It’s Our Security, Stupid

Author: on 02/27/2015


shutterstock_126785846I find myself in the unusual position today of agreeing with Rep. Peter King (R-NY) in his NY Daily News Op-Ed Wednesday (Guest column: Brooklyn terror suspects show it’s insane to not approve money for Homeland Security ) where he argues that security of the United States is too important and that funding the Department of Homeland Security (DHS) is essential to protect our country.  He is right.  As we sit back and watch the latest drama unfold on Capitol Hill, one cannot but wonder why funding our national security would ever become a political issue.  Clearly it is in our nation’s best interest to fund the agency which is responsible for protecting the homeland from terrorist attack.   Now more than ever Congress should recognize that terrorism can happen in the West and is being called upon by radical leaders abroad.  All they need to do is look at our friends in France, Holland and Canada to see recent examples of attacks on innocent civilians and local police.  Moreover, recently the terrorist group Al Shabaab called for an attack on American civilians in shopping malls such as the Mall of America.  Rep. King points out the need to fund DHS based on the three individuals who were arrested recently in New York City who planned to travel to Syria to fight with ISIL or attack American civilians in New York if they could not reach Syria.  Rep. King is properly putting the people of New York and America ahead of a political agenda.

Regardless of one’s position on the legality of President Obama’s Executive Action memos or immigration in general, we should all be able to agree as Americans that the safety and protection of the people of the United States is a priority regardless of political party.  As I write this, Congress is on a path to fund DHS for only three weeks.  It is unfortunate that members of Congress continue to gamble with national security and our lives to advance individual political gain.  We can only sit back and grit our teeth as the critical votes start to line up before a dysfunctional Congress that is putting party politics before American lives and wellbeing.

Rep. King correctly notes that “you don’t have to be a genius to carry out a terrorist attack.”  You also don’t have to be a genius to understand that national security and the safety of America is more important than petty partisan politics.  Rep. King gets it. Unfortunately, it seems there are not enough members of Congress who want to stand up and represent the American people rather than their individual parties and anti-immigration politics.  We can only hope their selfish gamble doesn’t cost American lives.

Written by Matthew Maiona, Member, AILA Media Advocacy Committee


The Unexpected Virtue of Ignorance

Author: on 02/24/2015


shutterstock_250501696Or (Thank You Sean Penn for Starting the Immigration Discussion at the Oscars)

I love film.  I love the Oscars.  To me, the Oscars, unlike the other award shows, represent the best of all aspects of the highly competitive, brilliant, and inspiring film industry.  As an immigration lawyer with an artistic client base, I am always interested to see nominees from around the world coming together in Los Angeles to celebrate the universal brilliance of film at the Academy Awards.  This year in the Dolby Theatre we again heard the talented winners accept their Oscar statues with many accents for their work on films written, produced, filmed, edited, and distributed in the U.S. and internationally.  We saw dual nationals, Julianne Moore (U.S./U.K.) win best actress for the New York based Still Alice, Mathilde Bonnefoy (France/U.S.), for best documentary, Citizenfour, Canadian Craig Mann and Brit Ben Wilkins accept the award for sound mixing for the New York based Whiplash and the international team of The Grand Budapest Hotel, with winners from Italy, France, and the U.K. garnering artistic awards in costume design, original score, and hair and makeup.

Unique this year, however, was the truly international compilation of the all American story of Birdman:  Or (The Unexpected Virtue of Ignorance) which was awarded best picture, cinematography, directing and original screenplay.  Birdman is all American in that its subject is the U.S. entertainment industry, recognized the world over as “Broadway” for the best of theatre and “Hollywood” for film, based on the short story by American treasure, Raymond Carver and shot entirely in New York City.  The Birdman team, including an Argentine writer, Mexican director, producer and cinematographer and British actors, along with their American colleagues, created the best film of the year as judged by their peers.  This achievement is in itself the American dream.  As Alejandro González Iñárritu, multiple Oscar winner for Birdman, so elegantly stated:

“I want to dedicate this award for my fellow Mexicans…the ones that live in this country who are part of the latest generation of immigrants in this country, I just pray that they can be treated with the same dignity and the respect of the ones who came before and (built) this incredible immigrant nation.” (Associated Press)

Yes, immigrants did build this country; they also built our entertainment industry, seen as the best, or at least the most influential, in the world.  Indeed, many of our most legendary directors including Frances Ford Coppola, Stanley Kubrick, Martin Scorsese, Mel Brooks, Robert Zemeckis, and John Houston are sons or grandsons of the immigrants of the early 20th century – those huddled masses who in their own time fought discrimination, marginalization and language barriers, but who, unlike today’s immigrants were welcomed by laws which enabled their integration into the U.S.   The current state of our immigration laws, with the unreasonable barriers and limitations on work visas and green cards, the limitations for those who enter without inspection and the crippling three and ten year bars is holding back those who come to this country in search of the American dream and depriving their children of the same opportunities afforded to the children of the immigrants of the early 20th century.  I don’t know how Alejandro González Iñárritu came to the U.S. or if he has a green card, as possibly inappropriately (or even ignorantly) stated by Best Picture presenter, Sean Penn, but he is clearly extraordinary, and accordingly would most likely be eligible for a work visa or green card under our current immigration laws.

