Archive for the ‘Processing of Applications & Petitions’ Category.

148,000 Missed Opportunities

shutterstock_148806083I’m just now fully coming out of the chaotic, hectic darkness that has clouded every H-1B season for the past many years.  Once again, I find myself struggling with “Immigration PTSD”  – Post Traumatic Submission Disorder.  The cause of this syndrome is two-fold.  First, I live with the dreaded anticipation that the number of submissions will be such that not even a fair percentage of my submitted applications have a realistic hope of selection.  To make matters worse, I live in fear that, heaven forbid, I have made a minute non-material error, which will cause even a selected application to fail. Sadly, my fears are once again well founded.

This year the USCIS received 233,000 applications for 85,000 available slots.  Thus, 148,000, almost two thirds, of the petitions received in the first five days of April will be rejected out of hand without any review. A lottery has been held and the unpicked petitions so painstakingly pulled together by immigration lawyers, with help from innumerable paralegals and legal assistants, and dutifully delivered on time by FedEx, UPS, or the U.S. Postal Service, will be returned.

The data shows that the number of submissions is a direct reflection of the fact that American employers desperately need the workers for whom they petitioned. Simply, they need these foreign workers to help create products, technology, ideas, and innovations.  No employer in its right mind would go through this process or angst if they did not.  Further, as American Immigration Council Executive Director Ben Johnson recently testified in a  Senate Judiciary Committee hearing, those high-skilled immigrant workers have been shown to go on to create even more jobs, thus building our economy and contributing to the success of us all, not just the company for which they work.  Hopes will be dashed, business plans will crumble, and instead of surging forward with the right personnel, companies will be stalled again for another year while they try to make do.

Finally, and perhaps one of the greatest sources of stress for those trying to assist employers and better the economy, is that hopes will be dashed not just because the numbers alone do not and cannot possibly account for the number of workers needed, but because the process is one that does not allow for one, literally not one, error.

Our immigration system is broken, not just by its antiquated numerical limitations but also by its process.  A missed checkbox is grounds for denial, and although denial is not mandated for such errors, it is permitted.  Unfortunately, permission has become a license to kill an otherwise clearly approvable petition.

Transpose a number in a check so that it is off even by only one dollar and USCIS will reject the application. Tax filings, patent applications, and almost any other type of application can be amended.  While the law does not bar corrections to immigration applications, that opportunity is simply not afforded to filers. To err is human, except in the context of immigration, at least for applicants.

It doesn’t have to be like this. Congress could tie the H-1B visa cap to actual market demand. It’s not a crazy concept. When we had an economic downturn, demand fell, so the H-1B visa cap was reached in months instead of days. Why can’t we have the same sort of rising cap when our economy is doing well?  Similarly, our system does not mandate strict liability or compliance.  We do not need Congressional action to dictate that leniency, where permitted, be provided. The laws, common and good economic sense, do that already.  The H-1B visa system is long overdue for an overhaul – Congress should get started today.

Written by Leslie A. Holman, AILA President

From Leave It to Beaver to Modern Family

shutterstock_152193854The days when one spouse remained at home and the other went to work aren’t the norm any longer in our society.  Although there may still be some households where only one spouse works outside the home, in many cases having two working spouses is one of the requirements of the economic and societal reality within which we now live.

While the Cleavers exemplified the idealized middle-class suburban family of the mid-20th century, times have changed, and now Modern Family brings us the experiences of diverse family units.

Decades of changes within our own culture and values have led to the recognition of both spouses’ talents outside the home.  The traditional roles of domestic spouses and working spouses are no longer rigid models in a family and with two incomes the overall financial stability and security of many family units has improved.

Our country’s H-1B visa program however, lagged behind these realities until last week when the United States Citizenship and Immigration Service (USCIS) finally announced a visa rule revision that will allow spouses of some highly skilled immigrants to apply to work in the United States.  This rule recognizes the contributions spouses of foreign workers can also bring to our society and economy.

USCIS director Leon Rodriguez noted that “[spouses] are, in many cases, in their own right highly skilled workers,” and that “many families struggled financially when a spouse couldn’t work, and in some cases returned to their country.”

More importantly this rule revision will have a tremendous effect on immigrant women because a large number of the H-1B spouses are, in fact, women.  Women who may have completed advanced degrees in their home country and are well qualified to hold jobs in their own professions, but who until now have been barred from doing so. They have had to make a choice, either to pursue their own career or focus entirely on their spouse’s while he was employed on an H-1B visa.  The Administration’s willingness to recognize these inequities for immigrant women living in our society and the agency’s action in revising this arcane rule is another step forward in remedying the complex and outdated rules in our current immigration system.

The announcement and the impact the revision of the rule will have on many foreign workers and their families are welcomed, but this is only a limited remedy.  It is important to note that the new authorization doesn’t apply to the spouses of all H-1B visa holders. The regulations only cover those whose H-1B partners are seeking permanent legal residency and for whom the agency has already approved an employer petition to start the process.

Our immigration system remains a product of the past century and hinders our country’s ability to remain competitive in this global economy.  The efforts by this Administration to bring relief to companies seeking to keep or hire talent should be a catalyst for Congress to get to work on further reform of our immigration laws.

