VICTORY ON THE WESTERN FRONT: “Western Brigade Of The NDPA” (A/K/A Pangea Legal Services) wins Key Bond Battle! — “An immigration court should not serve to merely justify an immigrant’s deportation, but rather it should be there to serve justice. . . . We hope Floricel’s case serves as a lesson for all immigration judges across the United States.” 

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On Wednesday, March 14, 2018, Pangea client, Floricel Liborio Ramos, was freed from immigration detention after substantial litigation, multiple appeals, and requests for her release. Today, on her first day free after 11 months, Floricel came out to speak in gratitude for the massive community love and support she received throughout her detention. We hope that her case can set a positive example for judges and courts across the United States.  Read the Federal District Court’s order here.

Community members from Faith in Action, RISE, California Immigrant Youth Justice Alliance, the Immigrant Liberation Movement, and others out in support of Floricel’s hearing at the Federal District Court in Northern California (San Francisco, March 13, 2017)

 

Federal District Court’s Order Freeing Floricel Liborio Should Serve as a Lesson to All Immigration Judges Across the U.S.

 IMMIGRANT RIGHTS ACTIVISTS CELEBRATE THE MOMENTOUS REUNITING OF FLORICEL LIBORIO RAMOS WITH HER FAMILY AFTER ORDER BY UNITED STATES DISTRICT COURT JUDGE JON S. TIGAR REQUIRING HER RELEASE. THE ORDER SHOULD SERVE AS A LESSON TO IMMIGRATION JUDGES THAT THEY CANNOT DENY BOND TO IMMIGRANTS SIMPLY BECAUSE OF A DUI.

WHAT: Press conference in celebration of Floricel’s returning home to her children after over 11 months in immigration custody

WHERE: Phillip Burton Federal Building, 450 Golden Gate Ave., San Francisco, CA 94111

WHEN: 11:30am on Thursday, March 15, 2018

WHO: Floricel, immigrant rights activists, faith leaders and other supporters

San Francisco, CA- Immigrant rights activists hold press conference at SF Federal District Court Building welcoming Floricel Liborio Ramos after she was released on Wednesday following a District Court order granting her immediate release from the West County Detention Facility.  Ms. Liborio Ramos detention comes to a celebrated closure after District Court Judge Jon S. Tigar ruled that the Government failed to meet its burden to demonstrate by clear and convincing evidence that Ms. Liborio Ramos poses a threat to the community.

Judge Tigar found Immigration Judge Burch had erred when she unfairly ruled that Floricel was a danger to the community given her previous DUIs, “The IJ’s decision not to release Liborio Ramos rests firmly on Liborio Ramos’s two DUI convictions.[…] while an immigrant’s criminal history is relevant, ‘criminal history alone will not always be sufficient to justify denial of bond on the basis of dangerousness.’”

“[T]wo non-violent [DUI] misdemeanors in which no one was injured, in light of the other facts in this record, simply do not justify indefinite detention,” Judge Tigar’s ruling continued. In a few days, Ms. Liborio Ramos would have been detained for nearly a year, more than the longest sentence she could have served under California law for a misdemeanor DUI.

“We’re seeing undocumented immigrants punished twice by the immigration courts,” claimed Jehan Laner Romero, Ms. Liborio Ramos’ attorney at Pangea Legal Services. “This was the case with Floricel, who was complying with the criminal court order for her prior DUI conviction.”

Community supporters of Ms. Liborio have much to celebrate after 8 months of arduous efforts to support her case by packing the courtroom during her hearings, holding rallies and uplifting their support for Floricel. Immigration Judge Valerie A. Burch had denied her bond on two different occasions, even though the Government failed to sustain its burden to prove Ms. Liborio Ramos was a danger to the community. To many, this only highlights the unjust practices of some immigration courts — and the importance of higher courts and community members to hold immigration judges accountable. “An immigration court should not serve to merely justify an immigrant’s deportation, but rather it should be there to serve justice,” said Blanca Vazquez, one of the organizers supporting Ms. Liborio Ramos’ case with the Immigrant Liberation Movement. “We hope Floricel’s case serves as a lesson for all immigration judges across the United States.” 

Floricel speaks at press conference before the court that ordered her release (San Francisco, March 15, 2018)

 

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ROBIN UREVICH TAKES US INSIDE THE DEADLY “NEW AMERICAN GULAG” OPERATED BY THE DHS — “Civil Detainees” Are Dying At A Rate Of About One Per Month In The Hands Of Our Government — Many Think Some Of These Deaths Were Preventable!

The fabulous investigative reporter Robin Urevich with continuing coverage from Capitol & Main’s “Deadly Detention Series:”

https://capitalandmain.com/deadly-detention-self-portrait-of-a-tragedy-0314

“Deadly Detention: Self-Portrait of a Tragedy

Co-published by International Business Times
The missteps and errors of ICE and its contractors have led to concerns about the safety of immigrant detainees with mental health issues.

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Robin Urevich

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A suicidal detainee never got the mental health care he needed and was placed in a cell that contained a known suicide hazard,
a ceiling sprinkler head.


Co-published by International Business Times

Sometime after midnight in mid-May of 2017, 27-year old JeanCarlo Jimenez Joseph fashioned a noose from a bed sheet and hanged himself in his solitary confinement cell at the Stewart Detention Center, located in the pine woods of southwest Georgia. Stewart’s low-slung complex lies behind two tall chain-linked fences, each crowned with huge spirals of glinting barbed wire. Beginning in 2006, the facility began to house undocumented immigrants detained by U.S. Immigration and Customs Enforcement.

Jimenez’s fall sounded like a sledgehammer blow, said 20-year-old Abel Ramirez Blanco, who was also in segregation at Stewart that night. Another detainee, Miguel Montilla, had peered through the metal grate on his door and saw guard Freddy Wims frantically knocking at Jimenez’s cell door. “He got on the walkie-talkie and started screaming,” Montilla said.

“I looked in the door and I didn’t see him,” Wims would later remember. Wims scanned the small cell until, he said, “I looked over in the corner by the commode and he was hanging there by the sheet.”

Within hours, Georgia Bureau of Investigation agents descended on Stewart, about 140 miles south of Atlanta, to find out if foul play had been involved in Jimenez’s death. It wasn’t. But the investigation, which generated audio interviews of Stewart staff and detainees, along with recordings of Jimenez’s personal phone calls and official documents, revealed that CoreCivic, the for-profit prison company that operates Stewart for ICE, and ICE Health Services Corps, which provides health care at Stewart, cut corners and skirted federal detention rules. The organizations’ missteps and errors have led to concerns about the safety of immigrant detainees with mental health issues.

Also Read: “Hell in the Middle of a Pine Forest”

The probe disclosed that Jimenez repeatedly displayed suicidal behavior, but never got the mental health care he needed. He was also placed in a cell that contained a known suicide hazard, a ceiling sprinkler head, upon which he affixed his makeshift noose. Freddy Wims was assigned to check Jimenez’s cell every half hour, but didn’t do so. Instead, he falsified his logs to make it appear he had, and he was later fired. Stewart’s warden, Bill Spivey, retired after Jimenez’s death; a CoreCivic spokesman told The Atlanta Journal-Constitution that the two events were unrelated. Spivey couldn’t be reached for comment for this article.


Psychiatrist: Placing a suicidal prisoner in solitary confinement is like placing someone with bad asthma in a burning building.


CoreCivic’s spokesman, Jonathan Burns, didn’t respond to questions about Jimenez’s death and detention. Instead, he wrote in an email, “CoreCivic is deeply committed to providing a safe, humane and appropriate environment for those entrusted to our care, while also delivering cost-effective solutions to the challenges our government partners face.” ICE spokeswoman Tamara Spicer wrote in an email that she couldn’t answer questions about the case because it is “still undergoing a comprehensive review that has not been released.”

Jimenez had been in solitary for 19 days at the time of his death — punishment for what his sister would tell investigators was an earlier suicide attempt. He had leapt from a second-floor walkway in his dormitory, and later repeatedly told detention center personnel, “I am Julius Caesar for real.” He was physically unhurt, but Stewart staff were aware he was suffering from mental illness and had a history of suicide attempts, documents show. Still, after his jump, Jimenez saw a nurse who quickly cleared him for placement in a 13-by-7-foot segregation cell alone for 23 hours a day. After that, his suffering seemed to intensify.

“Placing a suicidal prisoner in segregation is like placing someone with bad asthma in a burning building,” Terry Kupers, a Bay Area psychiatrist who has studied solitary confinement and who reviewed some of the documents in Jimenez’s case, noted in an email. He added that half of successful prison suicides occur among the three to eight percent of prisoners in solitary confinement.

Jimenez wasn’t put on suicide watch, or even ordered monitored more frequently than the normal half-hour checks. He continued to display alarming behavior. Montilla told the GBI that he and a guard had heard Jimenez screaming and banging on his cell wall two weeks before his death. “Man, I’m suffering from psychosis and I hear voices talking to me and they’re bothering the shit out of me,” Montilla recalled Jimenez saying.

Registered Nurse Shuntelle Anderson told a GBI agent that some five days before his death, she saw Jimenez banging the metal mirror in his cell. He told her, “These fucking voices, they won’t leave me the fuck alone …They’re telling me to commit suicide…but I don’t want to harm myself.”


See Interactive Map of U.S. Detention Deaths


Jimenez asked Anderson for a higher dose of the anti-psychotic drug Risperidone, which he’d previously been prescribed at a North Carolina mental health facility. It was at least the second such request he’d made at Stewart — where he received only a fourth of his normal dosage.

Anderson told investigators she left a note for the facility’s behavioral health counselor, Kimberly Calvery, saying that Jimenez wanted more medication. Calvery arranged for him to speak with the detention center’s psychiatrist but Jimenez didn’t live long enough to keep the appointment, which was scheduled later in the morning he died. Calvery later told investigators that Jimenez “never showed any suicidal tendencies at the Stewart Detention Center.”


Homeland Security reported that at the Stewart Detention Center solitary confinement, which  isn’t supposed to be punitive, appeared to be sometimes used to punish trivial offenses.

 


“He was such a good kid,” Anderson told investigators in the hours after Jimenez’s death. Earlier that night, she’d given him medication and he’d shared a self-portrait he’d been working on. “It was very nice, very detailed and last night, when I went down there, he said, ‘Look, I finished it.’” Anderson said. Guards and detainees also described Jimenez as mostly lucid and friendly, despite his occasional outbursts, quirky comments and a propensity to call himself Julius Caesar.

