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The Pro Bono Clinic: Nuts and Bolts

DSC_0294You may know that there’s a lot that goes into a pro bono clinic. But planning the AILA Annual Conference Pro Bono Clinic takes it to another level. Here are some insights on the planning and logistics of this year’s event, sharing what we learned at the AC for anyone looking to run a pro bono clinic in the future – maybe even for Citizenship Day this September!

Planning began in earnest shortly after President Obama’s announcement regarding Executive Action. The number of clients potentially eligible for Deferred Action for Parental Accountability (DAPA) in the Maryland/DC/Virginia area far exceeded the resources of area nonprofits, so AILA’s DC Chapter decided to use it as a way to give back and support the nonprofits. Originally the plan was to work with Ayuda, Catholic Charities of the Archdiocese of Washington, and CARECEN to assist their overflow clients who were ready to apply for DAPA since the timing would be perfect.  The clinic would take place several weeks after applications would start being accepted.  What’s that they say about best laid plans? The next thing we knew, the Texas lawsuit injunction happened and DAPA was officially in limbo.

The Hosting Committee discussed options over several conference calls and ultimately decided that regardless of the injunction, there could still be a lot of benefits to a DAPA-focused clinic.  Our mission was to (1) inform the community about the status of DAPA; (2) warn the community of the dangers of notario fraud; (3) ensure that community members were gathering documentation that will be necessary for any program—legislative or administrative; and (4) most importantly, identify whether a client might be eligible for another form of immigration relief and make the appropriate referrals.DSC_0309

First, the Committee worked with area nonprofits to identify the prospective clients they were unable to see.  The Hosting Committee with the help of our community partners then reached out in advance to potential clients to bring the event to their attention and try to pre-register as many attendees as possible. Next, the Committee worked with local minority media outlets, and finally, outreach was done in the community through schools, such as Carlos Rosario, and community centers.  The Pro Bono Clinic reached a total of more than 80 clients; each received a screening for DAPA, DACA and other common forms of relief.  Clients with potential relief were referred to experts who provided a more thorough evaluation of their case and referrals were made to our partner nonprofits— Catholic Charities of the Archdiocese of Washington, CARECEN, and Ayuda.  The partnerships with the local nonprofits were critical to the success of the event for not only outreach, but also technical expertise.

The event was held at the Carlos Rosario International Public Charter School, a location often used during AILA DC’s Citizenship Day, and the school has a strong relationship with both AILA DC and the community. Overall, Approximately 50 AILA members volunteered to provide screenings and expert advice, and we had 26 general volunteers, who served as runners, photocopiers and interpreters. AILA attorneys from all over the country participated, representing 15 chapters.  It’s difficult to quantify the value of the services provided by the volunteers, because it is more than just a dollar amount, it is a wDSC_0328ay to provide much needed support to area nonprofits inundated with clients.

The Pro Bono Clinic, Citizenship Day, and other volunteer efforts are ways that our members walk the talk, and show their values, by helping those in need in the community. Without the help of AILA volunteers, many clients would not be able to navigate the complicated immigration system with any certainty.

The event was a success and we received great feedback from volunteers and clients alike.  As with any large-scale event, the key to success is prior planning and leveraging of community partners and nonprofits.  Even though Committee Members were not centrally located, they were able to effectively use technology to organize and implement the clinic.  In my opinion, the event was true to its original mission, but the Committee was able to be flexible and responsive as unanticipated issues arose.  A big thank you, not only to AILA and the volunteer attorneys, but our partner nonprofits who worked with us to ensure this event was a success!

Written by Adonia Simpson, Member of the AC Pro Bono Clinic Planning Committee

Acting in Haste

shutterstock_91837658National tragedies have long propelled political change. Often a terrible event will ignite a fervent desire in political leaders to take action on an issue that has been neglected or overlooked. However, it is in these times of passion and emotion that some of the worst mistakes are made.

