Author Archive

LGBT Detention Must End

shutterstock_142284691On June 23, 2015, 35 members of the House of Representatives wrote to Secretary Johnson, calling on the Obama Administration to end the detention of LGBT immigrants in ICE custody, especially transgender women.[1] The letter requested the administration seek parole and alternatives to detention for LGBT immigrants, including supervised release. These alternatives to the status quo are urgently needed because of every five victims of confirmed sexual abuse in ICE detention, one victim is transgender. This is a staggering statistic of victimhood for transgender individuals, especially when only around 75 trans persons are detained by ICE each day. While it does not need reminding, ICE is authorized to detain and house up to 34,000 immigrants in any given day.

The advocacy centered on LGBT immigrants is not an attempt to prefer LGBT detainees over the detainee population as a whole. The goal is ensure their safety while in the custody of the U.S. government and to drive the conversation of whether ICE/ERO can and should do better in releasing LGBT and non-LGBT detainees through alternatives to detention, instead of locking them up in jails for prolonged periods of time.

There are many arguments to be made as to why detention should be used sparingly. This includes the high cost of detaining individuals and the barriers created through the detention system for those who seek to find and hire a lawyer. However, the simple question remains: if a person is not a threat or a priority for removal and the person is likely to show up for an immigration hearing in the future, shouldn’t they be released?

In the context of LGBT immigrants, many flee their home countries due to persecution they have suffered on account of their sexual orientation and/or gender identity. They seek asylum in the U.S. to protect them from the harms suffered in their past or what awaits them if they are forced to return to a country that persecutes LGBT persons. Knowing why these LGBT individuals are present in the U.S. makes it extremely likely they will want to pursue their case in front of an immigration judge. Should LGBT immigrants benefit from some form of an alternative to detention, these LGBT immigrants would be safer, would be able to seek the help of family/friends, and would be able to find more resources to assist them in their legal cases. Most importantly, they would want to show up and fight their case in immigration court.

While there is much work to do surrounding the issue of LGBT detention, ICE/ERO recently announced that transgender women qualify to be housed in women’s detention facilities.[2] Additionally, ICE/ERO will train its personnel to inquire about gender identity to determine how an immigrant identifies, if that person so chooses to disclose.[3] While the impact of these trans-inclusive policies and the full implementation are yet to be seen, these actions do go a long way in the goal of ICE/ERO in providing “a respectful, safe, and secure environment for all detainees, including those individuals who identify as transgender.”[4]

Written by Mike Jarecki, Member of the AILA Media Advocacy Committee and the LGBT Immigration Issues Working Group

[1] http://www.aila.org/advo-media/whats-happening-in-congress/congressional-updates/35-reps-end-detention-lgbt-immigrants

[2] http://www.ice.gov/sites/default/files/documents/Document/2015/TransgenderCareMemorandum.pdf

[3] Id.

[4] Id.

A Long Journey for Justice: the Continuing Fight for LGBT Immigrants

shutterstock_56068639As the nation rejoiced after the Supreme Court ruling on Obergefell v. Hodges, I recalled the celebrations at AILA’s 2013 annual conference in San Francisco on the day that the Supreme Court decided Windsor v. Connecticut.   Windsor and subsequent Department of Homeland Security (DHS) directives made it clear that U.S. Citizenship and Immigration Services (USCIS) would recognize marriages of couples of the same sex for immigration purposes.  However, while our clients no longer had to worry about physical separation and removal from their spouses or partners, they did have to suffer additional indignities  if they lived in a state that refused to recognize their marriage.  For that, we celebrate but also reflect on the bumpy path to equality.

As a measure of how far we have come, before 1990, being gay was a ground for inadmissibility.   Before Windsor, we had to either file for asylum for our gay clients or see them separated from their partners as we scrambled for other options in the non-immigrant realm.   While the US did not accord the right of marriage to same-sex couples, the absolute terror that many of our clients faced in their home countries due to their sexual orientation was real, and it was our job to help protect them.

I remember speaking at several forums about options for LGBT immigrants which seems so historical today.  I also recall that as AILA’s USCIS Liaison Committee Chair in 2010-2011, we pressed USCIS to hold marriage-based I-130 petitions for same-sex couples in abeyance as marriage was legal in certain states.  We argued that while it was inhumane to separate committed couples before they were allowed to marry in any US jurisdiction, it was draconian and bigoted to place someone married to a US citizen in removal proceedings after denying their I-130 petition.  It was essentially an immigration policy which was in the same league as the over-150-year U.S. ban on naturalization for “nonwhites.”

At the Upper Midwest chapter conference in 2011, I brought that issue to my co-panelist, a USCIS adjudicator from Minneapolis, and he had that same look of empathy we got from USCIS headquarters, but the same line that they could not issue a blanket policy of holding these cases in abeyance.   I loved doing that work because as with many of our actions, it was a fight both to keep people together and for basic justice.  It was an unconscionable form of discrimination nationwide and USCIS was caught in that web of injustice.  I was thrilled that AILA did its part to raise consciousness and move the universal arc one step closer to justice.

This spring I spoke on a panel with Ali Bushara, a Ugandan gay man who fled his country last year.  We talked about his personal journey, but also the increasing persecution of gay people in many parts of the world such as Russia, which has codified laws to bar adoptions by LGBT members of society.

As my conversation with Ali and my unmarried LGBT clients continue to teach me, the role that AILA has played in seeking justice, equality and protection for LGBT immigrants cannot be set aside after this momentous decision.  We should continue to write, speak and advocate on behalf of basic human rights and make sure that State Department reports are consistent with what we hear from our clients and colleagues.

