert detention, deportation, and human rights violations.
Legal accompaniment constitutes an emerging form of “legal mobilization” through which lawyers and activists stake their own bodies and not just their professional practice and expertise. As such, it is a means to small-scale ends as well as an aggregate strategy for gradually shrinking what Jenna M. Loyd and Alison Mountz call the “migration-detention and border-deterrence regime” (2018, 33).
Legal accompaniment often entails hard caring work. Particularly trying is the emotional labor of dealing with the immorality of the system, and the personal jeopardy that results from the criminalization of advocacy with which governments strike back. Yet, despite the fact that individuals often feel burnt out due to the psychological toll of their labor, their very moral outrage has been essential to the endurance and growth of legal accompaniment as a collective endeavor. With Nicole Ramos, many lawyers and advocates are determined to speak justice to power and say: “No. I’m not going to move.”
Martha Balaguera is Assistant Professor of Political Science at the University of Toronto. Her scholarship focuses on collective political struggles in violent contexts, with an emphasis on transborder forms of activism in the Americas from a feminist perspective. Her book project (in progress) theorizes the transnational carceral regime of sovereignty that spans the Mesoamerican migration corridor and how people on the ground, especially women, LGBTQ+ movements, and grassroots communities respond with everyday practices of care and political organizing to forced displacement, confinement and intensified border enforcement. Currently, she is conducting new research on how networks of legal accompaniment and refugees are shaping international asylum law and contesting the detention-deportation regime at the US-Mexico border.
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