Author Archive

A Silent Crisis: Children Experiencing Trauma in Family Detention

shutterstock_156012083During my week as a volunteer attorney in San Antonio, I visited with a mother and child at the Karnes family detention center who had been transferred from the Artesia detention center when it closed.   The mother and her young son had already been detained for seven months, and I was helping to prepare them for their merits hearing.  Their case was compelling and harrowing, like many of the mothers and children detained in these family detention centers.  The mother had suffered horrendous sexual, physical, and emotional abuse as a child, suffered domestic violence as an adult, and then finally fled for her life and the life of her child when the gangs threatened to kill her and her son.  Sadly, it’s a story shared by many of the women detained in Dilley and Karnes, and those who were detained in Artesia.  Sadder still, it’s a story that this woman has had to repeat over and over again while locked up in detention – to the Border Patrol officers when she was crossed into the United States; to the asylum office during her interview; to a multitude of volunteer advocates trying to help her with her case; to the various immigration judges who have presided over her case as jurisdiction changed from Immigration Courts in Virginia, Denver, and now San Antonio.

Those seven months in detention, the uncertainty of her fate and that of her child, and their declining mental and physical health, weighed heavily on this young mother.  The first thing she said to me when I met her was, “Are you new?”  She was tired of telling her story.  She was tired of reliving her pain.  She was tired of being detained and not knowing when she would be released and if she would be deported to face death at the hands of the gangs who have taken over much of her country.

But what struck me the most was this woman’s son.  Only a few years old and having witnessed a violent murder on the streets of his town, he was already severely traumatized before his mother brought him to the United States.  His mother said that he would wake up in the middle of the night screaming, “There’s blood everywhere! They’re going to kill us!” When I began interviewing the mother in one of the attorney visit rooms in the detention center to practice her testimony for her hearing, her son was there with us.  Just as he would have been during countless other meetings where this mother had to explain everything that she and her son had been through at home that caused them to seek asylum here.  As soon as I started asking the mother about the sexual abuse she experienced as a child, her son curled up on the floor crying with his hands over his ears, sobbing, “Mommy no, mommy no.”  All I could do was send her son out of the room to wait outside by himself.  There was no other choice—prepping the mother for their hearing was the only way to save their lives.  But every day in detention, this child suffered.  He suffered from being in various detention centers that looked and functioned like prisons.  He suffered from diarrhea and had lost significant weight due to bad food, and at Karnes, bad water.  He never got psychological counseling or treatment to help him recover from witnessing brutality at such a young age.  And he suffered from reliving all of that trauma and hearing about his mother’s trauma over and over and over again.

On my flight home from San Antonio, there was a medical emergency with one of the passengers seated two rows in front of me.  I watched as passengers seated nearby stood up in panic to try ring the call button and wave down one of the flight attendants.  A small boy was having a seizure in his parents’ arms.  A flight attendant got on the loud speaker and called out for any medical personnel on board to come and assist.  A dozen people rushed over, identifying themselves as doctors and nurses.  The isles were cleared, drink carts were tucked away, and the passengers were asked for their patience and understanding as all attention focused on this child.  Passengers nearby listened and watched intently.  One woman in the row next to me even offered her own anti-seizure medicine to help.  A flight attendant stood by and handed an oxygen tank and box of medical supplies to the doctor who had taken charge. She asked the doctor in a hushed voice if we needed to land the plane to get the child emergency medical attention.  The panic subsided as the doctor counseling the parents determined that it was a febrile seizure, and he gave the child medicine to bring his fever down.  The doctor stayed with the parents until the child seemed better, and we continued our flight home, everyone safe and sound.

And I thought about that boy in the detention center, crying alone on the floor with his hands over his ears to try and block out the pain, to stop the nightmare that he couldn’t escape.   No one came running.  There was no one to call for help.

Written by Eileen Sterlock, AILA Member and Family Detention Volunteer 

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If you are an AILA member who wants to volunteer at a family detention center, please go to the 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 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.

