Author Archive

The Queer Community’s Road to Equality

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

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

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

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

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

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

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

Written by Ally Bolour, Member, AILA Media Advocacy Committee

Don’t Ignore the Ethics

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

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

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

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

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

Written by Cyrus Mehta, Chair, AILA Ethics Committee

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

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

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

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

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

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

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

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

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

Written by Frank Johnson, AILA Member and Volunteer

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

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

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

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

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

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

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

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

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

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

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

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

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

Another post is forthcoming with the decision and aftermath.

Written by Frank Johnson, AILA Member and Volunteer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Written by Frank Johnson, AILA Member and Volunteer

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

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

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

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

shutterstock_247077634On to Karnes

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

The family-friendly perspective:

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

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

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

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

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

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

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

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

The all-business perspective:

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

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

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

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

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

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

Written by Frank Johnson, AILA Member and Volunteer

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

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

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

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

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

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

Artesia

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

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

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

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

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

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

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

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

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

Where would I go next? More tomorrow.

Written by Frank Johnson, AILA Member and Volunteer

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

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

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

“Today, I’m Leaving Here.”

shutterstock_203082637My client’s 8-year-old daughter told me that, as she hugged me goodbye and left for school, so that I could prepare her mom for their individual hearing on March 31, 2015. One week later, after being detained approximately 9 months (since July 5, 2014) – first in Artesia, New Mexico, and then in Karnes City, Texas – they were to be freed from detention, and are hopefully on a bus as I write this.

I will admit I had my reservations when I agreed to take on this case. The logistics of representing a detained client are always difficult; much more so when those clients happen to be detained in Karnes City, Texas, (and I am in beautiful Cleveland, OH, almost 1,500 miles and a whole time zone away). The case notes were clear that many dedicated volunteers had “touched” the case – volunteers who had come and gone, but mother and child remained in a South Texas “baby jail.” The turning point for me came when our office was retained, on a wholly unrelated case, to write an appeal for a detained Mam-speaking woman in Arizona, who appeared pro se in her own detained, domestic violence-based withholding case. After reviewing the paltry transcript, the due process violations were obvious; the judge’s boilerplate decision lacked any meaningful analysis; and the lack of dignity accorded to our client was outrageously apparent. It couldn’t happen again. I wouldn’t let it happen again.

And so there we sat, the mother and I, in a chilly, empty mock courtroom on a Tuesday afternoon, in Karnes City, Texas, waiting for the televideo screen in front of us to come to life, showing the “real” courtroom in San Antonio. I was nervous. We both were. “95% of cases like this are losers,” the DHS attorney had told me the previous Friday. “A series of unfortunate events” was how he dismissively characterized the severe and prolonged domestic violence that this resilient Honduran mother and her daughter experienced at the hands of her common law husband, the father of her child. She is six months younger than I, my “half birthday twin,” and yet the things she has experienced are the stuff of nightmares. Continuous beatings, verbal abuse, rape. Compound that with grisly gang-related threats to both mother and daughter.

I knew we had a fight ahead of us. Mom was “withholding only” due to a previous order of removal, when she had tried to flee her abuser in Honduras two years earlier (and though she allegedly expressed a fear of returning, she did not speak to an asylum officer). She would testify for both herself and her daughter (mercifully, her daughter was not required to be present). I knew there would be questions as to why she did not disclose the abuse during her reasonable fear interview (answer: her daughter was in the room), why she repeatedly failed to report the abuse to the police, why she never went to the hospital. The DHS attorney found it “inconceivable” that mom would have no legal recourse in Honduras, and could not fathom why an abused woman would ever return to her abusive partner. He was right. It didn’t make sense. A pattern of severe domestic abuse, coupled with police indifference and corruption, just doesn’t make sense. Fortunately, the mom’s strong direct testimony, supported by affidavits from family and friends, a psychological report, a police report, country reports, and six expert declarations, did make sense.

Of course, it wasn’t perfect. We were in Karnes; the judge was in San Antonio. There was the expected delay, coupled with a delay to account for the interpreter, who also sat in San Antonio. I didn’t have a “hot spot” to communicate with the outside world or look up a last-minute case. The DHS attorney managed to rattle the mom a handful of times on cross-examination. The judge was particularly active in his own questioning. Fortunately, I had the support of another AILA member and volunteer, Kate Lincoln-Goldfinch, who very generously sat in the San Antonio courtroom taking notes and providing on the ground support.

