The Queer Community’s Road to Equality

Author: on 04/24/2015


shutterstock_153955259In June 2013, SCOTUS helped turn a page in the queer community’s struggle for civil rights. By striking a pertinent portion of the indefensible Defense of Marriage Act (DOMA), the Justices cleared the way for LGBTQ citizens of this country to strive for full equality under the law – in all 50 states.  Almost two years later, it’s time to take stock of the landscape.

Within the immigration world there is no question that the state of our move toward equality has strengthened. Sadly however, full equality is not yet at hand.  The Immigration and Nationality Act (INA) and discriminatory laws and practices at both the federal and state levels are responsible for denying our basic Constitutional rights, those of liberty and justice.

Right now many same sex spouses of US citizens who fled their respective countries out of fear of persecution and subsequently entered the U.S. without authorization have to travel back to the same countries they were harmed in order to obtain a waiver for their inadmissibility even though they have an approved Petition for Alien Relative filed by their US citizen spouses.  These waivers (I-601A’s) even if approved by the Department of Homeland Security (DHS) are subject to further scrutiny by the Department of State (DOS) visa officers.  This review may take many weeks or even months which is often a nightmare for the visa applicant who had to leave his/her American family behind and are then faced with days, weeks, or months in a country with a homophobic culture.

In Mexico for instance – the U.S. Consulate in Cuidad Juarez is requiring the Acid Fast Bacilli (AFB) TB test for anyone with HIV, which takes between 6-8 weeks to complete and read. This requirement is outrageous on so many levels.  The applicant will potentially delay valuable medical care for his/her HIV status while being subjected to severe stress living in a country that is violent towards his identity as a gay individual.

Some DOS Visa Officers fail to comply with their own guidelines and regulations.  They expose same sex spouses’ identities or their finances by failing to discreetly adjudicate their applications.  There are many reports of bias, pointed questioning and unnecessary requests for evidence of bonafides of the relationship.  In a recent case out of Ecuador, a fiancé visa applicant was asked to provide joint documents such as U.S. bank accounts and property deeds and birth certificates of children with the visa applicant’s name on them, as well as a detailed explanation as to why he had never been to the U.S. Special thanks go to AILA attorneys Noemi Masliah, Chair of the LGBT Working Group and a member of the DOS Liaison Committee, and Daniel Parisi, another member of the DOS Liaison Committee for offering immediate help in resolving this particular case.

Other issues such as parentage in the LGBTQ community may now be matters of first impression.  Just recently a same sex couple in Tennessee had to fight a court battle to have their names on their biological child’s birth certificate just because the state failed to recognize their marriage held in New York.  Surrogacy pregnancy, both in the US and abroad, also raises very interesting legal questions as to parental and also derivative citizenship rights in various states.

Our movement for social justice is unstoppable and indeed history is on our side.  Before the end of the current SCOTUS term, we expect a decision on our constitutional right to marriage in all 50 states.  I’m both optimistic and anxious as we inch closer to that date – and am equally sober to the fact that our fight for equality, particularly within immigration law and policy, will continue regardless of the ruling by SCOTUS.

Written by Ally Bolour, Member, AILA Media Advocacy Committee


Fighting to #EndFamilyDetention

Author: on 04/21/2015


Dilley_300x240I was on a flight to San Antonio Sunday morning and a short while after that was making my way across open farmland to Dilley, Texas, about an hour and half southeast. For this week, I’ll be heading up a team of legal volunteers for CARA at the euphemistically named “South Texas Family Residential Center.”  It’s not some family welcome center:  it’s a jail.

The CARA program is a joint effort by the American Immigration Lawyers Association, and local and national nonprofit legal services providers, to help women and young children who were jailed by immigration authorities navigate through these complex procedures.  We’ll be here for a week, until the next team arrives.  And the next, and the next, and the next, until this practice of detaining families and bona fide refugees is stopped, once and for all.

The detainees aren’t just people violating our immigration laws and seeking to enter the U.S. for work or to join family.  In fact, the numbers prove that the overwhelming majority of these families are simply seeking refuge from horrific violence in their home countries.  Some have relatives in the U.S. that fled before them, others have no one here, but all left their home countries because to stay would mean further harm.

Despite proving that they have valid claims and undergoing a security and background check, they are detained and subject to extortionately high bonds.  In many cases, women who cannot afford a bond are being presented with the choice to separate from and surrender their children to foster care in order to get the children out of detention.  Asylum is not a game.  Refugees shouldn’t have to pay to play.

Until recently, Dilley was just another pleasant small Texas town. Now it’s going to have the same stain on its reputation as Artesia, New Mexico.  The private prison industry is big business, and family detention looks to be a very profitable expansion.

The contract for the massive, 2400+ bed facility (curiously implemented without the usual niceties of federal contracting controls) went to for-profit Corrections Corporation of America.  Eventually, the CCA facility in Dilley, together with a converted GEO facility (another for-profit private prison corporation) in Karnes City, will detain thousands of families.  These private jailers stand to make a killing, earning three to four times the daily rate of an adult in immigration detention.  At about $350 a day per person in Dilley CCA will rake in more than half a million dollars a week, and over $30 million a year.

Why are we jailing families with young children, even after they have undergone security checks and proven that they have valid refugee claims?  Good question, but no good answers.  The one you hear the most is, “politics.”  Perhaps politicians get confused between the problems caused by our broken immigration system, and the completely unrelated humanitarian crisis caused by factors outside our borders.  The government wants to look like it’s doing something about immigration, and jailing families is the lowest of low hanging fruit.