Following the attacks on Pearl Harbor, our nation felt justified in stripping thousands of Japanese-Americans of their land and forcing them into internment camps. After the horrible terrorist attacks on September 11th, 2001, our government implemented laws such as the Patriot Act that infringed on Americans’ constitutional rights.

On July 1, 2015, 32-year-old Kathryn Steinle was shot and killed on Pier 14 in San Francisco, while walking arm-in-arm with her father. The man who reportedly shot her, Juan Francisco Lopez-Sanchez, was an undocumented immigrant who had been deported five times and been convicted of several drug-related offenses in the past. This random and senseless act is fueling the urge on the part of Congress to do something.

On July 23, 2015, the House passed H.R. 3009 to punish local jurisdictions – known as “sanctuary cities” that don’t comply with Immigration and Customs Enforcement’s (ICE) indefinite detainer requests for non-violent criminals.  If enacted these provisions will have devastating fiscal and humanitarian consequences for these municipalities.  In addition to other penalties, non-compliant cities would be ineligible to get reimbursed for the cost of detaining immigrants accused of or convicted of crimes.  In California, where we are just emerging from a severe recession and still have unemployment levels above the national average, such a federal mandate would prove devastating to our recovering economy.

A second bill, H.R. 3011, currently being considered in the House and expected to pass at this writing, will unilaterally sentence any undocumented immigrants to five years in prison for unlawfully re-entering the United States.   Congress is considering this bill despite the fact that the U.S. is already a world leader in the number of people it incarcerates, with states like California having to release inmates due to overpopulation within its prisons.

According to a study of 40 state’s prison systems by the Vera Institute of Justice, the average costs for a single inmate is $31,286 per year, with this fluctuating by jurisdiction, hitting a high of $167,731 per inmate in places like New York City. Multiply this cost by the tens of thousands of people that may be subject to five-year prison sentences throughout the country and it’s clear how immense the financial burden would be on federal, state and local budgets.

These costs do not factor in the economic impact imprisoning these individuals would have on the businesses and communities that rely on their labor.  According to the United States Department of Labor over half of the country’s farm workers are undocumented immigrants.  This bill directly threatens California’s $21 billion agricultural industry, which is already under tremendous stress due to an unprecedented drought.

Astonishingly, neither of these bills, even if enacted into law, would deter any criminal from engaging in a violent crime.  Instead they would deter the hard-working and benign immigrants that our country heavily relies on.  At a minimum, such ill-conceived demagoguery by Congress is divisive and counterproductive.

Congress instead should direct its energy and focus on a real solution through a thorough and comprehensive reform of our immigration laws so that criminals like Juan Francisco Lopez-Sanchez don’t have the ability to roam around our communities with impunity.  States do not need additional unfunded mandates from the federal government when it’s Congress who has failed to act as it should and give our country an immigration system that fits this century and the nation’s needs.

Written by Ally Bolour, Member, AILA Media Advocacy Committee

Preconceived Notions Shattered by Dilley

shutterstock_276175301Recently, Rochelle G. volunteered at the Dilley facility where nearly 2,000 mothers and children are incarcerated despite their status as asylum-seekers. Brian Hoffman, lead attorney for the CARA Family Detention Pro Bono Project which brings volunteers from all over the nation to help in this remote South Texas town, asked Rochelle about her experience:

Can you describe what you saw for us?

Small round tables surrounded by four plastic chairs.  Women holding crying and coughing toddlers sat in chairs against the back wall.  A children’s room with colored pages torn out of a coloring book papering the walls, and a large screen tv affixed to the top of one of the room’s corners, playing Frozen.  Signs on the walls of the outer room cautioned children in both English and Spanish about sexual abuse with colorful illustrations informing them about which parts of their bodies were off limits to others.  At first glance, I could have been in a pediatrician’s waiting room.

The children all seemed ill enough to further that illusion.  Every child seemed to have a wheezy cough and a congested chest.  Most of the toddlers lay listlessly in their mothers’ arms, pitiful caricatures of rag dolls.