Competitiveness increases profits and strengthens our economy.  Research shows that immigrants complement American workers.   It is time to leave the Cleavers to our history and modernize our immigration laws to chart the economic future of our nation and the financial stability of our families.

Written by Annaluisa Padilla, AILA Second Vice President

In Defense of Consular Officers

shutterstock_123147769For over 25 years, I have been living and working abroad helping noncitizens secure family, work and other types of visas to the United States.  As a specialist in consular law and procedure, I’ve had the honor and the privilege to deal with American consular officers at posts around the world, and have spent countless hours studying and writing about Volume 9 of the Foreign Affairs Manual (FAM), the authoritative guidance governing every consular officer’s process for issuance of a U.S. visa.  Like other immigration lawyers, I am closely following the case of Kerry v. Din pending before the Supreme Court (argument scheduled for Monday February 23).  At stake in that case: whether the courtroom door is open to an American citizen asking for a minimal explanation about the denial of her spouse’s visa on what the government asserts are terrorism grounds.

The premise of the Solicitor General’s (SG) argument is that the issuance or denial of visas is a discretionary function carried out by consular officers. The fallacy of that description, however, is that it’s outdated.  It ignores the reality of the Homeland Security Act of 2002 – Congress’ response to the 9/11 tragedies – which gives the then-newly-created Department of Homeland Security (DHS) an overarching role in the visa process, especially when it comes to denials based on security grounds.  (For more information on DHS’s predominant role in the visa process, see here, here, and here).

It is DHS’ role in database-driven national-security determinations, like the one at issue in Din, that’s explained in an amici brief by a group of former consular officers supporting Ms. Din.  For the government to claim that courts shouldn’t review “discretionary” visa decisions by consular officers begs the case’s key question, because those decisions are often made based not on the consular officer’s discretion but rather on DHS inadmissibility findings entered into national-security/terrorism databases and watchlists.

A strange thing happened shortly after the compelling amici brief by the former consular officers was filed. In the brief period between filing of the amici brief and the date for filing of the SG’s reply brief, the section of the FAM relating to the duty of consular officers in cases involving DHS findings of inadmissibility on a national-security/terrorism database or watchlist was suddenly changed.

Previously, the guidance to consular officers had stated:

Except in cases involving non-permanent inadmissibility, you should not look behind a definitive DHS finding or re-adjudicate the alien’s eligibility with respect to the provision of inadmissibility described in the DHS lookout entry.

But suddenly, as of January 29, 2015 this guidance now states:

Except in cases involving non-permanent inadmissibility or in cases of 212(a)(3) grounds, you should not look behind a definitive DHS finding or re-adjudicate the alien’s eligibility with respect to the provision of inadmissibility described in the DHS lookout entry.

The 212(a)(3) grounds are the security and terrorist-based grounds of ineligibility which served as the basis for the denial of the visa to Ms. Din’s husband.

By virtue of this sudden FAM change, the SG shamelessly claimed in its reply brief that “consular officers do not automatically deny a visa application pursuant…when there is a ‘hit’ in the terrorist screening database (or another database)” and that these terrorist database determinations are even “subject to reexamination” thorough the Security Advisory Opinion (SAO) process.

The curious speed and unusual declassification of that change, and its prospective application, which served to further the SG’s litigation position, is the subject of another blog.

The SG’s claim is entirely misleading. The plain language of the FAM change requires consular officers adjudicating cases potentially raising national-security concerns to seek an SAO. But consular officers are not even part of the SAO “loop” – the SAO is managed through an inter-agency process in DC.  As such, the FAM guidance, even as changed a few weeks ago, provides no opportunity for the consular officer him or herself to exercise any modicum of discretion to “reexamine” or otherwise look behind the DHS determination. Moreover, the revised FAM provision does nothing to alter the division of responsibilities in the Memorandum of Understanding between the Secretaries of States and Homeland Security Concerning the Implementation of Section 428 of the Homeland Security Act (MOU).  Paragraph 4.b. of that MOU provides that when the State Department disagrees with the SAO of a third agency, it is DHS—not the State Department—that resolves the conflict.  Whatever change the SG has tried to conjure in the FAM, it leaves undisturbed the fact that consular officers do not deny visas as an exercise of discretion in database-driven national-security cases.

The SG’s rhetorical and sub-regulatory maneuvers have failed to conceal that the government’s argument boils down to an assertion: “Trust Us.” It is an assertion belied by the facts in the Ibrahim case, where a person the government admits poses no terrorism threat was wrongly included in government watchlists because an FBI agent checked the wrong box on a nomination form.  The fundamental principle of judicial review, particularly apposite when an American citizen’s family life is at stake, rejects leaving to government fiat the maintenance of gigantic databases disqualifying spouses from living together, without any independent oversight.  In Kerry v. Din, the Court should uphold the court of appeals’ decision that some visa decisions, including those having nothing to do with a consular officer’s discretion, are not completely shielded from judicial review.

Written by Liam Schwartz, Member, AILA State Department Liaison Committee

Big Data, Bad Data: Resolving the Tyranny of the Database

shutterstock_239579581This term, the Supreme Court is considering a case that implicates the doctrine of “consular non-reviewability”–the legal principle that generally, courts in the United States will not review the discretionary decisions of American consular officers if they deny visa applications overseas. The doctrine has a long history in Supreme Court jurisprudence, and is based on both constitutional and practical concerns. As a matter of constitutional law, consular decisions may be tied up with foreign policy concerns that the Courts generally leave to the Executive Branch; as a matter of practical concern, both the volume of visa applications and the difficulties of getting records of decisions from far-flung consular posts make meaningful judicial review impracticable.

