November 21, 2019

ABA Testifies on 'Remain in Mexico' Policy

On November 19, Laura Peña, pro bono counsel for the American Bar Association Commission on Immigration, testified before the House Homeland Security Subcommittee on Border Security, Facilitation, and Operations about the ABA’s concerns with the Remain in Mexico immigration policy, formally known as the Migrant Protection Protocols (MPP). The majority of witnesses were critical of the policy, which has forced over 57,000 migrants seeking asylum at the United States’ border to wait in Mexico while their immigration cases make their way through the courts. Many individuals and families placed in MPP endure inhumane and dangerous conditions while they wait and don’t have an opportunity to consult with legal counsel.

Meaningful access to legal counsel is an essential component of due process, but only 2% of asylum seekers subjected to MPP have been able to obtain legal representation. Peña explained how asylum seekers’ right to counsel is nearly impossible to exercise from Mexico. She noted that “attorneys are not permitted to enter the tent courts to screen potential clients or provide general legal information…nor are asylum seekers permitted to enter the United States to consult with their attorneys, other than for one hour preceding their scheduled hearings.” As a result, to render legal services, U.S. attorneys must either travel to Mexican border cities and endure dangerous conditions or attempt to prepare for these complicated cases without the opportunity to consult in person with their clients.  

The dangers in border towns such as Matamoros, across the border from the tent court facility in Brownsville, are well documented. According to a 2018 State Department report, “there are no safe areas in Matamoros due to gunfights, grenade attacks, and kidnappings.” Asylum seekers are subjected to unsafe and unsanitary living conditions as well. In Matamoros, approximately 1,500 migrants awaiting MPP hearings are living in a tent encampment without access to adequate shelter, food, water, or medical care.

Peña noted that the temporary tent court facilities, access to which is controlled by the Department of Homeland Security, also present a serious obstacle to due process.  Required to arrive at the border bridge four hours before their hearings begin, asylum seekers with early morning hearings must travel through dangerous border cities in the middle of the night. Once in the court, their hearings are conducted by video-teleconference, with the immigration judges, interpreters, and government lawyers appearing on screen. This technology is often unreliable, leading to disruptive delays in the proceedings. Simultaneous translation also is not provided for much of the hearing, leading to further confusion about the process. Yet attorneys are prohibited from meeting with their clients after the hearings to explain what transpired.

The MPP program fails to comport with fundamental legal protections required under the law, Ms. Pena said, and the ABA has urged that the policy be rescinded and replaced with procedures that ensure fair treatment and due process for all asylum seekers.

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