While welcoming the best and brightest can be beneficial to the U.S., let’s not forget all those who came before us who were not extraordinary in their fields – those hard working young men and women seeking a better life; those whose children and grandchildren grew up to be legends of the film industry.  A brilliant director/screenwriter/ film producer/composer/immigrant has challenged us to look at the American dream in both his Academy award winning film and his acceptance speech; he has challenged lawmakers to enact laws that treat immigrants with dignity and respect worthy of this incredible nation.

I urge Congress to take up this challenge, to educate themselves about these important issues instead of repeating rhetoric aimed at creating more confusion and condemnation rather than educated debate and effective change. Our country has prospered in large part because of the contribution of immigrants and their children – those who had the next big great idea – whether it be in the arts, business, economics, finance, law or any other field. That is inspiring to me, just like the Oscars.

 Written by Anastasia Tonello, AILA National Treasurer


One Week, Two Injunctions

Author: on 02/24/2015


shutterstock_141143860What a week.

Last week began with a preliminary injunction temporarily preventing President Obama from implementing his executive action plan to protect millions of immigrant families from deportation.  The week ended with a preliminary injunction temporarily preventing the Obama administration from continuing its policy of prolonged detention of refugee women and children along our southern border.  One injunction to stop the Obama administration from helping immigrant families; the other to prevent the administration from continuing to harm them.

On Monday, February 16, 2015, the week began with an order by Judge Andrew Hanen of U.S. District Court for the Southern District of Texas in State of Texas, et. al. v. United States. In that case, Judge Hanen issued a preliminary injunction temporarily preventing the implementation of the Obama administration’s expansion of the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of American Citizens and Residents (DAPA) programs.  These programs were announced by President Obama on November 20, 2014, in a speech detailing a multitude of actions that the administration would take on immigration.  The President stated that his administration would prioritize immigration enforcement for criminal aliens and threats to national security and permit undocumented individuals who are not enforcement priorities  to “come out of the shadows,” apply for deferred action and receive temporary work authorization.

“Felons not families. Criminals not children. Gang members, not a mom who’s working hard to provide for her kid.” said the President to the nation on November 20, 2014.   And indeed, the DAPA and expanded DACA programs provide a much needed respite for the millions of undocumented families who have resided in our country, worked in our country, raised their children in our country for many years.

The preliminary injunction issued by Judge Hanen is a temporary blow to the millions of parents U.S. citizen and lawful permanent resident children who finally felt a glimmer of hope about their ability to keep their families together.

Most legal experts agree that as the Chief Executive, President Obama is authorized to set priorities for immigration enforcement and that the Immigration and Nationality Act and the Code of Federal Regulations authorize the Attorney General to grant employment authorization for individuals who have received deferred action. In light of the sound legal basis for the DAPA and DACA programs, the temporary injunction is likely to be lifted in the future. In fact, in an effort to keep these programs moving, the Obama administration announced that it would file a request for a stay of the preliminary injunction this week.

I applaud our President for using his constitutionally granted authority to provide some protection to the hardworking families that have resided in the United States for years, worked hard, contributed to the economy and communities. True to his word, the President is taking steps to allow hard working immigrant families to come out of the shadows and live without fear.

But while his soaring speech brought proud tears to my eyes on November 20, 2014, because I knew the positive impact these programs would bring to so many immigrant families, it also brought back the memory of the kids and moms detained for weeks and months on end by this same president. I remembered the women and children who fled for their lives and asked for the protection of the United States, whom I helped through the Artesia Pro Bono Project. To them, his words were nothing more than a slap in the face.

Since June of 2014, the administration has been detaining the most vulnerable– women and children refugees – in centers near our southern border without bond.  The Obama administration argues that these families pose a threat to national security.  The administration argues that these families should not be released on bond to pursue asylum protection in the United States.  The administration pushes them through immigration removal proceedings with unprecedented speed and limited access to legal counsel.

This brings us to the second preliminary injunction of the week – issued in RILR v. Johnson on Friday February 20, 2015 in U.S. District Court for the District of Columbia.  In that case, Judge James Boasberg enjoined the Department of Homeland Security (DHS) from continuing its shameful policy of jailing refugee women and refugee children from Central America at our southern border to deter others.

The government argues that the detention of these women and children is necessary to deter a mass influx of future immigrants that would threaten national security.  In RILR v. Johnson, the American Civil Liberties Union (ACLU) filed suit on behalf of the mothers and children who have fled extreme violence in their home countries.  The women and children on behalf of whom the suit was filed fled horrific violence, death threats, rape or persecution in their home countries before fleeing to the United States.  These women and children established a “credible fear” of harm in their home countries, meaning that there is a “significant possibility” that they will establish eligibility for asylum protection in the United States.

Despite these facts, the DHS continues to argue that the families must be detained in order to prevent others like them from seeking protection in the United States.  In issuing the preliminary injunction Judge Boasberg stated that the “incantation of the magic word ‘national security’ without further substantiation is simply not enough to justify significant deprivations of liberty.”