One of the briefs by amici in the case comes from a group of former consular officers, and attacks both the legal and practical justifications for the doctrine in a new way. They highlight a reality facing any American company or citizen seeking to sponsor a foreign national from abroad. The former consular officers detail the “veto power” that the Department of Homeland Security (DHS) has over any consular decision to grant a visa, and how that power is exercised not through individual discretionary decisions, but through entry of information into a complex of databases overseen by DHS.

The consular officers describe, in chilling detail, how one physician from Malaysia was denied renewal of her temporary work visa because an FBI officer checked the wrong box on a form used to enter data into one of the databases that feeds into the DHS system. The error was only discovered after extensive litigation, in which the government fought any attempt to disclose the basis for its decision.

The problems caused by unknown (and, as a practical matter, undiscoverable) databases used by the immigration authorities are not just limited to foreign nationals when they apply for visas, however. Business immigration practitioners will all be able to tell stories of having petitions filed by established companies and other institutions questioned because of bad information in the commercial database used by USCIS to verify information in business-related petitions. My own favorite experience was a Request for Evidence seeking proof that an internationally-renowned research institution continued to exist, because the database did not have any recent information of their commercial activities in it – when a quick search of the Internet would have turned up news stories about one of the institution’s faculty having won the Nobel Prize the month before.

The tyranny of “what’s in the computer” extends through most immigration-related processes, and can be difficult to remedy. Recently in our office, we encountered a situation in which the Department of State rejected an immigrant visa applicant, telling him that he had committed fraud in a prior visa application. We were able to determine that a former employer of the visa applicant had filed a petition for our client, and the consulate had returned it to the Department of Homeland Security to determine whether the employer had committed fraud. DHS, in turn, had entered in the computer that the consulate had found fraud, without doing any determination about the petition. We now have a situation where the State Department says it can’t do anything to change the decision, because DHS made it; DHS, in turn, says it cannot do anything to change the decision because the State Department made the determination.

For individuals caught in such dilemmas, litigation against the government is often the only hope, and offers no guarantee of success. The government normally fights such suits by arguing the court has no jurisdiction, rather than trying to argue that the decision was supported by sufficient evidence. Even for U.S. citizens caught in the web of databases, litigation to remove one’s name from watch lists can be an expensive and risky proposition.

If the U.S. Government is going to rely on these databases to make decisions affecting US businesses and family members, they need to create a more robust process through which errors in these databases can be brought to light and corrected. As the consular officers note in their brief, too often bureaucratic inertia and workload constraints prevent consular officers or others in the immigration system from being able to get to the bottom of a “flag” on an applicant’s record. A more robust Privacy Officer position within DHS, with sufficient staff and resources to be able to respond to public inquiries and help resolve database errors, would go a long way to ensure that visa decisions are made on the basis of high quality information, and that American families and businesses have a mechanism to redress database problems that affect their lives and livelihoods.

By William Stock, AILA First Vice President

Mexican Consulates Will Issue Birth Certificates…Starting Today!

shutterstock_160340369A longtime struggle for many Mexican citizens living in the United States is the inability to access their birth records.  Some may have been born in a state where they no longer have contacts and they struggle to acquire their birth certificate.  In practice, this can definitely be a significant hurdle that our clientele faces.  As of today, the Mexican government plans to make the process of acquiring a birth certificate much easier.  All 50 consulates of Mexico in the United States will begin issuing certified copies of those essential documents.

This announcement and change in policy comes at a critical juncture for millions of Mexican citizens living in the United States that may be eligible for Deferred Action for Parents or Childhood Arrivals (DAPA/DACA).  As part of the process in applying for the DAPA/DACA benefit, applicants will need to provide evidence of who they are.  Having a birth certificate, passport or some form of government issued identification will be essential in getting an approval from the U.S. Department of Homeland Security.

By providing birth certificates at the consulate, the Mexican government will hopefully make the process less of a struggle.  We at AILA applaud the Mexican government for making this important change to their policy on birth certificate issuance!

Don’t forget that the roll-out of DACA and DAPA is planned sometime in the coming months.  If you intend to file for either DACA or DAPA, you can take the following steps to prepare:

  1. Have proof of who you are (see above).
  2. Collect documentation proving that you have been in the United States and continuously resided since before January 1, 2010.
  3. For DAPA applicants proof that you are a parent of a permanent resident or U.S. citizen born on or before November 20, 2014.
  4. Proof that the applicant was physically present in the United States on November 20, 2014.
  5. Save your money. The filing fee is expected to be $465 or possibly more for DAPA.  We are still awaiting more guidance regarding the fees.
  6. Collect any criminal records that you may have including arrest records or court dispositions. If you are uncertain about whether a record exists you should get an FBI background check.
  7. If you have any derogatory immigration history or criminal record it is highly recommended that you meet with a qualified attorney to analyze your situation.
  8. Do not fall victim to fraud! Make sure you get information or legal advice from someone you know and trust.

Written by Mo Goldman, Chair, AILA Media Advocacy Committee

Who Are We Turning Away?

