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Challenging the Legality of a Cruel Immigration Policy

Challenging the Legality of a Cruel Immigration Policy

ICE apprehended “Angela” and her husband in 2019 shortly after they crossed the border into the United States from Mexico. When the couple requested asylum, ICE placed them in the Migrant Protection Protocols (MPP) program, more commonly known as “Remain in Mexico,” and sent them south of the border to wait until the conclusion of their US immigration proceedings.

On their own in Mexico with no resources to secure safe accommodations, Angela and her husband were repeatedly victimized. Over several months, Angela was assaulted three times. When she was two months pregnant, a stranger chased her, dragged her into an abandoned house, and beat her, kicking her twice in the stomach. Although Angela fought back and escaped, sadly, she later suffered a miscarriage.

The horrifying conditions that Angela and her husband experienced while in MPP aren’t exceptional. As of January 2021, Human Rights First had tracked more than 1,100 reported cases of murder, rape, kidnapping, torture, and assault of people sent to Mexico under MPP.

Until the Trump administration implemented MPP in 2019, non-US citizens entering the United States at the southern border with credible asylum claims could remain in this country to pursue their asylum applications or challenge removal proceedings. Under MPP, they have to remain in Mexico as their cases progress, returning to the United States only to appear at their hearings. Given that immigration proceedings often require a series of appearances, typically scheduled months apart, applying for asylum can take years. Struggling to survive in Mexico, often in refugee camps and with no access to health care or legal counsel, people in MPP face prolonged misery with little hope of prevailing in their US immigration proceedings.

Although the Biden administration recently sought to end MPP, the Supreme Court upheld the validity of the program.

In the summer of 2020, Mintz attorneys Adam Korn, Jason Far-hadian, and Meena Seralathan volunteered to work with Public Counsel, a pro bono law firm, to represent an immigrant family from El Salvador in MPP. On a parallel track, Public Counsel sought to bring together a coalition of other immigrant rights organizations to challenge the legality of the Trump administration’s MPP policy by submitting an amicus or “friend of the court” brief to the Ninth Circuit Court of Appeals in the case of M.D.C.V. v. William Barr. Given our work with this family impacted by MPP, Mintz was asked to draft the amicus brief, and enthusiastically agreed.

The group of amici signing onto the brief included some of the largest legal advocacy organizations in the country that focus on immigration: Catholic Legal Immigration Network (CLINIC), HIAS (founded as the Hebrew Immigrant Aid Society), Human Rights First, the Immigrant Defenders Law Center, Jewish Family Service of San Diego, and the Tahirih Justice Center, along with Public Counsel. On behalf of these seven clients, a team from Mintz drafted a brief in support of the case’s petitioners. A few months later, the same group of amici agreed to work with Mintz again to submit a similar brief in another Ninth Circuit Court of Appeals case, Ortiz v. Garland.

Adam and attorneys Arameh O’Boyle, Nada Shamonki, and Clare Prober joined forces to draft the petition and coordinate input and edits from the amici. Arameh and Nada provided key strategic analysis, while Adam and Clare drafted the document on behalf of the human rights organizations.

The crux of Mintz’s argument in the briefs was that the government has been deliberately misclassifying migrants as “arriving aliens” to send them back to Mexico under the program. Legally, an “arriving alien” is someone who enters the United States and is immediately apprehended by ICE or Customs, or who surrenders to US authorities at the border. The label does not apply to an immigrant who “enters without inspection,” crossing the border and being apprehended (or presenting themselves to authorities) only at a later date or time. The distinction is critical because MPP only applies to individuals who are properly categorized as “arriving aliens” and not those who have “entered without inspection.” The Department of Homeland Security has willfully ignored this critical distinction and wrongly forces asylum seekers who have already entered the United States into the program — stripping them of their legal right to obtain a bond hearing before an immigration judge to seek release in the United States.

The Mintz team focused on this nuanced, technical issue rather than attacking MPP in its entirety. “It was an approach no one else had taken up to that point,” Adam said.

The briefs also included descriptions of the shocking living conditions that people such as Angela and her husband endured in Mexico while in MPP. “We needed to remind the court that MPP impacts real people very detrimentally, causing significant human suffering,” Clare said.

Mintz filed its first brief, for M.D.C.V. v. Barr, in late October 2020. In August, the government moved to remand the case for a de novo hearing, allowing M.D.C.V. to enter and stay in the United States while her new case is pending. The firm filed its brief in the Ortiz v. Garland case in March 2021. By then, the Biden administration had stopped enrolling new asylum seekers in MPP, but individuals previously subjected to MPP still hadn’t been granted admission to the United States while their applications were pending.

In its ruling in Ortiz v. Garland, the Ninth Circuit agreed to remand the case back to an immigration judge for a completely new hearing and granted the plaintiffs, a family then in MPP, immediate entry into the United States. Subsequently, the Biden administration also started to allow thousands of other people in MPP into the United States while their cases are pending. “After the Ninth Circuit’s ruling, the Biden administration saw the writing on the wall and decided to take more proactive action,” Clare said. “We’re proud to have been part of a wave that helped move the government in the right direction.”

Unfortunately, since the Biden administration formally ended MPP in June 2021, the attorneys general for Texas and Missouri successfully sued the administration, claiming its decision to end MPP was arbitrary and capricious. As of this writing, the administration has appealed, but the Supreme Court has declined to stay the lower court’s ruling while the appeal is pending.

Transcending 2021

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