Judge Boasberg’s order means that these refugee families are entitled to individualized bond determinations, which involve questions about whether they pose a danger to the community or a flight risk that requires their detention.  Judge Boasberg’s order means that these families can no longer be held without bond or with an unreasonably high bond simply to try to prevent others from coming to the United States in the future.

The DHS has not yet indicated whether it will challenge the preliminary injunction.

The week was a rollercoaster. At the start, I found myself deeply disappointed by a judge’s decision. By the end of the week, I was thrilled that another had seen the specious arguments of DHS for what they were – excuses to jail families in an unjust and inhumane manner. Judge Boasberg’s decision means that the government can no longer do so without repercussion.

It was a heck of a week – let’s see what happens next.

Written by Jennifer Casey, AILA Member and Artesia Pro Bono Project Volunteer


Traitor? Not So Much.

Author: on 02/19/2015


shutterstock_171828821I was called a traitor, twice, in less than an hour today.

It’s not the first time in my role as AILA’s Executive Director that I’ve been called that, but it still offends. The fallacies about immigrants, about the undocumented, about our borders and our government’s actions continue to linger.

This time it was on C-Span’s Washington Journal. The callers were cut off when they spit out the accusation, but I tried to honestly answer their questions while inside I was yelling “HOW DARE YOU?”

I’m not a traitor when I ask our Congress to pass good immigration reform, actual legislation that would fix the broken system and address the undocumented already here.

I’m not a traitor when I acknowledge that the millions of people already in the United States, already building lives here, paying taxes and working, need a way out of the shadows, away from fear, and into the light.

I’m not a traitor when I read studies modeling the economic impact of giving work authorization to those who apply for DACA and DAPA that show it will in fact help the economy.

I’m not a traitor when I think having people come forward for DACA and DAPA will actually help our country prioritize enforcement on those who actually pose a potential risk to public safety.

I’m not a traitor when I think that a U.S. citizen child is better off with a loving, caring mother and father than to have her family torn apart and her parents deported, like Diane Guererro described.

I’m not a traitor when I believe that our country at its best will welcome those striving for the American dream, no matter their race or color, instead of spitting on them.

I’m not a traitor when I explain that a federal judge’s decision was the wrong one, based on many of the same spurious anti-immigrant claims that those callers espoused.

I’m not a traitor when I still revere what the Statue of Liberty stands for, when I acknowledge that many of my own ancestors came to this country and benefitted from our Constitution’s rights for those who reside here.

I’m not a traitor when I can put myself into someone else’s shoes, a desperate mom or a terrorized child, who seeks asylum in this land of the free.

And I’m certainly not a traitor when I agree to answer questions, honestly and with as much legal expertise as possible, to anyone who calls in on a national news channel. I just get called one then.

Written by Crystal Williams, AILA Executive Director


In Defense of Consular Officers

Author: on 02/19/2015


shutterstock_123147769For over 25 years, I have been living and working abroad helping noncitizens secure family, work and other types of visas to the United States.  As a specialist in consular law and procedure, I’ve had the honor and the privilege to deal with American consular officers at posts around the world, and have spent countless hours studying and writing about Volume 9 of the Foreign Affairs Manual (FAM), the authoritative guidance governing every consular officer’s process for issuance of a U.S. visa.  Like other immigration lawyers, I am closely following the case of Kerry v. Din pending before the Supreme Court (argument scheduled for Monday February 23).  At stake in that case: whether the courtroom door is open to an American citizen asking for a minimal explanation about the denial of her spouse’s visa on what the government asserts are terrorism grounds.

The premise of the Solicitor General’s (SG) argument is that the issuance or denial of visas is a discretionary function carried out by consular officers. The fallacy of that description, however, is that it’s outdated.  It ignores the reality of the Homeland Security Act of 2002 – Congress’ response to the 9/11 tragedies – which gives the then-newly-created Department of Homeland Security (DHS) an overarching role in the visa process, especially when it comes to denials based on security grounds.  (For more information on DHS’s predominant role in the visa process, see here, here, and here).

It is DHS’ role in database-driven national-security determinations, like the one at issue in Din, that’s explained in an amici brief by a group of former consular officers supporting Ms. Din.  For the government to claim that courts shouldn’t review “discretionary” visa decisions by consular officers begs the case’s key question, because those decisions are often made based not on the consular officer’s discretion but rather on DHS inadmissibility findings entered into national-security/terrorism databases and watchlists.

A strange thing happened shortly after the compelling amici brief by the former consular officers was filed. In the brief period between filing of the amici brief and the date for filing of the SG’s reply brief, the section of the FAM relating to the duty of consular officers in cases involving DHS findings of inadmissibility on a national-security/terrorism database or watchlist was suddenly changed.

Previously, the guidance to consular officers had stated:

Except in cases involving non-permanent inadmissibility, you should not look behind a definitive DHS finding or re-adjudicate the alien’s eligibility with respect to the provision of inadmissibility described in the DHS lookout entry.

But suddenly, as of January 29, 2015 this guidance now states:

Except in cases involving non-permanent inadmissibility or in cases of 212(a)(3) grounds, you should not look behind a definitive DHS finding or re-adjudicate the alien’s eligibility with respect to the provision of inadmissibility described in the DHS lookout entry.

