Author Archive

Access to Counsel Should be Non-Negotiable

“Wait, you mean to tell me you are not allowed to contact a lawyer at the airport?”

That is a familiar response when I tell people of the lack of any protocol for allowing access to counsel to those who are coming into the United States from abroad. The fact is, when someone enters the country, whether a U.S. citizen, permanent resident, valid visa holder, or visitor without a visa, the decision to permit that person to contact their attorney for assistance or advice when problems arise is completely up to the officer’s discretion under current procedures.

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Fair Treatment Under the Law

Indiana’s highest court handed down a unanimous ruling earlier this month protecting the rights of injured unauthorized immigrants to seek recovery of lost wages and decreased earning capacity and importantly, making their undocumented status inadmissible at trial in most cases. I represented the Indiana Chapter of AILA and appeared and briefed the case as amicus. (Noe Escamilla v. Shiel Sexton Company, Inc., Indiana Supreme Court No. 54S01-1610-CT-546, decided May 4, 2017.)

The plaintiff, Noe Escamilla, is an undocumented immigrant who was brought to the United States by his parents while he was a teenager.  Escamilla had lived and worked in the United States ever since and eventually married a U.S. citizen (USC) and had three USC children.  In 2010, while employed by subcontractor Masonry by Mohler, he slipped on snow and ice as he attempted to lift a heavy stone. Escamilla suffered a hernia and severely injured his back, permanently disabling him and prohibiting him from working again as a masonry laborer.  There is no evidence that Masonry by Mohler checked Escamilla’s immigration status prior to his injury.

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MAVNI: A Successful Program Currently SNAFUed

Imagine you are a Polish- or Punjabi-speaking graduate of a United States school and you volunteered to join the U.S. Armed Forces, ready to serve this country and America’s interests. Your recruiter told you about the Military Accessions Vital to the National Interest (MAVNI) Pilot Program which allows certain lawful non-immigrants possessing critical health care specialty credentials, or language and cultural skills, vital to the national interest to join the Armed Forces. You’re promised that once you begin serving on active duty, or drilling in a reserve unit, you will become eligible for expedited naturalization. You’re ready, and you’re joined by thousands of others who, since the program’s inception, have helped make the program a success.

But, last fall, the orderly progression of the entire MAVNI Pilot Program ran into serious problems, and now it has now been completely stalled. On September 30, 2016, the Department of Defense (DoD) implemented revised eligibility, background, screening, and continuous monitoring requirements for the entire MAVNI cohort, estimated to number over 10,600 persons in the various service branches including those in the Delayed Entry Program (DEP and/or the Delayed Training Program (DTP).

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Despite the Odds

On a Sunday in February 2016, I was at the San Francisco airport ready to travel to the family detention center in Dilley, Texas, to meet with my new pro bono clients, Marta and her two young sons. Moments after I arrived at SFO, I received word that Immigration and Customs Enforcement (ICE) was transferring them to a detention center in Pennsylvania; they would be gone by the time my plane landed in Texas. I had notified ICE two days earlier of my representation and travel plans but the family was abruptly whisked across the country over the weekend. Blocking their access to a lawyer could extinguish their only hope of remaining in the United States.

Marta and her sons, who are from El Salvador, had been arrested in a nationally-publicized series of home raids on January 2, 2016, intended to deport mothers and children who had fled to the U.S. from Central America. Then-Secretary of Homeland Security Jeh Johnson proudly announced the arrest and impending deportation of 121 mothers and children, emphasizing that all of the targeted families had been issued final orders of removal. Secretary Johnson insisted ICE was acting according to “basic principles of decency, fairness, and humanity.”

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The Courage of Mothers in Family Detention

Over the past two years, hundreds of volunteers have given up a week or more of their lives to help nearly 30,000 mothers and more than 33,000 children detained by the federal government as they seek asylum as our laws allow. Pro bono attorneys, joined by translators and legal assistants, help them prepare to make their case for protection under U.S. laws. We asked our volunteers to recall the mother who they met in detention whose story stayed with them most powerfully. Here are a few of their stories. Below this post is information on how you can get involved.

