⚖️🗽👏🙏 PRO BONO SPOTLIGHT: SPLC PRO BONO SUPREMES’ WIN GIVES ASYLUM APPLICANT A SECOND CHANCE — Round Table 🛡️⚔️ Also Helped!

 

From SPLC:

Estrella Santos-Zacaria has come a long way from San Pedro Soloma, Guatemala, a village nestled in the Sierra de los Cuchumatanes mountains and known as El Valle del Ensueño, or the Valley of Dreams.

For years, Santos-Zacaria dreamed desperately — of escape.

In 2008, she attempted to immigrate to the U.S., fearing that the violence she had experienced because of her sexual orientation and identity as a transgender woman could get her killed. Since then, she has been deported twice.

But in January, her case made its way to the U.S. Supreme Court. And on May 11, Santos-Zacaria won the right to further challenge her deportation — and the potential to start a new life in the U.S. Other immigrants facing deportation could benefit, as well, because the ruling helps clear a procedural obstacle for noncitizens seeking judicial review of rulings by the Board of Immigration Appeals (BIA), an administrative appellate body within the U.S. Department of Justice.

The Supreme Court’s decision, authored by Justice Ketanji Brown Jackson, also marks a notable step in its acknowledgment of transgender people. Santos-Zacaria’s chosen name, Estrella, was referenced alongside her former given name, and her proper pronouns were used throughout.

The case was the first initiated by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI) to reach the U.S. Supreme Court. SIFI provides pro bono legal representation to asylum seekers who are being held at immigrant detention centers in the Deep South.

“What Estrella’s won is the right to keep fighting,” said Peter Isbister, senior lead attorney for SIFI. “And that would not have been possible without her team of volunteer attorneys. Cases and clients like Estrella are why SIFI believes so deeply in having a pro bono program.”

Read More

In solidarity,

Your friends at the Southern Poverty Law Center

****************

The Round Table filed an amicus brief supporting Estrella’s position before the Supremes.

⚖️🗽🛡⚔️ ON A ROLL — ROUND TABLE ON THE WINNING SIDE FOR THE 3RD TIME @ SUPREMES! — Santos-Zacaria v. Garland — Jurisdiction/Exhaustion — 9-0!

In her case, both the BIA and the 5th Circuit had gone out of the way NOT to meaningfully review life or death mistakes made in the Immigration Court. In doing so, they tossed aside the realities and roadblocks facing those seeking justice in Immigration Court and their representatives (if any, in a glaringly unfair system).

This case shows the critical importance of pro bono immigration assistance. These lower court Federal Judges focused not on constitutionally required due process and fundamental fairness, or on the vulnerable human life at stake, but rather on inventing ways NOT to provide fair hearings in some of the most important, perhaps the most important, cases coming before the Federal Justice system. 

Pro bono representation levels the playing field and exposes the poor performance of those whose sole focus should be individual justice, rather than “institutional task avoidance!”

🇺🇸 Due Process Forever!

PWS

11-26-23

☠️⚰️💀GARLAND’S STAR CHAMBERS — “SLOW VIOLENCE” ON PEOPLE OF COLOR!🥵— Bias, Bad Law, Bungling Bureaucracy! — “Where Due Process Goes To Die!” 🤮 — Upcoming Book Will Expose Garland’s Lawless, Cruel, Inhumane “Court” System!

 

Slow Injustice @ EOIR
Garland’s approach to immigrant justice in his courts harkens back to “the bad old days.” Yet he remains impervious — and unaccountable!
The Wasp 1882-01-06 cover Slow but sure.jpg
Slow, but Sure. Cartoon depicts Lady Justice riding a tortoise, about to hang a man.
George Frederick Keller
Public domain

Dean Kevin Johnson @ ImmigrationProf Blog previews upcoming book by Professor Maya Pagni Barack:

https://lawprofessors.typepad.com/immigration/2022/10/from-the-bookshelves-the-slow-violence-of-immigration-court-procedural-justice-on-trial-by-maya-pagn.html

Friday, October 21, 2022

From the Bookshelves: The Slow Violence of Immigration Court Procedural Justice on Trial by Maya Pagni Barak

By Immigration Prof

The Slow Violence of Immigration Court Procedural Justice on Trial by Maya Pagni Barak (forthcominng March 2023, NYU Press)

The publisher’s description of the book reads as follows:

“Each year, hundreds of thousands of migrants are moved through immigration court. With a national backlog surpassing one million cases, court hearings take years and most migrants will eventually be ordered deported. The Slow Violence of Immigration Court sheds light on the experiences of migrants from the “Northern Triangle” (Guatemala, Honduras, and El Salvador) as they navigate legal processes, deportation proceedings, immigration court, and the immigration system writ large.

Grounded in the illuminating stories of people facing deportation, the family members who support them, and the attorneys who defend them, The Slow Violence of Immigration Court invites readers to question matters of fairness and justice and the fear of living with the threat of deportation. Although the spectacle of violence created by family separation and deportation is perceived as extreme and unprecedented, these long legal proceedings are masked in the mundane and are often overlooked, ignored, and excused. In an urgent call to action, Maya Pagni Barak deftly demonstrates that deportation and family separation are not abhorrent anomalies, but are a routine, slow form of violence at the heart of the U.S. immigration system.”

KJ

**************************

The ongoing national disgrace called “EOIR” continues to mete out injustice and inane bureaucratic nonsense under a DEMOCRATIC Administration that pledged to return the rule of law and humanity to our broken Immigration Court system! 

That system is “headed and controlled” by a DEMOCRATIC AG, Merrick Garland. He is a former Federal Appellate Judge who certainly knows that what passes for “justice” in his broken “court” system is nothing of the sort! Also this ongoing debacle doesn’t say much good about Garland’s “lieutenants:” Deputy AG Lisa Monaco, Associate AG Vanita Gupta, Assistant AG for Civil Rights Kristen Clarke, and Solicitor General Elizabeth Prelogar.

They have all “looked the other way,” defended, or failed to condemn this travesty undermining our entire justice system, unfolding under their collective noses at EOIR every day! At some point in the future, all these guys will be “making the rounds” of major law firms, NGOs, universities, mainstream media, and corporations — seeking to “cash in” on their DOJ “experience.” Then, folks should remember how they ACTUALLY PERFORMED (or didn’t) when they had a chance to fix “America’s worst courts” — hotbeds of racial and ethnic injustice, purveyors of bad law, and a haven for ridiculously dysfunctional procedures!

Perhaps a suitable future for these willfully blind “public servants” would be to require them to spend the balance of their careers practicing on a pro bono basis before the “star chambers” they inflicted on others! See how they like being “scheduled,” with no or inadequate notice, to do 15 or 20 asylum cases per month; appearing before too many ill-qualified “judges” who have already decided to deny regardless of the law and facts; appealing to a captive “appellate court” dominated by individuals, working for the Executive, whose main “judicial qualification” was that they denied close to 100% of the asylum claims that came before them in Immigration Court and were known for their rude and dismissive treatment of asylum applicants and their lawyers! See, e.g., “Confronting The American Star Chamber . . .,” https://wp.me/p8eeJm-4Vm.,

Here’s Professor Barak’s bio from the U of Michigan-Dearborn website:

Maya Barak, Ph.D.

Associate Professor of Criminal Justice Studies

Maya P. Barak
Maya P. Barak, PhD
Assistant Professor of Criminal Justice Studies
U. of Michigan -Dearborn
PHOTO: UM-D Websitew

College of Arts, Sciences, and Letters

College-Wide Programs

mbarak@umich.edu

1070 Social Sciences Building | 4901 Evergreen Road | Dearborn, MI 48128

Personal Website

Teaching Areas: Arab American Studies, Criminology & Criminal Justice Studies, Master of Science in Criminology and Criminal Justice, Women’s & Gender Studies

Research Areas: Capital Punishment, Criminal Justice, Criminology, Gangs, Immigrants / Crimmigration, Legal Sociology, Procedural Justice, State-Corporate Crime

Biography and Education

I am an Assistant Professor of Criminology and Criminal Justice at the University of Michigan-Dearborn. I hold a PhD in Justice, Law and Criminology from American University (2016), an MA in Criminology and Criminal Justice from Eastern Michigan University (2011), and a BA in Social Anthropology and Peace and Social Justice from the University of Michigan (2009). My research brings together the areas of law, deviance, immigration, and power, utilizing interdisciplinary approaches that span the fields of criminology, law and society, and anthropology.

Education

Ph.D. in Justice, Law and Criminology

Teaching and Research

Courses Taught

Selected Publications

Books

Gould, Jon B. and Maya Barak. 2019. Capital Defense: Inside the Lives of America’s Death Penalty Lawyers. New York: NYU Press.

Selected Articles

Barak, Maya. 2021. “Can You Hear Me Now? Attorney Perceptions of Interpretation, Technology, and Power in Immigration Court.” Journal on Migration and Human Security (https://doi.org/10.1177/23315024211034740).

Barak, Maya. 2021. “A Hollow Hope? The Empty Promise of Rights in the U.S. Immigration System”/ “¿Una promesa vacía? La ilusión de “los derechos” en el sistema migratorio de los Estados Unidos.” Las Cadenas Que Amamos: Una panorámica sobre el retroceso de Occidente a todos los niveles.

Barak, Maya. 2021. “Family Separation as State-Corporate Crime.” Journal of White Collar and Corporate Crime Vol. 2(2), 2021, pp. 109-121 (https://journals.sagepub.com/doi/10.1177/2631309X20982299). (2021 Outstanding Article or Book Chapter Award, Division of White-Collar and Corporate Crime, American Society of Criminology)

Barak, Maya, Leon, K., and Maguire, Edward. 2020. “Conceptual and Empirical Obstacles in Defining MS-13: Law-Enforcement Perspectives.” Criminology and Public Policy (https://onlinelibrary.wiley.com/doi/10.1111/1745-9133.12493).

Barak, Maya. 2017. “Motherhood and Immigration Policy: How Immigration Law Shapes Central Americans’ Experience of Family.” In Forced Out and Fenced In: Immigration Tales from the Field, edited by Tanya Golash-Boza. New York: Oxford University Press.

Advocates and all Americans committed to racial justice and equal justice under law need to keep raising hell — and supporting progressive candidates — until this horrible system is replaced by a real court system, with subject matter expert judges, totally focused on delivering due process, fundamental fairness, and best judicial practices to all!

What’s happening to individuals (fellow humans, “persons” under our Constitution) and their lawyers at EOIR is NOT OK, nor is it acceptable from a DEMOCRATIC ADMINISTRATION!

Yeah, “there’s trouble, right here in River City!” And, it begins with “E,” ends with “R,” and rhymes with “EYORE!”

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

🇺🇸Due Process Forever!

PWS

10-22-22

⚖️ THE GIBSON REPORT — Compiled By Elizabeth Gibson, Esquire, Managing Attorney, NIJC: Stephen Miller Was Even More Of A Disreputable Scofflaw! — 9th Halts BIA’s “Rote Formula” For Improperly Denying CAT W/O Meaningful Analysis — EOIR In Louisiana Continues To Be “Death Valley” ☠️⚰️  For Asylum Seekers:  “‘I feel that the big problem we face today is that there is a real dehumanization of the entire process,’ said Mich Gonzalez, Associate Director of Advocacy at the Southern Poverty Law Center.”

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”

pastedGraphic.png

 

Weekly Briefing

 

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

 

CONTENTS (jump to section)

  • ◦NEWS
  • ◦LITIGATION & AGENCY UPDATES
  • ◦RESOURCES
  • ◦EVENTS

 

PRACTICE UPDATES

 

Reminder: Mayorkas Enforcement Priorities Memo No Longer in Effect as of 6/24/22

The 6/10/22 order in Texas v. United States vacating the memo went into effect 6/24/22 and has not been stayed at this time. Regardless of the memo, it is important to continue arguing that prosecutorial discretion is a longstanding executive power and DHS retains the ability to join motions, stipulate to relief, etc. See Practice Alert: Judge Tipton Issues Decision Vacating Mayorkas Enforcement Priorities Memo.