A Promise Unfulfilled

shutterstock_126747830Last November, President Obama promised reforms to immigration enforcement that focus on actual threats to public safety while keeping immigrant families together.  He evoked a more humane enforcement system where resources are not spent jailing vulnerable individuals. One of his November reforms explicitly said the detention of primary caretakers of children is “not in the public interest.”  The President should keep those promises.

So why, months later, is M-, the mother of a U.S. citizen child, fleeing persecution by the gang that murdered her sister and against whom both of her parents testified in court, still in detention?

Two weeks ago, I sent a letter to Secretary Johnson asking for the release of two Central American families who have been incarcerated for 8 months this week. Originally held at Artesia, these families are now detained at the family facility in Karnes, Texas.

Think of that. Eight months of detention for M- and her four-year-old daughter E-, who was born in Guatemala. Detention comes with a price, and in E-’s case, she has paid with her health. She has suffered chronic illnesses while in detention – including hospitalization for acute bronchitis and ongoing nebulizer treatments.

M- has no criminal history whatsoever. She poses no public safety threat to anyone. And she has strong ties to the United States. All she wants to do is reunite with her family on Long Island, New York: her older daughter, a U.S. citizen, is waiting there as well as other close relatives, some U.S. citizens, some lawful permanent residents. They want her and E- to be safe and cared for – they have all written to Immigration and Customs Enforcement (ICE) saying they are willing and able to care for M- and E- and ensure they show up for their hearings.

Anywhere else in the United States, M-’s continued detention would be completely antithetical to President Obama’s executive actions. Anywhere else but the border. Because of her status as a “recent border crosser,” the Administration is ignoring all the other promises President Obama announced with great fanfare last November.

It is a stark hypocrisy: the Administration’s insistence on detaining families while promoting executive reforms in every other realm of immigration enforcement. That hypocrisy is driven by a lack of political will to undo rash policy decisions made last summer when refugees first started coming in larger numbers from Central America. The President knows so much more now than he did last summer about why they are coming – it’s extreme and deadly violence, pure and simple. He cannot deny they deserve protection and must correct the mistake of detention.

M- does not deserve to be detained at all, yet she may be deported as early as next Tuesday. After spending eight months jailed, and after those eight months have severely affected her child’s health, she and her young daughter may be sent back to grave danger.

This is a wrong that must be righted. M- should be released to her family and have a meaningful chance to seek relief. She and E- aren’t a threat to national security, or border security, or anyone’s security.  They are the most vulnerable among us and deserve our help.

ICE Director Sarah Saldana testified last week about new rules she issued on reviewing the detention and release of those with criminal convictions.  Why can’t she issue rules covering families with children?  Why can’t she and our President protect M-?

As the most powerful leader in the world, President Obama must ensure his promises reach all the way to the border where that power could save lives.

Written by Stephen Manning, Member of the AILA Board of Governors

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If you are an AILA member who wants to volunteer at a family detention center, please go to the 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 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.

How One Life Was Changed at NDA

AILA_Keychain_FrontNational Day of Action (what used to be called “Lobby Day”) is an AILA tradition that goes back a number of years. I’ve participated many times, and each time it is different. Each time I come out heartened by some Congressional visits, disheartened by others, but always feeling a part of something greater and ready to keep fighting for my clients.

One of my clients was directly impacted by my NDA participation a few years ago and I wanted to share that story.

It was back in 2010 when our group met with Rep. Velasquez. It’s unusual to get an appointment with your actual legislator, so most often we meet with one of the legislative aides. But this time it was with the Congressional Member herself.

It was just after the terrible Haiti earthquake.  I had a client, a United States Citizen dad, here in New York who was trying to get his newborn child to the US.  The child was born and she and mom were released from the hospital one day before the quake hit; the hospital collapsed in the quake the next day.

