Midyear Meeting

Immigrant and refugee rights should be protected, ABA House urges

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Delegates to the ABA's House of Delegates lined up Monday afternoon to condemn the federal government's "zero tolerance" policy for people caught crossing the border illegally.

Resolution 109A, jointly sponsored by the Criminal Justice Section and the Commission on Immigration, urges the U.S. attorney general to stop mass “zero tolerance” prosecutions of those immigrants. It also asks the attorney general to exercise prosecutorial discretion by not prosecuting asylum seekers for illegal entry. And it asks the judiciary and Congress to ensure that defendants in illegal entry cases have meaningful opportunities to talk to lawyers before entering a guilty plea.

Matt Whittaker is the current acting U.S. attorney general since former Attorney General Jeff Sessions left his position, and William Barr has been nominated to replace Sessions.

The zero-tolerance policy got widespread attention after public outrage focused on the separation of immigrant children from their parents. The prosecutions and the zero-tolerance policy were cited as reasons why the families needed to be separated, but in practice, local attorneys told the ABA Journal in June, the defendants would be sentenced to time served and then put back into ICE custody. Kimi Jackson, director of the ABA’s South Texas Pro Bono Asylum Representation Project, said at the time that the immigrants would plead in mass hearings of up to 100 people, where they would stand up or sit down to indicate their pleas.

Marjorie Meyers, federal public defender for the Southern District of Texas, said her attorneys meet with each defendant individually after an overview talk to the whole group. With no facts in dispute, she said, they generally plead guilty. Meyers noted at the time that while another federal appeals court has ruled that mass hearings violate due process, the New Orleans-based 5th U.S. Circuit Court of Appeals, which oversees Texas, has not weighed in.

The resolution was moved in the House by Jamie Hawk, a delegate from the Washington State Bar Association and a former public defender. Last summer, Hawk joined a delegation from the ABA that visited the Texas-Mexico border during the height of public outrage over family separations purportedly created by “zero tolerance.” The delegation visited the federal courthouse in McAllen, Texas, in order to observe a mass prosecution of people charged with misdemeanor illegal entry. Hawk recounted seeing 80 people huddled together in a room, pleading together in unison.

“It appeared to me that most didn’t understand the significance of what was happening to them or the consequences for the future,” Hawk said. “We spoke to some who were confused about all aspects of the process and did not understand that they had just been convicted of a crime.”

ABA President Robert Carlson, who was also on the trip, said he wondered on that day if he was still in the United States. The public defender looked frazzled, the prosecutor looked uncomfortable, and the judge, he said, seemed like he was wondering why he was there

“I can tell you that not a day goes by since that week in Texas that I don’t wonder how we can fix this,” he said. “We need this resolution so that we can speak a little more loudly on this issue.”

Several other people spoke in favor, including Commission on Immigration Chair Wendy Wayne of Massachusetts and President-elect Judy Perry Martinez. No one spoke in opposition. The House passed the resolution with no audible dissent.

Refugees and immigrants also got a boost from the ABA Rule of Law Initiative, which sponsored Resolution 116, its first House of Delegates resolution in ABA history. The resolution urges nations to enact an international compact on refugees and another on immigration. In addition, Resolution 116 urges governments to discourage criminal prosecution of immigrants, refugees and asylum seekers, protect the rights of those groups and address the root causes of displacement.

Former ABA President Paulette Brown moved the resolution in the House. Brown is on the ROLI Board, where she chairs the Africa Law Initiative Council.

“Just as we have passed other resolutions this afternoon concerning the rights of immigrants and refugees … it is extremely important that the ABA step up and make sure we enforce the rule of law, that people are afforded the due process for which they are entitled,” Brown said.

Delegate Steven Richman of the Section of International Law spoke in support, noting that the compacts address the root causes of immigration problems.

Despite audible dissent, the resolution passed.

Follow along with ABA Media Relations’ full coverage of the 2019 ABA Midyear Meeting and the ABA Journal’s news stories.

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