Written by Mark Shmueli, Member of the AILA EOIR Liaison Committee and the Distance Learning Committee

A Call to Arms

10649585_10153369062138632_4802086671050170594_n

End of the day “Big Table” as volunteers discuss what they saw, learned, and felt over the course of the day in Dilley.

(With thanks to Sir Winston Churchill)

Last week, I spoke with some of our government contacts about the changes that are on the very near horizon here in Dilley. Due, I imagine, to the Congressional visit, DHS Secretary Jeh Johnson’s announcement, and the Flores litigation, the asylum office will ramp up to 23 staff members next week. This is more than twice the number of asylum staff we have ever had. They will be using conference rooms and judge’s chambers as additional office space, and the increased number of officers will allow them to start conducting as many as 50 asylum interviews per day, including now conducting interviews on Saturdays. In addition, the Miami court will add a third judge to the Dilley docket in the coming weeks. We expect to reach facility capacity of 2400 detainees any day now.

All of this means we need to step up our game in a big way.

I can tell you in no uncertain terms that we are making a huge difference in people’s lives. There is zero doubt in my mind that there are children walking the Earth today who would be dead but for what CLINIC, AILA, RAICES, and the American Immigration Council have come together as CARA to do here. I don’t tell all of you often enough how grateful I am for the opportunity to work on this project, and for making this possible. Thank you. This week I decided that, having resigned from my firm in Ohio earlier this month, I will continue working here in Dilley indefinitely, beyond my initial six month commitment. In fact, I wouldn’t be anywhere else in the world right now, and I’m hoping to meet many more of you here in the coming months.

Here in Dilley we are waging a war. It’s a war against bureaucratic indifference, against a broken immigration system that tears apart families and costs innumerable innocent lives, and against the banal cruelty of mass detention. Upon the outcome of this war depends the survival of our notion of America as a compassionate nation. Upon it depends our ability to still believe that America is a beacon of hope in a world of persecution. The whole fury and might of the bureaucratic deportation machine is being focused here in Dilley. DHS knows that they will have to overwhelm us with the sheer number of detainees and the volumes of red tape, or they will lose this war. If we succeed, if we can stand up to this oppression, then all detained families can eventually be free, and we can transition the momentum of this fight forward to combat all of the other injustices of the mass detention of immigrants and minorities. But if we fail, then America may sink into the abyss of a new Dark Age of permanent family internment camps, made more sinister by the indifference or open vitriol of an American public callous enough to let this happen.

Let us therefore brace ourselves to our duties, and so bear ourselves, that, if the CARA coalition and its pillar organizations last for a thousand years, it will still be said that “This was their finest hour.”

Please share this message, and I hope to see you in Dilley very soon.

Written by CARA Family Detention Pro Bono Project Lead Attorney Brian Hoffman

******

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

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

A Look Back to Artesia, and a Look into Karnes: Part 7

shutterstock_247077634As the clock ticked toward mid-June, ICE quietly hinted that the agency would be reviewing the long-term custody status of detained families at Dilley and Karnes, although ICE would not share the criteria that they intended to apply in the review process.  Yet in recent conversations with E-, she reported that officials at Karnes were telling the women that they were not going to win their appeals to the BIA and that they would be deported.  Understandably, this kind of news was beyond unsettling for E- and her fellow detainees.

On Wednesday, June 10th, I left urgent voice and email messages with ERO deportation officers at Karnes to inquire about a custody review for E- and her children.  The following morning E-‘s deportation officer returned my call with the news that ICE had indeed reviewed her custody status the previous day and was prepared to release her on condition that she post a $7,500 cash bond and that she wear an electronic ankle bracelet.  While $7,500 sounded high, and is in fact an unreachable sum for E- and her family, it was the first promising news for her freedom in almost 11 months.

We spent most of the day on Thursday trying to reach potential obligors who might be willing to assist, but to no avail.  Young support staff at my firm suggested that we could raise the money ourselves through a crowd-funding site.  We explored this, learning that the site we focused on (GoFundMe) does not make funds available for withdrawal for 5 to 7 business days.  Too long.  So, on Friday afternoon, we contacted RAICES to see if they might have any ideas.  Lo and behold, RAICES offered to front the bond money and told us that we could repay them from our GoFundMe account – and, that they would do what they could to secure E-s release before the end of the day.  Sure enough, about two hours later we received confirmation that the bond had been posted.  Things were moving quickly and in a positive direction.

Meanwhile, I received a faxed copy of E-‘s Order of Supervision from the deportation officer at Karnes.  Incredibly, the paperwork was made out in the name that a terrified E- had blurted out when she was initially arrested by the Border Patrol back in 2007 – the name of her deceased sister-in-law, BJ-E.  I then contacted the D.O. to ask if he could please amend the Order of Supervision to show E-‘s correct name.  Puzzling, he indicated that all ICE records were under the name BJ-E and that he couldn’t do anything about that.  When I explained that other government records (i.e., E-‘s deportation proceedings, the file maintained by the ICE trial attorneys, even the detainee records at Artesia and Karnes, including E-‘s ID badge) were kept under her correct name, the D.O. was unpersuaded.  I pleaded:  But how do you expect her to navigate the world outside detention if her government paperwork shows the wrong name?  An exasperated D.O. finally agreed to re-issue the Order of Supervision in E-‘s proper name, but insisted on using “aka:  BJ-E,” adding, “Look, this is the name that we have for her.  Maybe she was scared or maybe she was lying.  Either way, I don’t know why you’re being so argumentative, but I guess it’s just your profession.”  Jeez!  More than ever, I couldn’t help wondering what it must be like for these detained families to live under the yoke of jailers and government officials who simply don’t (or won’t) exercise the slightest modicum of empathy for what these women have endured.

