Judge orders attorney access for migrants who fear return under Remain in Mexico program

SAN DIEGO —  A San Diego federal judge in a pair of decisions Tuesday ruled that asylum seekers who have expressed fear about being returned to Mexico to await their U.S. immigration proceedings must be allowed access to attorneys to argue their cases.

The rulings center on a crucial interview process that determines whether such asylum seekers should be part of the Trump administration’s so-called Remain in Mexico program, or whether the likelihood of persecution or torture south of the border means they should remain in the U.S. for the duration of their immigration cases.

A Guatemalan family who filed the federal lawsuit complained that they were not allowed adequate access to attorneys before or during the interview with the asylum officer — a process called a “non-refoulement interview.” The family — a couple and their five children — had been assaulted at gunpoint during their trek through Mexico.

In November, U.S. District Judge Dana Sabraw ordered border authorities to grant the family access to attorneys. The family has since been allowed to stay temporarily in the U.S.

On Tuesday, Sabraw approved class certification, widening the lawsuit to include all individuals who are detained in U.S. Customs and Border Protection custody in California, who are awaiting or undergoing non-refoulement interviews under Remain in Mexico and who have retained lawyers.

In a separate ruling, Sabraw also granted a preliminary injunction that requires the government to allow all class members access to legal representation before and during such interviews.

“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,” Sabraw wrote in the preliminary injunction.