 

Some USCIS Field Office Return to Requiring Masks

USCIS: Where community levels are high, all federal employees and contractors—as well as visitors two years old or older—must wear a mask inside USCIS offices and physically distance regardless of vaccination status. Check CDC Level for Your Field Office.

 

NEWS

 

ICE Detains About 23,400 at End of June While Agency’s Electronic Monitoring Program Grows to 280,000

TRAC: After hovering around 20,000 for several months, Immigration and Customs Enforcement’s detained population reached 23,390 on June 19, 2022—down slightly from the start of the month but still higher than in previous months. About three-quarters (74 percent) of people in detention were arrested by Customs and Border Protection (CBP). The number of immigrants arrested by ICE saw a modest but steady increase up to a total of 5,979. See also GAO: Alternatives to Detention: ICE Needs to Better Assess Program Performance and Improve Contract Oversight; Meet SmartLINK, the App Tracking Nearly a Quarter Million Immigrants.

 

Detained Immigrant Women Are Facing A Grueling Abortion Struggle

Bustle: At a base level, the abortion restrictions detained women face are similar to the ones that low-income women face across the country because of the Hyde Amendment. For more than 40 years, the Hyde Amendment has prevented women on Medicaid from using federally funded insurance to pay for abortions, except in cases of rape, incest, or danger to the mother’s life. The same type of language exists in appropriations bills and healthcare regulations for all facets of the federal government, including the Immigration and Customs Enforcement agency.

(This article is from 2017, but for an update, compare this list of detention centers with this map of abortion laws.)

 

Border Patrol paroles migrants to avoid massive overcrowding

AP: The Border Patrol paroled more than 207,000 migrants who crossed from Mexico from August through May, including 51,132 in May, a 28% increase from April, according to court records. In the previous seven months, it paroled only 11 migrants.

 

US on course to welcome 100,000 Ukrainians fleeing war this summer

Guardian: At least 71,000 Ukrainians have entered the US since March, with Joe Biden’s pledge to welcome 100,000 people fleeing the Russian invasion on track to be met over the summer.

 

Decades’ Worth of Unused Immigrant Visas Salvaged in House Bill

Bloomberg: The amendment, which faces a long path to the finish line in the appropriations process, would allow DHS to recapture family and employment-based visas that went unused due to bureaucratic snags, processing delays, and other disruptions since 1992.

 

State Department Denies Substantial Percentage of Employer-Sponsored Immigrant Visas

AIC: Data analyzed by the Cato Institute shows that since Fiscal Year 2008, USCIS denied about 8% of employer-sponsored immigrants while the average denial rate by consular officers was 63%.

 

White House To Release Final DACA Rule In August

Law360: The Biden administration announced plans to issue a final Deferred Action for Childhood Arrivals rule by August and continue its efforts to undo multiple Trump-era regulations. Here are the main immigration highlights from the administration’s regulatory agenda for spring 2022.

 

Virginia budget to move funding from DACA students to state’s HBCUs

WaPo: Critics of the measure say it perpetuates a false scarcity problem at a time when Virginia has a budget surplus, and it demands that lawmakers sacrifice one needy group of students for another.

 

Revelations Show Trump Immigration Policy Was Supposed To Be Harsher

Forbes: In a new book describing her years during the Trump administration, former Education Secretary Betsy DeVos revealed a plan by Stephen Miller to identify children at school for deportation under the pretext of checking for gang members.

 

Feds Agree To Improve Emergency Shelters For Migrant Kids

Law360: The Biden administration has agreed to impose new living and sanitary standards on temporary emergency facilities housing hundreds of migrant children to resolve advocates’ claims that it was holding minors in unsafe and unsanitary conditions.

 

Louisiana immigration judges denied 88% of the asylum cases between 2016 and 2021: here’s why

The Advocate: Immigration judges in Louisiana have denied asylum claims at a higher rate than almost any other courts in the nation over the past five years, according to federal data. However, a new federal rule might downsize their role in asylum proceedings.

 

LITIGATION & AGENCY UPDATES

 

The 4 remaining Supreme Court cases of this blockbuster term

CNN: The justices are considering whether the Biden administration can terminate a Trump-era border policy known as “Remain in Mexico.” Lower courts have so far blocked Biden from ending the policy.

 

SCOTUS sends B-Z-R- Mental Health PSC Case back to CA10

SCOTUS: The petition for a writ of certiorari is granted.  The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Tenth Circuit for further consideration in light of Matter of B-Z-R-, 28 I&N Dec. 563  (A.G. 2022).

 

Matter of Nchifor, 28 I&N Dec. 585 (BIA 2022)

BIA: A respondent who raises an objection to missing time or place information in a notice to appear for the first time in a motion to reopen has forfeited that objection.

 

3rd Circ. Rejects Immigration Ruling Over Pa. Eluding Law

Law360: A Dominican man got a new chance to fight his deportation on Tuesday when the Third Circuit ruled that his felony conviction under Pennsylvania’s fleeing and eluding law didn’t necessarily amount to a crime of moral turpitude.

 

CA5 on Statutory Birthright Citizenship: Garza-Flores v. Mayorkas

LexisNexis: For years, Petitioner Javier Garza-Flores did not believe he had a valid claim to U.S. citizenship. But now he thinks that he does. And he has presented documentary evidence sufficient to demonstrate, at a minimum, a genuine issue of material fact concerning his claim of U.S. citizenship. That is enough to warrant a factual proceeding before a federal district court to determine his citizenship.

 

CA7 Menghistab v. Garland

CA7: The Board’s main quibble was with the relevance of that evidence to an Ethiopian citizen, which it assumed Menghistab to be. But that assumption was not warranted on the record that was before the Board. Denying the motion to reopen without a full hearing addressing Menghistab’s citizenship and its materiality to his risk of torture was therefore an abuse of discretion.

 

9th Circ. Says BIA Erred In Not Considering All Torture Risks

Law360: The Ninth Circuit on Friday granted a Salvadoran’s request to have the Board of Immigration Appeals review claims that he would be tortured if sent back to the Central American country, saying the board originally failed to consider all possible risk sources.

 

CBP Settles FOIA Suit Over Foreign Pot Workers Policy

Law360: U.S. Customs and Border Protection and Davis Wright Tremaine LLP have settled a Freedom of Information Act suit the firm filed over reports the agency decided Canadian cannabis workers weren’t eligible to enter the U.S., which led to an overturned internal document contradicting officials.

 

Construction Worker Reported To ICE Wins $650K At Trial

Law360: A Boston federal jury has found a construction company and its owner liable for retaliating against an employee by reporting him to immigration authorities after his on-the-job injury triggered a workplace investigation, awarding $650,000 in damages.

 

INA 212(a)(9)(B) Policy Manual Guidance

USCIS: A noncitizen who again seeks admission more than 3 or 10 years after the relevant departure or removal, is not inadmissible under INA 212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period

 

Biden administration halts limits on ICE arrests following court ruling

CBS: While the suspension of ICE’s arrest prioritization scheme is unlikely to place the country’s estimated 11 million unauthorized immigrants in immediate danger of being arrested, the absence of national standards could lead to inconsistent enforcement actions across the U.S., including arrests of immigrants whom agents were previously instructed not to detain, legal experts said.

 

ICE’s Enforcement and Removal Operations COVID-19 Pandemic Response Requirements

ICE: Deletion: The new facility status determination framework replaces the language limiting population capacity to 75%.

 

RESOURCES

 

 

EVENTS

 

NIJC EVENTS

 

 

GENERAL EVENTS

 

 

To sign up for additional NIJC newsletters, visit:  https://immigrantjustice.org/subscribe.

 

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.

 

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

 

 

********************

Stephen Miller Monster
Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
  • According to a new book from former Trump Education Secretary Betsy DeVos:

“Over the din of patrons slurping lattes and crunching salads, Miller’s men described a plan to put U.S. Immigration and Customs Enforcement (ICE) agents into schools under the pretext of identifying MS-13 gang members. The plan was, when agents checked students’ citizenship status for the alleged purpose of identifying gang ties, they could identify undocumented students and deport them. Not only was the prospect of this chilling, but it was also patently illegal. Nate and Ebony turned them down cold. But that didn’t stop Stephen Miller from subsequently calling me to get my thoughts on the idea. 

  • For years, the BIA has had standard practice of giving short shrift to potentially valid claims for protection under the Convention Against Torture (“CAT”). Without meaningful analysis they simply cite John Ashcroft’s infamous “no CAT precedent” in Matter of J-F-F-,  23 I&N Dec. 912 (A.G. 2006), requiring that “each link in the chain of torture be proved to be probable.” 

Since there is almost always some allegedly “weak link in the chain” that’s an “easy handle” for denial.  Also, The IJ and the BIA can “lengthen the chain” or ignore the evidence as necessary to “get to no.” In the process, compelling evidence of likelihood of torture from qualified expert witnesses is either ignored or minimized — again, without much analysis. That’s how the “denial factory” in Falls Church can keep churning out CAT rejections even to countries where torture is rampant and either furthered or willfully ignored by the repressive governments.

At least in the 9th Circuit, the BIA will now have to go “back to the drawing board” for denying CAT and returning  individuals to countries where torture with government participation or acquiescence is likely. The 9th Circuit case rejecting the BIA’s “formula for denial” is Velasquez-Samayoa v. Garland. Here’s a link in addition to the one provided by Elizabeth.  https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca9-on-cat-velasquez-samayoa-v-garland

  • Louisiana has long been one of a number of EOIR “courts” — these are actually “prison courts” — where “asylum cases go to die.” The deadly combination of bad Immigration Judges, lack of skilled immigration attorneys able to take these cases pro bono, coercive use of detention in out of the way places in substandard conditions, a “denial oriented” BIA stacked by the Trump DOJ and not “unstacked by Garland,” and an indolent, often virulently anti-asylum 5th Circuit add up to potential death sentences for individuals who could gain protection under a system where due process and fundamental fairness were respected and followed.

As the report in The Advocate referenced by Elizabeth shows, Garland has failed to reform and improve this blot on American justice. And, there is little chance that assigning the cases to USCIS Asylum Office in the first instance under new regulations in this intentionally toxic environment is going to promote justice or efficiency. 

One might view the wide discrepancy between “positive credible fear findings” and asylum grants in Immigration Court as a sign of a sick and dying EOIR, not lack of merit for the claims. With less detention, more representation, better Immigration Judges, and a new BIA of true asylum experts willing to grant protection rather than “engineer rejection,” I’ll bet that many, perhaps a majority, of the outcomes would be more favorable to applicants. 

As noted by Mitch Gonzalez of the SPLC in the article, “dehumanization,” “de-personification,” and “Dred Scottification,” along with cruelty are the objects of what’s going on at EOIR in Louisiana. The “fit” with the Trump/Miller White Nationalist anti-immigrant program is obvious. What’s less obvious is why Garland and the Biden Administration haven’t intervened to make the necessary changes to restore EOIR in Louisiana and elsewhere to at least some semblance of a fair and impartial “court system.” 

🇺🇸Due Process Forever!

PWS

06-28-22

NGOs’ EXPOSE, DOCUMENT ICE’S LIES 🤥 TO CONGRESS ABOUT ATTORNEY ACCESS IN SCATHING DEMAND FOR ACCOUNTABILITY!