After an urgent call to Karnes, we waited for E-‘s return call.  Finally, around 5:45 (EDT) on Friday evening she called.  She explained that something was going on, that officials at Karnes had abruptly told her to pack all her things “ahorita,” and that she and her children were then taken to a processing room, but nobody was telling her anything.  Clearly, she was nervous.  I couldn’t help wondering if she might be thinking that her appeal had been denied and that this was the end of the road, that she was being deported.  I told her that the bond had just been posted and that our friends from RAICES were going to meet her at the bus station in San Antonio that very evening, and that they would take her to a church house where she and the kids would be safe until we could get the plane tickets that would bring them to her husband / their father.  E- broke into sobs of relief and was having a tough time controlling her emotions.  “Thank you!  Thank everyone who helped us!  We can never thank everybody enough, we can never find the words … .”  She handed the phone to her 10-year old daughter, who was also overcome with emotion.  A few more quick words with E- and then the phone went dead.

Two days later, on Sunday afternoon, I spoke with E- on the phone.  She was at the church house and reported that she and the children were sleeping well and eating well and that their hosts were very kind.  In fewer than 48 hours following release from family detention she sounded like a different person.  Three days later she and the kids flew to the Washington DC area, somewhat refreshed and reunited with their husband / father – the first time that E-‘s 4-year old son met his dad.  It was a special moment for this family.

This is a triumph shared by the incredible fire brigade of over 50 volunteers who worked on E-‘s case and by their many brother and sister volunteers who embody the pro bono spirit to end family detention.  While there’s still much work to do – most importantly the need to prevail on E-‘s appeal – a heartfelt “thank you” goes out to everyone who helped to bring about E-‘s release.

Written by Frank Johnson, AILA Member and Volunteer

Please click on these links to read Part 1Part 2 Part 3 , Part 4, Part 5 , and Part 6 of Frank’s blog post.

******

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

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

One Less Brick in the Wall, Mata v. Lynch

shutterstock_162933683We would like to thank AILA for approaching us to give our thoughts on our recent Supreme Court win in Reyes Mata v. Lynch, 576 U.S.___ (2015).

We met Mr. Mata in October of 2012.  Probably the most outstanding thing about his situation was how typical it was.  Like so many of our clients, he is a long-time non-LPR with an assault conviction.  Never mind that his wife later swore under oath that he never struck her or that he is a single parent to three U.S. citizen kids after the same woman was imprisoned for drug trafficking.  Such people often become fodder for negligent attorneys who take their money and then when a brief or a notice of appeal does not get filed, no big deal.  The client who trusted them won’t be around long enough to sue. We took his case pro bono when we discovered his ordeal.

In Mata’s case, his prior attorney had failed to file an appellate brief—typical negligence (Justice Posner recently called the immigration bar “weak,” and he was right.).  We intervened.  By our count, we had filed a motion to reopen with the Board 105 days from the Board’s denial of the appeal.  The Board denied our motion.

On judicial review, the Fifth Circuit cited Ramos-Bonilla v. Mukasey, 543 F. 3d 216 (5th Cir. 2008) for the proposition that it cannot review the BIA’s denial of a request for equitable tolling because it’s all just “sua sponte” (since it is an untimely motion), and the courts typically refuse jurisdiction to review the Board’s use of its sua sponte power.  (Side note: in preparing our petition for certiorari we counted 16 times in the past 7 years the Fifth Circuit has denied petitions for review with the same logic; in my imagination the court has rigged some sort of Ferris Bueller-type automaton to write these opinions while the court is out joyriding in a borrowed Ferrari.).

Our petition for cert. only asked one question: do the courts have jurisdiction over equitable tolling claims like ours?  On June 15, the Court, in an 8-1 decision voiced by Justice Kagen, said the courts do indeed have jurisdiction over such claims.  In vacating the Fifth Circuit’s decision, the Court reiterated its holding in Kucana that the courts have jurisdiction to review motions to reopen, and added “[n]othing changes when the Board denied a motion to reopen because it is untimely—nor when, in doing so, the Board rejects a request for equitable tolling.”  Slip. op. at 4.  At first glance, these words appear to expand jurisdiction only where an equitable tolling claim is at issue.  But the Court held that the appeals courts have jurisdiction over all motions to reopen, regardless of whether they are seeking equitable tolling.  Slip op. at 5 (“Whether the BIA rejects the alien’s motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision.”).

What does this mean?  While the Court pussyfoots around the big question, i.e. whether the courts can review the BIA’s sua sponte decisions for abuse of discretion, the fact remains that every time the Board invokes its sua sponte authority, it necessarily does so in a decision where it has already found that a motion is either untimely or does not meet the criteria for a motion to reopen or reconsider.  See INA § 240(c)(6-7)).  And because the Court has definitively separated the Board’s rejection of the motion for not meeting statutory criteria from its rejection for not meeting the sua sponte standard, this must mean that every decision of the Board is subject to at least some degree of abuse of discretion review.  Rather than denying jurisdiction for untimeliness, the Fifth Circuit now has to examine whether the Board abused its discretion in rejecting the motion because of its untimeliness.  What goes into this consideration? Mere review of the timeliness of the motion (hopefully taking into account equitable tolling and not just based on ineffective assistance of counsel)?  Or might there also be room to argue that the Board abuses its discretion in denying a motion, regardless of timeliness, when the error or deprivation sought to be redressed is particularly compelling?  When, for example, a client was ordered removed based on incorrect law?  The court must now establish some rule for overturning or not overturning the BIA in such situations, and an absolute prohibition would have the same result as a jurisdictional bar, potentially conflicting with Reyes Mata.

