Punch Line Material

Author: on 05/01/2015


shutterstock_215658637Three cheers to Daniel M. Gerstein and Martina L. Melliand for their story (The forgotten cornerstone in the immigration reform debate) in The Hill yesterday regarding the forgotten child in the immigration reform debate: the immigration court.

We hear endless stories about increased funding for ICE to detain and CBP to restrain but never for EOIR to adjudicate the caseload.  Instead EOIR is expected to continue to do more with less as the Department of Justice and Congress send funds elsewhere.

Immigration courts across the United States perform a herculean task on a daily basis with minimal office staffing and not enough judges.  However, Congress continually refuses to open its wallet so that the immigration courts can be properly staffed.

Because of this situation, the judges and staff that remain at the courts nationwide perform the work of two or three and respondents can expect that their case will not be heard for a number of years.  Unfortunately this is not likely to change.

Politicians will argue for funding for ICE and CBP because these agencies are tied to border security and enforcement and this is what captures the headlines.  Adjudication of 436,370 and growing cases nationwide will have to wait because it’s not headline material even as it drifts into punch line material.

Written by Matt Maiona, Member, AILA Media Advocacy Committee


Without Good Counsel

Author: on 04/30/2015


shutterstock_271782686On April 21, 2015 – a Harvard University graduate student, Rebekah Rodriguez-Lynn,  published a column in the Los Angeles Daily News titled: “How U.S. immigration laws helped tear my family apart.”

Ms. Rodriguez-Lynn is a U.S. citizen and a resident of Southern California; she shares her story, beginning with her marriage to the love of her life, an undocumented Mexican citizen who had crossed over to the U.S. without authorization at age 17.  They had a baby boy and they later moved to Cambridge, MA so she could attend a Harvard graduate program.  She was living the American dream – except that her husband did not have the proper documents.

Wanting to legalize her husband’s immigration status, she eventually filed an Immigrant Petition – Form I-130 – for him that USCIS promptly approved a few months later.  Following a routine process USCIS sent the case to the U.S. Consulate in Cuidad Juarez (CDJ), Mexico for final adjudication of the immigrant visa. After receiving a notice for a visa interview, the family travelled cross-country from MA to CA and down to CDJ.  Her dream of living happily ever after with her family was suddenly shattered though when the visa officer informed her husband that he was subject to a lifetime bar due to his previous unauthorized entries to the U.S., a decision which they could not appeal.  That bar has separated her family for over 10 years.

It is no secret that our immigration laws are broken beyond repair.  On Twitter #RepealIIRAIRA should be trending!  However, that is not the point of this blog.

For over 2 years, without any cause, the State Bar of California has been targeting immigration attorneys with allegations of fraud.  State Rep. Lorena Gonzalez (D-SD) has made it her mission to “protect” immigrants from attorneys who she claims, without a shred of evidence, are systematically defrauding immigrant communities.  She wants to regulate immigration attorneys more than any other lawyers in the State via AB 1159.  The goal of the law is “to prevent unscrupulous practitioners from taking advantage of immigrants’ hopes and taking money for services they could not perform.”

Noble goal, but unfortunately, immigration attorneys are lumped together with notarios.  Since notarios essentially practice law without a license, the State Bar does not have any sway over them.  Perhaps realizing this fact, the State Bar of California released a goal-oriented outreach campaign which warned the public that per AB 1159 it is illegal for immigration lawyers and consultants to take money for services related to federal immigration reform until Congress acts.

When information like this is disseminated, through the State Bar or the offices of our legislators, it confuses people. If a Harvard graduate student made the mistake of not consulting with an immigration lawyer regarding her husband’s case, perhaps because she did not trust an attorney, then anyone could make the same mistake.

It is unconscionable for our public officials – including some members of Congress – not to acknowledge that immigration laws are some of the most unforgiving in our legal system. They should actively encourage their constituents to consult with qualified immigration attorneys if they have any immigration issues. Perhaps if they admit to the reality that our immigration laws are so complicated that only an immigration lawyer may make sense of them they will find the courage to finally fix the problem so families like Rebekah Rodriguez-Lynn’s aren’t separated for life.  #RepealIIRAIRA.