Pinocchio @ ICE
“Pinocchio @ ICE”
Author of Reports to Congress
Creative Commons License

https://immigrantjustice.org/sites/default/files/content-type/commentary-item/documents/2022-03/NGO-Rebuttal-to-ICE-Legal-Access-Report-March-22-2022.pdf

     MEMO

To: Professional staff for the House and Senate Appropriations Subcommittees on

Homeland Security

From: National Immigrant Justice Center, American Immigration Council,

ACLU of Southern California, Southern Poverty Law Center

Re: Concerns re Veracity of ICE’s February 2022 “Access to Due Process” Report Date: March 22, 2022

On February 14, 2022, Immigration and Customs Enforcement (ICE) presented a report entitled “Access to Due Process” to the Chairs and Ranking Members of the House and Senate Appropriations Subcommittee on Homeland Security [hereinafter “ICE Access Memo”]. The report was responsive to direction in the Fiscal Year (FY) 2021 Joint Explanatory Report and House Report accompanying the Department of Homeland Security (DHS) Appropriations Act, P.L. 116-260, requiring ICE to provide a report on attorney access to ICE facilities, the rate of denial of legal visits, and attorney/client communications. The ICE Access Memo largely focuses on FY 2020, i.e. October 1, 2019 through September 30, 2020.

Our organizations provide legal services or represent organizations that provide legal services to individuals in ICE detention facilities throughout the United States, and work closely in coalition with many other organizations that do the same. We write to share our concerns regarding the ICE Access Memo, which omits key facts and blatantly mis-states others. As recently as October 2021, more than 80 NGOs delivered a letter to DHS and ICE documenting a litany of access to counsel obstacles imposed by ICE on people in detention. The Southern Poverty Law Center (SPLC) and American Civil Liberties Union (ACLU) of Southern California remain in active litigation against DHS and ICE over allegations of access to counsel violations so severe that they violate the Constitution. Yet the ICE Access Memo ignores the lawsuits and the written complaints, instead presenting a generally positive picture of the state of access to counsel and legal services for people in ICE custody. That picture bears little resemblance to the reality our legal service teams and clients experience daily in trying to communicate with each other.

This memo addresses the key points made by ICE in its Access Memo, and provides narrative and illustrative details of the misrepresentations made throughout. The topics addressed include: I) Access to legal counsel generally; II) Access to legal resources and representation (through the provision of free phone minutes and video conferencing capacity); and III) ICE’s purported efforts to address issues arising with access to legal counsel.

Our legal and policy teams would also be interested in engaging in an informal briefing with

  

 your teams to discuss these issues in greater depth. Please contact Heidi Altman at the National Immigrant Justice Center at haltman@heartlandalliance.org to arrange the briefing.

I. There are widespread, significant challenges in access to legal counsel at ICE facilities nationwide.

In its Access Memo, ICE claims that: a) “noncitizen access to legal representatives . . . has continued unabated” during the COVID-19 pandemic; b) in FY 2020, “ICE’s inspections did not identify any legal representatives being denied access to their clients, as confirmed by the DHS [Office for Civil Rights and Civil Liberties] and other oversight bodies”; and c) “Facilities continue to provide noncitizens opportunities to meet privately with their current or prospective legal representatives, legal assistants, translators, and consular officials.”

These representations make glaring omissions regarding ongoing challenges to legal access, illustrated in great detail below. Further, we note that while ICE’s inspections (which DHS’s own Inspector General has found to be flawed) may not have specifically identified legal representatives being denied access to their clients, all of our organizations have experienced these denials to be pervasive.

a) Far from continuing “unabated,” access to counsel in ICE detention has been significantly hampered during the COVID-19 pandemic.

ICE claims that “noncitizen access to legal representatives remains a paramount requirement throughout the pandemic and has continued unabated.” This claim is either an intentional misrepresentation or reflects a severe turn-a-blind-eye-mentality within the agency. DHS and ICE face ongoing litigation brought by legal service providers forced to seek emergency relief to gain even minimal remote access to their clients during the pandemic. And just months ago, DHS Secretary Mayorkas and Acting ICE Director Johnson received a 20 page letter from dozens of NGOs outlining in great depth the “host of obstacles to attorney access that exist in immigration detention facilities nationwide.”1 Referring to the agency’s commitment to providing legal access as “paramount” thus clearly omits important content from this report to Congress, the body meant to provide oversight of the agency in the public interest.

As the pandemic began to spread in April 2020, SPLC was forced to seek a Temporary Restraining Order (TRO) to ensure adequate remote access to counsel in four ICE facilities in Louisiana and Georgia, and then had to file a motion to enforce that TRO. The case is still active today and the court is seeking additional information on the state of the government’s compliance with the TRO. In granting the TRO in June 2020, the D.C. District Court found in its

1 Letter to The Honorable Alejandro Mayorkas and Tae Johnson from the American Immigration Council, the American Civil Liberties Union, et al., Oct. 29, 2021, available here.

       2

 Memorandum Opinion that DHS’s response to the pandemic “with respect to increasing the capacity and possibilities for remote legal visitation and communication has been inadequate and insufficient.” The Court also found ICE to be imposing restrictions and conditions on remote legal visitation and communication that were “more restrictive than standards promulgated for criminal detainees.” The TRO, among other things, required ICE to ensure access to confidential and free phone and video calls to legal representatives, to develop a system to schedule such calls, to create troubleshooting procedures for technology problems, and to institute a system to allow for electronic document transfer.2

SPLC was not the only legal service provider forced to seek emergency relief in order to get access to its clients as the pandemic spread. Also still in active litigation is Torres v. DHS, a case brought by the ACLU of Southern California, Stanford Law School Immigrants’ Rights Clinic, and Sidley Austin LLP on behalf of the American Immigration Lawyers Association and Immigrant Defenders Law Center in December 2018. The Torres case alleges many of the same obstacles to counsel in three California facilities as those at issue in SPLC v. DHS, including limited access to legal phone calls, prohibitively expensive calling rates, limited access to confidential phone calls with counsel, and inadequate opportunities for in-person attorney-client visitation.3 In April 2020, the District Court for the Central District of California entered a TRO in response to the plaintiff organizations’ arguments that ICE’s COVID-19 policies had effectively barred in-person legal visitation, leaving no confidential means for attorneys and detained clients to communicate.

In granting the TRO in Torres v. DHS, as of April 2020, the Court found the plaintiffs “likely to succeed on the merits of their claims that [DHS’s] COVID-19 attorney-access policies violate their constitutional and statutory rights,” noting that the pre-pandemic conditions alleged by plaintiffs made out such a claim, and the post-pandemic restrictions were “far more severe.”4 The Court also noted: “Defendants’ non-responsiveness to Plaintiffs’ factual assertions is telling.

2 In Southern Poverty Law Center v. Dep’t of Homeland Security (D.D.C.), 1:18-cv-00760, Dkt. 18-760, SPLC argues that the “totality of barriers to accessing and communicating with attorneys endured by detainees in these prisons [the LaSalle Detention Facility in Jena, Louisiana, the Irwin County Detention Center in Ocilla, Georgia, the Stewart Detention Center in Lumpkin, Georgia, and Pine Prairie ICE Processing Center in Pine Prairie, Louisiana] deprives SPLC’s clients of their constitutional rights to access courts, to access counsel, to obtain full and fair hearings and to substantive due process, in violation of the Due Process Clause of the Fifth Amendment” and “violates the Administrative Procedure Act, as well as SPLC’s rights under the First Amendment.” The first complaint filed in April 2018 is available here; further briefing and orders in the litigation are available on the SPLC’s website here.

3 In Torres v. Dep’t of Homeland Security, (C.D. Cal.), 5:18-cv-02604-JGB, Dkt. 127-1, the ACLU of Southern California and the Immigrants’ Rights Clinic at Stanford Law School filed a class action lawsuit alleging that barriers to attorney-client communications at three ICE facilities in California (the Theo Lacy and James A. Musick county jails and the Adelanto Processing Center) were so severe as to make it nearly impossible for people in detention to reach their lawyers, in violation of statutory law, constitutional protections, and the Administrative Procedures Act. The first complaint filed in December 2018 is here; further briefing and orders in the litigation are available on the ACLU of Southern California’s website here.

4 Torres v. Dep’t of Homeland Security, (C.D. Cal.), 5:18-cv-02604-JGB, Dkt. 127-1, Order Granting Temporary Restraining Order, available here.

    3

 First, it took Defendants multiple rounds of briefing and two hearings to state whether there is any definite procedure to access free confidential legal calls and what that procedure is. Even if a procedure exists, Defendants do not rebut Plaintiffs’ showing that few detainees have ever accessed a free confidential legal call.” The Court further addressed the common problem of individuals in detention being forced to pay exorbitant phone rates for what should be free legal calls, stating, “Nor do Defendants explain why it is reasonable to expect detainees earning about one dollar a day…, or their families in the midst of an economic crisis, to fund paid ‘legal’ calls on recorded lines in the middle of their housing unit.”5

While litigation is ongoing in SPLC v. DHS and Torres v. DHS, our own legal teams throughout the country face daily, grueling obstacles in communicating with and effectively representing their detained clients, obstacles that have been compounded during the pandemic. ICE’s representations regarding phone and video-conference access are frequently belied by on-the-ground challenges including subcontractors’ belligerence, technology difficulties, or complex and opaque processes that even trained attorneys struggle to understand. As described by advocates in their October 2021 letter to DHS, the following examples are illustrative:

➔ Video-conference (VTC) technology is often not available or extremely limited in availability, even when facility policy states otherwise: An attorney with the University of Texas Immigration Law clinic attempted to schedule a VTC visit with a client who had recently been detained at the South Texas ICE Processing Center in Pearsall, Texas. A GEO staff member informed the attorney that there were no VTC visits available for two weeks—and even then availability was “tentative.” ICE’s webpage for Pearsall asserts that VTC appointments are available daily, 6 a.m. to 9 p.m., and can be scheduled 24 hours in advance.

➔ Emails and phone messages from attorneys go undelivered: The American Immigration Council’s Immigration Justice Campaign placed the case of a man detained at the El Paso Service Processing Center in Texas with a volunteer attorney at a law firm in Pittsburgh, Pennsylvania in June 2021. That attorney sent three emails to the El Paso facility requesting that a message be delivered to the client to call his new attorney. The attorney then learned that the client had been transferred to the Otero County Processing Center and sent two more emails to that facility requesting a call with the client. On June 28, an ICE officer claimed a message had been delivered to the client. On July 6, the client appeared before an immigration judge and stipulated to an order of deportation, seeing no way to fight his case and no way to find an attorney. That evening, the client received two of the attorney’s messages and was finally able to contact her, but the damage had been done.

5 Id.

  4

 ➔ Poor sound quality, dropped calls, and limited phone access: The Refugee and Immigrant Center for Education and Legal Services (RAICES) in San Antonio, Texas faces consistent problems trying to speak to clients detained at the facility in Pearsall, Texas. For example, over the course of one month in April and May 2021, RAICES staff struggled to prepare a declaration for a Request for Reconsideration of a negative credible fear interview for a client due to a host of communication failures at the facility. After RAICES was unable to contact the client for three days (despite prior regular calls) RAICES staff was finally about to reach their client, but the call dropped before the declaration was complete and GEO staff prohibited the client from calling back. GEO staff then did not schedule a VTC call as requested, canceled a VTC call, and a telephone call to attempt to finalize the client’s declaration had sound quality so poor that it was difficult to hear the client. These obstacles to access delayed the submission of the client’s Request for Reconsideration by several weeks. Similarly, The Florence Immigrant & Refugee Rights Project (FIRRP) has difficulty conducting legal intakes at La Palma Correctional Center in Arizona because guards frequently cut calls short. FIRRP works to complete intakes in just twenty to thirty minutes. Yet in the first two weeks of July 2021, it was unable to complete intakes for five potential clients because their calls were cut short by La Palma staff.

