Pro Bono Representation – Page 113 – immigrationcourtside.com

“THE GIBSON REPORT” — From “Rolling Stone” To The “Ft. Worth Star Telegram” — Immigration Links For All!

For those who don’t know her, the amazing Elizabeth Gibson is one of my all-star Georgetown Law Refugee Law & Policy students, a distinguished alum of the Arlington Immigration Court intern program, and a former Judicial Law Clerk at the New York Immigration Court. She now works as an Immigrant Justice Corps Fellow/Staff Attorney with the Immigrant Protection Unit at the New York Legal Assistance Group.

Elizabeth was good enough to make her weekly news link update for April 10, 2017 available to us. In reformatting it for the blog, I might have lost the “connectivity” for several links. However, I’m sure you will find it an amazing resource. Great job Elizabeth! Thanks for all you do!

PWS

04-10-17

IMMIGRATIONPROF BLOG: Three Cheers For NY! — State Becomes First To Guarantee Representation For All Detained Immigrants!

http://lawprofessors.typepad.com/immigration/2017/04/new-york-state-becomes-first-in-the-nation-to-provide-lawyers-for-all-immigrants-detained-and-facing.html

Dean Kevin Johnson writes:

“The Vera Institute of Justice and partner organizations today announced that detained New Yorkers in all upstate immigration courts will now be eligible to receive legal counsel during deportation proceedings. The 2018 New York State budget included a grant of $4 million to significantly expand the New York Immigrant Family Unity Project (NYIFUP), a groundbreaking public defense program for immigrants facing deportation that was launched in New York City in 2013.

New York has become the first state to ensure that no immigrant will be detained and permanently separated from his or her family solely because of the inability to afford a lawyer. Without counsel, a study shows, only 3% of detained, unrepresented immigrants avoid deportation, but providing public defenders can improve an immigrant’s chance of winning and remaining in the United States by as much as 1000%.

NYIFUP has been operating in two of the four affected upstate immigration courts on a limited basis since 2014 with funding from the New York State Assembly and the IDC. In the just-ended fiscal year, the funding was sufficient to meet less than 20% of the need upstate. In New York City, NYIFUP has been representing all financially eligible, otherwise unrepresented detained immigrants since 2014 with funding from the City Council.

Research has shown that keeping immigrant families together saves money for the state’s taxpayers in increased tax revenues and less need for families left behind to draw on the social safety net. New York State employers also receive significant economic benefits from avoiding the loss of productivity when their employees are detained and deported, and the consequent need to identify and train replacement workers.

The first public defender program in the country for immigrants facing deportation, the NYIFUP Coalition includes Vera, the Immigration Justice Clinic of Cardozo Law School, the Northern Manhattan Coalition for Immigrant Rights, Make the Road New York, and The Center for Popular Democracy. The Erie County Bar Association Volunteer Lawyers Project is a NYIFUP Coalition partner upstate. Brooklyn Defender Services, the Legal Aid Society, and The Bronx Defenders are Coalition partners in New York City.

Several cities and states, including Los Angeles, San Francisco, Chicago, Washington, D.C., and California have recently begun efforts to design similar programs.”

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Good for New York! I hope that other states follow suit.

Representation is the most important contribution that those “outside the system” can make to improving due process in the U.S. Immigration Courts. And, nowhere is it needed more than in often out of the way detention centers. As noted in the article, there is no doubt that representation makes a difference in outcome — a huge difference.

In fact, the statistical difference is so great that one might think that those officials responsible for the U.S. Immigration Court system would long ago have determined that no case could proceed in accordance with due process unless and until the respondent had a lawyer. But, that would be some other place, some other time.

In the meantime, let’s all be thankful for the outstanding example that New York has set!

PWS

04/10/17

JAMESTOWN NY POST-JOURNAL: GW Law Immigration Clinic Students Sarah DeLong & Maley Sullivan On “Bridging The Gap” With Immigrants!

http://www.post-journal.com/opinion/2017/04/bridging-the-gap-between-us-and-immigrants/

“As third-year law students and student-attorneys of the Immigration Clinic at The George Washington University Law School, we have the honor of representing immigrants from around the world while guiding them through our very complex immigration system.

Through this experience, we’ve learned that immigrants are just like us. They share our values of family and community; education and opportunity; freedom and security. They’re individuals who are trying to make the best decisions for themselves and for their loved ones.