Whatever your concerns about the surge of refugees at our southern border, jailing women and young children is not an American answer to an international humanitarian crisis.  We’re supposed to be the good guys, but family detention is cruel by any measure. We are starting to look more like countries around the world that we despise, just so a few politicians can burnish their “optics” and a few private corporations can make a profit.  Detaining refugee families will not only be a stain on Dilley, but on all of us, on America.

Written by Laura Lichter, CARA Family Detention Pro Bono Project Volunteer

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If you are an AILA member who wants to volunteer at a family detention center, please go to the CARA Family Detention Pro Bono Project page or feel free to contact Maheen Taqui at mtaqui@aila.org – we could really use your help.

To watch videos of the volunteers sharing their experiences, go to this playlist on AILA National’s YouTube page. To see all the blog posts about this issue select Family Detention as the category on the right side of this page.


148,000 Missed Opportunities

Author: on 04/20/2015


shutterstock_148806083I’m just now fully coming out of the chaotic, hectic darkness that has clouded every H-1B season for the past many years.  Once again, I find myself struggling with “Immigration PTSD”  – Post Traumatic Submission Disorder.  The cause of this syndrome is two-fold.  First, I live with the dreaded anticipation that the number of submissions will be such that not even a fair percentage of my submitted applications have a realistic hope of selection.  To make matters worse, I live in fear that, heaven forbid, I have made a minute non-material error, which will cause even a selected application to fail. Sadly, my fears are once again well founded.

This year the USCIS received 233,000 applications for 85,000 available slots.  Thus, 148,000, almost two thirds, of the petitions received in the first five days of April will be rejected out of hand without any review. A lottery has been held and the unpicked petitions so painstakingly pulled together by immigration lawyers, with help from innumerable paralegals and legal assistants, and dutifully delivered on time by FedEx, UPS, or the U.S. Postal Service, will be returned.

The data shows that the number of submissions is a direct reflection of the fact that American employers desperately need the workers for whom they petitioned. Simply, they need these foreign workers to help create products, technology, ideas, and innovations.  No employer in its right mind would go through this process or angst if they did not.  Further, as American Immigration Council Executive Director Ben Johnson recently testified in a  Senate Judiciary Committee hearing, those high-skilled immigrant workers have been shown to go on to create even more jobs, thus building our economy and contributing to the success of us all, not just the company for which they work.  Hopes will be dashed, business plans will crumble, and instead of surging forward with the right personnel, companies will be stalled again for another year while they try to make do.

Finally, and perhaps one of the greatest sources of stress for those trying to assist employers and better the economy, is that hopes will be dashed not just because the numbers alone do not and cannot possibly account for the number of workers needed, but because the process is one that does not allow for one, literally not one, error.

Our immigration system is broken, not just by its antiquated numerical limitations but also by its process.  A missed checkbox is grounds for denial, and although denial is not mandated for such errors, it is permitted.  Unfortunately, permission has become a license to kill an otherwise clearly approvable petition.

Transpose a number in a check so that it is off even by only one dollar and USCIS will reject the application. Tax filings, patent applications, and almost any other type of application can be amended.  While the law does not bar corrections to immigration applications, that opportunity is simply not afforded to filers. To err is human, except in the context of immigration, at least for applicants.

It doesn’t have to be like this. Congress could tie the H-1B visa cap to actual market demand. It’s not a crazy concept. When we had an economic downturn, demand fell, so the H-1B visa cap was reached in months instead of days. Why can’t we have the same sort of rising cap when our economy is doing well?  Similarly, our system does not mandate strict liability or compliance.  We do not need Congressional action to dictate that leniency, where permitted, be provided. The laws, common and good economic sense, do that already.  The H-1B visa system is long overdue for an overhaul – Congress should get started today.

Written by Leslie A. Holman, AILA President


Don’t Ignore the Ethics

Author: on 04/17/2015


shutterstock_218204401Judge Hanen recently refused to lift his injunction blocking the implementation of the president’s expansion of the Deferred Action for Childhood Arrivals (DACA) as well as the new Deferred Action for Parents of Americans (DAPA) program.

Many are following the case closely, no surprise, as it has implications for millions of people and potentially thousands of AILA’s members.

What hasn’t been covered in the press quite as much is that Hanen, in a companion order to his refusal to lift the injunction, chastised DOJ lawyers for violating Rule 3.3 of the American Bar Association Model Rules of Professional Conduct and corresponding state rules relating to a lawyer’s duty of candor to a court or tribunal.

As Chair of the AILA Ethics Committee, I worked with my fellow committee members to take a harder look at Judge Hanen’s accusations in the context of Rule 3.3 and complex immigration law and policy in a hotly contentious and politically charged case. At issue is whether a judge should be so quick to accuse a lawyer for violating Rule 3.3 when there is a misunderstanding about the scope of what the injunction blocked and did not block. I encourage you to follow this link to the full document.

But consider this: while the lawsuit is wending its way forward on three tracks at the moment, even if the Fifth Circuit reverses, the accusations of unethical conduct stemming from the companion order may still linger, and it is important that we shine some light on it.

Written by Cyrus Mehta, Chair, AILA Ethics Committee


A Look Back to Artesia, and a Look into Karnes: Part 5

Author: on 04/17/2015


shutterstock_247077634Just as the business day was drawing to a close on Monday, April 13th, we received a phone call from IJ Martinez.  Unfortunately, the news was disappointing and devastating for E-.  While the IJ found her credible and noted for the record that the rape she suffered amounts to torture, he determined that he is unpersuaded by E-‘s claim that she is unable to relocate in her home country, Guatemala.  The IJ noted for the record that was relying on our submission regarding country conditions for the proposition that there are women’s shelters in Guatemala, butt E- failed to take advantage of them.  This seems incomprehensible given that our evidentiary submission includes over 200 pages of country conditions and expert opinions that support E-s claim and thoroughly undermine the IJ’s reliance on the availability of women’s shelters.  Moreover, the passages about shelters are themselves brief and unpersuasive.