And what of Heckler v. Chaney, 470 US 821 (1985), the case so often relied upon as creating a blanket jurisdictional bar to review of the BIA’s sua sponte decisions?  Reyes Mata does not so much as cite it.  And the Court’s antipathy to judicial creation of artificial jurisdictional barriers to reviewing motions to reopen would seem to conflict with its application in immigration proceedings.

Mata v. Lynch contains at least one more gem.  Justice Kagen’s biggest beef at oral argument (one all the justices seemed to agree with) and the subject of her final thought, slip op. at 8, was that the Fifth Circuit was “wrap[ping]” its “merits decision in jurisdictional garb so that we cannot address a possible division between that court and every other.”  Slip op. at 8.  In other words, the Court is hyper-aware of the appeals courts’ (and presumably of the agencies’) attempts to construe their jurisdiction in such a way that they can avoid rendering a merits decision which would otherwise appear extremely unjust to a reviewing court.  At Gonzalez Olivieri, we represent a small army of unjustly deported clients (removed pre-Lopez v. Gonzalez, pre-Carachuri, pre-Leocal v. Ashcroft, pre-St. Cyr, pre-Judulang, you name it) who would very much like to present their merits claims to the judicial courts and are ready to go all World War Z on the sua sponte jurisdictional wall.  For those of us who labor in the Fifth Circuit, getting equitable tolling (the next big question in Mata) will be a start.  But that wall, built by Heckler, is just another review-shielding jurisdictional barrier as it relates to immigration proceedings, and we, as well, I think, as some of the Supreme Court justices, would like to see it come down.  Mata v. Lynch may hopefully represent one less brick in that wall.

Written by Raed Gonzalez, AILA Member

H-1B Cap Slows U.S. Innovation

The Fiscashutterstock_192420653l Year 2016 H-1B random selection process for skilled workers is over.  As with many other immigration lawyers around the country, I am dealing with employer fallout over the loss of badly needed skilled professionals whose petitions weren’t selected.  Many of these would-be H-1B beneficiaries are already working for the employer in a status called Optional Practical Training.  Optional Practical Training is an employment authorized status permitted for 12 to 29 months after graduation from an accredited U.S. university.

This post addresses the plight of  U.S. based employers who produce products and services for the U.S. economy including legitimate management consulting firms who work with clients to install and improve management technology and go on to new projects.   These employers are to be distinguished from the perceived type of employer mentioned in recent New York Times pieces.  While the entirety of those situations aren’t yet known, what I do know is this: the H-1B visa was not intended to displace U.S. workers and there are regulatory safeguards in place.  In fact, the H-1B visa has contributed to the productivity of many employers in ways that have then led to many more jobs for U.S. workers.

It is hard to tell an employer that a star employee will no longer be authorized to work for them in the U.S.  They don’t understand how random and arcane the process is, particularly that this year there were only enough H-1B visas available to cover about 25% of the 233,000+ petitions filed for fiscal year 2016.

I’ve worked on a number of H-1B cases over the years and the employers I work with are doing their best in a confusing process. Here’s an example – one client requires a special skill set offered in a program at a top rated university. In recruiting at this institution, they discovered that only one US worker was enrolled in the program, so hiring a U.S. worker with the skills required is virtually impossible from the outset.

Other employers are scrambling looking for alternative work visas and when that fails, to figure out the legalities of contracting for remote services to be performed abroad for key employees.  These are but two of thousands of compelling examples of what U.S. employers are dealing with.  I’ve had multiple employers tell me that if they could find US workers to fill their open positions, they would gladly hire them and avoid this “visa morass.”

More than half of the H-1B petitions filed are for occupations in the STEM (Science, Technology Engineering and Mathematics fields).  Many of those whose employers have applied for them graduated from U.S. universities with STEM degrees! According to the Institute of International Educational Exchange, two thirds of foreign students studying at US universities are pursuing degrees in STEM or business fields; 84.8% of them have attained U.S. Master’s or Doctorate Degrees. Now that we’ve educated them, shouldn’t we do our best to keep them in the U.S. to become job creators?

Today, the U.S. is in an international fight to maintain hegemony in innovation and technological advances.  These highly skilled foreign students that we have educated can pick from a number of welcoming countries nipping at our heels to pass us as the world’s leading innovators.  They are a significant – and vital – part of our continued growth in cutting edge industry; indeed, according to Todd Park, the former U.S. Chief Technology Officer, every foreign-born graduate with an advanced STEM degree is associated with, on average, 2.6 jobs for American workers.  And, by some estimates, according to Mr. Park, immigration was responsible for one-third of the growth in patenting in past decades; these innovations contributed to increasing U.S. GDP by 2.4 percent.

The problem with the H-1B shortage stems from the Immigration Act of 1990 (Immact 90).  For the first time, annual numeric caps were imposed on the H-1B visa initially permitting a limit of 65,000 visas per year. What appeared to be a generous figure in 1990 soon became a huge headache for employers. In 2000, the American Competitiveness in the 21st Century Act exempted certain non-profits, primarily institutions of higher education and governmental research groups from the cap.  It also temporarily increased the H-1B cap to 195,000 for FY 2001 through 2003.  This was an acknowledgement that the existing H-1B cap was woefully inadequate and one can only conjecture that it was anticipated that by the end of this cap increase, a solution to the problem would be forthcoming.  It was not. After the H-1B returned to the draconian limit of 65,000, a permanent increase of 20,000 for holders of U.S. Masters Degrees was enacted.  A total of eighty-five thousand H-1B petitions is still woefully inadequate for our nation’s increasing demand for highly educated workers, especially in the STEM fields.