But in many ways immigrants are not like us. There are some things that you and I will never fully understand. There are some things that we, having grown up under the cloak of privilege afforded us by our status as natural born citizens of the United States, will never have to endure.

So how do we bridge this gap? Why should we take time from our uniquely challenging lives to appreciate and understand our privilege? To what end?

For many student-attorneys, the answer is simple: I am an immigrant. I was an immigrant. My parents are or were immigrants. For the two of us, and countless others, however, what we view as our obligation to welcome and accommodate immigrants has been challenged regularly by our government, our communities, and even our families.

. . . .

We have learned countless lessons from working in the Immigration Clinic. Not the least, we have learned that, although our privilege may protect us from ever having to stand in the shoes of our clients, it has afforded us the extraordinary opportunity to confront the status quo and encourage reconciliation.”

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I encourage everyone to read the complete article at the link. Thanks to Professor Alberto Benitez of the GW Immigration Clinic for bringing this to my attention. And, thanks to Sarah and Maley for your caring, your insights, and all that you are doing for America.

PWS

04-09-17

HuffPost: Larry Strauss — Trump, Sessions, & Co. Are On The Wrong Side Of History — “If you are knowingly hurting children, there is something wrong with you, whether or not you have the law on your side.”

http://www.huffingtonpost.com/entry/deportations-immigration-trump-children_us_58e66103e4b0773c0d3ebbb5?0tr

Larry Strauss, veteran high school teacher and basketball coach; author, “Students First and Other Lies” writes in HuffPost:

“Trump and his supporters have their own moral arguments. They say we must put America and Americans first. Of course these phrases express geographic ignorance, since many of the people they wish to expel are, in fact, Americans (the U.S. being but one country in America). But we know what they mean. Why should citizens of the United States be sympathetic to people from other places when so many of our own people are struggling so mightily? One can argue that undocumented individuals are not actually taking away jobs or other resources from those born here, but it’s a tough sell to someone whose financial fortunes have collapsed in the last five or ten or twenty years. The students in my classroom who were brought here or born to parents who came here will almost uniformly go further than those parents and enjoy prosperity far beyond that of those parents. It is not surprising that they are resented by those Americans (of the U.S. variety) whose prospects are far less than those of their parents and grandparents.

But politics and policies born of resentment cannot be good for the soul of our country. Nor can any law — ANY LAW ANYWHERE — that, for any reason, hurts children. If you are knowingly hurting children, there is something wrong with you, whether or not you have the law on your side.

Every year the school at which I teach enrolls students in my classes and whoever those children are I teach the hell out of their class for them — and so do most of my colleagues.

When you work with kids you don’t decide who deserves to be taught and encouraged. Where they come from and how they got here just doesn’t matter. I once taught the grand-daughter of a Nazi who’d escaped to El Salvador after World War II. The girl owed me no apology or explanation. Just her best effort and her homework on time — most of the time.

So I am not sympathetic to those who wish to punish the children of those who snuck into our country — or those who came on false pretenses.

I wish that Jeff Sessions and his ICE men and women would restrict their deportations to serious criminals — those no country wants. Why are federal agents wasting time and resources on people who’ve committed minor crimes? Are such actions any better than a municipality shutting down a lemonade stand because of a city ordinance?

Here’s an idea: if the crime of an undocumented immigrant does not exceed the crime of Jeff Sessions himself (perjury, that is) then let them stay. And if the harm of the deportation exceeds the harm of the deportee’s crime then let’s have a little collective heart.

We are a nation of laws but if those laws are being used to harm people for political expedience by indulging bigotry and ethnic paranoia, then those laws do not deserve out respect and the politicians exploiting them do not deserve our support.

Those who deported Mexicans and Mexican-Americans in the 1930s were within the law — but on the wrong side of history.

Those who interned Japanese Americans in the 1940s were within the law — but on the wrong side of history.

Those who forced Native American children into border schools to assimilate them were within the law — but on the wrong side of history.

Trump and Sessions are within the law — at least they are on immigration enforcement — but their cruelty is dragging us all onto the wrong side of history.”

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I couldn’t agree more with Strauss’s sentiments, although I’m not willing to say that everything Trump, Sessions, Kelly, and company are proposing is within the law. In fact, they seem to be heading toward some massive violations of the due process guaranteed by law.

However, “nations that turn their backs on children will be dealt with harshly by history” is the gist of an earlier op-ed that I wrote criticizing the Obama Administration’s inhumane and wrong-headed prioritization of recently arrived women and children for removal. http://wp.me/P8eeJm-1A.

