SAN DIEGO (CN) – A federal judge heard debate Tuesday on whether new restrictions on asylum can apply to those who appeared at ports of entry before being required to wait in Mexico while their cases are adjudicated in the United States.
U.S. District Judge Cynthia Bashant suggested a preliminary injunction request filed by a class of asylum seekers at the U.S.-Mexico border in San Diego was “just a matter of interpreting this new asylum ban and who it applies to.”
She said the main question was whether the government is “misapplying the asylum ban even though they [asylum seekers] arrived before July 16.”
The class members in Al Otro Lado v. McAleenan say the July 16 immigration policy which requires asylum seekers to have first sought asylum in countries they passed through and be denied before seeking asylum at the U.S.-Mexico border doesn’t apply to them because they presented themselves at ports of entry before that date.
But Justice Department attorney Scott Stewart – who also represents the federal government in the family separation litigation in the Southern District of California – argued the new immigration law is “clear” in that it applies to people who are accepted at ports of entry after July 16.
Stewart disagreed with Bashant’s previous finding those asylum seekers who were “turned back” to Mexico had in fact arrived at the border, and could thus assert due process rights.
“I think the language of the rule is clear and your prior ruling is wrong,” Stewart said.
The class members claim their cases have been caught in the cross-hairs of the new policy due to the government’s metering policy and their claims are not being heard by immigration judges in a timely manner.
They say they’ve been on waitlists maintained in Mexico, where they are now unable to seek asylum because they have not done so within 30 days of arriving in the country.
When Bashant asked Stewart how the government decides who to process based on the waitlists, Stewart paused to confer with other government attorneys.
“It apparently was a more complicated question that I thought it was,” Bashant commented.
Stewart denied the government has “guaranteed” the waitlists serve as a “promise to come back after their name is on the list.”
“We have an overburdened, over-strained asylum system,” Stewart said. “We need to put some bumpers on it.”
But the attorneys for the plaintiffs reiterated several times throughout the hearing they aren’t challenging the government’s new asylum policy or metering policy at ports of entry, but access to the asylum process guaranteed by domestic and foreign laws.
Center for Constitutional Rights legal director Baher Azmy argued the class members relied on the government’s representation they would have access to the asylum process if they waited in Mexico.
“The government is pulling the rug out from under them despite their lawful compliance with metering,” Azmy said.
Bashant took the matter under submission and is expected to issue a written order.
Also Tuesday, the American Civil Liberties Union filed a class action in San Diego against the Department of Homeland Security claiming immigrants subjected to the “Migrant Protection Protocols” or “Remain in Mexico” policy have been denied access to their attorneys during the interview process.
Luis Gonzalez, supervising immigration attorney for Jewish Family Service of San Diego, represents the plaintiffs, a family from Guatemala who fled their home last April after they were extorted and their 17-year-old daughter was raped.
The family claims they were assaulted in Mexico while traveling to the U.S.-Mexico border to seek asylum but were nonetheless returned to Mexico by U.S. immigration agents after expressing fear of being required to wait out the immigration process there.
Gonzalez said the father was not given access to legal representation during the interview process.
At a press conference Tuesday, Gonzalez noted asylum seekers are five times more likely to be successful in their immigration proceedings when they’re represented by counsel.
Gonzalez said attorneys usually only get to see their clients 30 minutes before their court hearing or while they are waiting in court for their cases to be heard. He also said attorneys frequently don’t find out about their clients’ interview results until they’ve been released from custody and returned to Mexico.
“This is not how our legal system is supposed to work,” Gonzalez said.