Static numerical limits for visas and green cards are fraught with problems.  A fixed numerical cap established almost 25 years ago doesn’t anticipate the needs of a growing economy. Another example of short-sightedness in visa limitations can be seen in the green card context. The Immigration Act of 1990 also abolished the old employment-based 3rd and 6th immigrant visa system and set up a five tier employment-based system with increased immigration numbers.  Again, many of these categories have become badly backlogged over time, particularly for those chargeable to the India and China country quotas.

A reform of our current system is badly needed if we are going to continue to retain the talent that we educate and utilize their abilities to help our economy’s growth. Every day, week, month, and year that goes by and Congress doesn’t pass immigration reform is another day, week, month, and year where our nation stagnates instead of grows.

Written by Deb Notkin, AILA Media-Advocacy Committee Vice Chair and former AILA President

Finally Free from Fear

photo 3 (1) (3)

Six year old free, and ready to color!

B- and her six-year-old daughter just received a gift of immeasurable value: the gift of safety, of security, of freedom from fear. They had been through torment the likes of which I hope no one ever faces, but they made it through and I was privileged to help them.

B- is a survivor of childhood abuse and intimate partner violence, born and raised in Honduras.  She had been deported before so she was fighting for “withholding of removal” which is a far tougher legal claim. Her withholding claim was primarily based on domestic violence she suffered in 2014, which at its ugliest, led to her miscarrying her unborn child and needing hospitalization for two days.

In case you don’t know how complicated a withholding case can get, let me share what we did in this case:

* Four legal calls with B- while she was incarcerated in the Dilley, Texas, detention center with her young daughter.

* One brief filed with nearly three hundred pages of evidence in support of the cases, including affidavits from B- and her mom, two expert declarations, and      country conditions reports about femicide and domestic violence.

* One motion for leave to file supplemental evidence, so we could attach affidavits from B-’s two brothers and a friend.

* A second motion for leave to file supplemental evidence – the attached evidence included a local hospital record confirming the 2014 miscarriage and photographs of the restaurant where B-‘s ex-partner shot at her, the bedroom where he tried to drug her and abused her to the point of causing the miscarriage, and the bathroom where she hemorrhaged blood and began miscarrying her baby. The total evidentiary submission was close to 500 pages.

photo 5 (3)

Celebrating with ice cream

The result was a success, B- and her daughter were free – we went out for ice cream at the Dairy Queen and I took them to the airport in the morning.  They have family members eager to welcome them home.  Attached are photos from their first moments of freedom and our ice cream excursion.

Volunteers are desperately needed to help other mothers like B-. Consider taking these cases which are absolutely winnable with the assistance of counsel.  B- was planning to go to her merits hearing with only a 1.5 page handwritten statement prepared by a fellow detainee.  This would not have been enough to win this case.

It is disgraceful that the federal government is causing additional harm by detaining these women and their children when there are other options available. After everything she suffered, B- should not have been incarcerated, and neither should her daughter. Until family detention ends once and for all, these families need our help. They need your help. Please volunteer.

Written by Elora Mukherjee, CARA Family Detention Pro Bono Project Volunteer

******

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

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

Life or Death Consequences: Part 2

shutterstock_147711227Read Part 1 of this blog postThe story continues…

A few days later, I got a desperate email from our local staff:  we only had two volunteers lined up for the next week.  Worse yet, one lawyer was only available for three days and the other didn’t speak Spanish.  Continuity was critical:  we had told these women we would be there and they could rely on us to give them a voice.  Could I help recruit more volunteers on short notice?  I managed to find one veteran volunteer, wiped out the last of my air miles for the two of us, and returned to Dilley.

On our second day in the facility, I recognized Riva, waiting to see the next volunteer attorney.  Somehow (probably because it was such an unthinkable thing), I had put it out of my mind that the next step for Riva would be preparing for a hearing in front of an immigration judge.  So when she told me late Tuesday afternoon that her case was the next day, my heart skipped a beat. We went over her file and reviewed her application.  I heard her again describe how her predator had terrorized her family and her fear of what would happen to her and Eduardo if they were deported to Honduras.  But we couldn’t take the case.  We already had over a dozen cases in front of two different judges for bond the next day and over 60 people on our waiting list.  We just couldn’t do it.

But, how could I not? I just couldn’t imagine being able to look at myself in the mirror if I didn’t do everything in my power to protect her and her little boy.  So I said yes.  And no, I didn’t get a lot of sleep that night, but this young mother who had been threatened, had weapons brandished in her face, had family members murdered, and finally fled in fear from her stalker, had me in her corner in front of the immigration judge that week.

Some may be able to fight their case successfully without legal help, but that’s the rare exception, not the rule.  Honestly, we haven’t heard of a successful pro se case in a while. Instead, we were seeing women who were devastated because they “told their story” to the judge, but told us that the prosecutor had attacked them and the Judge said they didn’t make their case. This is particularly striking where trained asylum officers were finding that about 90% of the women had a significant possibility of making a winning claim.  Even cases like Riva’s, held to an incredibly high “clear probability” standard were being granted in about four out of five cases.