The 212(a)(3) grounds are the security and terrorist-based grounds of ineligibility which served as the basis for the denial of the visa to Ms. Din’s husband.

By virtue of this sudden FAM change, the SG shamelessly claimed in its reply brief that “consular officers do not automatically deny a visa application pursuant…when there is a ‘hit’ in the terrorist screening database (or another database)” and that these terrorist database determinations are even “subject to reexamination” thorough the Security Advisory Opinion (SAO) process.

The curious speed and unusual declassification of that change, and its prospective application, which served to further the SG’s litigation position, is the subject of another blog.

The SG’s claim is entirely misleading. The plain language of the FAM change requires consular officers adjudicating cases potentially raising national-security concerns to seek an SAO. But consular officers are not even part of the SAO “loop” – the SAO is managed through an inter-agency process in DC.  As such, the FAM guidance, even as changed a few weeks ago, provides no opportunity for the consular officer him or herself to exercise any modicum of discretion to “reexamine” or otherwise look behind the DHS determination. Moreover, the revised FAM provision does nothing to alter the division of responsibilities in the Memorandum of Understanding between the Secretaries of States and Homeland Security Concerning the Implementation of Section 428 of the Homeland Security Act (MOU).  Paragraph 4.b. of that MOU provides that when the State Department disagrees with the SAO of a third agency, it is DHS—not the State Department—that resolves the conflict.  Whatever change the SG has tried to conjure in the FAM, it leaves undisturbed the fact that consular officers do not deny visas as an exercise of discretion in database-driven national-security cases.

The SG’s rhetorical and sub-regulatory maneuvers have failed to conceal that the government’s argument boils down to an assertion: “Trust Us.” It is an assertion belied by the facts in the Ibrahim case, where a person the government admits poses no terrorism threat was wrongly included in government watchlists because an FBI agent checked the wrong box on a nomination form.  The fundamental principle of judicial review, particularly apposite when an American citizen’s family life is at stake, rejects leaving to government fiat the maintenance of gigantic databases disqualifying spouses from living together, without any independent oversight.  In Kerry v. Din, the Court should uphold the court of appeals’ decision that some visa decisions, including those having nothing to do with a consular officer’s discretion, are not completely shielded from judicial review.

Written by Liam Schwartz, Member, AILA State Department Liaison Committee


Politicizing Established Principles of Prosecutorial Discretion Without Offering Real Solutions

Author: on 02/17/2015


shutterstock_220237405Judge Andrew Hanen’s ruling this week issuing a temporary injunction to the expanded DACA and new DAPA programs announced as part of the President’s concrete steps to alleviate our current dysfunctional immigration system is nothing more than a political kneejerk reaction to the Administration’s efforts.

Congress has been unable to pass any legislative reform of our immigration laws despite laudable efforts by the Senate in 2013 when they presented the House with a bipartisan comprehensive immigration bill to address the three major components of immigration reform:  (1) strengthening enforcement, (2) addressing undocumented immigrants already in the US, and (3) improvement of our legal immigration process.

Obstructionists to real reform of our immigration laws have called Judge Hanen’s decision a “victory on the rule of law”; but nothing could be further from the truth.  The only ones victorious in this are restrictionists for whom sensible, reasonable measures are anathema.  The ruling sadly diverts attention from the true state of affairs – the inability of our Congress to provide real solutions for our broken immigration system.

In the past weeks, Congress appears to have set aside working on legislation that would tangibly address our immigration challenges in a balanced and commonsense manner.  We can’t take that inaction lying down. We must continue to pressure our lawmakers to take concrete steps to address the unworkable myriad of contradictory and outdated immigration laws on our books, laws that stifle entrepreneurship, hurt our economy, and separate families.  The DACA and DAPA programs did nothing more than properly direct the agency to maximize and intelligently implement prosecutorial actions to better align our nation’s security by prioritizing the removal of those who truly are a danger.

The lawsuit against DAPA and DACA is a waste of taxpayer funds, intended to obstruct programs that would provide real tangible benefits to individuals, communities and our economy at large. It is short-sighted and ineffective.  A plethora of economic studies have substantiated data that the DACA program initiated in June of 2012 has brought economic prosperity and security to both individuals and communities.  DACA and DAPA are supported by law enforcement officials around the country because they will help ensure enforcement is smarter, more efficient, and economical.

Politics must be left at the door, lawmakers must roll up their sleeves and work on providing real solutions to our immigration laws that will ensure our nation’s competitiveness, recognize the contribution of immigrants, and protect our borders. Sadly the ruling does none of those things. Congress must act.

Written by Annaluisa Padilla, AILA Second Vice President


Who Will Carry the Torch?

Author: on 02/11/2015


Artesia1

Even now, over seven months since my first tour of duty in Artesia, I still get chills just thinking about it.  I am not sure I have really taken the time to process everything I experienced. I am not sure I want to.  Last Wednesday morning I got a text message from Christina Brown. She copied and pasted a link to the New York Times magazine article, “The Shame of America’s Family Detention Camps” in the text message.  I clicked on it and then checked out for the next ten minutes.

