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ABA president: Due process concerns at U.S.-Mexico border

by ABA President Judy Perry Martinez

Last month I visited a new, temporary immigration court at the U.S. port of entry in Brownsville, Texas. It was built specifically to hear cases of men, women and children who have fled violence in their home countries to seek asylum in the United States and were returned to Mexico to await their U.S. court appearances.

While touring the court, I saw many small rooms for lawyers to meet with clients, but there’s a catch: We have no idea how people seeking asylum, forced to wait in Mexico while their cases are pending, will gain access to U.S. lawyers to handle their claims.

Too often, people seeking asylum in the United States are left to fend for themselves. Without a lawyer to guide them, they must navigate a complex legal system in a foreign language, often before a judge who appears by videoconference. Legal representation can literally mean the difference between a secure life in the United States and return to a country where they risk violence and even death. Studies show that detained immigrants with lawyers are 10 to 14 times more likely to succeed in court than those without lawyers.

The problem isn’t new — immigrants and people seeking asylum have had difficulty obtaining legal counsel for years — but the situation recently became much worse.

In January, the administration instituted a policy that keeps thousands of asylum-seekers out of the United States while their requests are pending. The policy is popularly known as “Remain in Mexico” and it is being phased in along the Mexican border. It started in San Diego, then expanded to El Paso, and recently expanded to Brownsville and Laredo, Texas.

This policy should concern anyone who believes that individuals who come before our courts should be afforded due process and that justice should be delivered.

Under “Remain in Mexico,” asylum-seekers who seek to cross the border are sent back to Mexico with a date to appear in a U.S. immigration court. In Laredo and Brownsville, that hearing will take place in one of the new temporary “port courts.” While they wait, the people seeking asylum — including families with children — stay for weeks or months in tents, motels or on the streets, just across the border.

Asylum-seekers who are subject to “Remain in Mexico” don’t have easy access to U.S. lawyers, mainly because it is not safe or practical for lawyers to cross the border to provide legal services. As a result, asylum-seekers are not informed of their legal rights before they go to court, so they don’t know what to expect until they stand before the judge.

Federal authorities need to guarantee access to legal counsel for people seeking asylum in these circumstances. They must guarantee that this access, once granted, is meaningful — that it is more than just a few minutes in a small room just before a court hearing. Lawyers need to be allowed sufficient time to help asylum-seekers tell their stories under oath and fill out the long, complex forms required for asylum.

Compounding all these issues is one of transparency. The new courts in Brownsville and Laredo do not allow outside observers — reporters, the public or even lawyers. To ensure due process and efficiency, it’s important that these courts are open to attorneys, journalists and the public.

The American Bar Association has several projects that pursue justice in immigration courts. We have teams in South Texas and Southern California that provide legal assistance to detained adults and unaccompanied children. We train and support pro bono lawyers who represent child immigrants and asylum-seekers. We coordinate lawyers who volunteer to help immigrants and asylum-seekers, on the border and throughout the country.

Under the “Remain in Mexico” policy, more than 40,000 people seeking asylum have been sent back to Mexico to wait for court hearings and are living in extremely precarious situations. We want to make sure that these men, women and children are afforded due process guaranteed by the Constitution and enshrined in our immigration laws. A path to justice can only happen with meaningful access to legal counsel.

The opinion editorial was published in September by Inside Sources, a news syndicator to nearly 300 of the nation’s top newspapers, reaching upwards of 25 million readers each month.

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