Judge Finds Asylum Seekers Have Right to Counsel

SAN DIEGO (CN) – Finding asylum seekers have a right to counsel when undergoing interviews to determine whether they can be returned to Mexico under the “Remain in Mexico” program, a federal judge Tuesday confirmed immigration law guarantees attorney access for migrants.

U.S. District Judge Dana Sabraw found immigration officials may not conduct non-refoulement interviews without first affording interviewees in-person access to their attorneys both before and during the interviews, a right he found guaranteed by the Administrative Procedures Act.

Non-refoulement interviews are conducted when an asylum seeker expresses a fear of being returned to Mexico to await adjudication of their immigration case. The interviews are guaranteed by international asylum law.

(AP Photo/Gregory Bull)

More than 60,000 people seeking asylum in the United States have been returned to Mexico in the past year since the Migrant Protection Protocols (MPP) program was implemented.

American Civil Liberties Union Foundation of San Diego & Imperial Counties Immigrants’ Rights attorney Monika Langarica – who argued before Sabraw last month – called the decision a victory for attorney access rights.

“The decision requiring the government to allow people in U.S. Customs and Border Protection (CBP) custody to consult with their attorney is a victory for the right to counsel, the fight against MPP and for people seeking asylum in the U.S. but forced to remain in Mexico despite fear of being there. We will continue to challenge abuses at the hands of our government, particularly those that victimize vulnerable people,” Langarica said in a statement.

Sabraw previously granted a temporary restraining order requiring the government to grant attorney access to the Guatemalan family named as class representatives in the case.

Two days after the judge’s order, the father of five children was interviewed by a U.S. Citizenship and Immigration Services Asylum Officer who found the family would likely be persecuted or tortured if they returned to Mexico during adjudication of their asylum case.

The family claimed they were assaulted by men in government uniforms when traveling through Mexico last year, held at gunpoint and forced to take off their clothes. Their 17-year-old daughter was choked by one of the assailants when she was naked, according to the family’s complaint.

Sabraw noted “the presence of counsel was clearly helpful to petitioner Christian Doe in presenting his fear of return to Mexico.”

He added: “Given the stakes of a non-refoulement interview – the return to a country in which one may face persecution and torture – and the interview’s fact-intensive nature, it is undeniable that access to counsel is important.”

The family was housed at Jewish Family Service of San Diego’s migrant family shelter before being paroled and traveling to stay with family in another area.

In his order Tuesday, Sabraw disputed the government’s assertion the Immigration and Nationality Act supersedes the Administrative Procedures Act in all immigration proceedings.

He noted while the Immigration and Nationality Act has specific guidelines for credible fear interviews conducted during expedited removal proceedings, because that process was replaced with MPP last year, the lack of guidelines doesn’t mean attorney access is foreclosed.

“The INA provision concerning expedited removal proceedings is complex, specialized, and specific to expedited removal proceedings. The INA contains no provision concerning non-refoulement interviews. This difference is crucial in this context: the INA’s expedited removal proceeding provision supersedes the APA, whereas the INA’s lack of mention of non-refoulement interview does not,” Sabraw wrote.

The judge reiterated because the act does not address what rights are retained during non-refoulement interviews, does not mean interviewees do not have any right to access their attorneys during the interview process.

Sabraw also rejected the government’s argument the prohibition on right to counsel during primary and secondary inspection at ports of entry applied to non-refoulement interviews because they could take place during initial inspections.

There’s no evidence non-refoulement interviews have ever taken place during initial inspections, Sabraw pointed out, noting the government’s own court declarations clearly show the proceedings are conducted separately.

The judge also issued a separate order Tuesday granting class certification and appointing the Guatemalan family as class representatives.

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