The IJ also noted that E- had attempted to enter the U.S. on three occasions, having borrowed money each time to pay a smuggler;  he said that E- could have put that money to better use by applying it toward relocating within her home country.

I’m having a very hard time understanding the logic of the IJ’s position on the issue of relocating.  (He certainly made it easy for the OCC trial attorney, who presented no evidence of anything having to do with relocation.)

The IJ found E-‘s testimony to be credible and consistent.  He read into the record that rape amounts to torture; E- was brutally gang-raped, yet the IJ denied her CAT claim.  He gave full weight to the psychologist’s report that included a diagnosis of “very severe post-traumatic stress syndrome,” yet he was somewhat dismissive because he found that the psychologist doesn’t have the credentials to qualify as an expert on relocation – even though we didn’t present her as a relocation expert.  The IJ essentially ignored our evidence on country conditions, but for the brief passages that referenced the existence of women’s shelters, however inadequate those same passages found them to be.

Most importantly, E- was falling to pieces when we spoke on the phone shortly after the IJ read his decision.  It’s hard to imagine a more heart-wrenching moment than E- struggling to speak through her sobs, overwhelmed by the heightened prospect of returning to her home country, coupled with her complete and utter fear of the threats against the lives of her children and herself.  We spoke again the next morning, and while E- was still very upset she was slightly more composed.  She questions whether she has the strength to fight any more and said that she’d prefer to go back to her home country to face the near certainty of death rather than to drag things out through an appeal only to face the same end.  We agreed to speak again to see if she will consider filing an appeal with the help of the pro bono volunteers who stand ready to do that.

While we seem to have issues that may prevail on appeal, right now that’s not enough to patch up E-‘s shattered spirit.  The hope here is that she will agree to file an appeal and give us another chance to help her and her children.

On Tuesday afternoon (the 14th) I posted a Listserv message summarizing the IJ’s decision.  About an hour later I received a call from Christina Brown who had already begun to assemble an appellate team from among the Artesia and Dilley / Karnes veterans.  This is a great example of the amazing spirit that characterizes this pro bono project.  We look forward to an opportunity to convince the Board of Immigration Appeals to reverse the IJ’s decision.

In the meantime, E- and her kids and many other families continue to suffer in this hell that our government calls family detention.  It’s a cruel and inhumane concept, a minefield of misery that needs to stop.  It simply must stop.

Written by Frank Johnson, AILA Member and Volunteer

Please click on these links to read Part 1Part 2 , Part 3 , and Part 4 of Frank’s blog post.

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If you are an AILA member who wants to volunteer at a family detention center, please go to the CARA Family Detention Pro Bono Project page or feel free to contact Maheen Taqui at mtaqui@aila.org – we could really use your help.

To watch videos of the volunteers sharing their experiences, go to this playlist on AILA National’s YouTube page. To see all the blog posts about this issue select Family Detention as the category on the right side of this page.


A Look Back to Artesia, and a Look into Karnes: Part 4

Author: on 04/14/2015


shutterstock_247077634

ICE officials at Karnes never responded concerning our request to consider E-‘s release on humanitarian grounds.  So, as anticipated, it was back to San Antonio for the hearing on Tuesday, April 7th.  I got into town the previous Friday night and then drove down to Karnes on Saturday, Sunday and Monday to prep with E-, accompanied by fellow volunteer Philip Smith.  (A side note:  Philip helped me all along the way – he was riding shotgun on E-‘s case.  Every client and every volunteer attorney should enjoy the good fortune of having such a terrific lawyer in the shotgun position!)

A well-publicized hunger strike had taken place the previous week, and there was a heightened sense of security at the family residential center.  Most notably, in the large room where attorneys meet with clients, ICE had set up an electronic scanning device through which the detainees (women and children) must now pass in order to enter and depart from the large meeting area adjacent to the locked holding room where they wait while the GEO resident advisors / guards screen the attorneys.  Also, E- reported that ICE had determined whom they believed to be the leaders of the hunger strike and had segregated them from the rest of the population, describing what sounded an awful lot like solitary confinement for those mothers and their children.  Retaliation or mere coincidence?  Either way, yet more evidence that Karnes is a nasty place, despite ICE’s insistence that it’s a family-friendly residential center.

Consider that every step in the procedure that leads to an attorney / client interface is defined by prison-like formality:  FAX (don’t call) ahead;  fill out the daily visitation sheets;  wait … for your client to be summoned and made available for the meeting;  wear the red day badge that you receive upon surrendering your driver’s license and state bar card to the front desk security officer;  no cell phones, no wallets, no money in the facility;  counsel passes through the TSA-like security clearance – empty your pockets, remove your belt and wristwatch; laptop removed from the bag, while the guard searches your bag for contraband such as bottled water.  BTW:  Not once during eleven visits to the facility do I recall a resident advisor / guard use the word “please” during the screening process.

Once you’ve made it that far, you proceed down the hall and enter a side room that leads to the family meeting area, where a guard must buzz you in after you identify yourself.  Now you’re in the family room, but where is your client?  She and her child(ren) are sitting in an area that looks strangely like the “trap” in a prison.  You can see them, but they cannot enter the meeting area until another guard buzzes them in – and now the client must pass through the newly-installed TSA-like screening device with her child(ren).  Once the meeting is completed, they must again pass through the screening device on the way back to their living quarters or the cafeteria, or wherever – likely unable to move about freely throughout the family residential center.