As I scrolled through the article on my phone, I started to have flashbacks of how the project began. I thought about the unwavering support from AILA attorneys across the map. I thought about the faces of the women and children that were trapped in the hell hole of Artesia – the thrown together detention camp on the grounds of the Federal Law Enforcement Training Center in Artesia, NM.   I thought about the late nights with other comrades on the ground who also felt a sense of duty to fight for these women and children. We were determined to give these human beings a voice. We had to fight.

The article is a glimpse of the second phase of the project.  As we celebrated the end of hell in Artesia, women and children were being shipped off to Texas. The pain and desperation in their faces still linger. They are still trapped. Under the propaganda of national security, our government continues to keep these women and children on their knees and silenced.  Writing this is even difficult because it is hard to think about how there appears to be no end in sight.  We fought, we won – but did we, really?

Supplies for the volunteers and detained families

Supplies for the volunteers and detained families

In thinking about the fight, my mind wanders back to an afternoon in late July.  I was in Laura Lichter’s office during a staff meeting. We were both just utterly disgusted about what was going on in Artesia. She looked at me and said, “Wanna go to Artesia?”  I asked her if I needed to pitch a tent.  I then looked at my calendar and freaked out about what I had to do at the office. I remember that moment and just laugh at myself for thinking that making a few client calls was more important.  Nonetheless, schedule changes were made, and Laura picked me up at my apartment. I had no idea what I was getting myself into. I just thought, the hell with it, there’s some messed up stuff going on and we need to do something.  The nine hour drive consisted of listening to Laura gather information about what was happening on the ground as a small group of attorneys set up shop in the Artesia Chamber of Commerce.  And yes, I admit it, I did have to play some Indigo Girls just to keep me grounded on the drive. True Story.

We arrived at the Chamber of Commerce with an SUV filled with office supplies, soccer balls, toys, bottled water, coloring books, and Kurzbans.  I walked into the room and became instantly overwhelmed. It was a war room covered with posters of information on the wall and folks typing away on their laptops as if there was no tomorrow.   I stared at the stacks of G-28s on the table and thought,
“Here we go.”

I sat on a couch and tried to soak it all in. I remember looking over and seeing Christina Brown. I knew her from Denver, but we did not spend much time together there. I looked around the table and saw more familiar faces from Colorado.  We introduced ourselves.  At that moment, I felt a sense of camaraderie that I cannot describe in words.  We helped each other help these mothers and their children. We made a plan. We figured if the government was going to deprive these women of their voice and their right to counsel, we were going to make noise for them. We would fight. We stayed up until early the next morning making green leaflets. Laura called it, “guerrilla lawyering.”  We planned on going to the facility and handing out essentially what was a “know your rights” leaflet that had a box for the women to check off if they wanted to talk to an attorney.  We were transported in a caged van from the entrance of the facility to a trailer they called a “law library.” We made our way into the “law library” and started handing them out in the back room where the women and children were allowed. We had no idea how much impact that little green leaflet would end up having, it opened the door. It ended the silence.

leaflet

The infamous leaflet

I remember going into the back room and speaking to the women. It was a short lived moment before the ICE officers kicked me out, but at least I was able to instruct the women and children to fill out the sheets and raise their hand if they have yet to see a lawyer. Nearly the whole room raised their hand.  I had no idea how we were going to be able to talk to all these women. Nonetheless, we had to try. For the next few days we returned to the facility and talked to as many women as we could. We attended credible fear interviews (CFIs). We filed motions to continue, motions to reconsider, and made sure every woman we saw knew she had a right to counsel. Rumor has it, a nun was leafleting throughout the facility – Shelley W. is a trooper.

The heartbreaking part of it all is that as we fought, there were some battles we simply could not win. We could not cure the sick children. We could not provide adequate health care. We could not eradicate the trauma these women and children were experiencing. We could not change the fact that children were in jail. We could not make the headquarters judges set rational bond amounts.  We knew we could not make it all better. There was never going to be a moment where Artesia could be all about unicorns and rainbows. It was going to be a nightmare, but at least we were going to make sure these women knew we had their backs.

I ended up staying an extra day.  Christina Brown and I were the only attorneys at the facility that day. Women were there with leaflets. They got our message.  One woman said she needed a lawyer. I told her I would speak to her as soon as I could. She waited.  Her son looked scared but mustered a smile. At the end of the day, I finally got around to talking to her.  She told me her son had not eaten in almost a week. He coughed throughout our conversation. I gave her my protein bar. She broke a piece off and gave it to her son, “Gracias” he mumbled as he pushed a wad of the protein bar to one side of his mouth.  The woman passed me a couple of sheets of paper.  She did not know what the papers meant, but she asked me if she was going to be sent home. I read over the papers and saw that she had a positive CFI.  I told her she was found credible and now would have a chance to present her case. She wept. She began telling me her story. She wept as she spoke of her son’s father and how he would rape her and beat her. She said she left to save her son. I looked up and saw that her son was being reprimanded by an ICE officer.  He came back and asked his mother if the officer was going to shoot him. I could not begin to comprehend the amount of trauma and fear that plagued the people held at Artesia. I left Artesia that same day, as Christina Brown committed to staying.  We passed on a bulk of the cases to her to continue to carry the torch.  I remember being so relieved she was staying and would keep up the fight for us and for the women and children.

