Right to Counsel Victory in 'Return to Mexico' Litigation

ACLU, Jan. 15, 2020

"U.S. District Court Judge Dana Sabraw on Tuesday granted the ACLU Foundation of San Diego & Imperial Counties’ (ACLUF-SDIC) motions for class certification and a preliminary injunction in the lawsuit, Doe v. Wolf, filed in November. As a result of the judge’s orders, asylum seekers forced into the federal government’s so-called “Migrant Protection Protocols” (MPP) along the California-Mexico border will now have access to their lawyers while in custody before and during their fear of return to Mexico proceedings, also known as “non-refoulement interviews.” Access to lawyers for these interviews is critical for people who flee their home countries to seek safety in the United States.

“Given the stakes of a non-refoulement interview—the return to a country in which one may face persecution and torture—and the interview’s fact-intensive nature, it is undeniable that access to counsel is important,” Judge Sabraw wrote in his ruling.

“The decision requiring the government to allow people in U.S. Customs and Border Protection (CBP) custody to consult with their attorney is a victory for the right to counsel, the fight against MPP and for people seeking asylum in the U.S. but forced to remain in Mexico despite fear of being there. We will continue to challenge abuses at the hands of our government, particularly those that victimize vulnerable people,” said Monika Y. Langarica, ACLUF-SDIC immigrants’ rights staff attorney.

On Nov. 12, Judge Sabraw granted a Temporary Restraining Order requiring the same relief for our named plaintiffs, a Guatemalan couple and their children. They were allowed to benefit from the assistance of their lawyers and ultimately prevailed in their non-refoulement interview. The family is now living safely in the United States while pursuing their asylum claims.

Under MPP, over 60,000 people seeking asylum in the United States have been made to wait in Mexico until their asylum cases are processed. Non-refoulement interviews determine if they will be forced to continue in the program despite fearing persecution or torture in Mexico. CBP holds such individuals in its stations, sometimes called hieleras because of their harsh, cold conditions, until the interviews are completed but does not permit them to meet confidentially with or have access to their lawyers before and during the interviews.

Since MPP was implemented, there have been numerous reports of people being robbed, kidnapped, extorted or murdered in Mexico. This danger has been exacerbated by the government’s policy of denying access to counsel while people are in custody before and during these highly consequential non-refoulement interviews.

A copy of this press release, the court order and other documents can be viewed here:

• Order granting motion for classwide preliminary injunction.
• Order granting motion for class certification."