In a December 2017 report, “Concerns about ICE Detainee Treatment and Care at Detention Facilities,” the Homeland Security inspector general wrote that at Stewart and three other facilities (which are operated by county governments), “We identified problems that undermine the protection of detainees’ rights, their humane treatment, and the provision of a safe and healthy environment.” The IG’s staff wrote that immigration detention isn’t supposed to be punitive, and noted that at three of the facilities, including Stewart, segregation or solitary confinement appeared to be sometimes used to punish trivial offenses. At Stewart, the inspectors also found that showers were moldy and lacked cold water in some cases, and some bathrooms had no hot water, and that medical care, even for painful conditions, had been delayed for detainees.


Since 2003, 179 immigrant detainees have died in custody, many from preventable causes, like pneumonia and alcohol withdrawal.


Additionally, despite Jimenez’s nonviolent crimes, he was classified as a high-risk detainee. He had been convicted of marijuana possession, petty theft and an assault charge that arose from an unwanted hug he gave a woman in Raleigh, North Carolina. He was issued a red jumpsuit to signal his danger level and housed with others who were similarly classified. The inspector general’s report flagged misclassification of detainees as a problem at Stewart. While there, Jimenez wavered between wanting to wage a court battle to stay in the U.S., and paying for his own return to Panama through a process called voluntary departure. But, before he could take the first steps to fight his case, he ran into roadblocks, including the failure of the detention center to send a set of documents that Jimenez’s attorney had requested.

 Since 2003, 179 immigrant detainees have died in custody, many from preventable causes, like pneumonia and alcohol withdrawal. Human rights groups point to dozens of others who endure painful medical conditions and must wait for care or never receive it at all.

Like Jimenez, they’ve been dropped into a ballooning system whose rapid growth and diffuse nature would make it hard for the government to closely monitor, even if it attempted to do so.

ICE had fewer than 7,500 detention beds in 1995. Now the system is 500 percent bigger, with nearly 40,000 beds nationwide in 200 facilities that operate under three different sets of government standards. The Trump administration plans to add 12,000 more beds this year alone even as vulnerable detainees currently fall through the cracks.


JeanCarlo Jimenez completed his self-portrait and tied knots in a white bed sheet to shorten it. A guard  observed him jumping rope with it.


Federal officials largely maintain a hands-off approach, leaving it to private prison companies like CoreCivic and the GEO Group to run day-to-day affairs. The companies tend to run them like prisons and not as the civil detention facilities that the law says they are.

Photo: Robin Urevich

“Contractors operating facilities for ICE typically have backgrounds in corrections, and this shapes how they administer their ICE detention facilities,” said Kevin Landy, who led the Obama administration’s immigration detention reform efforts as the head of ICE’s Office of Detention Policy and Planning.

“Problems such as medical care, the way disciplinary proceedings are administered, the lack of sensitivity to detainee needs, and conditions generally reflect the problems writ large in our correctional system,” Landy said.

At Stewart, these problems have been particularly acute, said attorney Azadeh Shahshahani, whose group, Project South, monitors conditions at Stewart. “The facility needs to be shut down. It’s beyond redemption.”

Jimenez had come to the United States from Panama when he was 10, graduated from high school in Kansas, and considered himself American, even though he lived in the U.S. without documents most of his life. Public records show he even registered to vote in North Carolina — as a Republican.

“When I heard what happened, it blew my mind,” said Matt Schott, who was about four years older than Jean Jimenez and now works for an oil and gas exploration company in Kansas. Jimenez was 19 when he and his sister, Karina Kelly, came to Matt’s church, and they became friends 12 years ago. “He brought a lot of laughter to everybody,” Schott said, recalling Jean’s huge open smile. In photos, he’s beaming, showing a mouthful of teeth and wearing a big afro.

“Jean would just show up at the house. We’d play Christian worship music, and be up till 3 or 4 in the morning. We would get a bunch of food and go to a park,” Schott remembered. A video on Jean’s Facebook page shows him executing expert dance moves as friends play instruments outdoors.

Schott said when they began to share more of their lives, Jean tearfully told Matt he was undocumented and had to hide in plain sight. “He had big dreams. He wanted to start an architecture firm and had already named it — Eyes Design.”

Except for a few Facebook messages they exchanged, Schott lost track of Jimenez after the latter moved to North Carolina with his mother and stepfather about eight years ago. While there, Jimenez had obtained protection from deportation through the Obama administration’s DACA or Deferred Action for Childhood Arrivals program.

But, in the six months before he was detained, his mental health declined. He was hospitalized twice for psychotic episodes and lost his DACA status. Jimenez also had the misfortune of being arrested just as President Trump took office. The new administration had declared that anyone in the country illegally was fair game for immigration enforcement, even if they’d committed no crime or if their crimes were as minor as Jimenez’s. He was transferred to ICE custody.

For Jimenez the prospect of deportation to Panama, a country he had left behind as a child, was scary, his sister Karina wrote in a chronology of conversations with her brother that she sent to the family’s attorney. “Game is over,” Kelly recalled Jimenez saying. But before being shipped to Panama, he would be held at Stewart, arguably one of the most troubled detention centers in the country.

About six weeks into his detention a fellow detainee punched Jimenez in the groin and busted his lip. Jimenez was punished with his first stint in solitary — even though he was the victim in the attack and the detention center’s camera shows he didn’t fight back.

“I’m tired of this life,” Jimenez told his stepfather Gilberto Rodriguez in a recorded phone call soon after, his voice sounding uncharacteristically weary.

“Don’t give up, you can start over,” Rodriguez counseled. “In God’s name you’re getting out…we have to do this together.”

Just two days before his death, Jimenez’s mother, Nerina Joseph, and Rodriguez made the trip from Raleigh, North Carolina, to visit him. “She reported that he was so happy to see them, and they had the best 60 minutes a mother in her shoes could ever ask for,” Karina Kelly wrote.

Still, Jimenez’s mother was concerned about his well-being, and stopped by El Refugio, a hospitality center in Lumpkin, Georgia, where detention center visitors can find a meal and place to sleep. El Refugio volunteers also visit detainees, and Joseph requested that someone check on Jimenez. A volunteer attempted to see him the next day, but was turned away because Stewart personnel mistakenly said Jimenez couldn’t receive visitors. Records show there were no such restrictions on Jimenez’s visits.

Later that night, Jimenez completed his self-portrait, and tied knots in a white bed sheet to shorten it. A guard even observed him jumping rope with the sheet a few hours before he died and asked him about it. Jimenez replied he was staying in shape and the guard took no further action.

Ten days after Jimenez’s suicide, a fellow detainee, Abel Ramirez Blanco, told GBI investigator Justin Lowthorpe that he had listened in his cell as guards, nurses and finally paramedics labored over Jimenez’s lifeless body, and an automatic defibrillator blared robotic CPR instructions.

A videotape of the scene inside Jimenez’s cell shows nurses Shuntelle Anderson and Davis English desperately trying to resuscitate Jimenez. Anderson yells for guards to call 911. “I’m calling an ambulance,” a voice answers. Records from a regional 911 center show paramedics were called six minutes after Wims radioed a medical emergency, and arrived in Jimenez’s cell some seven minutes after they were called.

ICE inspectors haven’t yet weighed in on Jimenez’s case. But in studying a 2013 suicide, ICE reviewers criticized staff at a Pennsylvania facility for waiting four minutes to call 911, writing that the Mayo Clinic and the American Heart Association recommend calling 911 before beginning CPR.

Jimenez was eventually taken to a hospital where he was pronounced dead less than 15 minutes after his arrival.

Red caution tape was placed in the shape of a large X on Jimenez’s cell door. Inside the cell, steel shelves held his art supplies, his artwork and a plastic instant-noodle soup bowl with some of the broth still in it. On his wall Jimenez had written, “The grave cometh. Halleluyah.”

A death like Jimenez’s “could have happened to me,” Ramirez told GBI agent Lowthorpe, because of his own anxiety and depression. Ramirez said Stewart staff didn’t help him when he reported those symptoms. Instead, he was thrown in segregation where he witnessed Jimenez’s suicide, and began to feel even more desperate.

Matt Schott struggled to reconcile his friend’s death with his Christian faith. “People believe you commit suicide and you go to hell,” Schott said. “I can’t believe that about Jean because I knew who he really was. I love the guy and I believe one day I’ll see him again.”

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

https://capitalandmain.com/deadly-detention-hell-middle-pine-forest-0314

“DEADLY DETENTION

Deadly Detention: Hell in the Middle of a Pine Forest

Immigrant detainees represent more than $38 million a year for CoreCivic, a for-profit prison company that is the largest employer in one of Georgia’s poorest counties.

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Robin Urevich

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Photo: Robin Urevich


Former ICE Guard: “They’re always putting them in the hole — in segregation. And they manhandle people.”


Deep in a Georgia pine forest, two hours south of Atlanta, early morning mist rises in wisps over the Stewart Detention Center, a facility run by CoreCivic, one of the nation’s largest for-profit prison companies. The bucolic scene clashes with the tall, barbed wire-topped chain-link fences surrounding the center, and the echoing shouts, crackling radios and slamming doors inside the walls. Technically, the roughly 1,700 men here aren’t prisoners, but civil detainees being held for U.S. Immigration and Customs Enforcement as they plead their cases to remain in the United States, or as the government prepares their deportations.

Also Read: “Self-Portrait of a Tragedy”

The detainees represent more than $38 million a year for CoreCivic — the government pays the company nearly $62 a day per man. It is the largest employer in Stewart County, one of Georgia’s poorest.

Immigrant rights groups have charged that the conditions here are not only indistinguishable from those in prison, they are downright abusive. In fact, a December 2017 Homeland Security Inspector General’s report expressed concerns about human rights abuses and, last month, Joseph Romero, a retired ICE officer who served as a guard, told Capital & Main that he resigned a supervisor job at Stewart in 2016 because he didn’t like the way people were treated.


Guatemalan Asylum Seeker: “It is hell in here. I wouldn’t even recommend it to a person I hate.”


“They’re always putting them in the hole — in segregation,” Romero said. “And they manhandle people. They think they can take care of their problems like that.” Romero noted that few officers speak Spanish, so there is little understanding or communication between guards and detainees.

JeanCarlo Jimenez Joseph’s suicide by hanging while in solitary confinement last May and 33-year-old Cuban national Yulio Castro Garrido’s death from pneumonia last December have brought these concerns to the fore.

Jimenez was mentally ill and had been in solitary for 19 days when he died — four days longer than the United Nations Rapporteur on Torture considers torture.


See Interactive Map of U.S. Detention Deaths


“It is hell in here. I wouldn’t even recommend it to a person I hate,” said Wilhen Hill Barrientos, a 23-year-old Guatemalan asylum seeker who has been in detention — at Stewart, the Atlanta Detention Center and at the Irwin Detention Center in Ocilla, Georgia — since 2015.