“My 22-year-old daughter and I volunteered at Dilley together.  Hearing the mother’s stories through my own daughter (my interpreter) was particularly compelling.  But for some reason, the stories that touched me most deeply were those of mothers fleeing to save their adolescent boys from recruitment by the gangs.  We could see that these young boys—against almost impossible odds—wanted to be strong and protect their mothers. One mother and son in particular stuck with me. We determined that the 10-year-old boy’s testimony would be integral to the credible fear interview, so my daughter asked him to explain what happened.  He sat straight with his shoulders square, his chin up, and a resolute countenance on his face and he described the way the gang members tried to coerce him to assist them with extorting shop keepers.  But when it came to the part where the gang members followed him to his mother’s tamale stand and threatened to harm her if he didn’t comply, a tear slipped down his cheek, then another, and then another, until he collapsed into her arms and they cried together.  As we left the interview room, I wiped his tears up off the table.” – Laura, July 24-29, 2016

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Standing Up for One Family and Making a Difference

A few weeks ago, we had a chance to stand up for one Central American family and make a real difference. We, one law professor and one law student, were the latest in a chain of connections that helped ensure that this vulnerable family will have a meaningful chance to claim asylum.

Each semester, law students at the University of the District of Columbia David A. Clarke School of Law’s Immigration and Human Rights Clinic, like other law clinics, are required to put in a certain number of hours. So when CLINIC senior staff attorney Michelle Mendez reached out about a client who needed help to prepare for her Credible Fear Interview (CFI), we agreed to assist.

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It’s time to tackle the 3/10 year bar!

Perhaps not since the Japanese internment camps of the 1940’s, or during the aftermath of 9/11, have immigrants been more fearful than they are now.  Never have I seen immigration attorneys and advocates more concerned about what might happen to their clients and communities. And never has an administration been more brazen and hostile against immigrants in the name of enforcement and the rule of law.

So what can be done?  The answer is, we raise the bar on the fight! But with so much to fight for, where do we even begin? The border wall? Detention beds? Raids? Protecting DREAMers? Defending sanctuary cities? There are so many important issues to advocate for.

What most of these issues have in common is the intent to remove people as quickly as possible, without due process or humanitarian consideration. These disastrous proposed changes will affect people who have been here since they were children and only know America as home; people who have been living here with their U.S. citizen or lawful permanent resident families; people who are victims of domestic violence or other crimes; people who are running their own businesses and hiring American workers; people whose only crime was to enter the U.S. without status, in most cases many years ago, and often not of their choosing.

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Our Immigration Laws Are Bad for Small Businesses

We’ve just wrapped up another H-1B lottery season, during which United States companies submit H-1B petitions on behalf of skilled workers to fill professional-level positions. This year, nearly 200,000 petitions were submitted for just 85,000 visas. Once again, the government must resort to a computer-generated random selection process to pick and choose between petitions, and the losers will include a lot of small businesses. The program does not take into consideration market demand, and many small businesses will be unable to hire the specific workers they need to grow and create jobs for U.S. workers.

How does the lottery work exactly? Simply put, employers file petitions, at a cost of several thousand dollars in filing fees and costs, and then wait to discover whether U.S. Citizenship and Immigration Services (USCIS) pulls the applicant’s “number” for processing. Only those petitions chosen in the lottery will be adjudicated by USCIS for jobs that can begin no later than October 1, 2018, the start of the federal fiscal year. If the prospect of building a business by pulling a number out of a hat seems counterintuitive to you, you aren’t alone. It is.

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ICE Enforcement in Courthouses is a Dangerous Mistake

Immigration and Customs Enforcement (ICE) has been stepping up its enforcement operations, this time in and around courthouses. There have been reports of ICE officers increasingly showing up in courthouses across the country to arrest unsuspecting immigrants. This is a misguided policy…and a dangerous one, for all of us.

The Department of Homeland Security (DHS), supported by Attorney General Sessions, recently defended ICE’s actions, stating that arresting a person in a courthouse better ensures public safety since the person would have already been screened by the courthouse and are less likely to have access to a weapon, resist arrest or flee. Ironically though, this tactic will only backfire. ICE agents appearing at courthouses will have a chilling effect on the administration of the criminal justice process and will actually make us all less safe.

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Our Battles Are Only Beginning

Regardless of the veracity of President Trump’s negative immigration rhetoric, it is undoubtedly sparking and emboldening anti-immigration groups. Constitutional battles that have long been over and won are creeping back with validation from the new administration.

In California, the American Children First organization is leading an initiative that seeks to keep undocumented children out of public schools and to charge undocumented parents of United States citizen children “non-resident” tuition. On April 5, 2017, the  that the organization had filed a notice of intent with the San Bernardino County registrar of voters in order to circulate a petition for their proposed ballot measure. The organization’s founder, Joseph Turner, told the LA Times that he felt  “invigorated” by President Trump and intends to bring these anti-immigration initiatives to the national level by first targeting a small school district. The initiative targets the Yucaipa-Mesa Joint Unified School District, which includes both San Bernardino and Riverside counties.

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