Finally, the day of the hearing arrives.  The IJ needed about an hour to ensure that the record was updated and the exhibits marked.  Once testimony began, E- was on the stand for about four hours; she did very well on direct exam and held up pretty well during a nasty cross by the OCC trial attorney.  Understandably, E-‘s testimony was quite emotional, and the IJ recessed for three short breaks, largely to give E- the chance to compose herself.  At the end of the day, the IJ reset the hearing for the following Thursday, April 9th, two days hence.

Back in court, the IJ himself questioned E- at length about the possibility of relocating within her home country of Guatemala, noting that materials we had submitted referenced women’s shelters there.  E- testified that there were no women’s shelters in the rural pueblo where she had lived her entire life back home, save for about 15 months that she had spent in the United States several years ago.  (Along with the possibility of relocation, the other big issue that emerged during her testimony was why she had returned to the home of her abusive father.)

Re-direct exam was relatively brief, followed by what seemed to be an unnecessarily nasty re-cross by the OCC trial attorney.  While E- clearly took some shots, she managed to hang in there.

Next, we proffered an expert witness, namely the psychologist who had examined E- back in November while she was detained at Artesia.  The IJ gave the OCC trial attorney the opportunity to conduct a voir dire, and he took full advantage of it.  For example, at one point he read from an article by a psychiatrist in which the author questioned whether a non-M.D. psychologist is capable of identifying malingerers in the course of conducting an evaluation.  Yet after a good 20 to 30 minutes of trying to attack our witness’s credentials, OCC agreed that the witness qualifies as an expert.  The IJ gave the psychologist’s evaluation full weight and seemed to encourage E’s counsel to move on without the need to elicit further testimony from our own witness.  But there was some valuable additional testimony that our witness could provide about E-s inability to escape from her abusers and why that had a critical impact on her not having reported the abuse to the police in her home country.  Our witness came through quite well.  At the end of the day, the IJ reset the hearing for Monday afternoon, April 13th, to read his decision telephonically.

Another weekend in detention for E- and her children.  If the IJ finds her testimony to be credible, it’s hard to imagine that he won’t grant her application for withholding of removal and relief under the CAT.

Another post is forthcoming with the decision and aftermath.

Written by Frank Johnson, AILA Member and Volunteer

Please click on these links to read Part 1Part 2 , Part 3 , and Part 5 of Frank’s blog post.

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If you are an AILA member who wants to volunteer at a family detention center, please go to the CARA Family Detention Pro Bono Project page or feel free to contact Maheen Taqui at mtaqui@aila.org – we could really use your help.

To watch videos of the volunteers sharing their experiences, go to this playlist on AILA National’s YouTube page. To see all the blog posts about this issue select Family Detention as the category on the right side of this page.


A Look Back to Artesia, and a Look into Karnes: Part 3

Author: on 04/13/2015


shutterstock_247077634After several trips to Karnes, I got to know one client’s case fairly well.  It was and continues to be an education.  I’ll refer to the client as E-H-.

E-H-‘s case is “withholding only,” which as I learned means that she’s not eligible to apply for asylum because of a prior removal.  That removal order was automatically reinstated when she entered the U.S. again in July 2014.  Despite the pro bono project’s several attempts to gain her release on bond, so far two different IJs have determined that they lack jurisdiction to consider bond for E-H- because she wasn’t served with a Notice to Appear (NTA) following her most recent arrival.  My education was just beginning.

At the end of that first week in San Antonio / Karnes, Christina Brown persuaded me to consider representing E-H- for her merits hearing at a date to be determined, hopefully by the end of February.  A couple of days after arriving back in Boston I agreed to represent E-H-.  Looking back on this, I really had no idea what was involved.  Stephen Manning convinced pro bono project veteran and fellow Oregonian Philip Smith to mentor me.  Other veterans such as Karin Tolgu, Dan Thomann, Shobhana Kasturi, Megan Boelstler have helped along the way as well.  And then there’s Megan Kludt from Massachusetts who guided the preparation of the briefing package for the merits hearing, and did so much more.

We had our work cut out for us from the start.  With no access to political asylum, a client who has a “withholding only” case is in a terrible legal posture.  The gap between establishing a well-founded fear of persecution for an asylum case and proving that one’s life or freedom will be threatened if returned to one’s country of nationality is enormous.  Add to that the logistics of representing a detained client in Karnes, TX, almost 1,800 miles from Boston, and a waning project presence in San Antonio, and matters were further complicated.  One of the most frustrating things about contacting E-H- is that “residents” at Karnes cannot accept phone calls, not even collect calls.  Instead, the attorney must call the facility and leave a call-back number for the resident, who will then return the call. If she doesn’t have any kind of calling card account set up, her attorney can set up an account so that the client can initiate calls.  This arrangement sounds more like a jail or a prison than a family-friendly environment – especially when it can take hours before the client returns a call to her attorney, which makes one wonder how long it takes the facility personnel to pass along the message.  And then there’s the issue of the calls being dropped.  In fact, on the first occasion when the client tried to return my call, it took 6 attempts before the call actually went through and we could have a conversation.  And each time the call was disconnected the client’s pre-paid account that I had set up for her was drained by a dollar.  (How’s that for due process, Mr. Lucero?)

Beyond communication with her attorney, a detained client faces other strategic and logistical problems galore, some of which are severe.  For example, how does she collect evidence to support her case?  What about witnesses?