➔ Phone access restricted during quarantine and beyond: The El Paso Immigration Collaborative (EPIC) represents detained people in the El Paso area detention facilities, including the Torrance County Detention Facility. Staff at the Torrance facility have repeatedly told EPIC attorneys that they simply do not have capacity to arrange legal calls—with delays that can last for one week or more. For example, a call scheduling officer stated in August 2021: “Courts are my main priority and when I get chances to make attorney calls I will get to that.” Throughout the El Paso district, ICE denies any access to over-the-phone legal intakes and/or legal calls to people who are in quarantine for being exposed to COVID-19.

➔ Prohibitive cost of phone calls: The Immigration Detention Accountability Project of the Civil Rights Education and Enforcement Center (CREEC) answers calls to a free hotline available in immigration detention centers nationwide to monitor ICE compliance with the injunction in Fraihat v. ICE. Hotline staff routinely receive reports from callers—typically people with medical vulnerabilities or in need of accommodations—that they do not receive free calls for the purpose of finding an attorney, and the cost of telephone calls in detention is prohibitive for finding a removal defense attorney.

➔ Obstacles to sending and receiving legal documents: The Carolina Migrant Network represents a significant number of people detained at the Winn Correctional Center in

5

 Louisiana. The Winn facility has the lowest availability of immigration attorneys in the entire country—a recent study showed that there was one immigration attorney for every 234 detained people at Winn within a 100-mile radius of the facility.6 Winn is so far from most immigration attorneys and legal services providers that most attorneys who serve that facility must do so remotely, but Winn will not facilitate getting legal documents to and from clients. Winn will not allow attorneys to email or fax a Form G-28, Notice of Entry of Appearance as Attorney, for signing. Instead, attorneys must mail a Form G-28 with a return self-addressed stamped envelope. It takes approximately two business weeks for Carolina Migrant Network attorneys to receive a signed Form G-28, because the facility is so geographically isolated that the postal service will not guarantee overnight mail.

➔ Intransigence of subcontractors and inadequate access policies in local jails: An attorney with Mariposa Legal in Indianapolis, Indiana routinely confronts obstacles to reaching clients at the Boone County Jail in Kentucky. Those challenges include a faulty fax machine as the only mechanism for requesting client calls or visits, the facility’s refusal to allow any calls on Thursdays, staff who bring the wrong person to the attorney client room, and the use of attorney-client rooms as dorms when the population level increases. Boone’s mail system is particularly problematic. An attorney sent paperwork via FedEx to a client in July 2021 and the client simply never received the package. Jail staff made an “exception” and allowed the attorney to email the documents but delayed the attorney being able to file a time-sensitive Freedom of Information Act request by more than a week.

b) Legal representatives are routinely denied access to their clients in ICE custody.

The ICE Access Memo states that, “ICE ERO does not track the number of legal visits that were denied or not facilitated and/or the number of facilities that do not meet ICE standards for attorney/client communications. However, in FY 2020, ICE’s inspections did not identify any legal representatives being denied access to their clients, as confirmed by the DHS Office for Civil Rights and Civil Liberties (CRCL) and other oversight bodies.” Given ICE’s own admission that it does not track or keep records of visit denials, this statement is meaningless.

As organizations providing legal services to individuals in detention, we can confirm that in-person and virtual legal visits are in fact routinely denied either outright or because of facility

6 This study is found in a report called Justice-Free Zones, which also provides in-depth evidence and data regarding the lack of availability of lawyers for many of ICE’s newest detention facilities. See American Civil Liberties Union, National Immigrant Justice Center, Human Rights Watch, Justice-Free Zones: U.S. Immigration Detention Under the Trump Administration (2020), 20-23. The report discusses at length the ways in which ICE’s use of remote detention centers and prisons for its detention sites undermines the ability of those in custody to find counsel. This topic is not addressed in this memo, but underlies the entirety of the due process crisis for detained immigrants facing removal proceedings.

   6

 policies so restrictive as to constitute denials in practice. SPLC has documented over two dozen incidents of legal visits, including four in-person visits and 22 calls and VTCs, that were denied or not facilitated at the Stewart, Irwin, LaSalle and Pine Prairie facilities in FY 2020 alone. Attorneys attempting in-person meetings in 2020 were often left waiting for their visits for so long that they had to leave the detention center and come back another day, a constructive denial even if not outright. SPLC attorneys also report phone calls and VTCs being regularly canceled or unilaterally rescheduled by facility staff with no notice to attorneys, often preventing attorneys from speaking to clients on time-sensitive matters.

In many facilities, the procedures and rules around setting up attorney-client visits are so cumbersome as to make visitation nearly impossible; in these cases ICE may not be denying visits outright but they are allowing conditions to persist that constitute a blanket denial. In a number of facilities in Louisiana, for example, attorneys are not allowed to meet with clients in person unless visits are scheduled by 3 p.m. the day before. This policy renders visits entirely unavailable for attorneys who need to meet with a client for time-sensitive matters that cannot wait 24 hours.

In Torres v. DHS, the court noted in ordering a TRO in April 2020 that ICE “equivocate[d]” on the question of whether contact visitation was allowed at all at the Adelanto facility in California. ICE eventually admitted that “only two contact visits” had been allowed between March 13 and April 6, 2020.7

c) Legal representatives frequently face obstacles to meeting in a private confidential space with current or prospective clients.

The ICE Legal Access Memo states that, “Facilities continue to provide noncitizens opportunities to meet privately with their current or prospective legal representatives, legal assistants, translators, and consular officials.” However, it is our experience that in many facilities it is not possible for individuals to meet in person with their lawyers in a private setting, and that access to translators is also frequently compromised. Many detained individuals are also unable to access private, confidential remote communication with their attorney. The ability to access a confidential space may be the difference between presenting a successful claim to relief or being order deported, especially for individuals sharing difficult or traumatic experiences or sharing information that they fear will place them at risk if overheard by other people in detention such as sexual orientation or gender identity.

In many facilities, especially since the pandemic, it is nearly or completely impossible to access a confidential space to have a remote communication with one’s attorney. Some facilities may

7 Torres v. Dep’t of Homeland Security, (C.D. Cal.), 5:18-cv-02604-JGB, Dkt. 127-1, Order Granting Temporary Restraining Order, available here.

 7

 claim to provide confidential spaces, but the reality is quite different. In the Pine Prairie facility, for example, the spaces designated for “confidential” attorney-client phone calls and VTC are actually cubicles with walls that do not reach the ceiling and allow for noise to travel outside the cubicle. Cubicle-style spaces with walls that do not reach the ceiling are also the only spaces available for so-called confidential attorney-client meetings at the T. Don Hutto Residential Center in Texas, where the University of Texas School of Law Immigration Clinic provides services. Similarly, confidential phone calls are provided at the Stewart facility but are limited to 30 minutes, which is far from sufficient for many types of legal calls necessary to gather facts or prepare for an immigration court case, especially if an interpreter is needed.

There are also severe restrictions to individuals’ ability to meet in person with their lawyers in confidential settings. At Pine Prairie, for example, because the cubicles described above have been reserved for VTC during the pandemic, attorneys must meet with their clients or prospective clients at a table in the middle of an open-plan intake space that is the most highly-trafficked part of the facility. There is absolutely no privacy—guards, ICE officers, other facility staff, other detained individuals and even people refilling the vending machines all travel through or wait in this space frequently, making it impossible to have a confidential conversation.

We also contest ICE’s claim that it provides ready access to translators as necessary for attorney-client communication. As explained in briefing in SPLC v. DHS, for example, the non-contact attorney-client visitation rooms in the LaSalle, Irwin, and Stewart facilities provide only one phone on the “attorney side” of the room, which means that there is no way for an attorney to be accompanied by a legal assistant or interpreter. Also at these facilities, a “no-electronics policy” is maintained meaning that attorneys are effectively denied from accessing remote interpretation services (there are also no outside phone lines available).

The following examples provide further evidence of the ways in which access to confidential in-person or remote communications are restricted throughout ICE detention:

➔ Restricted access to confidential remote communications during periods of COVID quarantine: In the McHenry County Jail in Illinois, prior to its closure, individuals were subjected to a mandatory fourteen-day quarantine period if exposed to COVID-19, during which they had literally zero access to confidential attorney-client phone calls. In January 2022, the National Immigrant Justice Center (NIJC) raised this issue to the Office of the Immigration Detention Ombudsman, sharing several case examples. One of the examples was that of an NIJC client who was represented by pro bono attorneys at a major law firm. In the weeks leading up to the client’s asylum merits hearing, the pro bono team contacted the facility and were told that no time slots were available because their client was in COVID-related quarantine. The facility informed the pro bono attorneys that their

8

 only option to speak with their client was if he called them during the one hour every other day when he had access to the communal phones. Although the communal phones offered no confidentiality, it was the only option for them to speak with their client. The pro bono team had to deposit money into their client’s commissary account in order for him to call out, and then faxed him a letter asking him to call them during his one hour window. Their client did call, but he could barely hear his attorneys because the noise from the television and other people in detention speaking in the background was so loud.

➔ So-called “confidential spaces” providing no privacy: The University of Texas School of Law Immigration Clinic serves women detained at the Hutto facility, where since the start of the COVID pandemic attorneys have been required to sit in one plastic cubicle while their clients sit in another. This requires attorneys and their clients to raise their voices while speaking to one another, further limiting confidentiality. Two clinic students spoke to several women from Haiti who had experienced sexual assaults. The women had not been able to speak to attorneys prior to their credible fear interviews because of limits placed on attorney access, and so had little understanding of the process and the importance of describing their experiences fully. Because of this obstacle to due process, the women did not share their experiences of sexual assault during their credible fear interview. One woman was deported even after the students took on the case, because it took so long for legal counsel to learn about the details of the assault due to communication barriers.

II. ICE’s claims that it provides enhanced access to legal resources and representation are belied by the experiences of legal service providers and detained people.

In the Access Memo, ICE claims that it “made improvements in legal access accommodations by enhancing detained noncitizens’ remote access to legal service providers,” specifically including: a) the provision of more than 500 free phone minutes to “most noncitizens” and b) by expanding the Virtual Attorney Visitation (VAV) program from five to nine programs in FY 2020. ICE fails to mention, however, that the rollout of both programs has been extremely flawed. The 500 free minutes, for those in facilities where they are offered, are usually not available on a confidential line (making them generally not usable for attorney-client communication) and detained individuals often face severe obstacles in accessing the minutes at all. The VAV program, similarly, is in practice often inaccessible to attorneys trying to reach their clients.

a) The 500 free minutes do not meaningfully enhance legal access because they are usually available only on non-confidential lines and the length of calls is restricted.

ICE describes in the Access Memo that 520 minutes per month are provided to individuals detained in all facilities with Talton operated phone systems. The list of Talton-served facilities is

  9

 available on the AILA website here. However, these minutes are of limited utility in enhancing access to legal counsel for two primary reasons: First, the minutes can generally be used only in 10 or 15-minute increments after which time the call automatically cuts off, disrupting attorney-client calls and making conversations with interpreters particularly difficult. Second, in most cases it appears the minutes are available only on phones in public areas of housing units, and therefore cannot be used for confidential attorney-client communication. It has also been our experience that it is difficult for individuals who do not read Spanish or English to access the minutes at all, as the instructions for how to use them are usually provided in English and Spanish without accommodation for speakers of other languages, including indigenous languages.

Our own legal service teams and clients have experienced these challenges:

➔ The Otay Mesa Detention Center in California is one of the facilities ICE claims provides 520 free minutes. NIJC provides legal services to individuals at the Otay Mesa facility, and has found it to be difficult and often impossible for attorneys providing remote representation to get a secure line set up using clients’ free minutes. One NIJC attorney has had some success in doing so by calling the facility, asking for her client to submit a form adding her to their attorney list, and then calling her back. However, she has found this to only work in rare instances and notes that it usually takes at least three days’ advance notice.

