Judge Restrains Feds From Blocking Asylum Seekers’ Access to Attorneys

Central American immigrants wait for food in El Paso, Texas, in March 2019, in a pen erected by U.S. Customs and Border Protection to process a surge of migrant families and unaccompanied minors. (AP Photo/Cedar Attanasio)

SAN DIEGO (CN) – A federal judge Tuesday restrained the federal government from blocking asylum seekers’ access to attorneys when interviewed about their fear of being returned to Mexico under the Migrant Protection Protocols – also known as the “Remain in Mexico” – policy.

In an 11-page order, U.S. District Judge Dana Sabraw ruled that a Guatemalan father’s right to the assistance of retained counsel during a non-refoulement interview under the MPP program was violated by immigration agents, who did not allow the father to be advised by his attorney when he claimed a fear of being returned to Tijuana while the family’s immigration case is adjudicated in the U.S.

The parents of five children filed a class action in the Southern District of California last week claiming their due process rights were violated by the government’s practice of denying access to attorneys during the non-refoulement interview process where, by international treaty and U.S. statute, the U.S. is bound not to return individuals “to a country where their life or freedom would be threatened on specified grounds.”

The family claims that while they traveled through Mexico to seek asylum in the U.S. they were attacked by men in government uniforms who beat them and made them strip naked. Their 17-year-old daughter, who survived being raped in Guatemala, was choked by one of the assailants in Mexico, according to the family’s complaint.

Justice Department attorney Samuel Bettwy argued last week that, because the father never asked to see an attorney, he could not have been denied access to counsel.

Bettwy said the interview process for asylum seekers to express a fear of being returned to Mexico is not consistently applied along the U.S.-Mexico border.

“It depends what part of the country you’re in,” he said said.

In his order Tuesday, Sabraw, a George W. Bush appointee, found the parents were likely to succeed under the merits of their case because the Administrative Procedure Act’s “default provision” provides the right to access of counsel during their non-refoulement interview.

Sabraw’s finding negates the Justice Department’s argument that the Immigration and Nationality Act supersedes the Administrative Procedure Act and does not permit access to counsel.

“In other words, if the INA does not provide the procedure, the APA default provisions necessarily still apply,” Sabraw wrote.

The judge also found the parents showed a likelihood of irreparable harm if they were returned to Mexico where they had already been subjected to violence.

The family claims since they have been in Tijuana awaiting their immigration court hearings in San Diego they survived a shoot-out outside their temporary shelter.

Sabraw agreed the non-refoulement interview is “high stakes,” noting the decision is not appealable and the parents’ argument they could not meaningfully participate in the interview without their attorney.

“Petitioners face potential persecution and harm should they be returned to Mexico. The balance of factors tips decidedly in favor of petitioners,” Sabraw wrote.

Sabraw scheduled a hearing on class certification and preliminary injunction for Dec. 13.

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