January 22, 2021

ABA asks Supreme Court to overturn policy forcing asylum-seekers to wait in Mexico

CHICAGO, Jan. 22, 2021 — The American Bar Association filed an amicus brief today with the U.S. Supreme Court, asking the justices to affirm a federal appellate court decision blocking the Trump administration’s “remain in Mexico” policy for asylum-seekers, officially known as the Migrant Protection Protocols (MPP).

The brief, citing ABA policy approved by the ABA House of Delegates in February 2020, argued that the policy enacted by the Trump administration violates statutorily protected rights to access to counsel, the U.S. Constitution’s Fifth Amendment guarantees and other law because it restricts the ability of asylum-seekers to access the asylum system and to receive the due process protections to which they are entitled. In addition, the ABA said, the protocols could place lawyers serving asylum applicants at odds with the ABA Model Rules of Professional Conduct related to competence, communications and other areas of client representation.

In practical terms, lawyers for asylum-seekers subjected to MPP typically must go to Mexico to consult with their clients, sometimes under dangerous conditions. Oftentimes, they are afforded no more than one hour of interview time, which the lawyers say is insufficient to gather sensitive personal information and evidence to mount complex asylum arguments.

“Asylum applicants have a statutory privilege to counsel and a constitutional right to due process,” the ABA brief said. “MPP, which imperils both rights and thereby undermines both another federal statute and the Constitution, cannot stand.”

The U.S. Supreme Court has set oral argument for the case on March 1. But with the arrival of the Biden administration, the future of the policy and the case is in question. President Joe Biden has stopped new enrollments under the policy, and some legal observers believe that could make the Supreme Court case moot, or no longer a live dispute. Also, the COVID-19 pandemic has led to the closure of the U.S.-Mexico border.

The brief in Chad F. Wolf, Acting Secretary of Homeland Security et al., v. Innovation Law Lab et al., is available here. The law firm of Buchalter APC of Irvine, California, filed the brief pro bono on behalf of the ABA.

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