The Boston Bar Association (BBA) is deeply concerned by today’s presidential action that purports to limit the ability of asylum-seekers to pursue their claims, contrary to established law. The BBA would therefore like to take this opportunity to reiterate its longstanding commitment to standing up for the rights of immigrants, advocating for the fair and humane treatment of all people present in our country, and upholding the bedrock principles of access to justice and due process for all.
Under new rules, signed earlier today, and accompanied by a presidential proclamation, adults and families crossing the border between the U.S. and Mexico, unless they arrive at an official port of entry, will be unable to claim asylum, which has long offered an opportunity for those fleeing persecution and violence in their home countries to seek sanctuary in the United States.
U.S. law is clear, however, that all immigrants, irrespective of status (subject to certain specific restrictions), are legally able to apply for asylum “whether or not at a designated port of arrival.” While not all individuals who arrive at our border are eligible for asylum, under law each and every one must be afforded a meaningful opportunity to have their claim for asylum heard.
The import of ensuring access to justice through a fair process in immigration proceedings was at the core of the principles produced by our Immigration Working Group earlier this year. The accompanying report reads: “When… the federal or state government or members of the public target a population and limit or seek to limit that group’s access to judicial or administrative forums, it creates a vulnerable subclass, undermining our system of democracy and the Constitution.”
“The Working Group specifically spent time tracing our nation’s troubled history of using and interpreting laws, like the Chinese Exclusion Act and the Dillingham Commission report, ‘to exclude, dehumanize, and impute implicit criminality’ to certain groups of immigrants. This dark past must always remind us of the grave consequences of failing to uphold principles of access to justice, due process, equal protection, and civil rights in these moments, and we must not let history repeat itself here,” said BBA Executive Committee member and Immigration Working Group member Prasant Desai, founding partner of Iandoli, Desai & Cronin. You can read more about this history in the full report.
Under the new rules, those who cross the border will have to choose between waiting at already overcrowded ports of entry, returning to potentially unsafe conditions in their home countries, or crossing between ports and thereby forfeiting the opportunity to apply for asylum, an unprecedented penalty on individuals and families within the United States who seek the protections afforded by the Refugee Act of 1980.
“People seeking asylum in the United States are often fleeing situations that many of us would find unimaginable, and that most of us are fortunate never to have experienced. The stakes are high in asylum cases, and we must ensure that every person seeking safety in the United States is given a fair hearing,” BBA President Jon Albano, partner at Morgan Lewis, said.
Boston Bar Foundation grantee organizations Lawyers for Civil Rights (LCR) and Kids in Need of Defense (KIND) have compiled resources illustrating the devastating conditions that asylum-seekers from Guatemala, El Salvador, and Honduras are fleeing, which you can access here and here. You can also read more about our recent immigration-related work here.