In addition to many other abuses that he alleges — rotten food, forced work and abuse by guards — Hill has also served 60 days in isolation. He said it was retaliation for a grievance he’d filed. He was placed in solitary, ostensibly because he’d been exposed to chickenpox; however, other detainees who, like Hill, reported they’d had the disease as children were released.


CoreCivic documents show that detainees were in isolation for such offenses as “horse playing.”


ICE detention standards specify that isolation is to be used only to punish the three most serious categories of rule violations, and only “when alternative dispositions may inadequately regulate the detainee’s behavior.”

But CoreCivic documents released after Jimenez’s suicide show that on the day that he died, detainees were in isolation for such offenses as “horse playing,” “refusal to obey staff” or “conduct that disrupts.” Four men had been in solitary for more than 60 days. One of them, Sylvester Smith, who was deported to Sierra Leone at the end of 2017, served at least four months in isolation. His charges were variously listed as “being found guilty of a combination of th…” (the word is cut off on CoreCivic’s restricted housing roster) and “failure to obey.”

After Jimenez died, however, then-warden Bill Spivey held weekly meetings aimed at reducing the number of people in solitary. By October 2017, documents show, there were just 10 people in isolation, but when Spivey retired and an assistant warden took over, the census more than doubled. CoreCivic spokesman Jonathan Burns didn’t respond to emailed questions about the current number of men in segregation.

Joseph Romero, the former ICE officer who worked at Stewart, is tall and graying with a full mustache and beard. He is proud of his ICE career but thinks the for-profit detention model the government has adopted has to go.

“They should go back and have these detention centers run by Immigration, not by private contractors,” Romero said. ICE officers treat people better, because they value their careers, Romero said. “You’re making a lot more money, you have retirement and better benefits. After 20 years, you can retire. At CCA [now known as CoreCivic], you have nothing.”


A detainee says guards call detainees “wetbacks” and “dogs,” and have greeted each other with Nazi salutes.


What’s more, Romero said, Stewart was understaffed: It wasn’t uncommon for officers to work double shifts and return to work eight hours later. “That’s why they’re so irritated,” he said. Equipment was also substandard, Romero claimed. He describes gun holsters that lack the safety snap that prevents a gun from being snatched by a thief or would-be attacker.

Romero said he wanted to try to change conditions for the better at Stewart, but found resistance from a tight, insular group that ran the place, and realized he could do little. Then he witnessed an incident that convinced him it was time to leave.

He saw two guards walking a handcuffed detainee to segregation. One of them “got in the guy’s face,” Romero recalled, and the detainee head-butted the guard. “The next thing you know the guard starting punching on the guy,” Romero said. He later watched a video of the beating with his co-workers, and Romero was taken aback by their reaction. “They said he asked for it, and I’m like wait a sec… If you’re in handcuffs why would I hit you? I have total control of you.”

The guard who threw the punch got fired, and a training session followed. But Romero doesn’t know if it had any effect because he left shortly thereafter.

Hill Barrientos said from his vantage point as a detainee, Stewart is worse than it was in 2016 when Romero was there. He believes Trump’s election signaled to detention officers that they could disrespect detainees with impunity.

Guards call detainees “wetbacks” and “dogs,” Hill Barrientos charged. He said that he’s even seen white detention officers greet each other with a Nazi salute. Health care is hard for detainees to obtain, Hill Barrientos said. He worked in the kitchen with Castro Garrido, who, he said, grew increasingly sicker because he was required to work instead of being allowed time to seek medical attention. ICE initially reported in its news release about Castro’s death that he had refused medical attention, an account that was widely reported. But the agency later corrected its news release to say that Castro’s case “was resistant to some forms of medical intervention.”

Hill’s lawyer, Glenn Fogle, thinks poor detention conditions are part of the government’s aggressive deportation strategy. “That’s the whole idea — to hold people in those horrible places to make them give up,” Fogle said.

Hill said he cannot give up — he would be killed by gang members who had threatened and extorted him if he is returned to Guatemala. His case is virtually identical to that of his two brothers and a sister, all of whom have already been granted asylum, Fogle said. Still, his case has been denied. Judges at Stewart grant asylum in few cases, so Hill Barrientos now pins his hopes on the Bureau of Immigration Appeals, which is currently considering his case.

“The people that give me strength are my mother and my daughter,” Hill Barrientos said. “So I keep fighting.”

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Please hit the above links to get the great graphics accompanying Robin’s articles at Capital & Main! Many thanks, Robin, for your courageous and timely reporting!

This is the “New American Gulag” (“NAG”)!

It certainly had its antecedents in prior Administrations of both political parties. But, the Trump/Sessions/Miller/Kelly/Nielsen/Homan crew have taken it to new depths!

What kind of country does this to individuals whose only “crime” is to want to exercise their statutory and constitutional rights to a fair hearing and a fair adjudication of claims that their lives and safety will be endangered if returned to their native countries?

Is the NAG really how we want to be remembered by our children and grandchildren? If not, get out there and vote for politicians who have the backbone and moral courage to end this kind of Neo-Nazi, Neo-Stalinist approach to human rights! And, send those who have helped fund and promote these affronts to American values into permanent retirement. 

Also, don’t forget this, in part, is the disgraceful result of the Supreme Court majority’s failure to step up and defend our Constitution in Jennings v. Rodriguez. What if it were their relatives dying in the NAG? Time for judges at all levels of our justice system to get out of the “Ivory Tower” and start applying the law in the enlightened HUMAN terms that the Founding Fathers might have envisioned. 

PWS

03-16-18

THE UGLY AMERICANS: WASHPOST ARTICLES HIGHLIGHT INTENTIONAL INHUMANITY & CRUELTY OF DHS’S “DETAIN TO DETER” PROGRAM AS ACLU SUES TO HALT THE ABUSES! – Is This The Legacy Of America That YOU Want To Leave?– If Not, Join The NDPA & Fight To Make Our Government Comply With The Due Process Clause Of Our Constitution & To Restore Humane Values!


The seal of the Department of Homeland Security. (Mandel Ngan/AFP/Getty Images)
March 15 at 7:23 PM

WHO KNOWS why Homeland Security agents in Southern California forcibly separated a 7-year-old Congolese girl from her mother last fall, flew her 2,000 miles to Chicago, where she was placed at a facility for unaccompanied minors, and kept her there for more than four months? Who knows why the girl, who is credibly reported to have been traumatized, has been permitted to speak with her mother, only recently released from a detention center near San Diego, just a handful of times in the intervening four months? And in the absence of any evidence of wrongdoing by the mother, who presented herself to U.S. officials when she crossed the border from Mexico, who knows why the government has continued to keep parent and child apart?

The Department of Homeland Security has declined to comment on the case of the two asylum seekers, known in court filings as Ms. L and S.S. But a spokesman said in a statement that agents may separate children and adults if they suspect the child may be a human-trafficking victim. “If we are unable to confirm this relationship [between adult and child],” said the spokesman, Tyler Houlton, “we must take steps to protect the child,” including placing her in a facility for unaccompanied children.

In this case, DHS’s effort to establish Ms. L’s guilt by insinuation failed, and its stated concern for the child’s protection and well-being has been exposed as phony. For four months, no testing was performed to establish the woman’s maternity. And when, following a lawsuit filed on their behalf, the two were finally subjected to DNA testing this month, the result was unequivocal: Ms. L is the mother of S.S.

That finding has been met with silence by DHS. The department, having originally expressed indignation at the idea that it would separate children from their parents for any reason other than the child’s welfare, has been rendered speechless.

U.S. officials who interviewed Ms. L when she crossed the border made a preliminary finding that she had a plausible claim for asylum, based on her account of having fled what the lawsuit, filed by the American Civil Liberties Union, said was “near certain death” in Congo. Despite that, she was detained until the lawsuit and ensuing publicity prompted her sudden release last week.

In a class-action suit, the ACLU asserts that the Trump administration has separated children from their parents in more than 100 cases, even though the department says it does not “currently” have a policy on the matter. If it seems unthinkable that the administration and Homeland Security Secretary Kirstjen Nielsen would carry out a practice so cruel, one likely to inflict long-term harm on children, think again: DHS officials, including Ms. Nielsen’s predecessor, John F. Kelly, now the White House chief of staff, have said they believe it would be an effective means of deterring asylum seekers.

If DHS has subjected this small girl to trauma as a warning to other asylum seekers, it is an unconscionable means to an end. If that is not the reason, then what is?

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

https://www.washingtonpost.com/local/immigration/aclu-sues-trump-administration-over-detaining-asylum-seekers/2018/03/15/aea245e2-27a2-11e8-bc72-077aa4dab9ef_story.html?utm_term=.470a39300b74

Here’s the always highly informative and very readable Post immigration reporter Maria Sacchetti with a summary of what the ACLU suit is all about:

“A lawsuit filed in U.S. District Court in Washington on Thursday alleges the Trump administration is illegally jailing asylum seekers with credible cases for months on end in an attempt to deter them and others from seeking refuge in the United States.

The American Civil Liberties Union and other groups filed the class-action lawsuit on behalf of nine detained asylum seekers from Haiti, Venezuela and other countries. They are asking a judge to order the administration to follow a 2009 policy that allows officials to release foreigners while they await their immigration court hearings, a process that can take years.

Among the plaintiffs are Ansly Damus, a 41-year-old ethics teacher who said he was attacked by a gang in Haiti that beat him, set his motorcycle ablaze and threatened to kill him for criticizing a politician. He won his asylum case — twice — but has spent 16 months in detention, most recently in Ohio, while the government appeals.

Other plaintiffs are Alexi Montes, an 18-year-old gay man harassed and beaten in Honduras and who has a relative in Virginia; Abelardo Asensio Callol, a 30-year-old software engineer from Cuba who refused to join the Communist Party or rally for the now-deceased Cuban leader Fidel Castro; and, an unnamed father of two from Mexico who said a drug cartel kidnapped his two brothers and threatened to kill him and his family.

All were initially deemed to have had credible stories and are entitled to a hearing before an immigration judge, lawyers said. While awaiting those hearings, they have been jailed for months.

“The fact that we are doing this to people . . . is really outrageous,” said Michael Tan, a New York-based staff attorney for the ACLU. “What they’re doing here is using detention to send a message that asylum seekers need not apply and they’re not welcome here in the United States.”

The legal challenge comes as the Trump administration engineers a wide-ranging review of the nation’s immigration policies and asylum fraud, which it blames in part for a backlog in the immigration courts of more than 600,000 cases, triple the number in 2009.