While the “Obama priorities” were rescinded upon the change of Administration, the Trump Administration appears to have an even crueler and more inhumane fate in store for women and children seeking refuge from the Northern Triangle: detention, expedited removal, attempts to deny the fair opportunity to apply for asylum, intentional restriction of access to counsel, criminal prosecution of parents seeking to save their children, and an overall atmosphere of coercion and mistreatment meant to encourage those who have recently arrived to abandon their claims for refuge and to discourage others from coming to seek refuge under our laws. Only time will tell whether the Article III Courts will allow the Administration to get away with it.

I particularly like Strauss’s use of the “Sessions standard” — anybody who has done no more than perjure themselves under oath should be allowed to stay. And, talk about someone who has lived on the “wrong side of history” for his entire life, yet stubbornly refuses to change: well, that’s the very definition of Jeff Sessions’s depressingly uninspiring career. Given a chance for some redemption late in life, he’s instead choosing to “double down” on his biases and narrow outlook. Jeff had better hope that there’s forgiveness for his sins out there somewhere in the next world.

PWS

04-07-17

WashPost EDUCATION: Alexandria, VA School PTA Helps Families Deal With ICE Fears — Alexandrians Stand With Their Immigrant Community Neighbors!

https://www.washingtonpost.com/local/education/know-your-rights-clinic-in-school-cafeteria-aims-to-allay-immigrant-fears/2017/03/29/fe8af9cc-0fe9-11e7-9d5a-a83e627dc120_story.html?utm_term=.a5bbff25be59

Moriah Balingit reports:

“In a school cafeteria adorned with whimsical children’s artwork, the men and women hunched over thick packets of paper one recent night, fiddling with pen caps and rubbing their foreheads as they confronted a challenge: preparing for what happens if immigration agents show up at the door.

Some at this clinic in Northern Virginia were undocumented, and others had relatives in that situation. Some had legal status but were not permanent residents, and they wondered what shifts in federal immigration policy would mean for them and their relatives.

Juan Torres, a carpenter from Honduras and father of four, has temporary protected status, but he has family members who are undocumented.

“Of course, I was very worried, because the majority of my family doesn’t have documents, and at any moment they could be arrested or detained,” Torres said.

He was one of about two dozen people who came to William Ramsay Elementary School in Alexandria to learn about their rights while President Trump moves to tighten immigration enforcement and speed up deportations.

Recent arrests in Alexandria and elsewhere have heightened stress. A U.S. Immigration and Customs Enforcement “sensitive location” policy restricts enforcement actions at schools and churches. But agents last month arrested homeless men who had just left a church warming shelter in nearby Fairfax County and a father in Los Angeles who had just dropped his daughter off at school.

With anxiety rising in immigrant communities, educators and parents are taking steps to allay fears. The PTA at Ramsay Elementary sponsored the March 22 clinic, supplying pizza and providing volunteers to care for children of those who came to hear from immigration lawyers and other experts.

About a quarter of Alexandria’s residents in 2010 were foreign-born, census data shows. Hundreds of unaccompanied minors, many of whom fled violence in Central America, have entered the United States in recent years without parents and landed in the city’s schools. Students in Alexandria hail from more than 130 countries. Hallways at Ramsay Elementary display dozens of flags to show international spirit.”

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Try as they might, The Trump Administration is not going to be able to dislodge migrants from communities throughout the US. They will, however, succeed in generating massive resistance to their unrealistic, unneeded, and xenophobic policies. Sooner or later, either Congress must pass needed reforms giving some status and protection to migrants, or the resistance will eventually tie the already dysfunctional system into knots.

PWS

04-03-17

LA TIMES: Retired U.S. Immigration Judge Bruce J. Einhorn Speaks Out For Due Process — Challenges City Of L.A. To Provide Lawyers For Those Facing Removal!

http://www.latimes.com/opinion/op-ed/la-oe-einhorn-immigration-lawyers-deportation-ice-20170327-story.html

Like many of us, Bruce has witnessed first-hand the patent unfairness of requiring individuals to represent themselves in U.S. Immigration Court. In this L.A. Times op-ed he urges Los Angeles to follow the City of New York’s fine example in providing effective pro bono legal representation to those whose lives and futures are on the line in Immigration Court:

“In December, Mayor Eric Garcetti announced the creation of a $10 million fund to provide lawyers to immigrants facing deportation. But the parameters of the program are still being determined. In order to be effective, the program needs to be implemented soon and expanded quickly.
For defendants in deportation proceedings, the stakes can be life or death, since some face torture or worse upon returning to their home countries. This is why a fellow immigration judge, Dana Marks, once said that deportation cases are “death penalty cases heard in traffic court settings.” Many other defendants face permanent separation from their families.