Helping handA pregnant woman, separated from her husband in a time of regional conflict and instability, flees the central region of her country with a single suitcase and her 2 year old daughter and 1 year old son. The goal is to travel by train to the closest major southern land border in the hopes of reuniting soon with her husband who is fighting far away from home. Every day, people gather around the border crossing waiting for the gates to open and the glimmer of opportunity to cross into another sovereign land. If you miss the timing and fail to cross, the consequences may be worse than death. With her suitcase in one hand and her 1 year old son holding her other, her two year old daughter grabs onto her mother’s dress as the crowd pushes forward trying to get through. Immovable by the throngs of bodies pushing, the pregnant woman lets the crowd sway her and her children through to the protection promised by the neighboring country.

Once on the other side, she reevaluates her surroundings acknowledging the luggage in one hand, her son in the other and only then is aware that her daughter no longer clings to her dress. She screams amongst the shouting crowd, “Where is my daughter? Where is she?” On the other side of the crossing is the two year old daughter with her eyes only able to see the back of people’s legs unaware of where her family went. With a quick motion, she finds herself atop the shoulders of a man she does not know, a man wearing a business suit walking past the crossing. Disoriented, she is still unaware of where she is or how she lost her mother and brother. This little girl cannot tell time and does not know how long it took before she could her hear her mother’s cries and reunited with her. Without even realizing, this little girl is forever labeled by her mother as “lucky” in their native language. And the identity of the nice gentleman in the business suit is never discovered.

The tale told is not a unique story. Although it happened in 1949, it continues to be a story relatable in our present day. As a young child, I remember my grandmother recounting the horrors of a civil war that destroyed her comfortable life. I never understood what my grandmother meant when she said repeatedly that my mother was so very “lucky.” She rarely talked about everything that happened during that time that pitted Chinese against Chinese. I would only hear snippets growing up. But as I got older, I heard more from other family members, even as my mother told me she had a difficult time remembering much of anything during her younger years in Hong Kong.

When she passed away unexpectedly in 2011, I was in charge of taking care of all the family matters with her death. I vividly recall going through her unorganized stacks of important papers kept all over the house and finding a photocopy of a document titled “Refugee Resettlement Land Allocation” something or another. And in this document was a blurry photo of my mother and her family; her as a preteen and my youngest auntie in my grandmother’s arms.

My mother and her side of the family never lamented how they lost everything in the fighting. Instead, they talked about how grateful they were to be alive and the chances they took to ensure the family’s survival. Despite living in a shanty on a hill in Hong Kong, they were grateful for the British Colonial government’s generosity in allowing them to have a place to call their own, to be safe from harm.

I have spent almost 7 of my 8 years of practice as an immigration attorney hearing stories no different from my family’s own history. What my clients seek under the U.S. asylum law is no different than what my family sought when they asked for refuge in Hong Kong. My clients just want to be able to live their lives in safety, to give their children of the opportunities they didn’t have, to move on from a limbo state of violence and begin anew.

But things have gotten much harder. For instance, in 2008, my asylum clients could reasonably expect to have an interview and receive a decision within 4 months. Now, a current client finds themselves in a U.S. asylum system where the wait may be well over two years just for an interview to present their case before an asylum officer. In the meantime, they are ineligible to apply for work authorization until their case has been pending 150 days. And even once that deadline has passed, many face further delays and cryptic reasons for the inability of the U.S. immigration service to process their request.

In my practice, I find myself telling clients that they may wait years before an interview is scheduled. I find myself having to give them cold hard numbers to understand the uphill journey they will set themselves on if they decide to apply for asylum. I tell them that in our jurisdiction, the asylum office has over 10,000 backlogged cases waiting for an interview. I tell them that an average 900 new cases are submitted monthly with only 300-600 cases interviewed that same month.

During this time, they find themselves physically safe but still in a state of panic thinking of their families that stayed behind. The only way for them to bring their children or spouses away from the dangers in their country is for them to win their case. Unlike what my mother and her family went through, my clients find themselves living in limbo never knowing how long or when they may be able to tell their stories. They spend each day wondering when and if they can ever reunite with their family members in safety.

How did my family story end up? Well, at the age of 17, my mother was recruited to train as a nurse in England. She eventually immigrated to the United States in the late 1960’s and brought my grandmother, two aunts and two uncles to the U.S. My mother’s family was small. They only had each other. If my mother tried to bring over her family in the present day, it would most likely only be my grandmother that would be allowed to immigrate. The decades long wait times for brothers and sisters would eliminate any possibility of a timely reunification. What would be lost would be an entire generation of people. Every child from my mother and her siblings (we were all born in the U.S.) went on to graduate from colleges such as Notre Dame, University of Chicago, Vanderbilt, University of Southern California and University of Texas. This is what the U.S. loses out on when delays in adjudications go on for years.

As the immigration debate intensifies into politics, what often gets forgotten are the individuals, the living beings, affected by the current broken system. As rhetoric takes aim at increasing funding for enforcement and a growing police state near the borders, people lose sight of the lack of resources and funding needed to help people who are waiting in limbo.

Politics has gotten in the way of what truly matters in this debate: fixing the laws to reduce wait times, reinforcing existing infrastructure to allow the immigration agency and its employees to adjudicate cases, giving people the opportunity to have their cases heard and allowing people to begin their lives. Immigration is about people, not politics, and President Obama should do all he can to make our system work.