Attorney General Jeff Sessions said last year that the asylum system is being “gamed” by foreigners and “dirty immigration lawyers.” Instead of a lifeline to people in peril, he said, it had become an “easy ticket to illegal entry into the United States.”

The Justice Department has also said it wants to slash the immigration court docket of 600,000 cases in half by 2020.”

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

Read the rest of Maria’s article at the link.

Pretty predictable that there is a tie to Sessions’s bogus attack on vulnerable asylum seekers. He’s concealing how his mismanagement of the U.S. Immigration Courts, promotion of “Aimless Docket Reshuffling,” and biased legal views are in fact fueling the docket backlog.

Those actively engaged in oppression and covering up their own misdeeds always look for “scapegoats.” And asylum seekers, many of them scared women and children trying to save their lives, who already are treated with disrespect and lack of due process by our Immigration Court system and DHS are an easy target. Targeting the most vulnerable — that’s exactly what bullies and cowards do!

Pretty disgraceful! But, if we all unite behind the efforts of the New Due Process Army and fight for full Due Process for everyone in the United States in our Article III Courts, we can eventually force a stop to this Administration’s human rights abuses, end the “New American Gulag,” and derail the Sessions/DHS White Nationalist restrictionist program!

Due Process Forever!

PWS

03-16-18

 

STEVE VLADECK @ JUST SECURITY: 9th Circuit Expedited Removal Case Might Further The “Dredscottification” Of Migrants — Are They Becoming “Non-Persons” Under Our Constitution? – What’s The Ultimate Cost To Us Of “Selective Application” Of Constitutional Protections?

https://www.justsecurity.org/53822/trouble-undocumented-immigrants-suspension-clause/

Steve writes:

“Back in August 2016, I wrote a lengthy post about the Third Circuit’s decision in Castro v. Department of Homeland Security, which held that recently-arrived undocumented immigrants, who are physically but not lawfully within the territorial United States, are not protected by the Constitution’s Suspension Clause—and therefore have no right to judicial review of their detention (or removal). Among many other problems with the Third Circuit’s analysis (see my original post for more), it created the anomalous result that enemy combatants held at Guantánamo, who have never set foot on U.S. soil, have more of an entitlement to judicial review than Central American women and their minor children in immigration detention in the United States who are seeking asylum (the petitioners in Castro).

The one saving grace to Castro was that it was only the law of the Third Circuit—Delaware, New Jersey, Pennsylvania, and, yes, the U.S. Virgin Islands. But a new case flying almost entirely under the radar in the Ninth Circuit has raised the same issue, and, thus far, has produced results no different from Castro. As I explain in the brief post that follows, if the Ninth Circuit disagrees with the Third Circuit’s deeply problematic reasoning in Castro, and believes that undocumented immigrants seeking asylum have a right to meaningful judicial review of their asylum claim before their removal, it needs to stay the removal of Vijayakumar Thuraissigiam, and use his case to give plenary review to the jurisdictional (and constitutional) question.

Thuraissigiam is a Tamil from Sri Lanka who was tortured in his home country by individuals he has identified as government intelligence officers before fleeing and eventually attempting to enter the United States—surreptitiously—across the U.S.-Mexico border. He was apprehended shortly after crossing the border (on U.S. soil), and then issued an expedited removal order after the government determined (with no judicial review) that he didn’t have a credible fear of persecution if returned to Sri Lanka.

Thuraissigiam attempted to challenge his expedited removal (and the credible-fear determination) through a habeas petition, and also sought an emergency stay of removal pending the disposition of his habeas petition. On March 8, the district court dismissed the petition for lack of jurisdiction, holding that the unavailability of habeas for non-citizens subject to expedited removal did not violate the Suspension Clause, largely because of Castro, the “analysis and ultimate conclusion [of which] are incredibly persuasive to the Court.” And because the court lacked jurisdiction over Thuraissigiam’s habeas petition, it also denied his motion for an emergency stay of removal.

Thuraissigiam appealed to the Ninth Circuit and renewed his motion for an emergency stay of removal. On March 12, a two-judge motions panel (Silverman & Christen, JJ.) denied the motion without meaningful discussion, leaving intact the original appellate briefing schedule (which would have opening briefs due on May 8). Of course, it’s possible that, once the case is fully briefed and argued before a merits panel, the Ninth Circuit will have a full opportunity to consider Castro‘s many flaws—and to hold that the Suspension Clause requires meaningful judicial review of these kinds of asylum claims, even when brought by undocumented immigrants who surreptitiously enter the United States.

The problem is that the case may well be moot by then, as, without a stay of removal, Thuraissigiam could well be sent back to Sri Lanka in the interim. And although Thuraissigiam sought reconsideration en banc, the Ninth Circuit’s General Orders only require such requests to be referred to staff attorneys, not to the full court. So it was, late last night, that the two-judge panel noted that the motion for en banc reconsideration was “referred to the Court” and denied.

That leaves emergency relief from Justice Kennedy (or the full Supreme Court) as the only remaining means for Thuraissigiam to stay his removal pending the Ninth Circuit’s resolution of the merits. (The Ninth Circuit could also expedite its consideration of the merits to moot the need for a stay, but it hasn’t yet…) Unless such relief is granted, the Ninth Circuit may never have a proper opportunity to decide whether or not to follow the Third Circuit down Castro‘s rabbit hole. And without such a ruling, it stands to reason that there will be more cases like Thuraissigiam’s, in which Castro serves to practically foreclose review, even if it’s not the law of the relevant circuit.

That’s no way to run a railroad, especially when the result is to send individuals back to countries in which they very well may credibly fear persecution (or worse).

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

The only thing I take issue with in Steve’s outstanding analysis is his statement in the last paragraph “That’s no way to run a railroad!”

No, that exactly how Jeff “Gonzo Apocalypto” Sessions wants to and is running the “Deportation Railroad.” He’d love to apply “expedited removal” with no due process and no review to everyone in the United States.

I figure that once he gets done “crashing” the U.S. Immigration Court system, he’ll be asking Congress for “Universal Summary Removal,” having proved that due process for foreign nationals, or those believed by DHS to be foreign nationals, is simply too convoluted and impractical. This ties in nicely with the Administration’s view that the Due Process clause protects only the U.S. Government and Administration political officials.

Disturbingly, to date, I can find little evidence that the Courts of Appeals or the majority of the Supremes care about what happens to asylum applicants at the border and whether they are imprisoned or railroaded while here and sent back to death or torture abroad. As long as nobody on the Court of Appeals or nobody that they care about or consider human is affected, the Constitutional problems appear to be “out of sight, out of mind.”

Now, that might be “No way to run a railroad.”

PWS

03-15-18

NEW BIA PRECEDENT ON CONTROLLED SUBSTANCES – MATTER OF ROSA, 27 I&N DEC. 228 (BIA 2018) — We’re All Becoming Bit Players In A Continuous Performance Of “The Theater Of The Absurd!”

ROSA- 3919

Matter of ROSA, 27 I&N Dec. 228 (BIA 2018)

BIA HEADNOTE:

(1) In deciding whether a State offense is punishable as a felony under the Federal Controlled Substances Act and is therefore an aggravated felony drug trafficking crime under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012), adjudicators need not look solely to the provision of the Controlled Substances Act that is most similar to the State statute of conviction.

(2) The respondent’s conviction under section 2C:35-7 of the New Jersey Statutes for possession with intent to distribute cocaine within 1,000 feet of school property is for an aggravated felony drug trafficking crime because his State offense satisfies all of the elements of 21 U.S.C. § 841(a)(1) (2012) and would be punishable as a felony under that provision.

PANEL: BIA Appellate Immigration Judges PAULEY, WENDTLAND, O’CONNOR

OPINION BY: Judge Linda S. Wendtland

CONCURRING OPINION: Judge Blair T. O’Connor

 KEY QUOTE FROM JUDGE O’CONNOR’S CONCURRING OPINION:

“So while I do not disagree with the point made by the majority and the DHS about avoiding absurd results, I unfortunately do not find it to be persuasive. This statement alone is a sad commentary on the state of affairs when it comes to making criminal law determinations in immigration proceedings and is an earnest call for a congressional fix to the mess we currently find ourselves in. See United States v. Fish, 758 F.3d 1, 17–18 (1st Cir. 2014) (collecting cases that call on Congress to “rescue the federal courts from the mire into which . . . [the] ‘categorical approach’ [has] pushed [them]” (quoting Chambers v. United States, 555 U.S. 122, 131–32 (2009) (Alito, J., concurring))); Mathis, 136 S. Ct. at 2258 (Kennedy, J., concurring) (noting the “continued congressional inaction in the face of a system that each year proves more unworkable”).

Finally, it bears noting that the Third Circuit has already found § 860 to be the proper Federal analogue to section 2C:35-7, albeit in an unpublished decision. See Chang-Cruz, 659 F. App’x 114. In that decision, the Government conceded that this was the case, and having lost the divisibility battle there, the DHS now seeks to use § 841 to argue that section 2C:35-7 is categorically an aggravated felony drug trafficking crime. Although I do not disagree with the majority that such an approach is permissible, I do so with reservations over how much more complicated categorical determinations may become for adjudicators who must now decide what is an “appropriate Federal analogue” and consider that analogue, or any permissible combination of such analogues, in discerning whether a State offense is a felony under the Controlled Substances Act. These determinations are difficult enough for an immigration system that is already overburdened. In the words of Justice Alito, “I wish them good luck.” Mathis, 136 S. Ct. at 2268 (Alito, J., dissenting).”

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

Bottom line:

  • The respondent loses (of course);
  • The law is too complicated; and
  • Judge O’Connor thinks it should be unnecessary to go through all this rigmarole because this is a “bad guy” whom Congress clearly intended to kick out without recourse.

If anyone can explain the legal gibberish in this case further to me in plain English in 25 words or fewer, please do!

I get the point that the law has become too complex. But, this discussion seems to bypass the real problem in cases like this that has been “lost in space.”

How would an unrepresented, detained individual who doesn’t speak English properly defend him or herself in a case like this. The clear answer: they couldn’t, since even the “expert judges” in the Ivory (or Glass) Towers with their teams of cracker-jack law clerks are struggling with this stuff. Therefore, in the absence of counsel, appointed if necessary, these hearings before the Immigration Judges are nothing but judicial farces, theaters of the absurd, that mock due process and fairness and trample our Constitution. Samuel BeckettLuigi Pirandello, Friedrich Dürrenmatt, and friends would be proud of what’s been accomplished in our 21st Century immigration system!

That’s the problem to which both Congress and the Article III Appellate Courts need to wake up before it’s too late. In the meantime, please explain to me just how Sessions’s “pedal faster, schedule more, cut corners” approach to the Immigration Courts is helping to solve this problem?