On my third visit to Karnes, on a Sunday just 16 days prior to E-H-‘s scheduled merits hearing, she handed me copies of the I-286 notices that were dated on March 10th regarding the children.  I had filed my notice of appearance a week prior to March 10th, yet have yet to be served with a copy of the I-286 notices.  (Hello, Mr. Lucero?  Is this how ICE acquits its due process obligations in Karnes?  Is your staff too preoccupied with providing a safe and sound environment for the residents to bother with silly legal requirements like proving notice to counsel?)  In the designated interview area the guard – excuse me, the resident advisor – allowed E-H- to make copies of the I-286 notices, which I wanted to bring to my rental car in order to call Stephen M. to ask about the significance of these notices.  But not so fast!  The guard at the x-ray check-in station informed me that Karnes policy is that once an attorney leaves the facility he may not reenter on the same day.  As she explained, “I could lose my job” if I let you leave to make a phone call and then re-admit you.  Huh?  Persuaded to call her boss, the guard agreed to do so and then reported that “just this one time” she would permit me to reenter after making the phone call.  More hospitality from the family friendly folks at Karnes!  We and our clients are one lucky bunch.  (Not!)

The next day, client’s case was before IJ Martinez for the children’s bond hearing as well as our Motion to Reconsider the IJ’s dismissal of her own bond motion for lack of jurisdiction.  The IJ was thoughtful and considerate, but not ready to make a decision until he had time to study our legal argument more thoroughly.  (Our position:  8 CFR 1236.3(b)(2) gives the IJ the authority to consider mom’s release concurrent with the release of her child when there is no responsible adult to assume custody of the child upon the child’s release.)  Observing that this legal theory is compelling and unique, the IJ reset the bond hearing for the following Monday.  While the IJ deserves our respect for his thoughtful consideration, it meant one more week in detention for E-H- and her children.  I don’t know which I found more painful:  the reality of one more week in detention for E-H-, or the blank look on her face as she realized that this was the immediate outcome of the IJ’s decision on this day.

I don’t believe that volunteers invest in this pro bono work to carve out compelling and novel legal arguments;  if this is what happens along the way, all the better.  But what matters most is to help our clients to get out of detention as fast as possible so that they can have a swinging chance in their fight to stay in the United States.  And while the IJ may ultimately order E-H-‘s release, on this day he did nothing to reset her inner pilot light.  The blank look on her face will haunt me for who knows how long.

After the bond hearing I met with the ICE trial attorney who will handle the merits hearing for the government.  Nice fellow, reasonable demeanor.  He had told me 10 days earlier that he’d have the A-file available for our meeting, but no such luck.  After skimming through our briefing package for 2 or 3 minutes he observed that client’s case is “just like all the other” asylum and withholding cases that he and his colleagues see day after day.  In his opinion, the client essentially “has no case,” “there’s no persecution here,” “no particular social group – a family? Really?”  Paraphrasing here:  “Her abusive father is a jerk, a bad guy;  but that doesn’t make your client a refugee.  And the gang that committed all manner of brutality on her and her family, why they’re just a bunch of criminals;  but they’re not persecuting her.”  There’s no doubt in my mind that this trial attorney will be looking for inconsistencies during the merits hearing;  he said as much.  It occurred to me that his search for inconsistencies will trump any genuine pursuit of justice by the government.  That’s just the way it is.

Justice is a big part of why we volunteers do this work.  In the end, it’s all about our clients and the efforts to ensure that they have a fair shot at making their cases, and that genuine justice will prevail.  Until now I’ve never been involved in such a meaningful professional endeavor.  Exhaustion has set in.  There are other work obligations, like a couple of dozen H-1B cap cases that were sitting on a table in my office, shouting for attention last week.  Meanwhile, the effort to help achieve justice for these women and children continues, as it must.

Written by Frank Johnson, AILA Member and Volunteer

Please click on these links to read Part 1 or Part 2 , Part 4, and Part 5 of Frank’s blog post.

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If you are an AILA member who wants to volunteer at a family detention center, please go to the CARA Family Detention Pro Bono Project page or feel free to contact Maheen Taqui at mtaqui@aila.org – we could really use your help.

To watch videos of the volunteers sharing their experiences, go to this playlist on AILA National’s YouTube page. To see all the blog posts about this issue select Family Detention as the category on the right side of this page.


A Look Back to Artesia, and a Look into Karnes: Part 2

Author: on 04/10/2015


shutterstock_247077634On to Karnes

With only the Artesia episode as a guide, I arrived in San Antonio this past January 11th, once again not really knowing what to expect.  The two experiences were very different.  Whereas in  Artesia the volunteers worked 16 to 18 hours every day, including weekends, to serve a detainee community that was in the several hundreds, there were only a relative handful of clients at Karnes, and only four of us volunteers that week to assist the project’s staff Christina and Vanessa.  And, as Christina told us when we reported to the RAICES property that served as our office, “we don’t work weekends” in San Antonio.  All of this sounded pretty manageable.  After spending a day to study the case files that Christina assigned, Shobhana Kasturi, Megan Boelstler and I drove down to Karnes, about 60 miles southeast of San Antonio.  While there’s not much to see along the way, the landscape wasn’t nearly as desolate as the trip from Albuquerque to Artesia had been.  A quick Google search suggests that the Karnes City Family Residential Center has a schizophrenic profile, depending on which link you view.  Is it a “family friendly environment,” as one post claims?  Or is it a no-nonsense, let’s-keep-movin’-‘em-out holding facility meant to discourage women and children from entering the United States?  Consider these two perspectives and then decide for yourself:

The family-friendly perspective:

It (the Karnes facility) will also be a much more family friendly environment.