I returned to Artesia several times over the next few months.  The woman I met on the last day of my first tour of duty was granted asylum on October 23, 2014. I represented her, and we won. I drove her from New Mexico to Denver where she boarded a plane to NYC and is now living with her sister in Brooklyn.  Every time I went back to Artesia I was impacted by how much progress was made. I remember watching Stephen Manning on YouTube and navigating through the databases maintained by the individual input of hundreds of volunteer lawyers over tens of thousands of hours. It was a whole new world. Cue Aladdin.

The transport van from an attorney's viewpoint.

The transport van from an attorney’s viewpoint.

I met so many incredible advocates.  We became a family. Once you have been in Artesia, you cannot forget it. I have kept in touch with folks throughout the months. I, like many others, volunteered remotely to help until I could get back down to Artesia in person.

I spent Thanksgiving with my Artesia family – it was my last trip to Artesia. I met with an indigenous woman who I had seen on a video screen in Denver. As Dree Collopy spent hours eliciting testimony from her, something did not seem right. The Mam interpreter communicated words different from those the woman had communicated to Dree in Spanish during the many hours they had spent together in person and on the phone preparing her sworn statement. Somehow, the interpreter had managed to state that the gang threw the woman’s husband off a cliff, when really, the gang had thrown rocks at her husband. But Dree does not speak Mam. I do not speak Mam. Time ran out and the individual hearing was continued. Sitting in the courtroom in Denver, we were left wondering what had happened. We had to figure out what happened before the next hearing.

I went to Artesia and met with the woman in person. She had been in the facility since the kick-off of guerilla lawyering. She smiled and her son came up and greeted me.  I spoke to her in Spanish and asked her about the responses she made during the course of her hearing that did not seem accurate to Dree. She repeated what she said in Spanish. I asked her how she would say it in Mam. The difference between the word cliff and rock when said in Mam was just two letters. Even though Dree had prepared her to speak up if there were difficulties with the translation, the client said she was afraid to interrupt. She knew she could, but she was too nervous and scared. Five months in detention had silenced her voice. I could not believe it. This woman had become so accustomed to being misunderstood that she had lost hope that a judge would ever understand her. She wanted to try again in Mam at her next hearing.  She vowed to speak up if she did not understand. Over the next few days, Dree and I worked with her to find and embrace her voice again. At the next hearing, she spoke up. The Mam interpreter was excused midway through the hearing.  Determined to make sure her truth was heard, she declared that she would proceed in Spanish, her second language that had improved throughout her months of being trapped in Artesia and unable to communicate. During cross-examination in Spanish, she explained that the word “cliff” was wrong and was due to inaccurate translation by the Mam interpreter. This frustrated the government’s trial attorney. When the woman’s testimony was finally being accurately communicated, the trial attorney moved for a finding of diminished credibility. This is how the government treats indigenous clients. Rather than ensuring that interpretations are accurate in the pursuit of justice, they try to penalize the client for speaking up. The woman had used her voice and somehow that was just unacceptable to DHS. She was fighting for her life and that was not acceptable either. She wanted to be heard. It was her right. Dree fought hard against any finding of diminished credibility, and ultimately, got her client a de novo hearing. After the de novo hearing, the indigenous woman was granted asylum. She had overcome so many obstacles and was finally heard. Her story was told. She used her voice and fought.  She won.

The work that drives this project is amazing. We have empowered women and children and have pushed back. We have cried. We have been in the trenches.

Christina Brown is still in the trenches.  I have witnessed her struggles and have witnessed the look on the faces of the women and children from Artesia that see her and see hope.  She is an incredibly strong human being and continues to give women strength to continue to fight their cases. With the closing of Artesia, we cannot just throw in the towel.  The article describes the disgrace and lack of humanity that rested at the core of Artesia.  The core of Artesia is now in Texas. The NY Times article was like the lighthouse on the coast of Maine emitting light to some of the most treacherous obstacles.  Dilley and Karnes will continue to be obstacles to due process and humanity. The article is bittersweet. It sheds a light on the folks still on the ground, but also reminds us that family detention continues to thrive. Vanessa and Christina’s tour of duty is near an end. Who will carry the torch?

Written by Elanie Cintron, AILA Member and Artesia Volunteer

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If you are an AILA member who wants to volunteer at a family detention center, please go to http://www.aila.org/beavolunteer or feel free to contact Maheen Taqui at mtaqui@aila.org–we are looking for more as the work wraps up and we could really use your help.

If you aren’t able to come help in person, consider donating at http://www.aila.org/helpthevolunteers. And thank you!

To read the report by Stephen Manning detailing the Artesia project, see https://innovationlawlab.org/the-artesia-report.  

To watch videos of the volunteers at Artesia and elsewhere 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.