Written by Tammy Lin, AILA Media Advocacy Committee Member 

Artesia Kaleidoscope

Artesia1The three weeks are a kaleidoscope of shifting images: visual, auditory, sensory, and emotional. From 90 degree heat to heavy, cold, rain and flash flooding. It hadn’t occurred to me to bring sweaters to the New Mexico desert. Apparently it hadn’t occurred to the U.S. government either, as many of the mothers and their children ‘detained’ in this hastily thrown together prison had only plastic sandals as footwear through the several-inches-deep puddles. And more than one woman was forced to duct tape her sandals together when they cracked nearly completely across, told that the commissary “didn’t have their size shoe.” Blankets were worn in lieu of jackets and children continued wearing shorts in wet, 65 degree weather because the government didn’t have long pants or jackets. All the while, just up the road, the local Chamber of Commerce was turning away donations of clothes and toys and toiletries, because the U.S. government would not allow them to be distributed to the detainees, and the Chamber no longer had space to store the items.

We still have not gotten a satisfactory answer to the question of why the donations could not be distributed. But apparently, like everything about this rapidly constructed change in national detention policy, it has something to do with our “national security.”

I’ve lost count of the women to whom I tried to explain:  “you and your children are in prison here because you happened to be part of a large number of vulnerable women and children fleeing Central America this year. . . and there were so many of you, that you terrified the United States, and putting you all in prison is their response.”

As an immigration attorney, an important part of my role is to interpret a foreign, terrifying, bureaucratic nightmare of contradictory forces full of traps for the unwary in a way that educates and hopefully empowers the client with whom I am speaking. Sometimes this interpretation is easier than others, but as current U.S. immigration policy is not typified by logic or reason, explanation is inevitably challenging, and interpretation in a way that educates and empowers often requires a crash course in current U.S. politics. Explaining how young women, with their infants and children, running for their lives from violence and threats against which they had no other protection, threatened the national security of the most powerful nation on the planet was particularly Kafkaesque.

Fortunately, there was rarely time for that level of interpretation. Most days we arrived at the facility before 7:00 a.m., we were rarely through with hearings and interviews before 6:00 p.m., and our daily staff meeting/case conference which began at 7:00 p.m. lasted until we were done. . . almost never before 10:00 p.m. It was a major concession on the government’s part when they agreed to stop holding interviews on week-ends. That meant that the project attorneys could now spend Saturdays and Sundays focused entirely on working directly with clients, and we could skip the staff meeting/case conference in favor of a night off one evening a week.

The faces, names, and stories run together. I was fortunate, because I was able to volunteer for nearly three full weeks, working consistently with a handful of clients woven through countless others with whom I only met once. Given that we are paying for this work out of our own pockets, with some expenses reimbursed by donations, and given that most of the attorneys are volunteering at the cost of their own employment, vacation time, or private practices, few of us are able to stay more than a week or two at a time. Most of us take at least one, if not two or more, cases home with us. And most of us who volunteer come home committed to returning, if at all possible.

The experience is intense, and embeds in us the faces and the stories, and moments of human connection. Singing Las Mañanitas and Happy Birthday to a beaming seven year old, her mother’s eyes echoing the tears in all of ours–the songs, a couple of hair bands and a page of stickers we hastily signed with our dreams and wishes for her were the only gifts we were allowed by the government to offer. (And even the stickers were proscribed shortly thereafter, as they allegedly became both litter and objects of conflict). It is impossible, although I tried a few times, to express my deep admiration for the strength and force of character of all these women. Most have endured one or more violent attacks–rape, kidnapping, extortion, sexual and physical assaults, all ending in social ostracization and isolation. Most of them only made the difficult choice to flee when their children became the targets of the violence with which they themselves had learned to exist.

On the scale of social vulnerability, women with young children are among the most vulnerable. In societies being torn apart by gang violence, where violence against women is both widely accepted and rarely punished, young mothers with no male protectors become easy pickings. No one becomes a refugee by choice, and mothers do not flee with their children unless they have no other alternatives. And yet our nation’s response to these refugees is to label them a national security threat and imprison them.

An important normative principle underlying international relations is that of the proportional response. At the same time, the inability to measure proportionality from any perspective other than its own sense of (in)security is an inherent weakness of the powerful—whether nation, party, corporation, group, or individual. Power almost inevitably over-reacts to perceived threat, sowing the seeds of its own eventual destruction. Women and children fleeing violence are refugees, not a national security threat. Imprisoning them is a deeply counter-productive response.

Over the three weeks, on my commute to and from Artesia, the only music I could stand to listen to was Ariel Ramirez’s Misa Criolla.  Ten Piedad de Nosotros will always remind me of the women I met. The humility of piedad in the face of their courage would be a far more appropriate national response.

One final iconic image from my last evening in Artesia: blowing in the wind against the grey clouded sky, a large, faded, very tattered, American flag.

Written by Marti L. Jones, AILA Member and Artesia Volunteer

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If you are an AILA member who wants to volunteer at Artesia or elsewhere, please see our Pro Bono page or feel free to contact Maheen Taqui at mtaqui@aila.org–we have volunteers scheduled through mid-October but are looking for more as the work continues and we could really use your help.