PWS

03-14-18

 

PRACTICAL SCHOLARSHIP — PROFESSOR LAILA HLASS @ TULANE LAW TAKES ON “GUILT BY ASSOCIATION” AND “IMPLICIT BIAS “ IN IMMIGRATION ADJUDICATIONS INVOLVING GANG ALLEGATIONS!

HERE’S PROFESSOR HLASS:

 

HERE’S THE “ABSTRACT:”

The School to Deportation Pipeline

60 Pages Posted: 8 Mar 2018

Laila Hlass

Tulane University – Law School

Date Written: 2018

Abstract

The United States immigration regime has a long and sordid history of explicit racism, including limiting citizenship to free whites, excluding Chinese immigrants, deporting massive numbers of Mexican immigrants and U.S. citizens of Mexican ancestry, and implementing a national quotas system preferencing Western Europeans. More subtle bias has seeped into the system through the convergence of the criminal and immigration law regimes. Immigration enforcement has seen a rise in mass immigrant detention and deportation, bolstered by provocative language casting immigrants as undeserving undesirables: criminals, gang members, and terrorists. Immigrant children, particularly black and Latino boys, are increasingly finding themselves in the crosshairs of a punitive immigration system, over-policing within schools, and law enforcement, all of which can be compounded by racial biases and a lack of special protections for youth in the immigration regime. The confluence of these systems results in a trajectory that has been referred to as “the school to deportation pipeline.”

Gang allegations in immigration proceedings are an emerging practice in this trajectory. Using non-uniform and broad guidelines, law enforcement, school officials, and immigration agents may label immigrant youth as gang-affiliated based on youths’ clothes, friends, or even where they live. These allegations serve as the basis to detain, deny bond, deny immigration benefits, and deport youth in growing numbers. This Article posits that gang allegations are a natural outgrowth of the convergence of the criminal and immigration schemes, serving as a means to preserve racial inequality. This Article further suggests excluding the consideration of gang allegations from immigration adjudications because their use undermines fundamental fairness. Finally, this Article proposes a three-pronged approach to counter the use of gang allegations, including initiatives to interrupt bias, take youthfulness into account, and increase access to counsel in immigration proceedings.

Keywords: Immigration, Children, Deportation, Immigration Representation, migrant youth, school-to-deportation-pipeline, race, gangs

Hlass, Laila, The School to Deportation Pipeline (2018). Georgia State University Law Review, Vol. 34, No. 3, 2018; Tulane Public Law Research Paper No. 18-1. Available at SSRN: https://ssrn.com/abstract=3132754
HERE ARE SOME “KEY QUOTES:”
“To be sure, the problem of gang violence in this country is a serious one. It is a problem that requires sustained attention to the complex (and diverse) sociological and neurological reasons that young people decide to associate with gangs or, as the case may be, disengage from them.27 Those concerns, however important, are beyond the scope of this Article. Instead, the goal of this Article is to shed light on the practical realities faced by immigrant youth caught in the school to deportation pipeline, where entrenched biases and insufficient procedural safeguards virtually guarantee their removal based on gang affiliation, no matter how flimsy the evidence supporting that label.28”
. . . .
“Gang allegations in immigration proceedings are part of the immigration regime’s long and ignoble history of explicit and implicit racism. Immigrant children, particularly youth of color, increasingly find themselves in the crosshairs of a punitive immigration system and subject to over-policing within schools and by law enforcement. These factors converge with existing racial biases and a lack of special protections for youth in the immigration regime, creating a perfect storm. To address this problem, gang allegations and related evidence should be excluded from immigration adjudications due to their unreliability and prejudicial nature. Furthermore, safeguards must be implemented to address this phenomenon, particularly as gang allegations appear to be on the rise. The immigration agency should attempt to interrupt adjudicator bias through education, improved decision-making conditions, and data collection. Secondly, youth should explicitly be a positive factor in discretion and bond decisions. Finally, to stall the school to deportation pipeline, children should have access to representation in immigration adjudications.”
AND, HERE’S A LINK TO THE FULL ARTICLE IN THE GEORGIA STATE UNIVERSITY LAW REVIEW:
***************************************
Laila was my colleague at Georgetown Law when she was a Fellow at the CALS Asylum Clinic. In fact, she was a “Guest Lecturer” in my Immigration Law & Policy class.
Although Laila takes the much  more scholarly approach, I have been saying consistently that this Administration’s harsh rhetoric and strictly law enforcement approach to diminishing the power of gangs is not only likely to fail, but is almost guaranteed to make the problems worse.  Indeed, it’s basically an “on rhetorical steroids” version of the gang enforcement policies that have consistently been failing since the Reagan Administration.
But, we now have folks in charge who glory in their ignorance and bias. Consequently, they refuse to learn from past mistakes and will not embrace more effective community-based strategies that over time would deal with the causes of gang membership and help reduce gang violence.
PWS
03-14-18

TAL @ CNN: ADVOCATES FEAR SESSIONS’S ACTIONS THREATEN ENTIRE U.S. ASYLUM SYSTEM!

http://www.cnn.com/2018/03/12/politics/sessions-immigrant-domestic-violence-victims/index.html

 

Sessions reviewing immigrant abuse victims’ protections

By Tal Kopan, CNN

Attorney General Jeff Sessions’ recent move to re-open a court decision protecting domestic violence victims has advocates concerned that women and children fleeing abuse in their home countries could no longer seek shelter in the US.

Sessions last week announced he was reviewing the immigration court decision without making public what the case was about. In a quirk of immigration court law, decisions by the appellate court, the Board of Immigration Appeals, are reviewable by the attorney general.

The previously unpublished decision has been obtained by CNN and advocacy groups, and the facts of the case has human rights advocates concerned Sessions could be moving to undercut domestic violence victims’ claims for protections in the US.

The issue is mired in the legal details of asylum — a type of protection for immigrants who come to the US fleeing persecution back home. There are a few categories that have to be proven in order to be granted asylum, including being part of a “particular social group” that has a reason to fear persecution and whose government can’t or won’t adequately protect them.

Sessions has asked for arguments on the case, known as the “Matter of AB-” based on the redacted name of the individual bringing the case, on “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.”

Without knowing the underlying case, many experts had believed the issue related to gang violence — a major issue in Central America that pushes immigrants to try to enter the US illegally.

But though the case deals with a woman from gang violence-plagued El Salvador, the issue is instead her rape and physical and emotional abuse by her ex-husband. The Board of Immigration Appeals found in the case that the woman does qualify for asylum, as women in El Salvador with children in common are often unable to leave their relationships and the government has been found “minimally” able to stop domestic violence.

“We’re very concerned about what this could mean for the women who flee their homes, leaving everything behind — their community, parents, and children — in order to get to safety,” said Archi Pyati, chief of policy and programs for the Tahirih Justice Center, which protects and advocates for immigrant women and girls fleeing violence. “In some countries, the government will do nothing to stop a man from abusing a woman. …Right now, the attorney general is signaling that he may reconsider whether we as a nation are willing to stand up for what is right and offer a beacon of hope to those women with nowhere else to go.”

The Justice Department declined to comment on the case now that its details were released. Before it was obtained, a department official would only say that Sessions had referred the case to himself due to a “lack of clarity” in the court system on the subject of the Board of Immigration Appeals decision.

In 2014, the agency issued a similar decision for Guatemalan women in a case that set precedent for lower immigration courts.

Sessions’ decision to wade into the case has potentially far-reaching implications. As attorney general, he has the legal authority to single-handedly overturn the decision of the Board of Immigration Appeals. Once he does, the only authority who can overrule him are the federal appellate courts and Supreme Court, if an immigrant appeals their case to them.

If Sessions decides that victims of crime cannot qualify as a “particular social group,” hypothetically, it could mean foreign domestic violence victims are not able to seek protections from their abusive spouses in the US.

Sessions has alarmed advocates by referring himself two asylum cases in the past week. While he didn’t make a decision on the Matter of AB-, in the other case, he overruled the Board of Immigration Appeals on a decision that had determined all asylum cases are entitled to a hearing before their bid for protections is rejected. Sessions’ move means that asylum cases could now be rejected without those immigrants getting an opportunity to argue their case in court; judges can make decisions based on briefs.

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

With each Sessions anti-immigrant, anti-asylum, anti-due-process action, the farce and charade of due process for migrants in the Sessions-controlled U.S. Immigration System becomes more pronounced. And, with the GOP in control of all three political branches of the Government, responsible oversight of Executive Branch actions and overreaching has simply ceased to exist. Yeah, the Article III courts are still out there. But, you can bet that Trump, Sessions, and the GOP Senators are doing their very best to co-opt the Federal Courts with appointees committed to an extreme right-wing agenda.

PWS

03-13-18

THE GIBSON REPORT – 03-12-18

THE GIBSON REPORT – 03

Compiled by Elizabeth Gibson, Esq., NY Legal Assistance Group

 

HEADLINES:

TOP UPDATES

 

EOIR Updates

  • The EOIR hotline appears to no longer list the IJ. To verify the IJ, you will need to call the court.
  • Lora was vacatedon Monday. No more Lora bond hearings for now, although the bond issue is still being litigated.
  • OCC: Please be advised that the San Juan Office of the Chief Counsel will be handling cases formerly assigned to IJ Margaret McManus and IJ Elizabeth Lamb during March and April.  Please note that documents for these hearings must be served via eService to ensure timely receipt by the Assistant Chief Counsel in San Juan.  In the alternative, documents may be sent via Express Mail directly to the San Juan office at the following address. [People have reported already having McManus and Lamb cases by video conference to San Juan. But double check because at least one person has said their case for this month was rescheduled instead of being sent to San Juan.]

 

Advocates Say Sessions’ Decision to Toss Rule on Asylum Hearings Endangers Thousands

WaPo: The decision this week vacates a 2014 ruling by the Justice Department’s Board of Immigration Appeals. Now, immigration judges can reject asylum petitions without a full hearing if, upon initial review, they appear to be fraudulent or unlikely to succeed. [This is particularly concerning in light of Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018), which requires the clear articulation of a social group. Advocates worry that the two decisions could be used together to say that someone is not entitled to an individual hearing if they do not articulate a PSG at a master calendar hearing.]

 

AG Refers Decision to Himself and Issues Amicus Invitation on “Particular Social Group” and Victims of Private Criminal Activity

The Attorney General referred Matter of A-B- to himself for review of issues relating to whether being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum and withholding of removal. AILA Doc. No. 18030801.

  • From Respondent’s Counsel: It’s an ARCG case where my client was denied by IJ VSC in Charlotte. BIA reversed on every element including adverse credibility in December 2016. IJ VSC recertified it in August 2017 to the BIA saying that Velazquez v Sessions (4th circuit) basically meant that ARCG was no longer applicable.