“I am pretty sure you will agree this is nothing like we have seen before,” said ICE field office director Enrique Lucero during Thursday’s media tour of the facility.

Previously, the people being held at the facility were called detainees. Now they will be called residents. Guards are now called resident advisors. Even the facility itself will be referred to as a resident center rather than a detention center.

Lucero said the building will provide a safe and sound environment for families who are waiting for either asylum or a return to their home country.

“While they are getting their due process and going through the proceedings, we will provide a safe environment for them.”

The amenities do not stop simply at safe. Families will be given a health examination upon arrival along with six sets of fresh clothing for each member. Doctor attention will be available at all times and residents will have access to a dentist. Even the walls of the center have been painted with many colorful characters and pictures as many children are expected to call it home.

“There will be cartoons playing for children and games of that nature,” said Lucero.

Other amenities include recreational fields, a library, internet access, and a cafeteria which will serve three all-you-can-eat meals a day. Certified teachers will also be on site to provide year-round education and small jobs will also be available paying $3 a day for four hours of work.

The all-business perspective:

ICE modified its contract with Karnes County on July 11th to allow for the re-purposing of the facility. The county contracts with The GEO Group to run the day-to-day operations.

[ICE field office director Enrique] Lucero said the average stay for an ICE detainee is 23 days and they will try to maintain that average at the Karnes County Residential Center which has 532 beds. Still, during a press conference after Thursday’s tour, he warned the accommodations should not be motivation for anyone trying to illegally cross the border.

“Do not risk the lives of your children or risk your life. This is a dangerous journey coming to the U.S.,” Lucero said. “The U.S. border is not open to immigration and after your immediate detention and due process, there is every likelihood you will be returned to your home country.”

So, let’s see how this plays out.  Cell phones permitted?  “No cell phones.”  Easy access to clients?  “Well, of course!  Just wait  ( … and wait some more) while we locate your clients.  By the way, did you send us a FAX to let us know you’d be coming?”  After 45 minutes, “OK, here we are.  Just pass through this metal detector.  But first, let’s see your bar card and your driver’s license, which we’ll hold for you.  You can pick them up when you’re finished with your client visit and you return this numbered badge that we need you to wear.  What’s that?  You say you have some coloring books and a little stuffed animal for the children?  Sorry, we can’t allow that, cuz we provide ‘em with everything they need.”  (After some begging by the attorney)  “OK, we’ll have to check with the warden.”  (This is a quote, “the warden.”)  Apparently, the warden relented because the attorney was permitted to bring these items inside the visiting area – “but just this one time, you hear?  Next time, fill out this form in advance and let us know what you want to bring.  We’ll have to check it out ahead of time.”  How about water?  Can we bring water for the client?  The clients tell us that the water here is heavily chlorinated and it’s difficult to drink.  “No water.  Those bottles that you have there are not the right size anyway.  We give ‘em all the water they need.”

This doesn’t sound very family friendly to me.  In fact, the Karnes City Family Residential Center sounds downright Orwellian.  But is this the hill I want to die on?  Maybe there are more important battles to fight.  And, of course there are because this is family detention.

What next? I’ll focus on one case and we’ll follow it for a while.

Written by Frank Johnson, AILA Member and Volunteer

Please click these links to read Part 1Part 3, Part 4, and Part 5 of Frank’s blog post.

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If you are an AILA member who wants to volunteer at a family detention center, please go to the CARA Family Detention Pro Bono Project page or feel free to contact Maheen Taqui at mtaqui@aila.org – we could really use your help.

To watch videos of the volunteers sharing their experiences, go to this playlist on AILA National’s YouTube page. To see all the blog posts about this issue select Family Detention as the category on the right side of this page.


Why AILA Needs to Reincorporate, and Why Your Vote Counts

Author: on 04/09/2015


Logo AILA

 

On Friday April 17, 2015, AILA will hold a special members meeting in Washington D.C. where members can discuss the proposed move from New York to D.C., and vote on these resolutions either by direct vote at the meeting, or by proxy. Receipt of electronic proxies closes on Friday, April 17, at noon.

AILA had budgeted this year for a long-overdue complete legal review of its organizational documents, and engaged outside counsel for that purpose. That counsel recommended not only that we make changes in our Bylaws, but that we reincorporate into the District of Columbia, where our headquarters is located and where the laws are more suitable to an association of our size. The Bylaws Committee reviewed counsel’s recommendations, and prepared and recommended the amendments and reorganization to the Board.  The Board voted unanimously to support these moves.

As the Chair of AILA’s Bylaws Committee, and AILA’s Secretary, we urge members to vote in favor of AILA’s reincorporation plan.  We realize that some rumors and myths have been circulating about these plans, and we would like to address some of them here:

1. Why is AILA doing this? Why not just remain incorporated under New York law?

A primary reason for moving to a different jurisdiction is to allow direct electronic voting on elections and bylaws. New York law does not permit this. D.C. law does. In addition, the D.C. Nonprofit Corporation Act of 2010 is based on the most recent ABA model rules, is considered state-of -the-art and offers a great deal of flexibility in the details of not-for-profit governance, for example, related to the creation of committees. AILA as a national organization no longer has any ties to the state of New York apart from historic ones. This is an opportunity to update AILA’s governance documents and structure in many ways, to move into a more modern jurisdiction, and to offer a better voting system.

