Judge Considers Restraining Government From Blocking Asylum Seeker’s Access to Counsel

A U.S. Customs and Border Protection vehicle sits near the border wall in Calexico, California, on April 5, 2019, as President Donald Trump pays a visit. (AP Photo/Jacquelyn Martin)

SAN DIEGO (CN) – A federal judge asked for clarification Friday about how exactly the federal government’s “Migrant Protection Protocols” are being employed by immigration agents at the U.S.-Mexico border in San Diego as he considers whether asylum seekers have a right to counsel when being interviewed about their fear of being returned to Mexico.

“Under the INA [Immigration and Nationality Act] there seems to be a very carefully parsed right to counsel in some settings but not all,” U.S. District Judge Sabraw postured when questioning Justice Department attorney Samuel Bettwy as to what immigration statute governs the “Migrant Protection Protocols” or “Remain in Mexico” policy.

The new immigration policy, enacted this past summer, requires migrants who did not first seek asylum in a country they passed through on their way to the U.S. to be returned to Mexico while waiting for their immigration cases to be adjudicated in the U.S.

An asylum-seeking Guatemalan family this week filed a class action alleging they were denied their due process right to counsel when the father underwent a non-refoulement interview expressing a fear of being returned to Mexico under the MPP rule.

The family claims they were assaulted by men in government uniforms when traveling through Mexico earlier this year, held at gunpoint and forced to take off their clothes. Their 17-year-old daughter was choked by one of the assailants while she was naked, according to the complaint filed Tuesday in the Southern District of California.

Bettwy claimed the father was “never refused” his right to consult an attorney, suggesting he could not have been refused his due process rights because he did not request to see an attorney in the first place.

He also said the interview procedure for asylum seekers to express a fear of being returned to Mexico under MPP “depends on what part of the country you’re in.”

The admission bolstered American Civil Liberties Union attorney Bardis Vakili’s suggestion in court Friday: “MPP is a little bit of a ‘shoot from the hip thing’ they make up as they go.”

Vakili said asylum seekers do not know they have a right to assert a fear of being returned to Mexico under MPP until their immigration hearings. He noted that most asylum seekers are not represented by counsel so an immigration judge will pose the question to them during court proceedings, triggering the non-refoulement interview process.

But the government is not allowing attorneys to attend the interviews to advise their clients, so the attorneys do not find out what happened until their clients are released back into Mexico or the U.S. 

In an interview following the hearing, Jewish Family Service of San Diego attorney Stephanie Blumberg – who is representing the Guatemalan family – likened the process to “kind of going into a black hole.”

Blumberg said she has only been able to speak to the family over the phone and the mother, a diabetic, has not had access to her diabetes medication while in Customs and Border Protection custody.

Sabraw said he expects to rule on the request for a temporary restraining order early next week.

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