 

US in Talks with Mexico on Safe Third Country Agreement

Politico: Homeland Security Department officials hope to discuss an asylum deal with Mexican officials, despite frayed diplomatic relations over border security and trade, a department official tells Morning Shift. The Trump administration aims to strike a “safe third country” pact with Mexico that would allow the United States to return non-Mexican asylum seekers to Mexico if they passed through that country en route to the southwest border.

 

How the Supreme Court is Expanding the Immigrant Detention System

Atlantic: During FY 2018, ICE reports that its average daily population has been 40,726. Before the year began, ICE budget documents had projected a detention population of 51,379. That staggering expansion—65 percent in a single year—would have vaulted ERO to a spot somewhere around No. 7. Its population would rank in size behind only the federal prison system and those of California, Florida, Georgia, New York, and Texas.

 

DOJ Files Lawsuit Challenging Three California Laws Relating to Immigration Enforcement

The Department of Justice filed a lawsuit challenging three California laws relating to immigration enforcement as violating the Supremacy Clause of the Constitution. (United States v. California, 3/6/18)

AILA Doc. No. 18030700

 

Extension of the Designation of Syria for Temporary Protected Status

DHS: announces that the Secretary of Homeland Security (Secretary) is extending the designation of Syria for Temporary Protected Status (TPS) for 18 months, from April 1, 2018, through September 30, 2019. The extension allows currently eligible TPS beneficiaries to retain TPS through September 30, 2019, so long as they otherwise continue to meet the eligibility requirements for TPS. Re-Registration Period Opens for Syrians with Temporary Protected Status.

 

Article: On DACA’s Termination Date, Path Forward Remains Unclear

Bloomberg Law reports on court decisions that have temporarily allowed the DACA program to continue beyond the March 5 end date set by President Trump and where the Dream Act stands in Congress, with insights from AILA Director of Government Relations Greg Chen. AILA Doc. No. 18030601

 

Immigration Attorney Sentenced to More Than Six Years in Prison for Fraud Scheme and Identity Theft in Relation to Visa Applications

USCIS: An Indianapolis, Indiana immigration attorney was sentenced today to 75 months in prison for defrauding the U.S. Citizenship and Immigration Services (USCIS) and more than 250 of his clients by filing fraudulent visa applications and reaping approximately $750,000 in illegitimate fees.

 

Baltimore approves spending of $200,000 to pay lawyers to help immigrants fight deportations

Half of the $200,000 is funded by a grant from the Vera Institute of Justice, a New York nonprofit. The other half will come from the city’s budget.

 

Suffolk Sheriff Will Continue Honoring Cooperation With ICE

NYIC: Suffolk County’s new sheriff, Errol Toulon Jr., replaced Vincent DeMarco in January. De Marco, a staunchly conservative supporter of President Trump’s immigration policies, had established a policy of tight cooperation with ICE.

 

LITIGATION/CASELAW/RULES/MEMOS

 

AG Refers and Vacates Decision on Entitlement to Full Asylum Hearing

Attorney General Jeff Sessions referred the BIA decision in Matter of E-F-H-L- to himself for review and vacated that decision, directing that the matter be recalendared and restored to the active docket. Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018). AILA Doc. No. 18030536.

 

CA1 Finds Evidence Did Not Compel Conclusion That Violence Against Petitioner’s Family Members Was Due to Family Membership

The court denied the petition for review of the denial of the petitioner’s asylum application, finding that the evidence did not compel the conclusion that a series of violent incidents against her family members was on account of their family membership. (Sosa-Perez v. Sessions, 2/28/18) AILA Doc. No. 18030630

 

CA2 Says New CIMT Interpretation for Theft Crimes Is NOT Retroactive

Post Diaz-Lizarraga, the BIA now deems theft crimes to be CIMTs if the intended deprivation was permanent OR where property rights are substantially eroded.  [T]he Second Circuit reversed the BIA’s retroactive application of the new rule, reasoning that criminal defendant’s of that time would have relied on existing precedent regarding immigration consequences of convictions when entering into pleas.

 

CA2 Finds There Is No Duress Exception to the “Material Support Bar”

The court joined several other circuits in holding that the “material support bar” in INA §212(a)(3)(B)(iv)(VI) does not except individuals who acted under duress. (Hernandez v. Sessions, 2/28/18) AILA Doc. No. 18030633

 

CA2 Holds That BIA’s Interpretation of REAL ID Act Was Entitled to Chevron Deference

The court held that the BIA’s interpretation of the REAL ID Act as not requiring an IJ to give a petitioner an opportunity to submit additional evidence when the IJ concludes that corroborating evidence is required was entitled to Chevron deference. (Sun v. Sessions, 2/23/18) AILA Doc. No. 18030635

 

CA3 Holds That Unlawful Contact with a Minor Under 18 Pa. Cons. Stat. §6318(a)(5) is a Crime of Child Abuse

The court denied the petition for review, holding that a conviction for unlawful contact with a minor under 18 Pennsylvania Consolidated Statutes §6318(a)(5) is a crime of child abuse under INA §237(a)(2)(E)(i). (Mondragon-Gonzalez v. Attorney General, 1/29/18) AILA Doc. No. 18030636

 

CA5 Remands to District Court to Determine Whether Minor in ORR Custody Wishes to Pursue an Abortion

In a case involving whether ORR can refuse an unaccompanied minor access to Texas’s judicial bypass regime, the court remanded the case to the federal district court to conduct a hearing to determine whether the unaccompanied minor presently wishes to pursue an abortion. (Doe v. ORR, 3/1/18) AILA Doc. No. 18030637

 

CA5 Dismisses Equitable Tolling Case for Lack of Jurisdiction

Where the petitioner filed a statutorily untimely motion to reopen but argued she was entitled to equitable tolling, the court dismissed the petition for lack of jurisdiction, finding that whether equitable tolling applied was a question of fact, not of law. (Penalva v. Sessions, 2/28/18) AILA Doc. No. 18030701

 

CA9 Finds Violation of California Penal Code §286(i) to Be an Aggravated Felony

The court found that a violation of California Penal Code §286(i) for sodomy where the victim cannot consent qualifies as a rape offense under INA §101(a)(43)(A), and that the plaintiff’s conviction under that statute was therefore an aggravated felony. (Elmakhzoumi v. Sessions, 3/1/18) AILA Doc. No. 18030738

 

Maryland District Court Declines to Enjoin Rescission of DACA Program

The U.S. District Court for the District of Maryland issued an opinion declining to enjoin the government’s rescission of the DACA program but enjoining the government from using information provided through the DACA program for enforcement purposes. (Casa de Maryland v. DHS, 3/5/18) AILA Doc. No. 18030734

 

Civil Rights and Civil Liberties Organizations File FOIA Seeking Information on Extreme Vetting Policies

On 3/1/18, Muslim Advocates, along with a coalition of 29 civil rights and civil liberties organizations, filed a FOIA request seeking information from DHS, OIG, CRCL, and ICE concerning their extreme vetting policies and procedures. AILA Doc. No. 18030730

 

Muslim Advocates and the Center for Constitutional Rights File FOIA on the Travel Ban Waiver Process

On 1/23/18, Muslim Advocates and the Center for Constitutional Rights filed a FOIA request seeking information from DHS, DOS, CBP, and USCIS regarding the waiver process provided for in Presidential Proclamation 9645 (Travel Ban 3.0). AILA Doc. No. 18030732

 

ACTIONS

 

 

 

RESOURCES

 

 

EVENTS

 

 

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As always, thanks Elizabeth. You’re amazing!

PWS

03-13-18

 

 

TAL @ CNN TELLS ALL ON HOW SESSIONS IS USING HIS AUTHORITY OVER THE SCREWED UP U.S. IMMIGRATION COURTS TO ATTACK DUE PROCESS & TARGET VULNERABLE ASYLUM SEEKERS — One Of My Quotes: “I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”

https://www.cnn.com/2018/03/10/politics/sessions-immigration-appeals-decision/index.html

Sessions tests limits of immigration powers with asylum moves
Tal Kopan
By Tal Kopan, CNN
Updated 8:01 AM ET, Sat March 10, 2018

Washington (CNN)The US immigration courts are set up to give the attorney general substantial power to almost single-handedly direct how immigration law is interpreted in this country — and Jeff Sessions is embracing that authority.

Sessions quietly moved this week to adjust the way asylum cases are decided in the immigration courts, an effort that has the potential to test the limits of the attorney general’s power to dictate whether immigrants are allowed to enter and stay in the US and, immigration advocates fear, could make it much harder for would-be asylees to make their cases to stay here.
Sessions used a lesser-known authority this week to refer to himself two decisions from the Board of Immigration Appeals, the appellate level of the immigration courts. Both deal with asylum claims — the right of immigrants who are at the border or in the US to stay based on fear of persecution back home.

In one case, Sessions reached into the Board of Immigration Appeals archives and overturned a ruling from 2014 — a precedent-setting decision that all asylum cases are entitled to a hearing before their claims can be rejected. In the other, Sessions is asking for briefs on an unpublished opinion as to how much the threat of being the victim of a crime can qualify for asylum. The latter has groups puzzled and concerned, as the underlying case remains confidential, per the Justice Department, and thus the potential implications are harder to discern. Experts suspect the interest has to do with whether fear of gang violence — a major issue in Central America — can support asylum claims.
A Justice official would say only on the latter case that the department is considering the issue due to a “lack of clarity” in the court system on the subject. On the former, spokesman Devin O’Malley said the Board of Immigration Appeals’ 2014 holding “added unnecessary cases to the dockets of immigration judges who are working hard to reduce an already large immigration court backlog.”
Tightening asylum
Sessions referring the cases to himself follows other efforts during his tenure to influence the courts, the Justice Department says, in an effort to make them quicker and more efficient. In addition to expanding the number of Board of Immigration Appeals judges and hiring immigration judges at all levels at a rapid clip, the Justice Department has rolled out guidance and policies to try to move cases more quickly through the system, including possible performance measures that have the judges’ union concerned they could be evaluated on the number of closed cases.