Big Data, Bad Data: Resolving the Tyranny of the Database

Author: on 02/09/2015


shutterstock_239579581This term, the Supreme Court is considering a case that implicates the doctrine of “consular non-reviewability”–the legal principle that generally, courts in the United States will not review the discretionary decisions of American consular officers if they deny visa applications overseas. The doctrine has a long history in Supreme Court jurisprudence, and is based on both constitutional and practical concerns. As a matter of constitutional law, consular decisions may be tied up with foreign policy concerns that the Courts generally leave to the Executive Branch; as a matter of practical concern, both the volume of visa applications and the difficulties of getting records of decisions from far-flung consular posts make meaningful judicial review impracticable.

One of the briefs by amici in the case comes from a group of former consular officers, and attacks both the legal and practical justifications for the doctrine in a new way. They highlight a reality facing any American company or citizen seeking to sponsor a foreign national from abroad. The former consular officers detail the “veto power” that the Department of Homeland Security (DHS) has over any consular decision to grant a visa, and how that power is exercised not through individual discretionary decisions, but through entry of information into a complex of databases overseen by DHS.

The consular officers describe, in chilling detail, how one physician from Malaysia was denied renewal of her temporary work visa because an FBI officer checked the wrong box on a form used to enter data into one of the databases that feeds into the DHS system. The error was only discovered after extensive litigation, in which the government fought any attempt to disclose the basis for its decision.

The problems caused by unknown (and, as a practical matter, undiscoverable) databases used by the immigration authorities are not just limited to foreign nationals when they apply for visas, however. Business immigration practitioners will all be able to tell stories of having petitions filed by established companies and other institutions questioned because of bad information in the commercial database used by USCIS to verify information in business-related petitions. My own favorite experience was a Request for Evidence seeking proof that an internationally-renowned research institution continued to exist, because the database did not have any recent information of their commercial activities in it – when a quick search of the Internet would have turned up news stories about one of the institution’s faculty having won the Nobel Prize the month before.

The tyranny of “what’s in the computer” extends through most immigration-related processes, and can be difficult to remedy. Recently in our office, we encountered a situation in which the Department of State rejected an immigrant visa applicant, telling him that he had committed fraud in a prior visa application. We were able to determine that a former employer of the visa applicant had filed a petition for our client, and the consulate had returned it to the Department of Homeland Security to determine whether the employer had committed fraud. DHS, in turn, had entered in the computer that the consulate had found fraud, without doing any determination about the petition. We now have a situation where the State Department says it can’t do anything to change the decision, because DHS made it; DHS, in turn, says it cannot do anything to change the decision because the State Department made the determination.

For individuals caught in such dilemmas, litigation against the government is often the only hope, and offers no guarantee of success. The government normally fights such suits by arguing the court has no jurisdiction, rather than trying to argue that the decision was supported by sufficient evidence. Even for U.S. citizens caught in the web of databases, litigation to remove one’s name from watch lists can be an expensive and risky proposition.

If the U.S. Government is going to rely on these databases to make decisions affecting US businesses and family members, they need to create a more robust process through which errors in these databases can be brought to light and corrected. As the consular officers note in their brief, too often bureaucratic inertia and workload constraints prevent consular officers or others in the immigration system from being able to get to the bottom of a “flag” on an applicant’s record. A more robust Privacy Officer position within DHS, with sufficient staff and resources to be able to respond to public inquiries and help resolve database errors, would go a long way to ensure that visa decisions are made on the basis of high quality information, and that American families and businesses have a mechanism to redress database problems that affect their lives and livelihoods.

By William Stock, AILA First Vice President


The Weight of 216 days

Author: on 02/06/2015


shutterstock_68484649216 days. That is how long Sofía and her daughter Isabel* had to wait for a chance at release from family detention at the southern border. After over seven months of confinement at two different facilities, they will finally be reunited with their family lawfully residing in the United States.

The legal battle Sofía and her daughter have fought in Artesia and now Karnes has been almost incomprehensible. Fleeing years of domestic abuse, forced servitude, and death threats, Sofía chose to come to the United States to seek protection. She and Isabel, who recently turned five years old, were apprehended at the border in late June. After Sofía passed a credible fear interview (despite the fact that it was not in her native language), ICE refused to offer a bond. In late July, the Immigration Judge also denied Sofía a bond, despite her positive credible fear finding and documentation of a stable residence with her lawful permanent resident father, as well as proof of the other family members with legal status in the United States. In October the Pro Bono Project filed a motion for subsequent bond, which was summarily denied. The Immigration Judge did not provide an explanation for his decision and simply stated: “I am going to deny that now.”

There was enormous disappointment and outrage over the bond decisions, but Sofía continued to express the importance of pursuing her case. The Pro Bono Project saw the strength of her asylum claim and agreed to represent her at her individual hearing. The client had endured horrific persecution, being treated as an indentured servant and enduring physical and verbal abuse on a regular basis, all because of her indigenous background and her family membership. Despite attempts to escape this abuse within the country, she received death threats until the very days she left her home country.

We believed this was a strong asylum case. Sofía’s heartbreaking testimony, alongside the legal analysis that Sofía and her daughter had been persecuted on the basis of multiple protected grounds, wove a compelling narrative. However, the Immigration Judge denied her claim, finding that the years of physical abuse, servitude, and death threats did not meet the standard of persecution, and that she had an internal relocation option. The legal team was shocked. Upon receiving the translation that her case had been denied, Sofía collapsed, falling on the courtroom table for support and sobbing. Everyone left the courtroom trailer in devastation and disbelief.