➔ The American Immigration Council works with partners who provide legal services at the Otero County Processing Center in New Mexico, which is also on the list of facilities providing 520 free minutes. However, the free minutes available at the Otero facility are available only on recorded lines from phones in public areas of the housing units, thus not confidential. In July 2020, a law clerk with EPIC shared that they had conducted an intake interview with a potential client at Otero which had to be conducted over four short calls, because the first three calls were free ten minute calls that automatically cut off. The client paid for the fourth call, which cut off before the intake could be completed. This made it difficult to maintain a conversation, caused confusion, and impeded the law clerk’s ability to ask the client a full range of questions.

➔ The practice of dividing the 520 monthly minutes into calls of such short duration that they disrupt attorney-client communication was confirmed by ICE Assistant Field Officer Director Gabriel Valdez in a written affidavit filed in Torres v. DHS stating that as of April 2020 at the Adelanto facility, the 520 free minutes were provided as a maximum of 13 calls per week, with each call permitted to last no longer than 10 minutes. Legal service providers at Adelanto also confirm that these free minutes are provided only on

  10

 the phones in the common spaces of the Adelanto facilities, where attorney-client confidentiality is not protected.

b) The Virtual Attorney Visitation (VAV) program is severely compromised in its utility by restrictions on usage and technology problems, and in certain facilities does not even appear to be operational.

ICE describes in its Access Memo that the VAV program was expanded from five to nine facilities in Fiscal Year 2020, allowing legal representatives to meet with their clients through video technology in private rooms or booths to ensure confidentiality of communications. ICE posts a list of the facilities it claims are VAV-enabled here.

Many of our legal service teams had never heard of the VAV program until reviewing the ICE Access Memo, which speaks to the extent to which it can be utilized in practice. Included in ICE’s list of VAV-enabled facilities are three facilities where SPLC currently provides services—the Folkston ICE Processing Center, the LaSalle ICE Processing Center, and the Stewart Detention Center. Yet SPLC’s legal teams are entirely unaware of any VAV programs having been accessible at any of these three facilities in Fiscal Year 2020. While some VTC capacity was present at these facilities using Skype, they do not appear to have been part of the VAV program which is largely conducted using Teams and WebEx, according to the Access Memo. Further, the number of confidential VTC rooms in use at these facilities was dismally low. In the Stewart Detention Center, for example, which can detain up to 2,040 people, there are only two VTC rooms, neither of which are confidential.

Another facility on ICE’s list of VAV-enabled facilities is the Otay Mesa Detention Center, where NIJC provides legal services. Yet NIJC’s attorneys who represent individuals at Otay Mesa through a program focused on ensuring legal representation for LGBTQI individuals have found that there is no way for NIJC to schedule legal calls or VTC sessions for free, through the VAV or any other program. For one current NIJC client, the legal team must provide funds to the client’s commissary to be able to speak with them, and even then the calls cut off every ten minutes.

The ICE website describes the VAV program as providing detained individuals access to their attorneys in a “timely and efficient manner.” Yet at the Boone County Jail, one of the listed VAV-enabled facilities, NIJC’s clients report that there are very limited available hours for attorneys to call through the VAV program, and they must be requested well in advance. On one occasion, for example, an NIJC attorney called to ask for a VAV session in the ensuing 48 hours and was told none were available. Instead, the facility staff directed the attorney to the iwebvisit.com website where she could “purchase confidential visits” at $7.75 per 15-minute interval. Boone strictly limits the availability of free confidential VAV calls, and charges for calls

 11

 occurring during many slots in normal business hours. Given the limited availability that Boone provides for free calls on the VAV platform, NIJC has had to pay these fees in order to communicate with clients. Additionally, the quality of the videoconferences on the platform used by Boone County Jail is poor, and NIJC attorneys and advocates struggle to hear clients. Finally, the process for adding third-party interpreters through Boone’s system is extremely onerous, which raises serious concerns about accessibility for speakers of diverse languages. Third party interpreters are unable to join calls unless they go through a registration and clearance process with the jail and like attorneys, must also pay fees for 15-minute intervals if the call takes place during certain hours.

III. ICE’s stated increased coordination with Enforcement and Removal Operations (ERO) to address issues with access to legal counsel has not been communicated to legal service providers.

ICE notes in its Access Memo that it has designated Legal Access Points of Contact (LA-POC) in field offices, who are intended to “work with the ICE ERO Legal Access Team at headquarters to address legal access-related issues and to implement practices that enhance noncitizen access to legal resources and representation.” Among the four organizations authoring this memo, none of our legal service teams reported knowing how to access these designated points of contact or had experienced them resolving concerns or issues. For many of us, the Access Memo was in fact the first time we had even heard of LA-POCs, which is fairly remarkable given that all four of our organizations either provide large quantities of legal services to detained individuals or represent other organizations that do.

***

Meaningful and prompt access to confidential communication with counsel is literally a life and death matter for individuals who are in ICE detention. Barriers to communication can prevent an individual from being fully prepared for a court hearing that will determine whether they are permanently separated from their loved ones. A lack of confidential space for attorney-client communications can mean that an LGBTQI person may never feel safe to disclose their sexual orientation or gender identity, compromising both their own safety and their ability to present their full claim to asylum or other protection.

ICE has submitted this report, in effect asking Members of Congress to believe that they have been responsive and thoughtful in their approach to ensuring access to counsel, even while legal service providers are forced to seek emergency relief in the federal courts simply to be able to communicate with their detained clients. The ICE Access Memo represents a disingenuous and cavalier approach to a gravely serious topic, and we urge Chairpersons Roybal-Allard and Murphy to hold the agency accountable.

   12

*******************

Previous coverage from “Courtside:”

https://immigrationcourtside.com/2022/03/29/the-gibson-report-03-28-22-compiled-by-elizabeth-gibson-esquire-managing-attorney-nijc-headliners-ice-lies-to-congress-about-attorney-access-bia-flagged-by-11th-for/

You don’t have to be a “legal eagle” to understand that putting “civil” immigration prisons (the “New American Gulag”) in obscure locations like Jena, LA, and elsewhere in the notoriously anti-immigrant Fifth Circuit is, among other illegal objectives, about restricting access to lawyers and running roughshod over due process and fundamental fairness.

But, don’t hold your breath for a day of reckoning for immigration bureaucrats peddling lies, myths, and distortions.

Sadly, accountability for White Nationalist abuses of asylum seekers and other migrants by the Trump regime hasn’t been a priority for either a moribund Congress or the Biden Administration. And, a “New Jim Crow” 5th Circuit loaded with Trump judges isn’t likely to stop abuses of due process as long as they are directed primarily against persons of color. See, e.g., https://www.theguardian.com/law/2021/nov/15/fifth-circuit-court-appeals-most-extreme-us?CMP=Share_iOSApp_Other.

Nevertheless, as the GOP initiative to rewrite the history of racism in America rolls forward, it’s more important than ever to continually document  truth for the day in the future when America develops the communal courage to deal honestly with the past rather than intentionally and spinelessly distorting it.

🇺🇸Due Process Forever!

PWS

04-03-22

☹️OFTEN INDIFFERENT OR OVERTLY HOSTILE TO THE CONSTITUTIONAL & HUMAN RIGHTS OF MIGRANTS & WOMEN, SUPREMES’ MAJORITY MIGHT GREEN-LIGHT “OPEN SEASON ON HUMANITY” FOR CBP AGENTS!☠️

Lydia Wheeler
Lydia Wheeler
Journalist, Opening Argument
Bloomberg Law
PHOTO:Twitter

Lydia Wheeler writes for Bloomberg Law’s Opening Argument:

https://openingargument.substack.com/p/kings-and-queens-of-border-puzzle

‘Kings and Queens’ of Border Puzzle Courts Divided on Liability

pastedGraphic.png Lydia Wheeler

Welcome back to Opening Argument, a column where I dig into complicated legal fights, unpack issues dividing appeals courts, and discuss disputes ripe for Supreme Court review. On tap today: a look at when border patrol agents can be sued for violating someone’s constitutional rights.

Border patrol agents allegedly took Anas Elhady’s coat and shoes, and held him in a near-freezing cell without a blanket after he legally crossed the border back into the U.S. from Canada. Robert Boule was allegedly shoved to the ground by a border patrol agent who came onto his property without a warrant to check the immigration status of a guest at the inn Boule owns in Washington.

Can they each sue the agents for damages? The answer right now depends on which court is hearing their case.

The Supreme Court is expected to provide more clarity in a case it’s hearing later this term. Depending on how the justices rule, it could further insulate border patrol agents from liability.

If there’s no way to hold individual agents accountable for their conduct at the border, “then custom agents are kings and queens unto themselves,” said Elhady’s attorney Gadeir Abbas, a senior litigation attorney at the Council on American-Islamic Relations.

A 1971 Supreme Court decision gave people the right to hold federal officials liable when their constitutional rights are violated, but courts have been trying to figure out if or when that applies to immigration officials. So far, they’re coming to different conclusions.

The U.S. Court of Appeals for the Sixth Circuit said Elhady, who claimed his detainment violated his Fifth Amendment right to due process, didn’t have a right to sue the agents involved. The Ninth Circuit said Boule did.

. . . .

But the Supreme Court specifically refused to consider whether Bivens should be overruled when it agreed to hear the agent’s appeal in the Boule case. The justices will instead decide if you can bring a suit under Bivens for a First Amendment retaliation claim and whether you can sue federal officers engaged in immigration-related functions for allegedly violating your Fourth Amendment rights. Oral arguments in the case haven’t yet been scheduled.

“I could imagine a Supreme Court, in an opinion by Justice Alito saying something like ‘Yes Bivens still is the law, but we find that in this case involving enforcement of the immigration laws, Bivens claims really don’t fit and don’t belong, and limit Bivens one step further and say immigration cases are different,” said Kevin Johnson, the dean of University of California Davis School of Law.

If the court does that, Johnson, who’s written extensively on immigration law and civil rights, said it would embolden border patrol agents to feel like they can act with a great deal of discretion that will never be questioned.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editor responsible for this story: Andrew Childers at achilders@bloomberglaw.com; Jo-el J. Meyer at jmeyer@bloombergindustry.com

***************

Read Lydia’s full report at the link.

Hard to argue with the analysis of Dean Kevin Johnson, the “most often cited” immigration scholar in America according to a recent survey. 

Kevin R. Johnson
Kevin R. Johnson
Dean
U.C. Davis Law, “Most Cited Immigration Practical Scholar”

The rampant abuses of legal and human rights by the CBP, systemic racial bias, and almost total lack of accountability have been well-documented by civil rights advocates.  See, e.g., https://www.southernborder.org/border_lens_abuse_of_power_and_its_consequences

Here’s a telling excerpt from the foregoing report issued by the SPLC in 2020:

The number of deaths resulting from an interaction with CBP officers are indicators of the horrific culture of abuse, corruption, and disregard for human life that plagues the nation’s largest federal law enforcement agency. Unfortunately, these killings are not the only examples of abuse of power and corruption within CBP.

Numerous studies — both internal and external — have shown that CBP is plagued with a culture of impunity, corruption, and abuse. Its systemic problems also run deep. The discovery of a secret Facebook group full of racist, misogynist and xenophobic posts by Border Patrol agents brought to light more evidence of the agency’s culture of abuse. In it, agents routinely made sexist jokes, made fun of migrant deaths, and shared other hateful content. A year later, little action was taken by CBP, again pointing to the lack of transparency and accountability for the agency. Countless other reports have linked CBP to cases of officer misconduct, corruption and a general lack of accountability for criminal conduct and abusive actions.

Doesn’t sound to me like an ideal candidate for freedom from individual constitutional tort liability! Indeed, the reasons for applying Bivens to immigration agents appear quite compelling. Hard to think of a law enforcement agency more in need of “strict scrutiny.”