We had been trying for months to get the birth certificate or some other proof to the US Embassy in Haiti so that we could get the visa issued. Obviously, the embassy was swamped with requests and work related to the quake, which we understood, but there were some incredibly frustrating delays and run around with the Post that lasted for months.

While we were talking to Rep. Velasquez at our meeting, educating her about immigration reform and how important it is to fix the broken system, I happened to mention this case as an example.  Suddenly her eyes lit up. She jumped out of her chair and called her aide into our meeting and told him to get my name and number and that she would see what she could do. As soon as I got back to the office the next day I gave the aide the details and file number.

The child was in New York a month later.

This sort of result is the exception, not the rule. These meetings are not to ask for help for individual cases, but to educate and advocate on immigration issues. But I used a concrete example in this meeting to illustrate a point, and got this amazing and exceptional result. No one should come to NDA solely for this purpose, but what a story!

So despite the deadlock in Congress, I will be at NDA this year again, as usual. Because you never know when a comment you make in a meeting can inform a congressional hearing question, even months later. You never know how sharing your card with a legislative assistant can lead to being asked for information when a bill is being drafted. And you never know how an offhand comment can reunite a family.

Written by George Akst, NDA Attendee and AILA Member

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To register for NDA 2015, go to Agora and sign upit’s free!

Can a Surge Protector Generate a Spark?

IMG_4447 (2)My three Case Western Reserve University School of Law students and I are part of an Ohio and New York volunteer legal team at Dilley, Texas (see photo). I had been to Artesia, and volunteered there, but while there are similarities between the two facilities, there are also differences. The biggest difference is that Dilley (the South Texas Family Residential Center) is being run by Corrections Corporation of America (CCA).

As the contractor, CCA runs the facility pursuant to Immigration and Customs Enforcement’s (ICE) directives.  The last thing that CCA wants to do is infuriate the golden hand that feeds them.  Once the permanent facility is up and running, it can hold over 2,000 detainees.  At the going government rate to house and shelter a detainee, approximately $296/day, for 2,000 detainees, CCA will earn almost $500,000 per day once the facility is full. Per. Day.

CCA is a very effective buffer between our volunteer group and ICE.  The majority of our interactions are with CCA.  To get to speak with an ICE officer to negotiate bond or discuss release or parole requires determination, email addresses, and finesse — and ICE officers to visit us, as we are not permitted to visit them.

This is the first week that volunteers are permitted to use laptops inside the temporary facility (the permanent side is opening next week, on March 17). To use our computers, we have a wireless hot spot to help facilitate use of the internet – a requirement for the law office that we essentially bring into the facility every morning, and tear down every night.  To get the best (only) signal, the wifi hot spot must be by a window and the short hotspot cord doesn’t reach from the outlet to the window.  So, I brought a surge protector (see photo).   Obtaining access to laptops took time – and the benefit of laptops and wireless hotspots made quite a difference.  The hotspots were assumed (by me) to be part and parcel of the laptop package (well, I assumed they were included and didn’t ask too many questions about it).

The second morning, we appeared at the facility bright and early at 8:00a, ready to start our day.  We unloaded our law books, files, laptops, and some munchies — a loaf of bread and peanut butter.  The strawberry jelly (my favorite), sadly, was rejected by security because it was in a glass container.  An aluminum container of wasabi peas didn’t get clearance either and went back to the car to be returned to the hotel for future snacks. The children’s stickers, silly putty, and barrettes — all rejected because “we provide everything that the residents need”. (“Everything but legal representation” ran through my head, but I held my tongue).  In my bag, I brought back the same surge protector that we used Monday to power the hotspot.

The guard at the desk would not permit me to enter the facility with the surge protector. I insisted.  She refused.  Many of the ICE higher ups were passing through security at the same time; I don’t know if this influenced the intensity of the search.  All I know is that I stood and waited… for fifty minutes… and finally received clearance after the AFOD (Assistant Field Office Director, the one in charge of the facility) was passing through security and provided oral consent to bring the surge protector into the facility.  But that wasn’t the end of it.