Outside wasn’t any better. Rows of trailers surrounded by barbed wire in a barren, muddy field in the relentless heat and humidity of Southern Texas. It’s absurd to think that so much money is being spent to inadequately house and care for women and children from Honduras, El Salvador, Guatemala and Mexico who fled to the United States seeking asylum from domestic violence, gang violence and extortion.  It seemed disturbingly similar to the Texas State Prison down the road.  Yet the only crime these women had committed had been to enter the United States in search of a safe haven.

What struck you the most about Dilley?

One of the first things I noticed was the distinct lack of medical care.  Every time the women were asked about how they were addressing their children’s health issues, they responded that they had gone to the infirmary and that the staff there had told them to give the child water and to let it rest, despite their protestations that they had already been doing that for ten days.  One woman, whose son seemed gravely ill, said that she had even offered to pay for medication for him, but her request had been denied.  She lamented her fate and noted that in her home country she would at least have been able to obtain medication for her child. Another child was finally hospitalized after he had refused food for eleven days. When he arrived at the hospital, a legitimate healthcare facility outside the detention center, the staff noted that if he had been brought in even an hour later, he would have suffered severe brain damage.

What surprised you most about the mothers?

As I sat in on interviews and spoke to the women, my stereotypes shattered.  Women spoke of holding good jobs as bankers or computer engineers. I heard of a husband who was a pilot, and beautiful homes.  They spoke of going to college for advanced degrees, running track and their own businesses and of their fears for their children who were being recruited by gangs, persecuted by gangs, and threatened with violence.

I was ashamed that I had assumed that most of the women had suffered severe poverty and worked at low paying jobs in their home countries because they had not had the opportunity to receive an education beyond middle school.  Although, this was certainly true for some of the women, many of whom spoke of horrendous domestic violence, it was only a small part of the greater Latino refugee story.

One woman, whom I interviewed, spoke about the mortgage she had taken out to open her own hair salon and told me that she attended college at night for a computer engineering degree while raising her three children.  “I didn’t want to leave.  My business was doing well and I was on my way to realizing my dream of becoming a computer engineer.  But the gangs threatened to kill me and my family.”  I encouraged her not to let go of her dream and to obtain her computer engineering degree by attending college in the United States.

What would you tell potential volunteers?

This is one of the hardest and best things you will ever do. Ever. In your life. There are moments of extreme sadness and overwhelming joy and throughout it all you know you are making a difference. A joyous memory: on my last day at Dilley, a client’s sister was finally able to pay her bond and to send bus tickets.  The sheer joy on her face as she shared the news with me and invited me to come visit her and her family gave me an immense sense of fulfillment.  Until every mother and every child is free, we cannot stop this work. We need all of you to join in the fight to #EndFamilyDetention.

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If you are an AILA member, law student, 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.

The Global Team Effort that Freed a Mother and Child

shutterstock_172985966Last Wednesday, July 3rd, a client from El Salvador won her merits hearing! I appeared with attorney Melisa Peña from Miami over video conference, while Elora Mukherjee appeared by telephone from Tokyo, Japan and John Bradley appeared, sitting next to the client, from Dilley, TX. Thank you to everyone, particularly Elora and law student Swapna Reddy who helped to prep this case remotely as part of the off-site merits team.

This was our first case where the client appeared in Dilley and was represented by counsel in Miami. We began to prep the case on Friday, June 19th, after Brian Hoffman, CARA Project lead attorney reached out to let us know the client had a merits hearing and was in need of pro bono counsel. The client is a survivor of sexual violence, born and raised in rural El Salvador. Her withholding claim was primarily based on sexual violence she suffered at the hands of her cousin, an M-18 gang leader. The client’s cousin raped her and repeatedly sexually assaulted her. He also forced her to leave her home, so he and his gang members could stay there. She had previously fled to Honduras, but her cousin followed her there and threatened her with death if she did not join his gang and become “his woman.”

Our client had two previous entries and this was her third entry to the United States. She had been apprehended by CBP both times, detained for two months and then returned to El Salvador. After the third entry, the client had a negative Reasonable Fear Interview (RFI), a favorable review from an immigration judge, and then a second RFI.