“What is he up to? That would be speculation to say, but definitely there have been moves in the name of efficiency that, if not implemented correctly, could jeopardize due process,” said  Rená Cutlip-Mason, until last year a Justice Department immigration courts official and now a leader at the Tahirih Justice Center, a nonprofit that supports immigrant women and girls fleeing violence.
“I think it’s important that the courts balance efficiencies with due process, and any efforts that are made, I think, need to be made with that in mind,” she added.
The Board of Immigration Appeals decisions could allow Sessions to make it much harder to seek asylum in the US.
Asylum is a favorite target of immigration hardliners, who argue that because of the years-long backlog to hear cases, immigrants are coached to make asylum claims for what’s billed as a guaranteed free pass to stay in the country illegally.
Advocates, however, say the vast majority of asylum claims are legitimate and that trying to stack the decks against immigrants fleeing dangerous situations is immoral and contrary to international law. Making the process quicker, they argue, makes it harder for asylum seekers — who are often traumatized, unfamiliar with English and US law, and may not have advanced education — to secure legal representation to help make their cases. The immigration courts allow immigrants to have counsel but no legal assistance is provided by the government, unlike in criminal courts.
Reshaping the immigration courts
Beyond asylum, Sessions’ efforts could have far-reaching implications for the entire immigration system, and illustrate the unique nature of the immigration court system, which gives him near singular authority to interpret immigration laws.
Immigration cases are heard outside of the broader federal court system. The immigration courts operate as the trial- or district-level equivalent and the Board of Immigration Appeals serves as the appellate- or circuit court-level. Both are staffed with judges selected by the attorney general, who do not require any third-party confirmation.
How Trump changed the rules to arrest more non-criminal immigrants
How Trump changed the rules to arrest more non-criminal immigrants
In this system, the attorney general him or herself sits at the Supreme Court’s level, with even more authority than the high court to handpick decisions. The attorney general has the authority to refer any Board of Immigration Appeals decision to his or her office for review, and can single-handedly overturn decisions and set interpretations of immigration law that become precedent followed by the immigration courts.
The power is not absolute — immigrants can appeal their cases to the federal circuit courts, and at times those courts and, eventually, the Supreme Court will overrule immigration courts’ or Justice Department decisions. That’s especially true when cases deal with constitutional rights, said former Obama administration Justice Department immigration official Leon Fresco. Fresco added that the federal courts’ deference to the immigration courts’ interpretation of the law has decreased in the past 10 years, though that could change as more of the President’s chosen judges are added to the bench.
But Sessions could be on track to test the limits of his power, and the moves might set up further intense litigation on the subject.
“From what I can see, Sessions is really testing how far those powers really go,” said Cutlip-Mason. “The fact that the attorney general can have this much power is a very interesting way that the system’s been set up.”
Retired immigration Judge Paul Wickham Schmidt, who served for years in federal immigration agencies and the immigration courts, said that to say the immigration courts are full due process is “sort of a bait and switch.” He says despite the presentation of the courts’ decisions externally, the message to immigration judges internally is that they work for the attorney general.
“I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”

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The idea that the U.S. Immigration Courts can fairly adjudicate asylum cases and provide Due Process to migrants with Jeff Sessions in charge is a bad joke.

America needs an independent Article I Immigration Court.

Harm to the most vulnerable among us is harm to all of us.

PWS

03-11–17

NOLAN @ THE HILL: IF CA WINS “SANCTUARY CASE” THEY MIGHT REGRET IT — The Wrath & Vengeance Of Trump, Sessions, & DHS Could Be Devastating To Communities & Undocumented Populations!

 

Family Pictures

http://thehill.com/opinion/immigration/377605-even-without-trumps-lawsuit-california-may-have-to-abandon-sanctuary

This case is very risky for Trump. He is likely to lose in the Ninth Circuit, and it is difficult to predict how the Supreme Court would handle this federal vs. state rights issue. Immigration experts on both sides say this lawsuit takes the sanctuary-cities debate into uncharted territory.

The only certainty is that a loss would clear the way for the enactment of more sanctuary laws in California and other states.

Ironically, California’s sanctuary policies make it easier for ICE to find undocumented aliens.

Instead of being spread out across the United States, a quarter of the nation’s undocumented aliens are living in California. California’s labor force has 1.75 million undocumented aliens. Nearly 10 percent of its workers are undocumented aliens. And in 2014, more undocumented aliens lived in Los Angeles County, Calif., than in any other county in the United States.

This would make it easy for Trump to carry out a successful, large-scale enforcement campaign in California to arrest undocumented aliens and impose sanctions on the businesses that employ them, which is likely to be his next step if the lawsuit fails.

California could end up having to abandon its sanctuary policies to protect its undocumented population.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

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Go on over to The Hill at the link for Nolan’s complete article.

Putting together Nolan’s analysis with that of Professor Peter Markowitz in the preceding article, one can conclude that both sides are likely to come out losers in this contest. We’ll see.

PWS

03-10-18

 

HATS OFF (ONCE AGAIN) TO THE “GOOD GUYS” — GW Law Clinic Saves More Lives In Gang-Related Case! — This Is What US Asylum Law Could & Should Be!

Friends,

Please join me in congratulating Immigration Clinic student-attorney Dana Florkowski and her client, S-M, from El Salvador. This morning, after a three-hour hearing, immigration judge (IJ) Quynh Vu Bain granted the asylum application of S-M and her eighteen year-young daughter. The ICE trial attorney waived appeal so the grant is final. This was the fourth asylum grant won by the student-attorneys this semester. Fifteen lives have been saved.

S-M and her abuser met and lived together in the USA. After repeated beatings, rapes, and verbal abuse, S-M called the police, which lead to the abuser’s removal to El Salvador. After his return to El Salvador, the abuser and his brother, who have connections with the Mara 18 gang, threatened to kill S-M’s mother and daughter, who remained there, unless S-M rejoined him. Despite her concerns, S-M decided to return to El Salvador because, as she testified, “I would rather put my life at risk than my daughter’s.” S-M’s US citizen son, the son of her abuser, accompanied her to El Salvador. After her return, the beatings, rapes, and verbal abuse continued. S-M decided to flee El Salvador after the abuser threatened to kill her and turn her daughter over to the Mara 18 gang to be raped. Sadly, S-M and her daughter fled so quickly she had to leave behind her son. During this morning’s hearing, the IJ said she was troubled by S-M’s voluntary return to El Salvador. Dana explained that the return was not voluntary, and she cited the psychological evidence of the abuser’s control over S-M. The IJ concluded that S-M’s return to El Salvador was under duress. Now that S-M and her daughter are safe, the student-attorneys will work to reunite her son, now nine, with her.

Congratulations also to Alyssa Currier, Karoline Núñez, and Jonathan Bialosky, who previously worked on this case.

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…

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Lots of good things at work here!

Great representation. Scholarly judging from Judge Bain (certainly how I remember her from Arlington). And, kudos to the DHS Assistant Chief Counsel in Arlington for waiving appeal when justice has been done. This is the way I remember the ICE OCC in Arlington  — skilled litigators who properly required critical examination of all claims but also had an overall commitment to fairness, justice, and making the system work!

This is actually a “casebook study” of  how the asylum system in Immigration Court is supposed to work. It still could work this way in many, perhaps eventually most, cases if Sessions and the politicos at DOJ would just get out of the way and let the Immigration Judges, respondents’ Counsel, and the DHS Assistant Chief Counsel do their jobs!

Thanks again to Professor Benitez and his team at GW and to all the other clinical, pro bono, “low bono,” and other counsel out there striving every day to see that our justice system actually delivers justice.

PWS

03-08-18

NEW SCHOLARSHIP FROM PROFESSOR RUTH ELLEN WASEM, LBJ SCHOOL @ UT TAKES ON PROBLEMS OF 21ST CENTURY IMMIGRATION GOVERNANCE — “Immigration is not a program to be administered; rather, it is a phenomenon to be managed.”

Immigration Governance for the Twenty-First

Ruth Ellen Wasem The University of Texas at Austin

6 Journal on Migration and Human Security  97 (2018)

KEY QUOTE:

Even with fragmented governance and strained resources, the US immigration system has enjoyed successes. Each year, approximately one million foreign nationals legally become permanent residents in the United States. In FY 2015 and FY 2016, the Bureau of Consular Affairs issued over 10 million visas each year to foreign nationals coming to the United States as nonimmigrants (i.e., for a temporary purpose and a temporary period of time) and over half a million visas to LPRs (Bureau of Consular Affairs 2017). CBP admitted almost 77 million foreign nationals as nonimmigrant admissions to the United States in FY 2015 (Office of Immigration Statistics 2016). That year, DOL processed 711,820 employer applications for 1,580,778 positions for temporary and permanent labor certifications Immigration Governance for the Twenty-First Century 117 (Office of Foreign Labor Certification 2016). In FY 2015, there were 730,259 LPRs who became US citizens. That same year, the United States admitted 69,920 refugees, and USCIS approved 26,124 asylees. DHS apprehended 462,388 foreign nationals and deported 444,431 foreign nationals in FY 2015. Another 253,509 foreign nationals were denied entry, and 129,122 foreign nationals returned home without a formal order of removal (Office of Immigration Statistics 2016). In FY 2016, EOIR judges received 328,122 cases and completed 273,390, including those of 8,726 foreign nationals who were granted asylum (EOIR 2017). Considerable credit is due to the people carrying out immigration-related responsibilities across the federal government.

Immigration is not a program to be administered; rather, it is a phenomenon to be managed. While there are limits to how much one government can control migration, the building blocks in Figure 3 offer a reasonable set of priorities. Effective immigration governance, coupled with laws and policies that incorporate the national interests, is key to maintaining a robust sovereign nation.

Get the entire article, which I highly recommend, at this link:

Wasem,ImmigrationGovernance21st Century

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Words of wisdom, to be sure. If only our policy makers had the same degree of understanding.

Today, we operate on an illusion that a few folks sitting in Washington, D.C. can “pull all the strings” to seal borders, override market forces, ignore international conditions and agreements, change behavior in foreign countries, and dominate forces of human migration that have been at work since before all of us were born and will continue long after we’re all gone. It’s a toxic mix of arrogance and ignorance that will leave immigration and refugee policy in tatters for years to come.

I can only hope that there are those out there in the upcoming generations who will bring to the immigration phenomenon practical scholarship, reason, humanity, fairness, and better ideas on management of our laws for the benefit of our country and humanity as a whole.

PWS

03-07-18

HON. JEFFREY CHASE WITH MORE ANALYSIS OF THE CASTRO-TUM AMICUS BRIEFS!

https://www.jeffreyschase.com/blog/2018/3/4/14-former-ijs-and-bia-members-file-amicus-brief-with-ag

14 Former IJs and BIA Members File Amicus Brief with AG

On February 16, the law firm of Akin Gump Strauss Hauer & Feld LLP filed an amicus curiae (i.e. “friend of the court”) brief on behalf of 14 former immigration judges and BIA board members with Attorney General Jeff Sessions pursuant to his request in Matter of Castro-Tum.  In that decision, the Attorney General certified to himself an unpublished decision, in which he requested amicus briefs on the following:  (1) whether IJs and the BIA have the authority administratively close cases, and if so, whether the BIA’s precedent decisions “articulate the appropriate standard for administrative closure”  (2) If it is determined that IJs lack such authority, should the AG delegate it, or conversely, if the IJs have such authority, should the AG withdraw it; (3) can the purpose of administrative closure be satisfied through other docket management devices; and (4) if the AG determines that IJs and the BIA lack such authority, what should be done with the cases already closed.