2. Isn’t New York’s system of proxy voting the same as direct electronic voting?

No. A proxy process requires a member to ask another AILA member to cast a vote on his or her behalf at a meeting. If the meeting does not take place, or the proxy holder does not come to the meeting, the proxy is null and void and the vote is not cast. If a member casts a proxy vote and then changes his or her mind, he or she must ask the proxy holder to revoke and or change his proxy. This is awkward and administratively burdensome.

Last year, AILA conducted its officers and directors election by electronic proxy for the first time.  We had the lowest turnout in memory:  about 10%.  Turnout in recent years has ranged from 17% to 28% (which is considered average to high in association voting).  The proxy process, even electronic, does have a dampening effect on member participation.

D.C. nonprofit law permits direct electronic voting by members. Under D.C. law, members may cast a secure electronic ballot directly, rather than using a proxy to have someone else cast their vote. It is simpler, more direct, more secure, and less administratively burdensome than a proxy system.  In addition, under AILA’s proposed D.C. bylaws, electronic voting for bylaws will take place after AILA’s annual meeting, allowing members a generous amount of time to consider all written positions presented on any bylaws change as well as any information presented at the annual meeting.

The Bylaws Committee believes—and AILA’s leadership has unanimously agreed—that there is simply no reason for AILA, now an organization of almost 14,000 attorneys, to be forced into a clunky proxy system (no matter how “close” such a system may be to direct voting), when direct electronic voting is available under D.C. law to all members for elections, bylaw amendments, and other critical ballot items.

3. Do the proposed D.C. Bylaws require attendance at a meeting in order to cast a vote—electronic or otherwise?

No.  With respect to officers and directors, under the proposed D.C. Bylaws, electronic voting will take place before AILA’s annual meeting.  As discussed above, under the proposed D.C. Bylaws, electronic voting for bylaw amendments will take place after AILA’s annual meeting, but attendance is not required at that meeting in order for a member to cast a vote.

4. Has AILA proposed this move in order to avoid compliance with certain transparency protections in the 2014 amendments to the NY nonprofit law?

No. New York enacted changes to its nonprofit law in 2014, but the assertion that those changes would impose substantive changes on AILA is based on a misunderstanding of the substance of the 2014 amendments.  Most of the provisions in the 2014 amendments apply only to charitable organizations under IRC section 501(c)(3).  AILA is not classified as a charitable organization—it is an association under section 501(c)(6).

AILA has for many years been following the practices now required by the 2014 amendments that do apply to AILA, such as a conflict of interest policy, restrictions on related-party transactions, having employees serve as Board chair, participation in compensation process, and whistle-blower policy.  Specifically, New York law now requires a conflict of interest policy and statement signed by directors and officers. AILA has had this in place for many years. New York law requires nonprofits to follow certain procedures when considering related-party transactions and not to allow compensated individuals to participate in compensation discussions or to serve as Board chair. AILA was already adhering to similar policies. New York law requires any organization with more than 20 employees and $1 million in revenue to have a whistleblower policy. AILA has had a staff whistleblower policy in place for a long time.

5. By moving to the D.C. jurisdiction will AILA change from a “member-governed organization to a “board-governed organization” and thereby disenfranchise its members?

No. AILA has been a Board-governed organization, and will continue to be a Board-governed organization under D.C. law.  A “member-governed” organization is one with so few members that its members are also its primary governing body, similar to a closely-held corporation or a small homeowners association. This does not apply to AILA.

It was the hope and aim of the Bylaws Committee to draft the proposed D.C. Bylaws in such a way as to make them clear and understandable for all members. If you are interested in how they will operate we strongly encourage you to read them.  And we ask you to vote in favor of this important change.

By Eleanor Pelta, Chair of the AILA Bylaws Committee, and Marketa Lindt, AILA Secretary


A Look Back to Artesia, and a Look into Karnes: Part 1

Author: on 04/09/2015


shutterstock_247077634Family detention.  Artesia.  Karnes / Dilley.  A year ago these were mere words. Sadly, that’s no longer the case. All of us volunteers have seen the families incarcerated at these facilities and we refuse to give up on them as our government seems to want us to do.

I wanted to share some of that experience with you. Over the next several blog posts, I’ll take you to Artesia and then Karnes, and offer a glimpse inside. You may regret what you learn, feeling helpless and guilty, but if even one of you becomes a champion for these kids and moms because of these posts, then it’s more than worth it. Read on, please, read on.

Artesia

I arrived in Artesia on Labor Day 2014, a business immigration attorney from Boston, not really knowing what to expect at a detention facility.  The scenery during the four-hour drive from Albuquerque was unlike the Massachusetts Turnpike or anything in New England for that matter.  High desert, some scattering of dairy farms, a few small towns.  And open space, lots of open, barren space.

Upon arriving in Artesia I went to the local church where the volunteers gathered each evening for Big Table meetings, a forum to assess the day’s progress and discuss case strategies and how to manage the next day’s assignments.  It was immediately clear that Big Table meetings are multitasking events, that in Artesia every waking minute counts.  There was too much at stake for our clients for it to be otherwise.  It was a long day:  at the airport in Boston by 5:30 a.m. local time;  Big Table ended around midnight (MDT);  back to the hotel to review assignments for the next day, and in bed at 2:00 a.m., almost a 24-hour day.  Yet that first day turned out to be the least hectic, least demanding day of my two weeks in Artesia.  Up again at 5:30 a.m. to get ready for the short drive to makeshift detention facility at the Federal Law Enforcement Training Center (FLETC) and to meet our clients for the first time.