Written by Ally Bolour, Member, AILA Media Advocacy Committee


The Queer Community’s Road to Equality

Author: on 04/24/2015


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

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

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

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

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

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

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

Written by Ally Bolour, Member, AILA Media Advocacy Committee


Fighting to #EndFamilyDetention

Author: on 04/21/2015


Dilley_300x240I was on a flight to San Antonio Sunday morning and a short while after that was making my way across open farmland to Dilley, Texas, about an hour and half southeast. For this week, I’ll be heading up a team of legal volunteers for CARA at the euphemistically named “South Texas Family Residential Center.”  It’s not some family welcome center:  it’s a jail.

The CARA program is a joint effort by the American Immigration Lawyers Association, and local and national nonprofit legal services providers, to help women and young children who were jailed by immigration authorities navigate through these complex procedures.  We’ll be here for a week, until the next team arrives.  And the next, and the next, and the next, until this practice of detaining families and bona fide refugees is stopped, once and for all.

The detainees aren’t just people violating our immigration laws and seeking to enter the U.S. for work or to join family.  In fact, the numbers prove that the overwhelming majority of these families are simply seeking refuge from horrific violence in their home countries.  Some have relatives in the U.S. that fled before them, others have no one here, but all left their home countries because to stay would mean further harm.

Despite proving that they have valid claims and undergoing a security and background check, they are detained and subject to extortionately high bonds.  In many cases, women who cannot afford a bond are being presented with the choice to separate from and surrender their children to foster care in order to get the children out of detention.  Asylum is not a game.  Refugees shouldn’t have to pay to play.

Until recently, Dilley was just another pleasant small Texas town. Now it’s going to have the same stain on its reputation as Artesia, New Mexico.  The private prison industry is big business, and family detention looks to be a very profitable expansion.

The contract for the massive, 2400+ bed facility (curiously implemented without the usual niceties of federal contracting controls) went to for-profit Corrections Corporation of America.  Eventually, the CCA facility in Dilley, together with a converted GEO facility (another for-profit private prison corporation) in Karnes City, will detain thousands of families.  These private jailers stand to make a killing, earning three to four times the daily rate of an adult in immigration detention.  At about $350 a day per person in Dilley CCA will rake in more than half a million dollars a week, and over $30 million a year.

Why are we jailing families with young children, even after they have undergone security checks and proven that they have valid refugee claims?  Good question, but no good answers.  The one you hear the most is, “politics.”  Perhaps politicians get confused between the problems caused by our broken immigration system, and the completely unrelated humanitarian crisis caused by factors outside our borders.  The government wants to look like it’s doing something about immigration, and jailing families is the lowest of low hanging fruit.

Whatever your concerns about the surge of refugees at our southern border, jailing women and young children is not an American answer to an international humanitarian crisis.  We’re supposed to be the good guys, but family detention is cruel by any measure. We are starting to look more like countries around the world that we despise, just so a few politicians can burnish their “optics” and a few private corporations can make a profit.  Detaining refugee families will not only be a stain on Dilley, but on all of us, on America.

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

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

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


148,000 Missed Opportunities

Author: on 04/20/2015


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


Don’t Ignore the Ethics

Author: on 04/17/2015


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

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

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

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

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

Written by Cyrus Mehta, Chair, AILA Ethics Committee


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

Author: on 04/17/2015


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

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

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

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

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

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

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

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

Written by Frank Johnson, AILA Member and Volunteer

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

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

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


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

Author: on 04/14/2015


shutterstock_247077634

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

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

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

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

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

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

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

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

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

Another post is forthcoming with the decision and aftermath.

Written by Frank Johnson, AILA Member and Volunteer

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

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

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


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

Author: on 04/13/2015


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

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

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

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

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

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

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

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

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

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

Written by Frank Johnson, AILA Member and Volunteer

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

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

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


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

Author: on 04/10/2015


shutterstock_247077634On to Karnes

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

The family-friendly perspective:

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

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

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

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

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

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

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

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

The all-business perspective:

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

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

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

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

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

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

Written by Frank Johnson, AILA Member and Volunteer

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

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

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