Yet immigrants who cannot afford a lawyer must argue against government prosecutors. More often than not, this includes immigrants who are detained — that is, jailed — while their cases move through the courts. Detention almost always means loss of income, while lawyers cost more than the majority of immigrants can afford. A person who speaks little or no English must gather information from police officers or medical experts, submit written declarations in English or find evidence to support their asylum claims, all without access to the Internet or to affordable phone calls. There are an estimated 3,700 immigrants in detention across the greater L.A. area, according to the mayor’s office.

With one side at such a great disadvantage, it becomes much harder for judges to apply the law in a just manner, increasing the risk of flawed decisions. Especially in cases where defendants are detained, a day in court without a lawyer isn’t a day in court at all. A recent study found that detained immigrants who are represented by an attorney are five times more likely to win their cases than immigrants without representation.

A court system without lawyers is not merely unjust — it is also inefficient and wasteful. Without adequate legal representation for immigrants, judges can’t spend their time making decisions. Instead, they must constantly explain the legal process, reschedule cases and answer questions. In some instances, judges issue decisions only to cover the same ground again if the defendant is lucky enough to find a lawyer and get the case re-heard.

All this waste results in a heavily backlogged immigration court system, and nowhere more so than in California, where almost 100,000 cases are waiting to be decided. In San Francisco, for instance, an immigrant in court today will have his next hearing over two years from now.

. . . .

After 17 years on the bench, I’m troubled to see a wave of new raids that are sure to clog the dockets for years to come. But I also see an opportunity for local leaders to take a stand and provide immigrant communities with the fair and responsive representation they deserve.”

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Bruce makes an important point that many outside observers miss. In addition to being inherently unfair, hearings involving unrepresented individuals are tremendously inefficient. That is, if the Immigration Judge takes to time to provide at least some semblance of due process.

Aspects of the hearing system that lawyers understand have to be explained in detail, in simplified language, through an interpreter to the unrepresented respondent.

Because there is no lawyer to question the respondent, and it would be inappropriate to rely on the DHS lawyer to present the respondent’s case, the Immigration Judge effectively becomes the respondent’s “substitute attorney” — an impossible conflict of interest. I usually conducted the examination of an unrepresented respondent using a format similar to that I used for client intake interviews in private practice. It takes time to do a fair and thorough job.

Dictating a decision in an unrepresented detained case is a long, painstaking process. Where an attorney is involved, and the interpreter is with me in court, which is the norm, the attorney normally “waives” a verbatim contemporaneous interpretation in favor of a short summary and a promise to fully explain my ruling to the client afterwards.

But, with no attorney, I must stop every few sentences for the interpreter to do a “serial interpretation” to the respondent on televideo. The “simultaneous interpretation” system is not currently designed to work with the televideo system.

Appeals by the losing side are fairly common in detained unrepresented cases. When both sides have attorneys, I just say a few words reminding them about how strictly the BIA enforces filing deadlines.

But, when an unrepresented respondent is involved, I have to give a short “how to seminar” in the art of filing an appeal with a fee waiver in a timely manner. Occasionally, the detention center doesn’t even have the correct appeal and waiver forms available, so I have to note that “officer promised to serve forms” while attaching an “insurance copy” to my “minute order” (which itself might not actually get to the detained respondent until weeks after the hearing — halfway through the 30 day appeal period).

Also, Bruce accurately points out that if the respondent finally is able to find a pro bono lawyer during the appeal process, the chances of a remand for further development of the record before the Immigration Judge are significant.

Although claiming to be supportive of the role of pro bono counsel in Immigration Court, and providing some support to some programs, overall the U.S. Immigration Court is “user unfriendly” to the pro bono community. In all Administrations, artificial political prioritization of cases driven by the Department of Justice and decisions to “kowtow” to DHS enforcement by placing so-called “courts”‘ within out of the way detention centers (rather than insisting, as true independent court system would, that detention centers be located in the vicinity of already established courts, where there is an established immigration bar and family support is often available) actively undermine both access to, and effective participation by, pro bono attorneys.

