ACLU Asks Court to Allow Asylum Seekers Access to Attorneys

A girl from Guatemala eats breakfast near the DeConcini Port of Entry in Nogales, Mexico. Her parents received a number that will allow them to be screened for asylum. (Photo by BRAD POOLE/Courthouse News Service)

SAN DIEGO (CN) – Attorneys for the American Civil Liberties Union asked a federal judge Friday to stop the government from blocking asylum-seekers’ access to attorneys when being interviewed to establish a fear of being returned to Mexico under the Migrant Protection Protocols, or “Remain in Mexico,” program.

Last month, the ACLU filed a class action on behalf of a Guatemalan family denied access to their attorney from Jewish Family Service of San Diego during the non-refoulement interview process during which they could establish a fear of being returned to Mexico while awaiting adjudication of their asylum claims under the MPP rule.

U.S. District Judge Dana Sabraw granted a temporary restraining order against the government, finding immigration agents had violated the father’s right to access retained counsel during the interview guaranteed by the Administrative Procedures Act.

The family was granted their non-refoulement interview following Sabraw’s order and prevailed. They were released to Jewish Family Service’s migrant family shelter in San Diego before traveling to stay with family members in the U.S.

On Friday, the ACLU asked Sabraw to piggyback that decision by enjoining the government from blocking asylum-seekers’ access to counsel.

Justice Department attorney Archith Ramkumar told Sabraw allowing in-person access to attorneys would be “burdensome and system-clogging” because the border patrol stations where the interviews can take place cannot accommodate that many people.

While Ramkumar pointed to a memo by U.S. Citizenship and Immigration Services which indicated non-refoulement interviews could take place during primary and secondary inspections at ports of entry, Sabraw questioned whether there were any cases where that actually happened.

“Has that ever happened in the real world? Are you saying right there they provide that interview?” Sabraw asked.

He added: “Obviously this is a border court, so we have a lot of experience. Primary and secondary don’t have anything to do with this interview – they’re not conducting interviews.”

ACLU attorney Monika Langarica confirmed Sabraw’s suggestion that non-refoulement interviews are not taking place during initial inspection proceedings at ports of entry.

“That’s not the posture at which non-refoulement interviews occur. They occur long after inspection,” Langarica said.

Sabraw interjected to note “factually” it appears none of the non-refoulement interviews are taking place during initial inspections, despite what the government’s memo stated.

“That memo may say that; it doesn’t mean that’s actually what happens,” Langarcia answered.

Ramkumar further argued the APA and Immigration and Nationality Act doesn’t guarantee a right to counsel, arguing “congressional silence” on the issue meant legislators never intended to grant the right to migrants subject to the proceedings outlined in the immigration statutes.

“Congress did not intend for the right to counsel to apply with respect to return decisions,” Ramkumar said, nothing there’s a difference in congressional intent when it comes to return and removal proceedings.

But Langarcia pointed out the INA –enacted in 1952 – is “silent” on non-refoulement interviews because “non-refoulement interviews were unknown to those of us in this room up until a year ago.”

Also at issue Friday was a motion to grant class certification in the case.

ACLU attorney Bardis Vakili told Sabraw there are nearly 50 people in MPP who are represented by attorneys and have indicated a fear of being returned to Mexico.

According to the Transactional Records Access Clearinghouse, more than 56,000 immigrants through the end of November had been sent back to Mexico to await their immigration hearings under the MPP program.

Sabraw took the matters under submission and said he would issue a decision after the holidays.

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