If you aren’t able to come help in person, consider donating at http://www.aila.org/helpthevolunteers. And thank you!

To watch videos of the volunteers sharing their experiences, go to this playlist on AILA National’s YouTube page.

An Arduous Success in Artesia

Artesia1Friends – I share the good news that Lisa Weinberg successfully has obtained parole for one of our clients, a mother with a very sick toddler who had stopped walking and eating solid food since arriving in Artesia. As far as I know, this is the first order allowing release on parole of a family detained at Artesia.

The sad reality is that this is a child who should have been released from Artesia weeks ago, who had been hospitalized with pneumonia upon arriving, and who has never recovered from various illnesses in Artesia.  The mom and child plan to leave as soon as travel may be arranged.

This case is yet another example of why family detention should not be the government’s default setting in response to the regional humanitarian crisis. These families are fleeing persecution and violence but instead of offering safety, we make them jump through legal hurdles to get a sick kid out of jail.

Of course, this doesn’t mean that the mother and child are entirely free to go, they will be required to fulfill their obligation to appear for the immigration court proceedings that their case warrants, but at least they will be out of this unsanitary facility in the middle of a desert. They will be able to be cared for by family here in the U.S. and God willing, the child will get better.

Don’t take my word for the unsanitary conditions, read the Department of Homeland Security’s own Inspector General’s report of August 28, 2014.  Pages 2 – 3, note the presence of communicable disease, unsanitary conditions in the bathrooms, inadequate cleaning services, and unpalatable food – conditions that anyone who has spent time at the Artesia center can verify.

I urge my colleagues, and the public, to be aggressive in seeking release from detention for these women who are bona fide asylum seekers with viable claims of relief.

One very gratifying thing is that this victory is the outcome of perseverance and attention by a relay team of lawyers and other legal volunteers who worked sequentially and together to achieve the clients’ parole.  The mom was first represented by attorneys from Portland and Denver, then by NYC counsel, then Columbus, OH counsel, then Montana and El Paso, and finally by Lisa and her colleague Karen from Cambridge, MA.

This is the most “team” of team efforts I’ve ever been a part of, and I will continue to fight with all of you to provide these women and children the due process they deserve but that our government is trying its best to withhold from them. Our in-the-trenches model is truly a remarkable means for providing legal services to detained people in a remote location.

I am so proud to work with all of you.

Written by Deborah S. Smith, AILA Member and Artesia Volunteer

What Does a Week in Artesia Look Like?

Artesia1AILA Member Megan Kludt headed down to Artesia to donate her time and knowledge, seeking to help the women and children jailed and facing an expedited deportation process. Here, in her own words, are a few snapshots from her days so far, for the full blog, see: http://immigrationartesia.blogspot.com/

Arrival

“I finally arrived in Artesia at 9pm today, after a couple of flights and a 4 hour drive through high plains and semi-desert. There is very little between Albuquerque and Artesia, aside from Roswell and some cows. Tomorrow morning at 6:45am, I’ll be meeting the other volunteer lawyers at the Federal Law Enforcement Training Center that since June has been serving as a “family” detention facility for 600 Central American moms and their children…

I have been hearing horror stories from the lawyers OTG (on the ground) before me. I’ve been hearing about flagrant violations of human rights and mistreatment of the children (the average age of the children at this facility is 6.5)… about loss of dignity, about women having to recount stories of violent domestic abuse and rape in front of their children, about lack of food, clothing, medicine and respect for the inmates and crowding in close quarters…

Day 1

I had my first meeting of the day at about 7:15am with a young girl from El Salvador accompanied by her 7-year old daughter. She was very pretty and in El Salvador had had the misfortune of attracting the attentions of a prominent member of the M18 gang. When she refused his advances, he showed up at her house with 6 of his cronies to beat and gang rape her. As she still wasn’t persuaded, he arranged for 3 more such visits over the next 6 months and began to make threats on her life. She finally fled to the United States. She was caught on entry and appeared for several hearings, before finally accepting an order of voluntary departure from the judge and returning willingly to her country. The process had taken 4 years and she felt safer. She was gang-raped again within a week of arriving home, and again a month later. As if this wasn’t enough, her daughter was kidnapped for ransom two weeks later (a common occurrence for people coming home from any amount of time in the U.S.). She sold everything she had to pay the $5000, and bought back her daughter. They soon wanted more money and went after her teenage brother, landing him in the emergency room. With nothing left and everything to fear, all three of them fled again, and mother and daughter have been languishing in Artesia since June. An officer initially tried to deport her saying she had no fear of going home, but a judge overruled it. My goal will be to try to secure a bond for her so she can be released and apply for asylum outside of jail.