I also had the inspiration of my “#EndFamilyDetention: Spring Break 2015” t-shirt, a gift from my boss and hero, Artesia veteran Jenna Peyton, which I subversively wore under my suit the day of the individual hearing.

And it worked. Almost one week later, as I listened in from my office in Cleveland, OH, the judge granted withholding of removal to mom, and asylum to her daughter. The judge found her credible. He found that the harm she had suffered from beatings, threats, and rape amounted to past persecution, and she was entitled to a presumption of future persecution, which the DHS failed to rebut. He found a clear probability of persecution (withholding standard) if she were to return to Honduras, on account of her membership in a particular social group. Moreover, the judge found that her daughter had demonstrated a “well-founded fear” of persecution (asylum standard) for all of the same reasons.

If “95% of cases like this are losers,” then I am incredibly grateful that my clients are in the 5% who will have a chance to live their lives free from fear.

My clients got to leave. But there are hundreds of other women and children locked up who have credible claims to asylum, to the safety that our laws allow. They are not so lucky. Why do we continue to treat them as a national security risk? More disturbingly, why do too few of our friends, our family members, our colleagues in the legal profession, know that this is happening? It is wrong. We know it is wrong. And I will continue to do everything in my power to stop it, one credible fear interview, one hearing, one case at a time. Please do the same. Together, we can #EndFamilyDetention.

Written by Daniel Natalie, AILA Member and Karnes Volunteer Attorney

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

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

“I’m afraid to ask them for any medicine.”

shutterstock_65058511I asked Guadalupe* what she meant by that – she had been on medication for anxiety and depression in her home country of Mexico. She was afraid to tell the medical staff when she got to the South Texas Family Detention Center that she took medication, because she thought it would make her look weak or negatively affect her case. Because she wasn’t taking her medication, Guadalupe had not slept for the past four nights. Here we were, on a sunny Wednesday afternoon discussing her upcoming credible fear interview. She looked exhausted and her cheekbones were protruding from her face.

As we talked, her 8 year old daughter colored pictures at the other side of the trailer. I listened as this mother of three girls told me about the gang members that knocked on her door one night. Guadalupe had a blank face as she told me she knew that she would be raped if she let the men drag her into her home, so she pushed past them and felt a level of relief when they tackled her in the street instead of the privacy of her own home. She pulled her t-shirt from her collar to show me the open wounds still red from the attack just days ago.  I held her hand as she divulged horrific details of the attack. We took a break so that I could pretend to be an Asylum Officer and ask her the formal questions she should be ready to answer in just a few days’ time.  She told me that she had been considering suicide, until meeting someone who actually cared about her case.

Guadalupe spoke eloquently and clearly as we prepared, reliving her trauma as she recounted calling the police and hearing the phone line go dead after she made the call for help. Her voice did not waver as she told about packing up her three daughters and husband, flying to Reynosa, Mexico and walking across the border knowing they would likely be detained, but also knowing she didn’t have a choice if she wanted to her family to be safe. Her emotions showed through only when she expressed concern over the difficulty she is having keeping track of her husband, who was quickly moved between facilities after being separated from his wife and daughters. After our meeting, my client was exhausted. I walked her to the guard who would give her back her ID badge, a photo of her on one side, and a photo with her and her daughter on the other.

Ever so gently, she asked if she could use her ID card containing her commissary money to buy me a soda from a vending machine as a thank you gift for our meeting together and my help with her case.  I thanked her for her deeply generous offer, saw her out, and cried as I packed up my office supplies. I had never encountered such humble kindness.

That night, I received a message from a friend in Chicago, a high school English teacher. Her classes were praying for the women I was working with and the volunteers on the ground.

Two days later, I met my client for her interview at 9:45am in the Court Trailer. She had been practicing her answers for the last 36 hours. She still had not slept.  It was an honor to take notes as she testified credibly to the Asylum Officer for almost 2 hours, without a break or a sip of water, as her daughter played in a nearby play area.  After the interview, we said goodbye, knowing that the next group of attorneys would care for these two women when my week on the ground was over.

After returning to Chicago, I’ve continued to follow the case remotely, to track the clients I had worked with on the ground. After all of that work, she had passed the credible fear interview! She received a bond shortly thereafter, and I was able to contact her family members to inform them that her case was proceeding.