As immigration judges and the BIA have exercised their authority to administratively close cases for decades, the AG suddenly raising these questions on his own would seem to signal his intent to do away with this important docket-management tool.  As background, the respondent in Castro-Tum is an unrepresented, unaccompanied minor.  When he did not appear for a scheduled removal hearing after the immigration court mailed a notice to what it was told was the minor’s address, the DHS attorney requested the immigration judge to order the child removed from the U.S.  However, the IJ had questions concerning the reliability of the mailing address that the government provided to the immigration court, and declined to enter the removal order, administratively closing the proceedings instead.  The DHS attorney appealed.  It should be noted that the appeal did not challenge an immigration judge’s right generally to administratively close cases; the DHS believed that in this particular case, the evidence of record should have required the IJ to enter an order of removal.  The BIA agreed with the DHS, and reversed the IJ’s order.  It was at that point that the AG inserted himself into the matter by certifying an already-resolved matter to himself and turning it into a challenge to the overall authority to administratively close any case.

Numerous groups filed amicus briefs in this case; they include those that represent unaccompanied children; immigrant rights groups, and academic clinicians.  The American Immigration Council (AIC) argued in its brief that AG Sessions’ history of hostility towards noncitizens renders him unfit to decide the issue raised in Castro-Tum.  Our group of former IJs and Board members brought a unique perspective to the issue, based on our many years of collective experience managing case dockets and addressing the issues that administrative closure is designed to remedy.

Immigration Judges exist by statute.  Therefore, the inherent powers delegated to them (including the power to control their own dockets, and to administratively close cases as a means of exercising such control) come from Congress, and not the Attorney General.  As our brief explains, such authority of judges to control their dockets has been recognized by the Supreme Court and lower federal courts.  Federal regulations issued by the Department of Justice grant immigration judges the power to “exercise their independent judgment and discretion,” including the ability to “take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition” of the individual cases appearing before them.

Furthermore, the BIA has set out the proper standard for determining whether a case should be administratively closed or required to proceed.  In Matter of Avetisyan, the Board laid out the criteria that may properly be considered in determining whether administrative closure is appropriate.  In Matter of W-Y-U-, the Board added that the most important consideration is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.  The immigration judge is required set forth his or her reasons for administrative closure in a decision which may be reviewed on appeal to both the BIA and the federal circuit courts.

The brief additionally points out the inadequacy of other existing tools.  In Avetisyan, the immigration judge granted multiple continuances to allow DHS to adjudicate a visa petition filed on behalf of the respondent.  However, the petition could not be adjudicated because USCIS (which adjudicates such petitions) was required to keep returning the file to the ICE prosecutor before it could get to the petition because it was needed for the next immigration court hearing (which was only scheduled to check on the status of the visa petition).  The file remained in constant orbit, never remaining with USCIS long enough to allow for adjudication of the petition, which in turn would require another continuance.  Furthermore, federal regulation specifically requires that immigration proceedings by administratively closed before USCIS will adjudicate certain waivers of inadmissibility.  As noted in the brief, DHS defended such administrative closure requirement when its necessity was questioned by a comment on the proposed regulation.

Our group of amici expresses our sincere gratitude to the outstanding attorneys at Akin Gump who provided their pro bono assistance:  partner Steven H. Schulman; Andrew Schwerin, the primary drafter; and  Martine Cicconi, Mallory Jones, and Chris Chamberlain, who drafted sections of the brief.  We also thank Prof. Deborah Anker of Harvard Law School and the staff and students of the Harvard Immigration and Refugee Clinic for its invaluable support and insights.  The amici included  in our brief were former BIA Chair and Board Member and former Immigration Judge Paul W. Schmidt; former Board Members Cecelia M. Espenoza, Lory D. Rosenberg, Gustavo D. Villageliu, and former Immigration Judges Sarah M. Burr, Bruce J. Einhorn, Noel Ferris, John F. Gossart, Jr., William P. Joyce, Edward Kandler, Carol King, Susan Roy, Polly A. Webber, and myself.

Copyright 2017 Jeffrey S. Chase.  All rights reserved.

 

fullsizeoutput_40da.jpeg

Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

REPRINTED WITH PERMISSION.

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As a mentioned earlier, the leaders of this effort were Jeffrey, Judge Lory Diana Rosenberg, and Judge Carol King! an honor and a pleasure to work with all of them to restore Due Process to our Immigration Court
system.

PWS

03-04-18

AMERICA THE UGLY: WHY ARE WE ALLOWING OUR GOVERNMENT TO ABUSE THE HUMAN RIGHTS OF FAMILIES & CHILDREN? — “This policy is tantamount to state-sponsored traumatization.”

https://www.nytimes.com/2018/02/28/opinion/immigrant-children-deportation-parents.html

“The Department of Homeland Security may soon formalize the abhorrent practice of detaining the children of asylum-seekers separately from their parents. Immigrant families apprehended at the southwest border already endure a deeply flawed system in which they can be detained indefinitely. In this immigration system, detainees too often lack adequate access to counsel. But to unnecessarily tear apart families who cross the border to start a better life is immoral.

Sadly, such separations are already happening. The Florence Project in Arizona documented 155 such cases by October and other immigrant advocacy organizations report that children are being taken away from their parents. If the secretary orders this practice to be made standard procedure, thousands of families could face unnecessary separation.

The Trump administration’s goal is to strong-arm families into accepting deportation to get their children back. Kirstjen Nielsen, the secretary of homeland security, admitted this when she told the Senate on Jan. 16 that separating families may “discourage parents” from seeking refuge in America.

But the increasing informal use of family separation has not proved to be a deterrent. Last year, the number of family apprehensions at the southwestern border skyrocketed from 1,118 families in April to 8,120 in December.

Parents will continue to flee violence to protect their children and themselves. It is reprehensible to punish them for that basic human impulse. It is also despicable that the government would use children as bargaining chips. This policy is tantamount to state-sponsored traumatization.

Those of us who have seen the sites where families are detained and work directly with children and families who have gone through the system know what’s at stake.

The children we work with call the Border Patrol processing stations for migrants stopped at the border “iceboxes” (hieleras) and “dog kennels” (perreras). “I was wet from crossing the river and it was so cold I thought I would die,” one child said.

Another told us: “The lights were kept on day and night. I became disoriented and didn’t know how long I had been there.” A third said: “I was separated from my older sister. She is the closest person in my life. I couldn’t stop crying until I saw her again a few days later.”

In our work we have heard countless stories about detention. But the shock of bearing witness to them is hard to put into words. In McAllen, Tex., you enter a nondescript warehouse, the color of the dry barren landscape that surrounds it. It could be storage for just about anything, but is in actuality a cavernous, cold space holding hundreds upon hundreds of mostly women and children.

Chain-link fencing divides the harshly illuminated space into pens, one for boys, a second for girls and a third for their mothers and infant siblings. The pens are unusually quiet except for the crinkling of silver Mylar blankets. This is where family separation begins, as does the nightmare for parents and children.

The parents whose sons and daughters have been taken from them are given two options: either agree to return home with their children — or endure having those children sent on to shelters run by the Health and Human Services Department while they themselves languish in detention centers scattered around the country.

This country’s medical and mental health organizations have rightly recognized the trauma of this practice. The American Academy of Pediatrics has condemned immigrant family separation, and family detention overall, as “harsh and counterproductive.” The American Medical Association has denounced family separation as causing “unnecessary distress, depression and anxiety.”

Studies overwhelmingly demonstrate the irreparable harm to children caused by separation from their parents. A parent or caregiver’s role is to mitigate stress. Family separation robs children of that buffer and can create toxic stress, which can damage brain development and lead to chronic conditions like depression, post-traumatic stress disorder and heart disease. For that reason, more than 200 child welfare, juvenile justice and child development organizations signed a letterdemanding that the Trump administration abandon this ill-conceived policy.

Family separation is also unjustifiable legally, as “family unity” is central to our immigration laws and our longstanding policy of reuniting citizens and permanent residents with their relatives.

More fundamentally, family separation is anathema to basic decency and human rights. For our government to essentially hold immigrant children as hostages in exchange for the “ransom” of their parents’ deportation is simply despicable.

It is every parent’s nightmare to have a child snatched away. To adopt this as standard procedure to facilitate deportations is inhumane and does nothing to make Americans safer. This country, and Secretary Nielsen, must reject family separation.

ANOTHER AMICUS OPPORTUNITY FOR RETIRED IMMIGRATION JUDGES AND BIA APPELLATE JUDGES – Join My Friend & Colleague Judge Eliza Klein, Pro Bono Counsel Sidley Austin, The Heartland Alliance, & Me In A 10th Circuit Case Involving Access To Counsel In Immigration Detention (There Isn’t Any, For All Practical Purposes)

Judge Klein,

I hope you’re well.  Allow me to introduce you to a team of lawyers from the firm Sidley Austin who are working on an amicus brief on behalf of immigration judges in the 10th Circuit case that I mentioned to you.  As we discussed, the case involves an arriving asylum seeker who was detained in a remote facility with no LOP, and with no realistic access to counsel. And, to complicate matters, at the time of his hearing, there was not meaningful phone access to the jail.  The goal of the brief will be to address, from a judge’s perspective, the challenges of adjudicating such cases where there’s no real option for counsel and also to hopefully address some of the ways in which IJs have had to work around the absence of counsel to develop an adequate record in such cases.

The team from Sidley will get going on drafting, but in the meantime, I think it would be very helpful if you could work with them to reach out to other IJs who you certainly know better than any of us.  We’ve provided Sidley a list of former IJs who have been willing to sign amicus briefs in other contexts, so hopefully that list (and your inside info) will help with the outreach.

Keren Zwick                                                                                                                                                                                                                                                                                                                                  (Pronouns: she/her/ella)

Associate Director of Litigation

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

208 S. LaSalle Street, Suite 1300, Chicago, IL 60604
T: 312.660.1364 | F: 312.660.1505 | E: kzwick@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

 

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If you can help out, please respond directly to the attorney drafting the brief Jean-Claude Andre of Sidley Austin: JCAndre@sidley.com

I recently had the honor and pleasure of working with the Sidley Austin litigators on an Amicus Brief in the 6th Circuit case Hamama v. Homan (Due Process for Chaldean Christians). It was great!

PWS

03-01-18