Ninth Circuit Takes Up Right to Counsel for Asylum Seekers

(CN) — The Ninth Circuit on Friday considered whether Congress’ silence on immigrants’ right to counsel during certain immigration proceedings means a federal judge erred in finding asylum seekers can have their attorneys present during interviews involving the “Return to Mexico” program.

The Justice Department asked the Ninth Circuit to undo U.S. District Judge Dana Sabraw’s finding asylum seekers fearing persecution or torture while residing in Mexico under the Migrant Protection Protocols or “Remain in Mexico” program could have their attorneys present prior to and during non-refoulement interviews to determine if they should stay in the U.S.

Justice Department attorney Brian Ward told a Ninth Circuit panel Friday the right to counsel articulated in the Administrative Procedure Act does not apply to asylum seekers, because their cases are governed by the Immigration and Nationality Act.

Ward argued the Administrative Procedure Act is superseded by the Immigration and Nationality Act, and as a result Sabraw — a George W. Bush appointee — was mistaken to issue a class-wide preliminary injunction guaranteeing asylum seekers on the U.S.-Mexico border had a right to counsel.

But U.S. Circuit Judge Paul Watford, a Barack Obama appointee, said Sabraw “went through a fairly detailed comparison” of the two immigration statues before finding the asylum seekers had a right to see their attorneys.

“But that analysis seems inconsistent with your view that somehow Congress had issued a blanket exemption of all immigration proceedings,” Watford told Ward.

Ward responded: “The INA as a whole should be read with the understanding Congress made particular determinations to include a right to counsel in some provisions but not in others. When it determined not to include a right to counsel in particular statutory provisions, that should be regarded as intentional.”

He pointed out the credible fear interview process, for example, which provides asylum seekers a right to consult with retained attorneys prior to their interview but not during them.

But Watford pointed out there was no “express statement” made by Congress in the statute excluding the right to an attorney for asylum seekers during the non-refoulment interview process.

“I think the presumption is reverse in exactly a way that hurts you,” Watford said. “Because what we require is not simply ‘Perhaps Congress wanted to be extra sure that counsel be provided.’ Rather, what we need is some statement by Congress — ‘We made a deliberate decision to exclude a right to counsel in this particular proceeding’ — and we just simply don’t have that in the provision we’re looking at.”

When pressed by fellow Obama appointee U.S. Circuit Judge Morgan Christen to point to any place in the Immigration and Nationality Act that says a person facing risk is prohibited from consulting with an attorney prior to their interview, Ward doubled down on his argument.

“I’m not aware of another statutory provision where it expressly says they are,” Ward said.

He did acknowledge non-refoulment interviews and credible fear interviews “functionally are similar,” and the latter allows for consultation with counsel.

American Civil Liberties Union attorney Monika Langarica, representing the class of asylum seekers, said Sabraw’s order “upholds the plain language of a controlling statute which guarantees the basic and fundamental right to access to retained counsel” guaranteed by the Administrative Procedure Act.

Because the class members are “compelled to appear” at the non-refoulment interview hearings with immigration agents, Langarica said the APA guaranteed their right to consult with retained counsel.

But Watford questioned whether the asylum seekers were truly compelled to appear at the interviews, as they are hearings requested by the asylum seekers themselves to determine whether they could safely reside in Mexico temporarily during the adjudication of their immigration claims.

“The government is not compelling them to appear through subpoena or enforcement action, they are seeking a benefit that the government makes available to them,” Watford said.

Langarica argued because the government “puts the process in motion” and class members did not “elect” to participate in the “Remain in Mexico” program, they are still compelled to appear at the interviews and their attorneys should be allowed to represent them.

“Class members wait weeks or months between court hearings at which they have the opportunity to declare fear and surrender themselves to the non-refoulment interview. When people fear persecution and torture, the fact that [it takes] weeks to months between the opportunities to declare fear, in practical terms, can be rendered final decisions,” Langarica said.

Chief U.S. District Judge Lee Rosenthal, a George H.W. Bush appointee sitting by designation from the Southern District of Texas, rounded out the panel. The matter was taken under submission.

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