In the days after the asylum decision, Sofía, with the support of the Pro Bono Project legal team, had to decide how to proceed and whether to pursue an appeal, knowing that it could mean months more of detention. It seemed that this decision weighed on her, especially witnessing the impact of the detention conditions on her daughter’s physical and mental wellbeing. But Sofía also expressed the continued danger she and her daughter faced in returning, and believed in the injustice of what the Immigration Judge had done in denying her case, so she decided to appeal the Immigration Judge’s decision, while also pursuing release for her and her daughter.

In January, I filed a second motion for subsequent bond. By this time, the venue for the case had been changed three times and Sofía and her child had been detained for over six months. The Immigration Judge identified that there had been a change in circumstances based on the new expert evidence detailing how Sofía, her daughter, and the women and kids who have been detained are not in fact national security concerns, and set a bond of $7500. After years of living in terror in her home country, followed by seven months of detention in the country that was meant to protect her, Sofía and Isabel can leave a world of constant surveillance, confinement, and fear.

The injustices Sofía and her daughter have had to endure illustrate what can go wrong at pretty much every stage of the family detention process. Had it not been for Sofia’s resilience, as well as her and the legal team’s belief in her right to stay in the United States, this valid asylum claim could have been abandoned at many points in the process. While I am relieved that she and her daughter have a chance at release, I also know that there is a long appeal road ahead, as well as their personal path to recovery from the physical and mental stress caused by prolonged detention. And I am angry knowing that the wrongs that have been committed against them cannot be corrected, that she and her daughter will not receive compensation or atonement for the inhumane treatment they underwent.

I talked with Sofía on the phone two days ago and asked her if I could include information about her case in this blog post and whether there was anything she would like the American public to know. Her words struck me as powerful and true: “What happened to me is unfair. To not even give me the chance to live with my family here in the United States, to keep me and my daughter in a jail. I want people to know that those who suffer the most in detention are the kids, that this is no place for children. Kids in jail, it is so terrible, so unfair.” Sofía is right.

* Names have been changed

Written by Julie Braker, AILA Member and Artesia Volunteer


Bad Choices

Author: on 02/02/2015


shutterstock_141609061Last week, my state’s attorney general, Adam Laxalt, did something that is wrong for my community, my state, and my country. He signed Nevada to the lawsuit against President Obama’s executive action to defer deportation for potentially millions of long-time residents.

I’ve been here in Nevada for decades – nearly 30 of which I’ve spent practicing law. My field is immigration law and I’m a true believer – helping to found and lead the Nevada Chapter of the American Immigration Lawyers Association (AILA). And now, well, I’m embarrassed for my entire state.

Why did Adam Laxalt decide that it was a good idea to join 24 other states in a meritless, politically motivated lawsuit? Despite the rhetoric, the president’s actions were completely lawful and within his authority, intended to give some freedom from fear for immigrants who are not security risks while Congress hopefully works on a permanent solution.

Mr. Laxalt should know that President Obama’s actions were lawful – they actually fit under the same executive authority that presidents from both parties have used repeatedly over the past decades. A little bit of family history for Mr. Laxalt – when the Reagan administration realized that their amnesty program only helped those who entered before 1982, it allowed family members who had come after 1982 to stay in the U.S. and gave them employment authorization. At that time, one of President Reagan’s closest political advisors was Senator Paul Laxalt from Nevada, the son of Basque immigrants from southern France and the grandfather of Adam Laxalt, the current AG.

Beyond embarrassing a family legacy, joining this lawsuit at this point is pure theater. The preliminary hearing has already been heard – on January 15, 2015 – though the decision has not yet issued from the judge. At the very least, he should have waited to see if the Texas judge would throw this lawsuit out of court the same way that another federal judge threw out Sheriff Arpaio’s lawsuit against the executive actions. Instead he drags our state into pointless and wasteful litigation that does not reflect our values as Nevadans. The arguments presented in the lawsuit, that the U.S. will be economically harmed by Obama’s Executive Action, are speculative and have been rejected in earlier lawsuits. In fact, numerous studies show the exact opposite:  that allowing people to come out of the shadows and providing some kind of work authorization for the undocumented will benefit the economy.

Now we hear that the Republican Governor, Brian Sandoval, who supported Mr. Laxalt’s election and has been discussed as a potential Republican candidate for Vice President in 2016, is very concerned about the loose cannon that is his new lawyer.  The Governor reportedly said that he was not consulted on the decision to join the lawsuit and that it came out of left field, adding that he would be meeting with the AG to discuss the future course of the lawsuit.

What does Mr. Laxalt do then? He doubles down saying he doesn’t need the governor’s permission. Not the best idea to my mind, but he is making his choices. Sadly though, he is making the wrong ones for our state and our country. I guess Mr. Laxalt doesn’t see it that way but I am proud to say that many Nevadans disagree with him and side with our country’s history, our country’s values, and our country’s future. Thank goodness.

Written by Peter Ashman, Past Chair, AILA Nevada Chapter