But, with the current Court majority, who knows? Kevin’s “highly educated guess” is as good or better than anyone else’s. After all, the Supreme’s majority had little difficulty enabling constitutional and human rights abuses carried out by the Trump regime on asylum seekers and other vulnerable migrants — in other words, “Dred Scottification” of the “other!”

Valerie Bauman
Valerie Bauman
Investigative Reporter
Bloomberg
PHOTO: Twitter

Many thanks to Val Bauman over at Bloomberg for bringing this article to my attention. I’ve missed Val’s lively and incisive reporting on the “immigration beat” for her previous employer. Come on back to immigration, Val! We miss you!

🇺🇸Due Process Forever!

PWS

12-14-21

🗽ASYLUM IS OUR LEGAL OBLIGATION, NOT AN “OPTION” OR SOMETHING TO BE “DETERRED” —  “For many migrants in peril, waiting in their home countries for a better time to seek asylum in the U.S. is not – nor could ever be – a viable option. . . . ‘I want to live. I want to be somebody. Nobody wants to die.’”

“Floaters”
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — The Biden Administration’s continuation of the Trump regime’s illegal and deadly anti-asylum policies at the border is totally unacceptable!
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

FROM SPLC:

The message was loud and clear: “Do not come.”

This would be the Biden administration’s initial attempt to deter migrants who fled danger in their home countries from seeking protection in the U.S.

First, President Biden in March discouraged migrants from trekking north to the U.S.-Mexico border to seek asylum. He suggested they stay in their home countries – where many face violence and persecution – as the administration addressed an increase in the number of unaccompanied migrant children crossing the southwestern border.

Then, the administration continued to rely on the contested Trump-era Title 42 order by the Centers for Disease Control and Prevention (CDC) to reject migrants at ports of entry and expel those who cross the U.S.-Mexico border without authorization, thereby denying their legal right to seek asylum.

And in June, the administration delivered another warning to would-be asylum seekers from Guatemala: “Do not come,” said Vice President Kamala Harris during a news conference alongside Guatemalan President Alejandro Giammattei. “The United States will continue to enforce our laws and secure our borders. If you come to our border, you will be turned back.”

Sarah Rich, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project, said the vice president’s comments were strikingly similar to rhetoric employed by the Trump administration.

“Seeking protection from violence and persecution is a fundamental human right, and the right to seek asylum is protected by U.S. and international law,” Rich said. “These remarks fly in the face of the right to seek asylum in the U.S. and indicate a disturbing continuity between the Trump administration and the Biden-Harris administration.”

For many migrants in peril, waiting in their home countries for a better time to seek asylum in the U.S. is not – nor could ever be – a viable option.

“I fled my country because I wanted to survive,” Emiliana Doe, whose name has been changed in this story to protect her identity, told the SPLC in Spanish. “I want to live. I want to be somebody. Nobody wants to die.”

READ MORE

In solidarity,

Your friends at the Southern Poverty Law Center

***************************

Speak out against the Biden Administration’s continuation of Trump’s illegal, inhumane, anti-asylum policies at the border! Demand that AG Garland replace unqualified “Miller Lite” anti-asylum Immigration Judges, who happily furthered the past regime’s xenophobic, anti-due-process policies, with far better qualified progressive experts! Demand a BIA that will be a courageous leader in granting legal protection and reducing backlogs through best practices and full due process! Demand that Garland stop dragging his feet and finally fulfill the original EOIR vision of “guaranteeing fairness and due process for all.” Demand an Attorney General with the backbone and integrity to tell Biden, Harris, & Mayorkas that their continued abrogation of asylum laws and international obligations, not to mention Constitutional protections, is grossly illegal and must end NOW!

By contrast with Garland’s timid, dilatory, and often apparently indifferent approach to the rule of law for migrants, not to mention human lives, Jeff Sessions had absolutely no problem intervening, without invitation, in any agency’s programs and policies to advance his  White Nationalist, nativist, xenophobic mis-interpretations of the law!

🇺🇸⚖️Due Process Forever!

PWS

07-25-21

🏴‍☠️☠️🤮⚰️👎🏻POLITICS: Without Ideas, Achievements, Or Humanity, GOP Turns To Trump’s Platform Of Hate! — FAIR Deserves Its “Hate Group” Designation By SPLC!

Colfax Massacre
Gathering the dead after the Colfax massacre, published in Harper’s Weekly, May 10, 1873

Former Klan leader David Duke once famously urged his fellow Klansmen to “get out of the cow pasture and into hotel meeting rooms” if they hoped to accomplish their goals.

The message was clear: A hate group with a mainstream veneer can get much further than a hate group that looks like one. It’s a lesson the radical right seems to have heeded as more hate groups monitored by the Southern Poverty Law Center present a mainstream face to the public as they peddle academic racism, white nationalist immigration policy or other beliefs that are every bit as corrosive to our nation as the beliefs spouted by someone in Klan or neo-Nazi garb.

The Federation for American Immigration Reform (FAIR) is one such hate group masquerading as a public policy think tank. Inspired by a recent resolution by the Republican National Committee that was aimed at giving the Trump administration cover for its racist and bigoted policies, FAIR decided to attack the SPLC’s hate group designations, claiming the SPLC is the “godfather” of “cancel culture” and is willing to attack any group that is not “woke” enough.

These allegations are nothing more than the latest fearmongering dog whistles that have been used by white supremacists to silence organizations and people – particularly people of color – when they speak out against injustice.

FAIR maintains that it “advocates mainstream immigration policy views.” Nothing could be further from the truth.

In fact, the group has long advocated upending the Immigration and Nationality Act of 1965, a law that ended a decades-long, racist quota system limiting immigration mostly to northern Europeans. In 1994, FAIR President Dan Stein said supporters of the act wanted to “retaliate against Anglo-Saxon dominance.” In 2011, FAIR launched an effort to end birthright citizenship provisions of the 14th Amendment, which is how most Americans become citizens.

Kris Kobach, who worked for FAIR’s legal arm, the Immigration Reform Law Institute, helped write Arizona Senate Bill 1070. Known as the “papers, please” law, the anti-immigrant law forced police officers to detain people they suspected of being undocumented immigrants and made it a misdemeanor for noncitizen immigrants to fail to carry their immigration papers.

Kobach also helped other states and communities across the country enact nativist laws designed to punish those who aid and abet “illegal aliens.” Those laws often proved to be massive financial burdens to the governments that passed them and, in many cases, sparked racial strife.

FAIR’s demonization of immigrants was laid bare in April 1999 when the group attacked then-U.S. Sen. Spencer Abraham, a Michigan Republican, for supporting more visas for foreign workers with technology skills. A FAIR newspaper ad placed a picture of Abraham, an Arab American, alongside a photo of Osama bin Laden and asked, “Why is a U.S. Senator Trying to Make It Easy for Osama bin Laden to Export Terrorism to the U.S.?”

What’s more, Donald A. Collins Sr., a member of FAIR’s advisory board and board emeritus, has written for VDARE, an anti-immigrant hate site that has a long history of publishing the works of white nationalists and antisemites. The site is named after Virginia Dare, said to have been the first English child born in the New World. Joe Guzzardi, a FAIR advisory board member, has worked as a VDARE editor.

Read more here.

In solidarity,

The Southern Poverty Law Center

************

It’s not “rocket science” to figure out FAIR isn’t a “woke” group. Nor is it rocket science to acknowledge that Kris Kobach, Stephen Miller, Jeff Sessions and others like them are White Nationalist racists!

Due Process Forever!

PWS

09-05-20

🏴‍☠️☠️🤮⚰️👎KAKISTOCRACY KORNER: SPOTLIGHT ON AMERICA’S MOST DANGEROUS HATE GROUP: THE RNC!

 

Paul,

This past weekend, the Republican National Committee caved to white supremacist and other hate groups by adopting a resolution titled Refuting the Legitimacy of the Southern Poverty Law Center to Identify Hate Groups.

The focus of the resolution is that “the SPLC is a radical organization” that harms conservative organizations and voices through our hate group designations.

This attack on our work is an attempt to excuse the Trump administration’s pattern and practice of working with individuals and organizations that malign entire groups of people — immigrants, Muslims and the LGBTQ community — while promoting policies that undermine their very existence. It comes from the same vein as Trump’s claim that there were “very fine people” on both sides of the 2017 Unite the Right rally in Charlottesville.

Simply put, it’s an audacious attempt by Trump and the GOP to paper over the bigotry and racism that has been allowed to infect their policies.

This resolution comes at a moment when Trump will argue at the Republican National Convention that he will combat hate and bigotry, despite welcoming the support of QAnon. It also comes days after the indictment of Stephen Bannon, reminding us that Bannon was once the White House chief strategist and senior counselor and CEO of Trump’s 2016 presidential campaign. And it comes just after our special investigation shined a light on One America News Network’s Jack Posobiec, a reporter at Trump’s favorite network who is aligned with white supremacy and has used his platform to further hate speech and propaganda.

Trump should sever these ties to hate groups and extremists instead of doubling down through this RNC resolution.

The Trump administration has filled its ranks and consulted with alumni and allies from the Federation for American Immigration Reform, an anti-immigrant hate group that has ties to white supremacist groups and eugenicists. They include Julie KirchnerKris KobachJeff Sessions and, most notably, Stephen Miller.

The Trump administration has worked with hate groups like the Family Research Council (FRC) to roll back LGBTQ rights. FRC was designated an anti-LGBTQ hate group for decades of demonizing LGBTQ people and spreading harmful pseudoscience about them. Over the years, the organization has published books, reports and brochures that have linked being LGBTQ to pedophilia, claimed that LGBTQ people are dangerous to children and claimed that LGBTQ people are promiscuous and violent.

Anti-Muslim groups have also been welcomed into the administration, including the Center for Security Policy (CSP)Fred Fleitz, a longtime staffer, was appointed the executive secretary and chief of staff of the National Security Council. For decades, CSP has peddled absurd accusations that shadowy Muslim Brotherhood operatives have infiltrated all levels of government.

These extremists are seeking a license to continue spreading their bigotry and will do anything to undermine those — like the SPLC, which tracks and monitors hate groups — who expose their extremist views and oppose their attacks on communities. With this resolution, Trump and members of the GOP have shown the extent to which they will carry their water.

This past weekend, the RNC also released a resolution titled Resolution to Conserve History and Combat Prejudice – Christopher Columbus. It’s a remarkably transparent statement that hate and bigotry stem from Black Lives Matter protesters. The RNC and Trump did not denounce organizations that promote antisemitism, Islamophobia, neo-Nazis, anti-LGBTQ sentiment or racism. It only criticized the SPLC for challenging those groups.

Outraged? Here are two ways to take action today:

1.     Sign up for our next Power Hour Virtual Phone Bank on August 27. We’ll be calling likely unregistered voters of color in Georgia to share information on how they can register to vote.

2.    Listen and subscribe to our new podcast, Sounds Like Hate. Episode 2 is about the connections between extremists and the Trump administration.

Onward,

Margaret Huang
SPLC President & CEO

DONATE
Update Preferences | Unsubscribe | Privacy Policy | Contact Us

Was this message forwarded to you? Sign up to receive SPLC updates. Pick up SPLC merchandise from the SPLC store. Make a recurring donation to the SPLC and become a Friend of the Center. Make a donation in someone else’s honor and send them an eCard. Make a planned gift to the SPLC and become a Partner for the Future. Take advantage of corporate matching gift opportunities and find out if your employer will match your donation to the SPLC.

Southern Poverty Law Center
400 Washington Avenue
Montgomery, AL 36104

Copyright 2020

 

***************************************

Pretty much says it all about today’s GOP and the Trump Administration.

·      No platform

·      No values

·      No truth

·      No humanity

·      No decency

·      No America

·      No inclusion

·      The party of “Dred Scottification,” Jim Crow, and White Supremacy

Sure “Sounds Like Hate” to me!