Statistics show that the most important factors in an asylum claim are whether an applicant has legal help and whether they are detained.  Losing asylum doesn’t just mean that someone won’t have an opportunity for the American dream.  In these cases, the difference between winning and deportation is the difference between life and death.  Just because the facility plans to offer Zumba classes and is putting in sod for a soccer field doesn’t make Dilley any less of a deportation mill.

Despite repeated requests for access, CCA and ICE officials have engaged in a pattern and practice of harassing and obstructing legal efforts to defend these families.  Perhaps ICE is afraid that winning cases and exposing the stories of the women and children locked up in Dilley might also expose the lie behind the government’s family detention policies.  For CCA, as has been noted previously, they have profited handsomely from immigration detention, despite a particularly poor record, especially when it comes to detaining women and families.

Since our volunteer efforts began, officials have blocked volunteers from bringing in printers, copiers and scanners (citing “space considerations”), refused entry to volunteers (citing security concerns, including at least one where a volunteer was previously admitted to the White House), limited groups of volunteers to a single computer, excluded hotspots or tablets (despite government officials having computers, printers and internet access in court), refused to allow entry to the immigration courtrooms or to use computers in the court (saying they could only be in the court if they were actively representing their client), refused to allow in a surge protector (then, once it was allowed, assigned a guard to stand over it for the entire day), told female attorneys they couldn’t wear sleeveless shirts or dresses (in South Texas in the summertime), and will soon resort to measuring whether skirts are within three inches of the knee.

Like Groundhog Day, but with more malice, volunteers regularly get caught up in 30-45 minutes of daily harassment just trying to enter the facility.  CCA staff have refused to allow legal visitation without 24-48 hours’ notice and ICE has required clearances of legal workers in violation of their own Family Residential Legal Visitation Standards.  Volunteers have been harassed, subjected to invasive searches of their property, prevented from bringing in necessary work-related items, not allowed to have cell phones, not allowed to use computers or other devices to record videos of client statements or Skype to communicate with family or others abroad to develop detainees’ cases.  The list changes, but the menace and obstruction are consistent.

CCA guards continue to misinform detainees that they either need to have an appointment or wait to be called by us, rather than what they tell us, that women are allowed simply come in and request help.  New arrivals are literally quarantined:  both from other detainees and critical information about the availability of free legal services, and it can be days or weeks until they find out we are here.  Just recently, instead of actively locating detainees that are on our client list, CCA has said they will now only pass on the information to a guard—sorry, residential supervisor, who can pass that information on, when—or if they see the detainee.  That means we could wait hours, maybe even a few days before we can see a client.  In just a few days, we’ve seen that refusal severely impact our ability to deliver legal services:  We can’t meet with detainees to explain the legal process and how they can prepare their cases, resulting in delays and frustration all around.  We can’t help detainees understand what documents they need to collect to pass on to ICE, delaying consideration of a bond or parole. We can’t meet with detainees to explain to them what will be expected in advance of immigration court hearings, further delaying legal proceedings.  We can’t prepare women for their interviews with the Asylum Office, resulting in lengthier interview, and often the need to reset or even re-interview.  Just this week, CCA decided to limit the number of people allowed in the visitation trailer to 60 (a number which apparently includes a couple dozen legal workers and guards), severely curtailing our ability to see clients and leverage our legal advisals. Continuing to throw roadblocks in the way of legal volunteers is not just mean-spirited, it’s shameful.

We won Riva’s and Eduardo’s case. They are safe now and with friends (thanks to the absolute last, last, last of my airline miles), but I won’t be able to stand by and watch this railroading continue. I’m going back down in another few days—four more women and their children that I couldn’t say no to will have their fate decided by an immigration judge in a week.  Hey, at least I have a few days to prep those.

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

* Names changed for privacy.

******

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

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

Life or Death Consequences: Part 1

shutterstock_147711227I wasn’t going to do it.  It was just crazy stupid.  We didn’t have the resources.  The hearing was in 20 hours, and that just wasn’t enough time to put a case together. And yet, knowing that there were life or death consequences, how could I tell the young mother and little boy sitting in front of me that they would have to face this trial on their own?

I first met Riva* and her 5 year-old, Eduardo* about two weeks before, during my second trip down to Dilley.  Riva, 24, is tiny and beautiful and impossibly brave.  Back in Honduras, the small Central American country which held the distinction of having the world’s highest murder rate, Riva worked as a bookkeeper.  Later, knowing what she had been through, I wondered how she managed her trusting smile.  Her five year-old was quiet and a little unsure, squirming in his seat.  She told me later that he didn’t understand what they had done wrong that they were “in jail.”

Once we had distracted Eduardo with a game, Riva handed me her papers.  After looking a dozens of files in the past weeks, I quickly picked out the bits that told me she had the awful, shocking facts that perversely make for a strong claim.  But after a few more pages my stomach clenched and I remember thinking this must be how doctors feel when they have to tell patients they have cancer:  You might die.  I might not be able to save you.

Riva was a “withholding only” case.  She and Eduardo were being detained without bond and worse yet, her case would be held to an almost impossible standard of proof.  Most difficult of all, we just didn’t have the volunteers to take on merits cases.  That meant she and her little boy would be forced to put up their own defense in what was literally a death penalty case, all while jailed in a for-profit prison in the dusty fracking country of South Texas.

Riva had tried to flee Honduras three times in less than a year.  A predator had been stalking her family and was alarmingly fixated on Riva.  After murdering her brother, the man had escaped prosecution and Honduran police claimed they had no record of his arrest despite a videotaped confession—a fact that wasn’t surprising given the country’s human rights record.  Riva’s nephew was found dead, shot multiple times, a “gift,” the predator said, to a sister who had dared challenge him over their brother’s murder.

