“Lawyers have no jurisdiction at the borders.” This statement, made by a Customs and Border Protection (CBP) agent to a lawful permanent resident (green card holder) seeking re-entry to the United States in the weeks following implementation of the 2017 travel ban, lays bare the vulnerable situation faced by people upon their arrival to the United States. Behind closed doors without a friend or counsel, people are subjected to prolonged questioning, coercion, extended detention, mistreatment and summary expulsion. Many lose valuable rights, and sometimes more. CBP agents interpret and apply complex immigration rules to decide people’s lives without the benefit of a knowledgeable advocate, and while many within the agency interpret and apply the law competently, the position does not require more than a high school degree. Receiving fair treatment at our borders has become more a matter of chance even as we enter the year 2020.

Recognizing that the gradual erosion of due process at our borders had become a landslide, AILA submitted a comprehensive Petition for Rulemaking in May 2017 to provide for access to counsel for individuals placed in secondary inspection or referred for deferred inspection. In other words, we were fighting for the folks shut behind closed doors arguing that at the very least, they should be able to speak to their immigration attorney as their immigration status was being determined by CBP. In the years since that effort, common sense pleas for justice and fairness have gone unheard, and the Administration has taken no action on AILA’s petition. CBP inspectors continue to act as judge, jury and expulsioner without so much as a whisper allowed during that decision making from an attorney representing the banished.

We are a country of laws, and we hold as a cherished tradition the concept of due process of law. We must ensure that people are treated fairly during the inspections process, and to do so at the very minimum requires that CBP permit representation of counsel when requested during inspections. Without this, we allow the rule of man to govern.

The House of Representatives has referred to the Judiciary Committee a bill which would guarantee right to counsel or representation during inspections and ensure fair treatment of people detained. The Access to Counsel Act, H.R. 5581, is the right direction our nation must take. Without access to counsel during inspections, we elevate expediency above justice and turn our backs on the concepts of fair play that caused us to form our nation of laws in the first place. We must allow fairness to have jurisdiction at the borders.