This November, vote like your life and the future of our world depend on it! Because they do!

PWS

08-25-20

 

 

 

🛡⚔️⚖️🗽 ROUND TABLE ASSISTS FIGHT AGAINST “AMERICA’S STAR CHAMBERS” — Here’s Our Amicus Brief In Las Americas v. Trump! — With Thanks To Our Pro Bono Friends STOLL STOLL BERNE LOKTING & SHLACHTER P.C. in Portland, OR!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Excerpt:

The immigration court system lacks independence. An agency within the Department of Justice, the Executive Office for Immigration Review (EOIR) houses the immigration court system, which consists of trial-level immigration courts and a single appellate tribunal known as the Board of Immigration Appeals (BIA). Immigration judges, including appellate immigration judges, are viewed by EOIR “management” not as judges, but as Department of Justice attorneys who serve at the pleasure and direction of the Nation’s prosecutor-in-chief, the Attorney General.

As former immigration judges, we offer the Court our experience and urge that corrective action is necessary to ensure that immigration judges are permitted to function as impartial adjudicators, as required under the Immigration and Nationality Act. The INA and its implementing regulations set forth procedures for the “timely, impartial, and consistent” resolution of immigration proceedings. See 8 U.S.C. §§ 1103, 1230; 8 C.F.R. § 1003.1(d)(1) (charging the Board with appellate review authority to “resolve the questions before it in a manner that is timely, impartial, and consistent with the [INA] and regulations”) (emphasis added); 8 C.F.R. § 1003.10(b) (similarly requiring “immigration judges . . . to resolve the questions before them in a timely and impartial manner”) (emphasis added).

Although housed inside an enforcement agency and led by the Nation’s chief prosecutor, immigration judges must act neutrally to protect and adjudicate the important rights at stake in immigration cases and check executive overreach in the enforcement of federal immigration law. Applying a detached and learned interpretation of those laws, judges must correct overzealous bureaucrats and policy makers when they overstep the bounds of reasonable interpretation and the requirements of due process.

Here’s the full brief:

Las Americas Amicus (full case)

************************

As I often say, it’s an honor to be a part of this group with so many of my wonderful colleagues. It’s also an honor to be able to assist so many wonderful “divisions and brigades” of the New Due Process Army, like the SPLC and Immigration Law Lab.

Here’s another thought I often express: What if all of this talent, creativity, teamwork, expertise, and energy were devoted to fixing our broken Immigration Court System rather than constantly fighting to end gross abuses that should not be happening? There is a “systemic cost” to “maliciously incompetent” administration and the White Nationalist agenda promoted by the Trump kakistocracy!

Knightess
Knightess of the Round Table

Due Process Forever!

PWS

08-04-20

🛡⚔️👍🗽⚖️👩🏻‍⚖️FIGHTING THE STAR CHAMBER! — US District Judge Holds That Constitutional Challenge To Weaponized Immigration “Courts” Can Proceed! — “Both policies change the way immigration judges run their dockets and their courtrooms. Accordingly, Plaintiffs have at least sufficiently alleged that such docket management has practical consequence for parties or their attorneys.”

Melissa Crow
Melissa Crow
Senior Supervising Attorney
Southern Poverty Law Center
Tess Hellgren
Tess Hellgren, Staff Attorney and Justice Catalyst Legal Fellow

FOR IMMEDIATE RELEASE

 

August 3, 2020

Contact: 

Marion Steinfels, marionsteinfels@gmail.com / 202-557-0430
Ramon Valdez, ramon@innovationlawlab.org / 971-238-1804

Federal Court Denies Government’s Motion to Dismiss in Immigration Court Case
Advocates’ challenge to immigration courts as “deportation machines”
moves forward; constitutionality of immigration court system at issue  

 

PORTLAND, OR – Immigrant rights advocates challenging the weaponization of the U.S. immigration courts applaud Friday’s late-afternoon ruling by the U.S. District Court of Oregon that their lawsuit, Las Americas v Trump, will move forward. The legal services providers, Las Americas Immigrant Advocacy Center, Asylum Seeker Advocacy Project (ASAP), Catholic Legal Immigration Network, Inc. (CLINIC), the Southern Poverty Law Center (SPLC), Innovation Law Lab, and Santa Fe Dreamers Project (SFDP), working with Perkins Coie LLP for pro bono support, allege that the Administration has failed to establish an impartial immigration court as required under the Immigration and Nationality Act (INA) and the Take Care Clause of the U.S. Constitution – weaponizing them into deportation machines against asylum seekers and other noncitizens – and asks the court to end the unlawful use of the courts to effectuate mass deportations instead of fair decisions.

 

In Friday’s order, the Honorable Karin Immergut denied the government’s motion to dismiss the case.   The district court rejected the government’s arguments, holding that all of the organizations’ claims could proceed, including their claim that the Attorney General has grossly mismanaged the immigration court system and weaponized the system against asylum seekers.

“This is a clear victory for everyone who has sought a fair hearing in immigration court, only to face a system plagued by rampant dysfunction and policies designed to subvert justice,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “For asylum seekers and those who represent them, the current process is like playing Russian roulette. Despite the life-or-death stakes in these cases, there is little rhyme or reason to the court’s workings apart from prioritizing deportation at all costs.”

 

“Friday’s decision is an important milestone in our fight for a truly fair, transparent, and independent immigration court,” said Tess Hellgren, staff attorney with Innovation Law Lab. “Whether an asylum seeker wins or loses should not depend on the political whims of the President or Attorney General. ”

 

Not only does the Court’s decision confirm that the gross mismanagement of the immigration court system is subject to judicial review, it also recognizes that there may be important constitutional checks and balances on the power of presidential administrations to manipulate the immigration courts to achieve mass deportation.

“This win is incredibly validating. We often operate under the guise that the work we are doing is impossible,” said Linda Corchado, Managing Attorney of the Las Americas Immigrant Advocacy Center. “We feel uplifted as we can take the giant step forward to tackle the system now, with everything we’ve got.”

 

“ASAP works with families across the United States and at the border who fled persecution and now face countless obstacles to seeking asylum in the U.S. immigration court system,” said Conchita Cruz, Co-Executive Director of ASAP. “This decision gets us one step closer to showing that the injustices of the U.S. immigration court system are not only wrong, but illegal. We stand with asylum seekers and immigrants’ rights advocates in bringing these abuses to light and demanding better from our government.”

 

The lawsuit, which was filed in December 2019, alleges President Trump, Attorney General Barr, and other members of the executive branch have failed to establish a fair immigration court system in which the plaintiff organizations can provide meaningful legal assistance to their asylum-seeking clients. The complaint outlines pervasive dysfunction and bias within the immigration court system, including:

  • The Enforcement Metrics Policy, , which requires immigration judges to decide cases quickly, at the expense of a fair process, in exchange for favorable performance reviews.
  • The “family unit” court docket, which stigmatizes the cases of recently arrived families and rushes their court dates, often giving families inadequate time to find an attorney and prepare for their hearings.
  • Areas that have become known as “asylum-free zones,” where virtually no asylum claims have been granted for the past several years.
  • The nationwide backlog of pending immigration cases, which has now surpassed 1 million — meaning that thousands of asylum seekers must wait three or four years for a court date.

In June 2019, Innovation Law Lab and SPLC also released a report, based on over two years of research and focus group interviews with attorneys and former immigration judges from around the country, documenting the failure of the immigration court system to fulfill the constitutional and statutory promise of fair and impartial case-by-case adjudication. The report can be accessed here: The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool.

 

The court’s opinion is HERE.

###

 

The Southern Poverty Law Center, based in Alabama with offices in Florida, Georgia, Louisiana, Mississippi and Washington, D.C., is a nonprofit civil rights organization dedicated to fighting hate and bigotry, and to seeking justice for the most vulnerable members of society. For more information, see www.splcenter.org and follow us on social media: Southern Poverty Law Center on Facebook and @splcenter on Twitter.  

 

Innovation Law Lab, based in Portland, Oregon with projects around the country and in Mexico, is a nonprofit organization that harnesses technology, lawyers, and activists to advance immigrant justice. For more information, visit www.innovationlawlab.org.

 

The Asylum Seeker Advocacy Project (ASAP) provides community support and emergency legal aid to asylum seekers, regardless of where they are located. ASAP’s model has three components: online community support, emergency legal aid, and nationwide systemic reform. For more information, see www.asylumadvocacy.org and follow us on social media at @asylumadvocacy on Facebook, Twitter and Instagram.

 

************************

So, finally, the clear unconstitutionality of  “Star Chambers” run by a biased prosecutor who basically views himself as the personal lawyer for a racist xenophobic President is going to get some scrutiny, along with the beyond grotesque mismanagement of EOIR that has created a “backlog” that in all likelihood now exceeds 2 million cases. But, of course we don’t know, and may never know, the exact extent of the backlog because of 1) the notoriously defective record keeping at EOIR; and 2) the manipulation of and sometimes outright misrepresentation of data by the Trump Administration.

Thanks to SPLC and Innovation Law Lab for undertaking this long-overdue effort. And, special appreciation to my friends and New Due Process Army superstars Melissa and Tess.

Due Process Forever!🗽⚖️👩🏻‍⚖️

PWS

08-03-20

🏴‍☠️☠️⚰️👎🤮KAKISTOCRACY KORNER:  Chase, Schmidt Rip Billy The Bigot’s Appointment Of Hate Grouper To Arlington “Bench” – Failed System Drops All Pretenses Of Fairness & Due Process As Feckless Congress & Complicit Article IIIs Flunk Constitutional Duties! –

 

https://www.law360.com/immigration/articles/1293543/ex-fair-research-director-among-46-new-immigration-judges

Hannah Albarazi
Hannah Albarazi
Federal Courts
Reporter
Law360
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges
Me
Me

Ex-FAIR Research Director Among 46 New Immigration Judges

By Hannah Albarazi

. . . .

“It would be impossible for one to receive a fair hearing before Matthew O’Brien,” Jeffrey Chase, a New York City immigration lawyer and former immigration judge, told Law360. Chase said O’Brien has expressed a view of asylum law that is at odds with the controlling circuit case law that he would be tasked with applying from the bench.

Chase said O’Brien has “basically spouted propaganda for an organization openly hostile to immigration.”

His appointment, Chase said, shows that the Trump administration doesn’t want a fair and independent immigration court and is proof that the Executive Office for Immigration Review needs to be taken out of the control of the Department of Justice, an enforcement agency.

The administration “has repeatedly emphasized to classes of new immigration judges that they are above all employees of the attorney general, who does not believe most asylum seekers are deserving of protection,” Chase said.

These appointments could negatively impact the immigration courts for decades, Chase said.

Paul Wickham Schmidt, a retired U.S. immigration judge who chaired the Board of Immigration Appeals in the Clinton administration, also slammed the recent wave of appointments.

“The idea that these are the 46 best qualified individuals in America to discharge these awesome responsibilities in a fair, impartial and expert manner, in furtherance of due process of law and with recognition of the human rights and human dignity of the individuals whose lives are at stake, is beyond preposterous. It’s a fraud on American justice,” Schmidt told Law360.

Schmidt didn’t mince his words about O’Brien’s appointment either.

“As someone who has helped FAIR spread its racially biased, anti-immigrant, and anti-asylum propaganda and false narratives, O’Brien is not qualified to be a fair and impartial quasi-judicial decision maker as required by the due process clause of our Constitution,” Schmidt said.

.  .  . .

**********************************

Those with Law360 access can read Hannah’s complete article at the link.

The U.S. Justice system, once the envy of free nations throughout the world, is disintegrating before our eyes. If there is no justice for those whose lives are at stake, there will be no justice for any of us in the Trump/Barr Third World kakistocracy.

Due Process Forever! Corrupt & Feckless Institutions Parodying Justice, Never!