The On the Ground volunteers made a big difference in her case.  I encourage any person thinking about volunteering their time to commit to the CARA Family Detention Pro Bono Project as soon as possible.

Your help is needed.

Now.

 *Name has been changed

Tess Feldman, AILA Member and CARA Family Detention Pro Bono Project Volunteer

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

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

An Impossible Amount, an Impossible Burden

As a vshutterstock_246620965olunteer attorney at the Dilley, Texas, family detention center, I’ve seen many children and their mothers come to me for help, seeking a way to gain asylum in the U.S. and finally have a safe place to raise their children, free from fear.

One such example is an indigenous woman from Guatemala, Maria*. She earned a living making traditional clothing from her home.  After a terrifying and abusive childhood, she married at 15 and now has four children. Every single one of them is jailed with her, the youngest is 5, the oldest 15.

Though she married to escape her abusive family, her marriage offered no safety. Her husband abused her, and in 2011 he drove drunk and hit a gang member’s truck. The police came, but the gang surrounded and outnumbered them. Maria ran outside to find her husband handcuffed and kneeling on the ground, surrounded by the police, who were surrounded by the gang. She ran to protect him, the father of her children, as the gang was ready with matches and gasoline to set him on fire. She was beaten by the gang, in front of the police. The police did nothing, and left her there to be beaten by the gang and threatened further.

She hid in her home for about a month until the gang returned, surrounded her home, and told her they would set her house on fire. She took her children and fled to live with her mother. The gang followed her there. She huddled in the home while her sister brought her supplies to work with to try and keep food on the table for her children. A few months later, she crept out of the house and the gang grabbed her – dragged her by the hair and threatened to rape her, burn her alive, and rape her children. She decided she had to flee, but she couldn’t afford to take her children.

In 2012, she fled to the U.S. but was kidnapped at the border by the mafia in Arizona, and held for ransom, which her mother scraped and borrowed the $8,000 to pay. Not knowing the law, she didn’t file for asylum then because she was afraid she would be deported, and she needed to work to pay her mother back. She worked, cleaning homes, and provided financial support to her children in Guatemala.

In December 2014, she began receiving threats on her cell phone from the gang. They referenced her husband, and the time she got away, but now demanded that she pay money or her children would be raped and burned. She changed her phone number in January, but somehow the threats continued. She tried blocking the number, but the gang found her mother and threatened her. The children were followed after school and were terrified for their lives. In February, the threats continued, and Maria went to lawyers to try to seek asylum for her children. She filled out the necessary forms, but she isn’t sure what happened to them. She then went to the Guatemalan embassy in California, but they told her that they couldn’t do anything to help and that she should send for her children.

Maria felt she had no choice. The gang told her she had to pay by early March or her two oldest children would be raped and burned alive. Within days Maria flew to Guatemala to try and protect them and the very day she arrived she filed a report with the police. The police officer told her the police were corrupt and that the gang would know she was back and made a report. The officer told her to take the children and run because the police couldn’t stop the gang. She hid the children in another home until they could all flee the next night.

Maria used what funds she had to feed the children on the journey. She used the GPS on her phone to guide her north. She wanted to go to the bridge in Tijuana, but she ran out of money to get her family there. So instead they crossed the river in Texas; she crossed with them one by one. As soon as she had a signal she dialed 911 and while she was calling, Customs and Border Protection arrived.

She and her children have absolutely no money left. She has no one that could pay a bond to get her and her family out of the detention center.

If Immigration and Customs Enforcement (ICE) follows their recent policy, then our government will set her bond at a minimum of $7,500. That might as well be a million dollars. She has no way of paying such a high bond. She could barely manage to afford to keep herself and her children alive. Now they sit in detention at a cost of up to $300 per day per person – that’s $1,500 a day for her family. ICE’s decision to detain a beleaguered, exhausted mother and her four frightened children is costing the taxpayers as much as her likely bond every five days. Every five days.

What is this gaining us? This determination to jail mothers and children rather than offer an alternative to detention is just wrong. And to “offer” them a bond that is so far beyond what they can pay is crueler still.

If it makes no fiscal sense, and it makes no moral sense, it makes no sense at all. Family detention needs to end, and Maria and her children need to be released while they seek asylum from the abuse and terror they have suffered.

*Name has been changed

Written by Victoria Carmona-Fehr, AILA Member and Family Detention Project Volunteer

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

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