I knew that the FLETC environment would be unlike the firm where I’ve worked for many years, so I was prepared for something different.  But not for this.  Not the scared young mothers trying to be brave for the sake of their small children;  not the razor wire;  not the regimented atmosphere established by Immigration and Customs Enforcement that permits the AILA Pro Bono volunteers to bring laptops and wrapped bars (but little else) into the work trailer imponderably known as the Law Library.  And, most of all, I was not prepared for the children:  lethargic, undersized for their ages, many of them obviously sick, unable to eat the food, the sparkle of childhood missing from their eyes.  Anywhere we went – that is, the women and their children as well as we volunteers – we needed an ICE escort (except to the bathroom).  But for the absence of orange jumpsuits, this was an orange jumpsuit environment.  The government can call this family detention.  Call it what you will, this was looking an awful lot like a detention camp, a jail, a prison.  Which is exactly what it was.

We volunteers arrived at the Federal Law Enforcement Training Center in Artesia by 7:00 a.m.  Not a very welcoming environment (e.g., daily visitor badges, escort required;  no eating here;  no cell phones there;  volunteers must tape over the camera lens on their laptops;  no, you can’t offer a cough drop to a detained woman who’s hacking away during her attorney interview;  no, you can’t be moving the chairs around inside the law library trailer so that the detainees can have a seat while they wait to speak with an attorney.)  This reminded me of the time in law school when my Immigration Law professor once remarked that sometimes immigration officers exhibit a parking lot attendant mentality – “no, you can’t park in that spot, you must park where I tell you.”  That mentality was in full bloom at Artesia.

The pace was frantic and our every move was monitored by ICE from the opening bell at 7:00 a.m. until we were escorted back to our cars before leaving the FLETC property around 6:00 p.m.  Then off to Big Table by 6:30 or 7:00 p.m., which often lasted until midnight.  Finally, back to the hotel to update the database and prepare for tomorrow’s cases until … whenever.

While life in Artesia was uninviting for the volunteers, it was an absolute nightmare for the women and children who were detained there.  Many of those women were literally running for their lives when they left their homes in Guatemala, El Salvador and Honduras.  Unrelenting familial violence, gang violence, lives measured in terms of unspeakable terror;  days, months, years spent in mortal fear of more beatings, extortion, and sexual assault, both threatened and actual.  How do these poor women begin to tell their stories to a string of complete strangers:  Border patrol agents, asylum officers, ICE officers, immigration judges – even the revolving door of volunteers who are trying to help these women?  Forced to bring her children with her to every interview and every court appearance, how does a woman explain, “they raped me in broad daylight” with her nine-year old daughter sitting next to her, the younger child crawling on and off mom’s lap throughout the interview?  And how can she begin to comprehend that if she can’t get this awful truth on the table it will greatly diminish her chances of winning her case?  That if she doesn’t reveal this most horrific abuse against her womanhood, a factfinder may determine that her story isn’t credible, and that this will sound the death knell for her claim?  The stories continued all day long, every day, each as horrific as the others.  Women passed weeks and months in detention.  Meanwhile, their children reached landmark events such as birthdays, Halloween and Thanksgiving – events that would otherwise be happy times in a childhood, but for the fact that these children were detained for months on end.  Childhoods hijacked right before our eyes – and for what?  Threats to national security?  Please!

One of the saddest memories of my time in Artesia came on a chilly, rainy Sunday morning.  One of the volunteers told the rest of us who were there in the Law Library trailer that she was interviewing an El Salvadoran woman whose little girl’s 7th birthday was that day.  My colleague fashioned a makeshift birthday card from the cover of a coloring book, which each of the volunteers signed and presented to this little girl.  We sang Las Mañanitas (I didn’t know the words) and Happy Birthday to her, and her huge brown eyes began to sparkle.  Half way through this impromptu celebration, her mom began to weep, her shoulders heaving, her heart obviously breaking.  And the birthday girl turned to comfort her mother.  We volunteers quickly excused ourselves and headed for our cramped work area behind the floor-to-ceiling panel and we all had a good cry, out of sight from our clients and the ever-present ICE guards.

The camaraderie shared by the volunteers was unlike anything I’d ever experienced.  I met lawyers, young and not quite so young, who weren’t the least bit afraid to fight their hearts out for these families.  One of the lessons of Artesia – indeed one of the characteristics of AILA’s pro bono project in that place – is that no issue was too daunting, no challenge too difficult to take up.  ICE or the Immigration Judge strikes a blow, you hit back and you hit back hard.  You leave nothing on the battlefield.  And every day was a battle.

Two weeks in Artesia leaves a person totally spent:  physically, psychologically and emotionally.  Ordinarily a big pro-Obama guy, I left that place wondering what it is that the Administration doesn’t get about the hell that is family detention.  I was at once relieved to leave Artesia yet filled with a sense that I wasn’t able to do nearly enough to make a difference in terms of helping these families.  Having been warned in advance that the Artesia experience might be transformative, I now had some idea of what that actually means.  Once back in Boston it was weeks before I could talk about Artesia without becoming emotional and for the nightmares to ease.  But before long, Artesia’s tug began to resurface.

Where would I go next? More tomorrow.

Written by Frank Johnson, AILA Member and Volunteer

Please click these links to read Part 2Part 3, Part 4, and Part 5 of Frank’s blog post.

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If you are an AILA member who wants to volunteer at a family detention center, please go to the CARA Family Detention Pro Bono Project page or feel free to contact Maheen Taqui at mtaqui@aila.org – we could really use your help.

To watch videos of the volunteers sharing their experiences, go to this playlist on AILA National’s YouTube page. To see all the blog posts about this issue select Family Detention as the category on the right side of this page.