The first time Riva made the dangerous journey north, she was caught by US Customs and Border Protection (CBP) and deported without a chance to apply for asylum after being held in inhumane conditions.  With her little boy playing at her side, Riva calmly detailed how CBP officials had confiscated her identity documents, then made her and the others place their shoes, outerwear and other personal effects into a large plastic container; a short time later, she saw an officer throw the entire collection into a dumpster.

Eventually, she and several dozen other dazed and exhausted migrants were brought to a processing center where they were corralled into a large open pen.  She told me it was filthy, with plastic toilets and human waste on the floor.  After several hours, an official called her to take her name, date of birth and country of origin, then locked her in a holding cell known as a “hielera” or “icebox” because of its frigid temperatures.  Riva told me that there were dozens of women and even more children in the room.  It was so crowded that not everyone could sit on the only “furniture” in the room—two concrete benches—at the same time.  There wasn’t any room to sleep, much less any bedding, and no way to clean up after their long ordeal.  When people resorted to lying on the floor, officers would bang on the door and threaten to kick people if they didn’t get up.

Riva told me how she kept politely and respectfully trying to get someone’s attention to explain her situation; instead, she was told to shut up and wait.  After a few days, she was taken from the hielera and interviewed by someone on a phone.  He asked her some basic questions—name, date and place of birth, parents names, who she knew in the United States, and whether she had any problems with the government or gangs in Honduras. Riva told him she was afraid to go back.  In response, he played a recording that told her she was being deported and could not come back to the United States for five years.  When the recording was over, she told the man again that she didn’t couldn’t to go back to Honduras, that she was afraid for herself and her son.  He simply repeated that she couldn’t come back to the US for five years and the interview was over.

A short time later, Riva was again pulled out of the crowded cell.  An officer said she was being deported and had to sign her paperwork.  She told him that she didn’t want to sign because she was afraid to go back to Honduras.  He told her he didn’t care and she had to sign anyway because she was going to be deported, no matter what.  When she refused, he got annoyed and told her she was going to sign the papers, or he would sign for her.  When it became clear she wouldn’t budge, he returned her to the hielera.

Over the course of the next several hours, two more officials pressured her to sign.  By now, they were visibly angry, even resorting to yelling at her through the door of the crowded hielera.  Others had also refused, but had been worn down and gave up after being yelled at and threatened by the officials.  Riva admitted she was scared and crying by then, but still refused to sign. Eventually, after about four days, she was transferred to another location where a different official told her she could sign some papers to be able to have her case reviewed.  It was a trick.  Soon thereafter she was shackled, hand and foot, and put on a bus.  Many of the women were crying, and the guards banged on the bus and yelled at them to stop.  The shackles weren’t removed until she was on a plane back to Honduras.

Riva tried twice more to flee Honduras.  On her next attempt, she was robbed and assaulted in Guatemala, and forced back.  Within a few months, the predator made a final visit and a chilling threat, barging into her home, telling her that he’d be back to deal with her.  Fearing imminent harm, she fled north with Eduardo and endured a horrifying journey, including being raped in Mexico.  This time, after being processed by CBP, the pair were put on a bus and found themselves jailed at the South Texas Family “Residential” Center.

The massive complex in Dilley, Texas is run on a for-profit basis by the Corrections Corporation of America (CCA).  CCA is paid approximately $350 a day, per person, to detain women and children (the average age is 6).  The company was awarded the contract without any competitive bidding, and CCA runs the place with relocated prison guards and others from the corrections industry.    They are having trouble staffing the center, with only a little over half the staff speaking any Spanish at all.   No one speaks any indigenous languages, such as Mam or Qu’iche.  The indigenous women are particularly isolated, bewildered and depressed.  Even we volunteers can only smile and try to communicate in simple Spanish, waiting days to arrange an interpreter.

CCA’s website lists “Residential Supervisor” as a “Hot Job Opening.”  In case that opportunity sounds like a great career move for a social worker, know that it’s listed under “Correctional Officer Jobs” and describes the duties as supervising detainees “in a correctional facility.” The only requirement to be a corrections officer—sorry “resident supervisor”—at the South Texas Family “Residential” Center is a high school diploma, GED or equivalent.  That’s it.  No Spanish, no experience working with children, education, social work or the like.  Compare this with a recent job opening for a maintenance worker at the same facility:  two years or experience required.  Funny, that job posting looks like it was filled in the last few days, but the listing for prison guards is still open:  must not be enough people who want to work as jailers over women and kids.

CCA’s PR materials say that the center’s mission is to provide “an open, safe environment with residential housing as well as educational opportunities for women and children who are awaiting their due process before immigration courts.”  Of course, a CCA executive explained it best when I questioned her about the arbitrary and restrictive visitation rules which seem to change nearly daily.  When I noted that the constraints seemed more appropriate to a jail than a “residential” facility, she said:  “But this is a jail. There just aren’t any cells.”  Without missing a beat, she suggested that I should deal with the facility’s prohibition on underwire bras by finding something I liked at JC Penney, as she had.

At that first meeting with Riva, I had the awful task of telling her that we couldn’t take her case.  After all, they were bringing in another 40-50 women and children every day, and the number of detainees had exploded from about 300 on my first trip down in late April to 1,200 as of last week.  Despite the growing outcry, ICE Director Sarah Saldana doubled down on the discredited policy.  Last week, 136 House members called for an end to family detention.  The government’s systems are failing.  Women are waiting two to four weeks to get screened for their asylum claims and nearly another month before they are told if their case can proceed or they will have to ask for review. They wait another week or two for a detention officer to assign a bond amount, almost all of which will be reviewed because they are too high, unnecessarily tying up the immigration court process.