With the assistance of the amazing On-the-Ground team of Aseem Mehta, Ellen Miller, and Brian, I placed legal calls to our client five times. On June 24th we filed approximately 200 pages, including affidavits from the client, expert declarations, reports and news articles regarding femicide and gang violence. On June 26, I filed a motion for leave to file supplemental evidence, attaching an affidavit from the client’s mother and photographs of the home our client’s abuser invaded and then forced her to abandon.

On June 30, I filed a brief outlining the withholding claim but the logistics of representing our client for her merits hearing were daunting. I am a law student and my supervisor, Elora, was in Japan. We filed a motion for Elora to appear by telephone as my supervisor, which was granted on July 3rd. John Bradley, who had previously worked with the client during her second RFI, traveled to Texas while we prepared the case, to provide support to the client on-the-ground and potentially pinch hit if needed. The day of the hearing, the immigration judge hearing the case was concerned about the telephonic appearance because I would not be able to confer as easily with Elora. But another volunteer attorney, Melisa Peña, was in the building and supervised my appearance in person in immigration court.

There were no opening statements; we heard direct testimony from the client, followed by cross examination which was difficult for our client, but we prevailed. Not only did the client and her daughter go free, but she was interviewed by Telemundo after the decision so her story could be shared. Our client and her seven year old daughter were released that same day to John Bradley and stopped by to thank the CARA volunteers before getting on their way to reunite with her husband and her brother.

Please, please, please:  Consider taking these cases.  They are winnable – but the clients need YOU to help them. You can make a world of difference – either from Dilley or Miami or potentially appearing by telephone.

Volunteers can work on merits hearings remotely—just as Swapna, Elora and I did in this case.  If you are interested in taking on a merits case, but need some off-site support to do so, please reach out. Together we can bring these children and their mothers the safety and security they fled here to find.

Written by CARA Family Detention Pro Bono Project Volunteer Conchita Cruz

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If you are an AILA member, law student, 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 Lot of Glass in Those Towers, Any Mirrors?

shutterstock_113897485Antonio Olivio of the Washington Post hit the nail on the head in his July 6th column (At Trump hotel site, immigrant workers wary) regarding the building of the new Trump luxury hotel in Washington DC.  Ever since Donald Trump made his ill-informed and untrue statements about Mexican and Latino immigrants, the spotlight has been turned onto Mr. Trump and how he earns his millions of dollars on a daily basis.  The public has since learned that Mr. Trump earns quite a lot of money on the backs of immigrant labor and even outsourced labor (see the now former Trump clothing line which was made in Mexico and China, among other countries).

As Mr. Olivio noted at the DC Trump project, many of the immigrant workers rise early and commute to the worksite in a professional manner to earn an honest living to support their spouses, children and families.  While Mr. Trump’s comments are offensive to them, the need to work and support their families is more important than pride.

However, based on Mr. Trump’s comments about Latino and Mexican immigrants as rapists and criminals, which he has voraciously defended as accurate, after reading this article it must be asked, how was Mr. Trump able to find enough professional Latino and Mexican immigrants who were not rapists and criminals to employ?  In the alternative, is Mr. Trump knowingly hiring the very criminals he ranted about to shamelessly obtain the media spotlight?

The truth is that Mr. Olivio’s article demonstrates what most Americans already know: the vast majority of Latino and Mexican immigrants are hard-working, self-sufficient proud people with a desire to earn a living and care for their own in the best country in the world.  They were not born into a wealthy family and left with a large inheritance like their employer.  Rather, they earn each dollar working for a man who values money more than the lives of his employees.

Take a look in one of your mirrors that was likely hung by an immigrant worker and that is now cleaned by an immigrant worker Mr. Trump, you might see someone who has earned a lot of money on the backs of hard working immigrants but has now lost something money cannot buy, self-respect.

Written by Matt Maiona, Member, AILA Media Advocacy Committee

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

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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

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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.

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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