 

PWS

 

07-21-20

🏴‍☠️☠️⚰️👎🏻KAKISTOCRACY GONE WILD: Billy The Bigot Adds 46 More To America’s Star Chambers — Long on Government Backgrounds, Particularly Prosecutorial — Short on Immigration Expertise or Reputations For Fairness &  Scholarship — CONSPICUOUSLY ABSENT: Asylum, Human Rights Expertise & Experience Representing Humans Seeking Justice!

Here’s the list with bios:

https://www.justice.gov/eoir/page/file/1295301/download

This list includes what appears to be a municipal traffic court judge and someone who spent the last four years working for a white nationalist hate group (per the SPLC). 

https://www.youtube.com/watch?v=mesbqxTSzEM

Due Process Forever! America’s Star Chambers, Never!☠️⚰️🤮

PWS

07-19-20

☠️☠️👎🏻👎🏻BAD FAITH REGIME: Federal Judge Slams DHS Detention Response To COVID-19, Orders Custody Reviews: “Defendants have likely exhibited callous indifference to the safety and wellbeing of the Subclass members [detained immigrants at risk]. The evidence suggests systemwide inaction that goes beyond a mere ‘difference of medical opinion or negligence.’” 

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/court-orders-custody-review-of-ice-prisoners-at-risk-for-c19

Court Orders Custody Review of ICE Prisoners at Risk for C19

SPLC, Apr. 20, 2020

“A federal judge today ordered Immigration and Customs Enforcement (ICE) to promptly revisit custody determinations, including consideration of release for all persons in ICE detention whose age or health conditions place them at increased risk due to the Covid-19 pandemic. The order comes weeks after the Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), Southern Poverty Law Center (SPLC), Orrick LLP and Willkie Farr and Gallagher LLP filed for an emergency preliminary injunction on March 25.

In his blistering rebuke of the government’s response to Covid-19 in detention centers, U.S. District Judge Jesus Bernal wrote, “As a result of these deficiencies, many of which persist more than a month into the COVID-19 pandemic, the Court concludes Defendants have likely exhibited callous indifference to the safety and wellbeing of the Subclass members [detained immigrants at risk]. The evidence suggests systemwide inaction that goes beyond a mere ‘difference of medical opinion or negligence.’” “

*************

Go on over to LexisNexis above for a link to the SPLC report and copy of Judge Bernal’s order. 

Thanks and congrats to SPLC and all the pro bono all-stars involved for taking this on. Will there eventually be accountability and liability for what appears to be intentional, life threatening misconduct, or at best criminal negligence, among officials of the Trump regime?

PWS

04-21-20

SPLC: U.S. District Court Judge Jesus Bernal Approves Nationwide Class Challenging Conditions in Gulag During Pandemic

DETAINED MIGRANTS WIN IN FEDERAL COURT: JUDGE GREENLIGHTS NATIONWIDE CLASS ACTION LAWSUIT

April 16, 2020

To make Press Center inquiries, email press@splcenter.org or call us at 334-956-8228.

Tens of thousands of immigrants denied medical care and disability accommodations by the federal government will have their day in court

RIVERSIDE, Calif. – A federal judge ruled today that a nationwide class action lawsuit against Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) can proceed, greenlighting a challenge to ICE’s system-wide failure to provide standard medical and mental health care and disability accommodations for people in its custody.

U.S. District Court Judge Jesus Bernal issued the ruling in the lawsuit filed by the Southern Poverty Law Center (SPLC), Disability Rights Advocates (DRA), Civil Rights Education and Enforcement Center (CREEC), Orrick, Herrington & Sutcliffe LLP and Willkie Farr & Gallagher LLP. The plaintiffs seek zero monetary damages and instead only an end to the inhumane and traumatic experience of ICE detention affecting tens of thousands across the country.

Judge Bernal denied the government’s motion to divide the nationwide lawsuit into 15 individual cases in eight district courts. He also denied ICE’s motion to strike the 200-page complaint, which was filed in the U.S District Court for the Central District of California in August 2019.

The ruling comes amid the spread of Covid-19 in detention centers, a dangerous scenario that doctors and public health experts across the country have warned will only be made worse by ICE’s lack of pre-existing medical care and substandard detention center conditions. On March 25, the groups filed an emergency preliminary injunction motion in the case requiring ICE to immediately fix numerous deficiencies in its Covid-19 response, such as inadequate staffing, resources and oversight. The motion further seeks the immediate release of medically vulnerable people if ICE cannot or will not take immediate steps to protect those who are in its custody. Judge Bernal has yet to rule on that injunction.

“Today, the court rejected ICE’s false narrative that our plaintiffs’ stories represent just a few individual problems,” said Lisa Graybill, SPLC deputy legal director. “The court saw through ICE’s deliberate mischaracterization of our case. This is the first step in holding ICE to account for its appalling treatment of the tens of thousands of immigrants needlessly incarcerated and languishing in its prisons around the country.”

 

According to the lawsuit, ICE has failed to provide detained migrants in over 150 facilities nationwide with safe and humane conditions, as required by agency standards, federal law and the U.S. Constitution. Numerous reports, including accounts by internal government investigators, detail the lack of sufficient medical and mental health care treatment, ultimately resulting in untreated medical needs, prolonged suffering and preventable death. ICE’s punitive use of segregation violates the Fifth Amendment of the U.S. Constitution. The agency’s failure to ensure that detained immigrants with disabilities are provided accommodations and do not face discrimination violates Section 504 of the Rehabilitation Act of 1973.

 

“Mentally, they are killing us,” said plaintiff Ruben Mencias Soto. “What I am living and what I am seeing is not only my situation. This is unjust as a system. [The government] is falling to the lowest level with ICE.”

Mencias Soto, who has been detained at Adelanto ICE Processing Center in California for over a year, has dislocated and herniated discs in his back. He has had his wheelchair and crutches taken away by detention staff, leaving him without a device to help him walk and causing immense pain.

 

“Across the country, ICE continually fails to provide basic medical care and necessary disability accommodations to people in immigration detention – putting thousands of people in life-threatening danger every day. From holding people with disabilities in solitary confinement solely because of their medical needs to denying patients in detention doctor-ordered emergency medical care, ICE has demonstrated incompetence and cruelty toward people with disabilities. Disability Rights Advocates is committed to fighting for the civil rights of those in custody until ICE complies with U.S. law,” said Stuart Seaborn, Managing Director of Litigation, Disability Rights Advocates.

 

“ICE’s failure to ensure that private prison companies like the GEO Group adequately take care of people in their custody has been an open secret for a long time,” said Timothy Fox, co-executive director of the Civil Rights Education and Enforcement Center. “We are pleased that the court will allow us to move forward and hopefully end the impunity with which this agency and its private operators have been acting for too long.”

 

Plaintiff Jose Baca Hernandez underscored that the goal of the case is to “improve health for me and the rest of the people here [in detention]. This is not only for me. It’s so everyone here can be healthy.” During his time in custody, ICE failed to provide Baca Hernandez–a blind man–with effective communication. He has been forced to rely on his cellmates, attorneys, and guards to read documents, including those related to his medical care and immigration case.

 

Plaintiff Luis Rodriguez Delgadillo, who has schizophrenia and bipolar disorder, had reached a considerable measure of mental health stability before his detention. In detention, however, his shifting medication regime, lack of therapy and the failure of mental health staff to mitigate stressors have caused his mental health to noticeably decline.

 

This case is about fighting to ensure “we all can get better treatment,” Rodriguez Delgadillo said. “Some people don’t have the means or are scared to speak, so we fight for everyone else.”

 

The parties will work with the court to set the schedule for the litigation of the case.

See plaintiffs’ opposition to defendants’ motion to sever and dismiss, transfer actions, and strike portions of the complaint here.

 

See the complaint here and all other filings in the case here.

***********************

What if we had a Government that “did the right thing” without being sued?

Due Process Forever!

PWS

04-17-20

THE DAILY BEAST: “Trump Administration Has Turned Immigration Court Into ‘Public Health Hazard’” — As Federal Judges Dither & Wobble, Trump Regime Endangers Public Health! ☠️☠️☠️☠️☠️

Sam Brodey
Sam Brodey
Congressional Reporter
The Daily Beast
Scott Bixby
Scott Bixby
National Reporter
The Daily Beast

Sam Brodey & Scott Bixby report in The Daily Beast:

https://www.thedailybeast.com/trump-administration-has-turned-immigration-court-into-public-health-hazard

In a country ground to a standstill by the coronavirus pandemic, there is one place normalcy reigns: immigration courts.

Overburdened judges oversee packed proceedings; attorneys shuttle clients and paperwork from room to room, often with interpreters in tow; aspiring legal citizens, or at least residents, follow closely, sitting through hearings famously described as death-penalty cases held in a traffic court.

The courts, along with visa applications, detention hearings and other immigration related bureaucracy, are seemingly the lone part of the federal government still expected to function as if a global pandemic hasn’t upended nearly every facet of American life. But those tasked with keeping the machine running say that they have received little guidance about how to keep the system running in the era of social isolation, and even less protection despite fears that immigration proceedings put some of the most vulnerable people in the country in the impossible position of choosing between their health or their home.

The Trump administration has refused to allow immigration courts and visa hearings to comply with the same social isolation standards followed by nearly every other civil aspect of government, and has not allowed for previously scheduled hearings to be postponed. The administration has also issued little in the way of guidance for judges, immigration attorneys or immigrants, whose hearings—which often take years to schedule—directly conflict with stay-at-home orders across the county.

“The immigration court’s refusal to adopt policies that protect the health of respondents, lawyers, judges and immigration court staff during the current pandemic forces immigrant families and their lawyers to make an impossible decision: endanger public health or risk being deported,” said Nadia Dahab, senior litigation attorney at Innovation Law Lab, one of half a dozen immigrants-rights groups that on Friday filed an emergency order challenging the operation of immigration courts despite the crisis.

“We are in the middle of a global pandemic, but the immigration court system is continuing to operate as if it’s business as usual,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “The government has turned the court system into a public health hazard.”

. . . .

******************

Read the rest of the article at the link. 

With very few exceptions, deportations are hardly “essential” during a worldwide pandemic. Indeed, given that even asymptomatic individuals can and have spread the disease, deportation will certainly spread the risk to other countries that likely won’t be able to control it. 

There is currently no cure, no vaccine, and no known way of controlling the coronavirus other than staying home. While this well-known information might have gone over the heads of EOIR and Article III Judges, you really wouldn’t need a law degree of even be very smart to figure out that Immigration Courts and the DHS Gulag need to be shut down. Now! No Article III Judge would actually want to trust his or her life to operating under the messed up “guidelines” issued by EOIR! So why is it OK for others?

Statistics show that the longer we wait to keep everyone home, the more individuals who will die! Why is that such a hard concept for EOIR officials and Article III Judges to grasp? 

This is a time for “radical prudence” not “criminal recklessness.” The Government should have to demonstrate “clear and convincing” reasons and “best health practices” to go forward with any individual removal case during the pandemic.

Because so many Federal Judges have little understanding of what it means to appear in the Immigration “Courts” (which are not “courts” in any sense of the word) and because they use exceptionally  poor judgement in believing regime bureaucrats who have no credibility on issues of public health or anything else, over experts in the field, individuals will unnecessarily suffer and die.

At some point in the future, there will have to be an accounting for the whole mess that has been allowed to unfold as a result of Trump’s biased and irrational immigration policies. Examination of the unconscionably poor response by the Article III Judiciary must be part of that process. They are a key part of unnecessarily “endangering public health” as described in this article.

The Article III Judges we have now are what we have — they have life tenure. But, going forward we can do better — much better. And, our lives and the future of humanity will depend on it.

Due Process Forever! Better Judges For A Better Future! Constantly Confront Complicit Courts 4 Change!

PWS

04-02-20