Waiting for a bond hearing to be scheduled means another week or two.  Immigration Judges consistently assign minimal bonds for families that clearly are neither a flight risk nor danger to the community, but immigration prosecutors threaten to tie cases up in lengthy appeals when judges think even a minimal bond is not justified.  Detainees refer to their housing units “kennels” saying the guards treat them like dogs.  Women and children now must line up for hours for meals.  Medical Services has begun to resemble an overcrowded urgent care clinic, with detainees saying they wait at least an hour or even all day for attention.

We are an all-volunteer program, relying on a handful of legal workers each week to pay their own way to Dilley for a grueling round of 16-18 hour days.  The resources necessary to put on a single merits case meant that we wouldn’t be able to help dozens of women through the credible fear and bond process.  It was a soul-wrenching calculation to have to make, but Riva understood and graciously thanked us for all our work and, mostly, for just being there.  She collected Eduardo, and I jumped into another meeting with another young woman, fleeing another shocking, life-threatening situation, detained with another adorable, but confused child.  After an intense and rewarding week, I returned to my home and practice in Colorado.

To be continued…Read Part 2 of this blog post.

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

* Names changed for privacy.

******

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

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

A Failed Hail Mary

shutterstock_246224011A profound moment in immigration history is upon us.  Through change in administrative rules, certain H-4 visa holders were able to begin applying for work authorization on May 26.  This privilege did not come about easily. Activists, including H-4 spouses themselves, fought long and hard for it. While they had been advocating for years, the first glimmer of hope came in 2011 when the Department of Homeland Security proposed a new rule to extend work authorization to some within their ranks.  But with still no action, supporters in 2014 stepped up their game and submitted their own petition to the White House, sparking engagement from the administration.

Almost four years after first being proposed, the rule became final in February, 2015. USCIS then announced it would begin accepting employment authorization applications in May.  At a stakeholder meeting to discuss the new rule, USCIS Director Leon Rodriguez described how impressed he was by the persistence of advocates on this issue. And he revealed a rare insight into what happens to the targets of such advocacy — people like himself. Brand new to the position of director, and no doubt still settling in, he said he was fielding emails and phone calls every 15 minutes for eight months from people telling their stories of hardship.  I am sure he felt the pressure!

So desperately needed, the new rule will allow H-4 visa holders to apply for work permits if their H-1B spouses have an approved I-140 or if they have had their H-1B extended beyond six years. It does not go far enough to allow all H-4 visa holders to get work authorization.

Incidentally, the H-4 rule was almost thwarted by a lawsuit filed by the group, Save Jobs USA (SJU), made up primarily of former technology workers at Southern California Edison (SCE).  SJU wanted a preliminary injunction to stop the rule from taking effect this week.

In the suit, Save Jobs USA v. US Department of Homeland Security, SJU claimed that H-4 visa holders will make it harder for its members to find work. The group represents former SCE workers who claim they were fired from their positions and made to train H-1B replacement workers as a condition for receiving their severance packages.  The organization argued that the new rule favoring H-4 spouses is arbitrary and capricious and must be invalidated because DHS lacks the authority to allow these spouses to work in the U.S. However, the law requires SJU to prove that without preliminary relief, its members would likely suffer irreparable harm and that issuing the injunction is in the public interest.

To meet the standard of irreparable harm, SJU had to prove, with sufficient evidence, that the purported injury is “certain, great, actual, imminent and beyond remediation.” To support its motion, the group submitted affidavits from three members who were former IT employees at SCE.

It also cited advertisements from IT placement firms seeking H-4 visa holders as evidence of competition. DHS argued — and the court accepted — that the ads were not for jobs but rather to provide training for H-4 visa holders.

The court held that SJU failed to meet the burden of proof for a preliminary injunction.  SJU had argued that the harm was real because there would be increased competition from H-4 visa holders. But the court countered that the H-4 spouses will not be limited in their employment and could apply for jobs in retail, finance and myriad other industries. There was no proof they would apply for IT jobs and compete with SJU members.  Speculative economic loss, the court said, was insufficient to prove severe loss. The court also held that the purported injury was not imminent since it takes months to process an application for employment authorization and it was uncertain when or if the competition would begin. The court also held that there was no harm beyond remediation because SJU members would find themselves in this same situation, with or without preliminary relief.

The court did acknowledge that both parties have compelling arguments: SJU seeks to protect its members while DHS would face difficulties if the H-4 employment authorization program, years in the making, had to be delayed.  The court made no indication as to whether one argument was more compelling than the other.

In sum, SJU lobbed a Hail Mary in the hope of stopping this rule from being implemented. Luckily, it didn’t work. DHS’ win was not only a win for that agency, but for all advocates, including AILA. And it’s a victory for H-4 spouses and their families who have been fighting this battle for years. What a relief that we won’t have a repeat of the unfortunate circumstances playing out in Texas v. United States, where DAPA and extended DACA applicants still face an uncertain future.  And although the case is not closed, for now, we can all feel victorious for our clients.

My hope is that H-4 visa holders who quickly find jobs will continue to communicate with us so we can collate evidence proving that the U.S. economy is better for having more resourceful and skilled workers in every industry. It would also prove that those who opposed the rule were wrong. And I hope that this proof will also pave the way for all H-4 visa holders to be eligible for work authorization, just like spouses of E-2 and L-1 visa holders.

Written by Tahmina Watson, Co-Chair of the AILA WA-Parents Committee