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ABA asks Supreme Court to reject ‘Remain-in-Mexico’ policy

February 1, 2021

On his first day in office, President Joe Biden ordered a halt to his predecessor’s policy of forcing asylum-seekers to remain in Mexico while they await their immigration hearings, one of several executive orders the new president issued on Jan. 20 affecting immigration policies.

The ABA filed an amicus brief with the U.S. Supreme Court, asking the justices to affirm a decision by the 9th U.S. Circuit Court of Appeals.

The ABA filed an amicus brief with the U.S. Supreme Court, asking the justices to affirm a decision by the 9th U.S. Circuit Court of Appeals.

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But the American Bar Association believes future presidents should never get a chance to reinstate the policy that has left thousands of asylum-seekers camped in Mexico near the Texas border. On Jan. 22, the ABA filed an amicus brief with the U.S. Supreme Court, asking the justices to affirm the decision by the 9th U.S. Circuit Court of Appeals that found the policy unconstitutional.

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

The brief, citing ABA policy approved by the ABA House of Delegates in February 2020, argued that Trump administration rules violated statutorily protected rights including access to counsel and the U.S. Constitution’s Fifth Amendment guarantees by restricting asylum-seekers’ access to the asylum system and to their due process protections. 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.

Since the early 2019 inception of the MPP policy, at least 70,000 people have been returned to Mexico to await court hearings, according to TRAC, a nonpartisan data research center affiliated with Syracuse University. In March 2020, however, the COVID-19 pandemic forced a suspension of all hearings.

Under the protocols, lawyers for asylum-seekers typically had to go to Mexico to consult with their clients, sometimes under dangerous conditions. They frequently had no more than one hour of interview time, which the lawyers said was insufficient to gather sensitive personal information and evidence to mount complex asylum arguments.

This week at the request of the Biden administration that is reviewing the policy, the U.S. Supreme Court cancelled the March 1 oral arguments for the case.

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