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Since my trip to the U.S./Mexico border last summer, the situation for families seeking asylum has only become more challenging, especially in light of the Administration’s new “Remain in Mexico” policy.  This week, I am in Mexico along with Proskauer colleagues, Valarie McPherson, special immigration counsel, and Savannah Sosa, a project assistant.  We are providing asylum presentations and individual consultations in partnership with Institute for Women in Migration, IMUMI (www.imumi.org).

The new policy raises a number of questions, but first some background.

The Remain in Mexico Policy

On December 20, 2018, the Administration announced that it would begin implementing a “Remain in Mexico” policy – officially dubbed the Migrant Protection Protocols (MPP) – which requires asylum-seekers from Central America at the southern border to wait in Mexico for the duration of their U.S. immigration proceedings.  This marks a fundamental shift in asylum policy because, until now, asylum-seekers who lack valid entry documentation generally have been placed in expedited removal proceedings.  Applicants who passed a credible fear interview were then allowed to remain in the U.S., pending immigration court proceedings.

Last week, in Martin v. Gross, Chief Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts granted summary judgment in favor of our clients, finding the Massachusetts Wiretap Statute (Mass. Gen. L. ch. 272, § 99) unconstitutional when applied to secret recordings of government officials performing their duties in public.  The decision is significant for its clarification of protections under the First Amendment.

The Massachusetts Wiretap Statute makes it a felony to “secretly” record oral communications writ large, regardless of the other circumstances of the recording.  Our clients—two civil-rights activists in Boston and the plaintiffs in this case—challenged the Massachusetts Wiretap Statute as unconstitutional under the First Amendment as applied to secret recordings of police officers performing their duties in public.  While both plaintiffs have openly recorded law enforcement officials performing their duties in public, both believe secret recording would protect their safety and more accurately document officials’ behavior in public.