The next mother I met (at about 10) had a 2-year old and was fleeing a particularly brutal domestic violence situation in Honduras. Her bond hearing is scheduled for tomorrow, so this took up a great portion of my day. I still have yet to fax to the court my bond motion, exhibits and memoranda for this case and the hearing is at 8am. The judges appear by video from HQ in VA so I have no choice but to fax. I’ve now been told this particular judge will refuse all of my documents and set the bond hearing out to a later day, because she is refusing faxes. I’m told to “get it on the record anyway” but it’s a little disheartening. These detainees are trapped in the middle of nowhere and the judges are hearing their cases over a video, so faxing seems reasonable. There are no overnight courier services in Artesia. The child is two and sick with a persistent cough, she barely took her head off her mom’s shoulder throughout our interview. Her mother was in tears through most of the interview…

Day 2

I spent most of today meeting people to get to know their stories and prepare them for their hearings tomorrow, where we will make a request for the judge to set a bond to release them. Every woman has a child with her at these meetings, often between the age of 2 and 5. Some of them are sullen and cling to their mothers, others are bright-eyed and playful. A great many are sick, as there seems to be some kind of virus going around with the kids here…

Two representatives from the United Nations High Commissioner for Refugees (UNHCR) toured the facility today…The prolonged detention policies in the United States have caught their attention; per UNHCR, detention should be avoided where possible and where necessary limited to a week or two in all cases due to the incredibly harmful psychological effects of detention. It should also not be discriminatory and should not inhibit refugees seeking political asylum. Almost all the women in the facility came to the United States seeking protection from severe physical harm or death. And then there are all the small children. Many of these children have been detained now for over a month, and some as much as two. Most have lost a lot of weight since arriving…

Day 3

Today, the presiding judge had hearings scheduled for about 15 women and their children. I was representing five of them and was hoping for a full bond hearing on three of them…At the start of the day, the judge (appearing by televideo from D.C. area in the court trailer) re-arranged the order of her cases for the day which created chaos for the guards who were trying to coordinate the transfer of women and toddlers to the court section of the facility…

One of my clients had a bond hearing; the other two were delayed until Wednesday for lack of time. The client who had a bond hearing came from Honduras with her 17 year old son, her 9 year old daughter and her 3-year old daughter. She was threatened at gunpoint by a gangster in her home town and left the country with her 3 children, fleeing the gangster, the increasing violence in Honduras, and crushing poverty. When the judge announced a bond amount of $22,000 for her to be released from Artesia, she disintegrated. I was at a complete loss as I saw my client burst into tears and collapse into the arms of her son. I sat with her in the next room afterwards as she wept, unable to look at me…

Day 5

…It’s impossible not to be moved by children. You smile at them instinctively. You want to protect them. But these children have been in jail for two months. Many of them don’t eat. They don’t like the food. They have diarrhea. Most of them have lost weight, some as much as 20% of their body weight. And above all else, these are bored little kids. They are now allowed crayons and coloring books in our waiting room, so they color for hours on end. There are few other toys…

One of my clients today asked me to arrange for her deportation. She was breastfeeding and said that her son will not consume anything at the facility and is sustained entirely on breast milk. He is constantly sick. She had her bond hearing and the Judge set a $20,000 bond for her and another $20,000 for the 1 1/2 year old. I’m concerned that returning to living in fear of her life in Honduras is preferable to her life in ICE custody. She cannot stay in Honduras; she is a refugee, but she will find another country to flee to next time.

…I’ve decided to extend my stay.

Day 6

This morning, I did bond preparation with the first client I met in Artesia (last week). Her bond hearing is Wednesday…I had to leave in the middle of the interview to get a hug from one of my colleagues.  I cannot imagine any worse suffering than what she has been through. If the bond on Wednesday is set high, I will truly lose all hope.

She gave me the government’s submission in opposition to her request for bond. The government is submitting identical 100+ page briefs in every bond case in Artesia. They argue that releasing the women and children detained in Artesia on a low bond would create a security risk for the United States because it would encourage further migration of central American women illegally across the border. In other words, we are detaining some Central American women and children as an example, to deter others from coming to the United States.

Days 7 & 8

We were scheduled for several bond hearings today. In the regular world, “bond hearings” in the immigration court last 10-30 minutes. In Artesia, they take almost 2 hours apiece. DHS has developed a theory that the Artesia children and their mothers pose a threat to national security if released on bond, because it will effectively encourage mass migration of more children and their mothers to the United States. We respond that these families are fleeing their lives in response to violence and persecution, rather than pursuant to a detailed understanding of the detention/bond process in the United States. Laura had some luck with her judge, earning a $5,000 bond for her family to get her out of Artesia. The hearing had to be stopped in middle so that our client could breastfeed…

Tomorrow, we will have our first “merits” hearing in Artesia. This means that the individual has not been able to post bond and is pursuing a request for asylum in the immigration court in Artesia at trial. Everyone will be watching tomorrow, including some news outlets. We have another hearing on Friday and on Monday.

…We are all still running on junk food, coffee and little sleep, but somehow it doesn’t seem to matter right now.”

Written by Megan Kludt, Artesia Volunteer

Let These Women Go

Artesia1There is a town in El Salvador where a woman named M-C- lived. In 2003, her husband beat her face until the purple welts glowed.  Your bloody face means you are mine, he said. He hit her for asking why he hit her. An open palm. A closed fist. On her arms. On her face. Beginning in 2004 and for the next ten years, he serially raped her. If you leave me, I will kill you, he said. And I will kill your father. To prove his point, he beat their daughter in front of her.

In this town in El Salvador, the people knew this woman was dying, but did not intervene. The police knew because she had the courage to call them. This is your life, they said. It is not our concern.  In 2011, 647 Salvadoran women were killed in femicide cases.

The U.S. Department of State reported the 2012 conviction rate for domestic or intrafamilial violence as 1.5% in El Salvador (3,367 cases and 51 convictions).

