Immigration Law

SCOTUS should overturn the ‘return to Mexico’ policy, ABA says in amicus brief

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The Trump administration's "remain in Mexico" policy undermines asylum-seekers' right to counsel, due process and ethical standards under the Model Rules of Professional Conduct, the ABA told the U.S. Supreme Court on Thursday.

In an amicus brief filed in Chad F. Wolf, Acting Secretary of Homeland Security et al., v. Innovation Law Lab et al., the ABA noted that only 7% of individuals affected by the policy, officially known as the Migrant Protection Protocols, are represented by counsel. In citing government data, the association said 60% of immigrants in the United States have counsel.

The MPP, announced in December 2018, permits the U.S. Department of Homeland Security to return asylum-seekers to Mexico while they await their deportation proceedings. In its brief, the ABA also argued that the policy hinders U.S.-based attorneys’ ability to meet and confidentially communicate with their clients on the border.

In one example, the association pointed out that officials at two tent hearing facilities in south Texas give counsel only an hour to meet with clients before asylum proceedings.

“MPP prevents asylum-seekers from accessing a full and fair adjudication of their asylum claims by limiting meaningful access to counsel and frustrating attorneys’ ability to safely and ethically represent MPP asylum-seekers,” the ABA wrote in its brief. “MPP cannot be found to be authorized by one federal statute when, by doing so, this court would be trampling on another federal statute, the Constitution and lawyers’ ethical obligations.”

Chad Wolf, then acting secretary of Homeland Security, and several other officials in the Trump administration filed their cert petition in April after the U.S. District Court for the Northern District of California issued a universal preliminary injunction that barred the implementation or expansion of MPP. The San Francisco-based 9th U.S. Circuit Court of Appeals affirmed.

“This court’s review is warranted because the decision below wrongly and severely impairs the executive’s express contiguous-territory-return authority, which the secretary implemented to manage the large influx of aliens arriving on our border with no lawful basis for admission,” according to the cert petition.

In February, the ABA House of Delegates adopted a resolution expressing its opposition to the MPP and urging the federal government to maintain an asylum system that provides those fleeing persecution or torture with access to counsel, due process and full and fair adjudication rights that are consistent with U.S. and international law.

In “Achieving America’s Immigration Promise: ABA Recommendations to Advance Justice, Fairness and Efficiency,” the ABA also outlined top policy recommendations for the Biden administration. The January report recommends that the MPP and other policies that restrict access to counsel for noncitizens in removal proceedings be rescinded.

Oral arguments are scheduled for March 1, but as noted in an ABA press release, the arrival of a new administration could alter the future of the policy and this case.

On his first day in office, President Joe Biden signed six executive orders aimed at overturning the previous administration’s immigration agenda. The Department of Homeland Security also announced it would suspend the “remain in Mexico” policy.

Updated at 1:06 p.m. to correct a mistaken attribution made in the editorial process.

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