There are requirements within the facility of having escorts and we know that we cannot go <anywhere> unescorted. Little did I know that my surge protector was so dangerous to the facility – or perhaps, to the relationship between CCA and ICE – that it required its own babysitter. So, some poor soul from CCA was detailed all day only to sit and make sure that my surge protector was safe.  Once that first poor soul’s shift was over, a second soul had to watch over it, and escort it out with me at the end of the day.  My whole team had to wait another fifteen minutes for a CCA supervisor to come to the front desk to sign out the surge protector.

I would like to think that a revolution begins with a spark, not a surge protector.  But we have to start somewhere. These barricades are high but we are not dissuaded. We will continue the fight to help these kids and moms have a meaningful chance to be released under reasonable bond, and request asylum.  Together, one volunteer dream team at a time, we will #EndFamilyDetention.

My dream team consists of: Peyton 2

  • Michelle Mendez (who helped transition into this week)
  • Sister Marlene Perrotte (interpreter)
  • Father Rob Reidy (Padre, interpreter)
  • Carmen Rivera (interpreter)
  • Lauren Deutsch (attorney from New York)
  • Brian “The Hoff” Hoffman (attorney from Ohio – and Artesia bulldog)
  • Svetlana Schreiber (attorney from Ohio)
  • Madeline Jack (student CWRU School of Law, Cleveland OH)
  • Harrison Blythe (student CWRU School of Law, Cleveland OH)
  • JoAnna Gavigan (student CWRU School of Law, Cleveland OH)

 Written by Jennifer Peyton, AILA Member and Dilley Team Lead

To read more about her time in Dilley, see Immigrationpeyton.blogspot.com.

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If you are an AILA member who wants to volunteer at a family detention center, please go to AILA’s Dilley 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 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.

Hope and Disappointment in Dilley

Dilley_300x240I spent last week at the detention center in Dilley, Texas, volunteering to help mothers and children detained there. Having previously experienced the harsh conditions at the facility in Artesia, I was immediately struck by the visible differences here in Dilley. Any former Artesia volunteer will do a double-take at the sight of a toddler-sized slide in the visitation trailer, or a guard bringing coffee to a mom waiting to meet with her attorney. At the beginning of the week I thought the air of hope I felt in the visitation trailer had to do with better conditions in the facility.

I was wrong. Although it’s a slightly “prettier” jail than Artesia was, it’s still a jail, and the women and children detained there feel this deeply. The air of hope I felt in the beginning had nothing to do with having toys for the kids in the play area. Rather, news of the RILR victory had spread like wildfire in the facility over the weekend, and the women thought they might have a chance at bonds their families could afford to pay. At some point on Thursday, these hopes were dashed as women were herded en masse in to the courtrooms, where ICE officers handed many of them paperwork for either a $7,500 or $10,000 bond, with no explanation of how they had decided on such a high number.

The atmosphere in the facility completely changed after this. The women we saw were despondent and confused, knowing their families couldn’t pay this amount, and wondering why such a high price should be put on their heads. One of the few “individualized determinations” we saw was in the case of a woman who fled with her toddler after receiving death threats from a gang. A week after arriving in Dilley, she found out that the gang had made good on their threats, killing the 6-year-old daughter she had been forced to leave behind. She was still in the facility when I left – her family couldn’t afford to pay the $4,000 bond ICE had set for her.

I know there’s a lot of work to be done building this project, and it seems daunting at the outset. But I also know that we need to be there, and we need to build a sense of trust and commitment between the volunteers and the detainees just like we did in Artesia.

It’s time to re-mobilize – these kids and moms need us to fight for them.

Written by Sarah Corstange, AILA Member and Dilley Volunteer

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If you are an AILA member who wants to volunteer at a family detention center, please go to AILA’s Dilley 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 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.

It’s Our Security, Stupid

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

One Week, Two Injunctions

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

In Defense of Consular Officers

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

Who Will Carry the Torch?

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.

The Weight of 216 days

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