Leaving him risked death, but so did staying. In 2014, she came to the United States with her daughter to seek asylum. Customs and Border Patrol (CBP) arrested her in June 2014 when she crossed the Southern Border.

Let us pause this story for a moment because, as you will see, there is no ending yet. After she was arrested, she was transported to the remote desert immigration detention center in Artesia, New Mexico. She is held in captivity with her child in Artesia, where the proper administration of justice has been so greatly expedited that due process no longer matters.

M-C- like many before her, came to the United States because we have laws that protect persons fleeing persecution. The Refugee Act of 1980 protects those who have been persecuted in the past or have a well-founded fear of persecution on account of race, nationality, political opinion, religion or membership in a particular social group. This law is rooted in moral codes and customs as old as the Bible.

There is no doubt M-C- qualifies for asylum in the United States. This week, the Board of Immigration Appeals, our country’s highest immigration court, published a landmark decision confirming that women in abusive domestic relationships whose own country cannot or will not protect them are eligible for asylum if they make their individual case. The decision leaves no doubt that traumatized women pursuing these meritorious asylum claims need access to counsel so they can gather and present evidence. No one should be deported from Artesia without having legal representation.

But because M-C- is held at Artesia, this decision may not protect her. In Artesia, the rule of law has been suspended. A major federal lawsuit filed last week by a coalition of immigrant rights’ organizations challenges Artesia as a “deportation mill” designed to coerce women and children in danger of persecution into abandoning their rights.

Where do I come in? On August 3, 2014, I arrived in Artesia, New Mexico as a volunteer lawyer associated with the American Immigration Lawyers Association. I was one lawyer among a dozen from Oregon and elsewhere who had come to Artesia to defend women and children, like M-C-, who fled to save their lives. Since August 3, volunteer attorneys have screened or represented more than 400 women and children. We have conducted approximately 800 interviews of the women and children detained there, appeared in numerous court proceedings, and attended scores of credible fear interviews. By representing so many, we have amassed a large amount of data about Artesia.

The data shows that the White House designed Artesia to be an exception to the rule of law. Artesia is a White House experiment to engage in politically expedient deportations – a deportation machine.

What do I mean? Our law strikes a balance between the fundamental human right to liberty and the need for assurance that, if released to await a removal hearing, a noncitizen will not endanger the community and will show up to the hearing. It requires Immigration and Customs Enforcement (ICE) to decide on a case-by-case basis whether that particular noncitizen should be detained or released.

The Artesian reality is that for every woman and child screened in our program who was eligible for release, ICE denied release as a blanket policy—without conducting any individualized determination. The ICE policy is based on a political message sent through women like M-C-. In Secretary Jeh Johnson’s words, “We will send you back.”

To me, Secretary Johnson’s meaning is clear: We will send you back to your country because President Obama must be seen to be tough on immigration.

Two million deportations are enough to qualify President Obama as the “deporter-in-chief” but, apparently, it is not enough to qualify him as tough on immigration. For that, he must deport women and children from collapsing countries who are fleeing to save their lives.

The political decision to detain is apparent from ICE’s own evidence. In court filings, lawyers for ICE argue that these women and children are national security threats because they are not actually bona fide refugees. Two high-ranking immigration officials have signed declarations explaining that “active migration networks” must be stopped through a one-jail-fits-all policy of no release. Without looking at her individual case, DHS has jailed M-C- and her daughter to thwart a nebulous “active migration network.”

The officers base their conclusions on a single report issued by Vanderbilt University. But the report actually shows the opposite.  The data published in the report explain that these very women and children in Artesia are not part of an “active migration network.” The report says they migrated to the United States because they were afraid for their lives.

The data also suggests that the White House has politically tampered with the administrative quasi-judicial review process in Artesia. The judges assigned to Artesia to review the government’s blanket no-bond policy, come from the EOIR headquarters. You can see their names here. Three of these judges have higher than average asylum denial rates across all immigration judges in the United States.

The data we on the ground in Artesia have collected tells an even darker story. To obtain release from immigrant detention, a noncitizen must demonstrate that she is not flight risk or a danger to the community. An immigration judge can require a monetary bond to mitigate flight risk and insure court appearances. The nationwide average for appearance bonds is approximately $5,200. A recent BIA decision stated that $5,000 was appropriate for a woman in exactly M-C-‘s shoes. Yet three of the headquarters judges for Artesia have denied bond unilaterally or required bond amounts five to six times the national average (i.e., $30,000). This high bond policy, which is really a no bond policy for refugees fleeing violence, is all the more striking given that these women and children have no criminal records. In comparison, at a family detention center in Berks County, Pennsylvania, a woman who passes a credible fear interview is released on her own recognizance to await a hearing on the merits of her case.

Soon, M-C- and her daughter will appear before a judge thousands of miles away, speaking into a video camera connected to a video screen slightly larger than a laptop. The headquarters judge will sit in a courtroom that the public is not allowed to access. No dockets are posted like other courts. Everything is secret.

This real woman, M-C-, will sit on a small chair in a barren room inside a FEMA trailer set down in the middle of the desert with her daughter beside her. She will tell her story once again. The question is, will we listen?

Stephen W. Manning, Member of the AILA Board of Governors and Artesia Volunteer