It’s sad but clear that the current Administration has “no time” for due process for migrants. They appear to have every intention of taking an already out of control, user unfriendly court system and making it even worse.

Only the Article IIII Courts stand between this Administration and their apparent goal of a “deportation express” with “no station stops” for due process. And, the only way that vulnerable migrants are going to be able to get into, and draw the attention of, the Article III Courts is by being well-represented by attorneys every step of the way.

That’s why it is critically important for Los Angeles and other cities who value their immigrant communities to heed Bruce’s call for the establishment of pro bono programs. Otherwise, the due process travesty being planned by this Administration will go forward unabated and become an indelible stain on American legal, political, and Constitutional history.

Other than that, I have no strong views on the subject.

PWS

03/31/17

PETULA DVORAK IN THE WashPost: Forget The Administration’s Fear-Mongering — There Are Many Amazing Kids In Our Midst Seeking Survival & A Chance To Contribute! These Are The Kids I Met In Immigration Court — And I Am Still Moved & Inspired By What Many Of Them Have Achieved & Their Potential!

https://www.washingtonpost.com/local/theyve-survived-untold-horrors-undocumented-teens-dont-deserve-to-be-demonized/2017/03/27/518dcebe-09b5-11e7-a15f-a58d4a988474_story.html?hpid=hp_regional-hp-cards_rhp-card-columnists%3Ahomepage%2Fcard&utm_term=.346ab2350bee

Petula Dvorak writes in her regular local column in the Washington Post:

“Their dreams — to become a lawyer, an interior decorator, a sailor in the Navy — are a lot like the dreams that other kids at their Maryland high school have.

It’s their nightmares — seeing relatives killed, paying off coyotes, being raped at the border, spending weeks in a detention center, being homeless in a new country — that make them so different.

“They’ve survived untold horrors,” said Alicia Wilson, the executive director at La Clinica Del Pueblo, which is working with Northwestern High School to help these teenagers.

The Hyattsville school has absorbed dozens of these students — part of a wave of more than 150,000 kids who have crossed the U.S. border over the past three years fleeing violence in Central America.

We usually hear about these young immigrants only when they’re accused of committing heinous crimes — such as the two undocumented students charged with raping a 14-year-old classmate in a bathroom at Rockville High School. Or when they become victims of heinous crimes — such as Damaris Reyes Rivas, 15, whose mother wanted to protect her from MS-13 in El Salvador but lost her to the gang in Maryland.

In country with a growing compassion deficit, plenty of people resent these kids, demonizing them along with other undocumented immigrants. But I wish those folks got to spend the time with them that I did. They’re funny, vulnerable, hard-working and stunningly resilient.”

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Exactly what I found in more than a decade as a trial judge at the Arlington Immigration Court. The young people were among the most memorable of the thousands of lives that passed through my courtroom. “Funny, vulnerable, hard-working and stunningly resilient,” yes they were all of those things. To that, I would add smart, courageous, talented, motivated, and caring.

Many appeared at the first Master Calendar speaking only a few words of English. By the time the second Master rolled around (often 9-12 months on my overcrowded docket) they were basically fluent. And, they often were assisting others in the family to understand the system, as well as taking on major family responsibilities with parents or guardians holding down two, or sometimes three jobs.

I checked their grades and urged/cajoled them to turn the Cs into Bs and the Bs into As. Many brought their report cards to the next haring to show me that they had done it.

I recognized the many athletes, musicians, chess players, science clubbers, and artists who were representing their schools. But, I also recognized those who were contributing by helping at home, the church, with younger siblings, etc.

Just lots of very impressive young people who had managed to put incredible pain, suffering, and uncertainty largely behind them in an effort to succeed and fit in with an strange new environment. They just wanted a chance to live in relative safety and security and to be able to lead productive, meaningful lives, contributing to society. Pretty much the same things that most off us want for ourselves and our loved ones.

More often than not, with the help of talented, caring attorneys, many of them serving in a pro bono capacity, and kind, considerate Assistant Chief Counsel we were able to fit them into “the system” in a variety of ways. Not always, But, most of the time. Those who got to stay were always grateful, gracious, and appreciative.

Even those we had to turn away I hope left with something of value — perhaps an education — and the feeling that they had been treated fairly and with respect, that I had carefully listened and considered their claim to stay, and that I had explained, to the best of my ability, in understandable language, why I couldn’t help them. Being a U.S. Immigration Judge was not an easy job.

