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Judge considers court order requiring attorney access in Remain in Mexico interviews

How far does the right to an attorney extend to asylum seekers being told to wait in Mexico for the duration of their immigration proceedings?

It's the question now before U.S. District Judge Dana Sabraw – the same judge who is overseeing the family separation litigation and is now assigned to weigh in on one piece of the Trump administration's Migrant Protection Protocols, or MPP.

On Friday in federal court, lawyers for the American Civil Liberties Union of San Diego and Imperial Counties argued that migrants who express a fear of being returned to Mexico to await court dates in the U.S. are not being allowed adequate access to their attorneys.

The ACLU, joined by Jewish Family Service of San Diego and the Immigrant Defenders Law Center, is asking the judge to order a preliminary injunction that would require the federal government to allow attorneys to be personally present to prepare for and participate in such interviews – "particularly when the decision could be life or death for these families," ACLU attorney Vardis Bakili argued.

But that specific type of interview, called a "non-refoulement interview," seems to fall into a gray area legally.

While immigration law asserts a migrant's right to counsel in removal proceedings and credible fear interviews, the non-refoulement interview is guided by international agreements regarding humanitarian obligations, Assistant U.S. Attorney Samuel Bettwy argued. "There is no statutory or regulatory provision for it," he said.

Whether the right to counsel in these interviews is still subject to immigration law, or another law, remains at question. Sabraw pointed to broad language used by the Department of Homeland Security that suggests migrants subject to MPP are afforded all the same rights as they would in normal immigration proceedings.

The family at the center of the case fled from Guatemala in April after being extorted by gangs and after the 17-year-old daughter was raped and threatened with death, according to an attorney for the family.

While traveling through Mexico to get to the U.S., the couple and their five children were assaulted by men in government uniforms at gunpoint and told to undress, with the same daughter being choked out while nude. The father has also been robbed in Mexico on his way to work, an attorney said.

After being arrested by Border Patrol and then requesting asylum in August, the family was asked during the initial immigration court hearing if they were afraid to return to Mexico. They said yes, were given interviews to detail their fears and then sent back to Tijuana under the MPP program.

During their fourth U.S. hearing, held Tuesday, they again expressed fear. This time they were represented by an immigration attorney. They were taken to a Border Patrol station in Chula Vista where their interviews would be conducted. The lawsuit was filed the same day.

The U.S. Attorney's Office argued that the family's immigration attorney was given 45 minutes to prepare over the phone with the family before the interview, as well as to participate telephonically in the interview. But the request for her to be there in person was declined. With no agreement as to how the interview would move forward, it was canceled. They remain in detention as this issue now goes before Sabraw.

Bakili argued the law clearly provides for the right to provide counsel in person. "Communication is so much more than verbal ... it's just not sufficient," he said of the government's solution.

Bettwy contended that there is in fact no right to counsel in these interviews, but the government in San Diego still tries to honor such requests as logistics allow.

Sabraw said he would take the arguments under submission over the holiday weekend and issue an order on the preliminary injunction motion early next week.

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