Overall, I felt very inspired when I could play a positive role in the lives of these fine young people. “Building America’s future, one life at a time, one case at a time,” as I used to say.

PWS

03/28/17

THE HILL: Nolan Rappaport Says DHS Does Inadequate Job Of Tracking Unaccompanied Children!

http://thehill.com/blogs/pundits-blog/immigration/325942-maryland-immigrant-rape-case-shows-failure-of-us-policy-on

Nolan writes:

“CBP is required by the William Wilberforce Trafficking Victims Protection Reauthorization Act to transfer the custody of unaccompanied alien children from Central America to ORR within 72 hours of determining that they are unaccompanied alien children. ORR promptly places them in the least restrictive setting that is in their best interests while they wait for an immigration hearing to be scheduled.

They normally are not held at a secure facility unless they are charged with criminal actions, pose a threat of violence, or are flight risks.

Unaccompanied alien children are not eligible for many forms of relief. Asylum is the most common. The only other possibilities I am aware of are “special immigrant juvenile status,” which requires a finding by a state juvenile court that they have been abused, neglected, or abandoned; and “T nonimmigrant status” for victims of trafficking.

Many of the children who are released from custody abscond instead of returning for their hearings. Between July 18, 2014, and June 28, 2016, removal proceedings were initiated in 69,540 cases. Only 31,091 of them were completed. Of the total completed cases, 12,977 resulted in removal orders, and 11,528 (89 percent) of the removal orders were issued in absentia because the children had absconded.

The post-Trump immigration court handles fewer unaccompanied alien children cases. This will increase the amount of time unaccompanied alien children have to wait for hearings, which is likely to increase the number of children who abscond.

Also, they will have less incentive to return for their hearings. In the more liberal Obama era, immigration judges granted asylum in up to 71 percent of their asylum cases. This is not likely to continue in the post-Trump era.

The fact that many unaccompanied alien children abscond is disturbing. We know very little about them.”

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Please read Nolan’s complete article over on The Hill at the link.

I have a few thoughts. First, although at the end of my career I was not assigned to the juvenile docket, I handled many juvenile cases over my 13 year career at the Arlington Immigration Court.

Even when I was not responsible for the juvenile docket, “mis-assigned” juvenile cases appeared on my docket on a regular basis, probably a consequence of the “haste makes waste” prioritization of juveniles by the Obama Administration. I never had a significant problem with juveniles “absconding.”

Not surprisingly, this is borne out by the facts. Studies show that represented juveniles appear for their hearings about 95% of the time. That suggests that the real effort should be on working with the pro bono bar to ensure that juvenile cases are scheduled in a manner that promotes maximum representation at the first hearing. Presto, the largely imaginary problem with “absconding” juveniles disappears.

See this link to an American Immigration Council analysis:

Taking Attendance: New Data Finds Majority of Children Appear in Immigration Court | American Immigr

Second, in the small number of cases where juveniles did not appear, the problem was almost always with the Government system, not the juveniles. Indeed, the suggestion that children, some infants, other toddlers, “abscond” is prima facie absurd.

There are a number of reasons why juveniles might not appear: 1) in their haste to move these cases through the system, DHS often incorrectly transmits the U.S. address to the Immigration Court; 2) under pressure to fill “priority” dockets required by the Obama Administration, the Immigration Court, which still operates with a manual data entry system, sometimes sent the notice to a wrong address; and 3) almost all juveniles have to rely on adult “sponsors” to get them to court. Depending on the degree of understanding and responsibility on the part of the sponsor, this might or might not happen.

When the court appearance requirements are properly communicated and understood by the sponsor, and where the juvenile has realistic access to legal representation, there simply are not many “no show” issues. In Immigration Courts that put due process first, most no-shows are eventually reopened when the juvenile and the sponsor discover the problem and explain the failure to appear. Therefore, large numbers of “in absentia” juvenile cases suggests to me a problem with the system, and, perhaps, with particular Immigration Judges, rather than the juveniles.

Here’s a link to a L.A. Times article on in absentia orders for unaccompanied children.

http://www.latimes.com/local/california/la-me-children-deported-20150306-story.html

Third, Nolan’s reference to the “liberal” Obama administration seems gratuitous. The Obama Administration did little of substance to help juveniles and, to my knowledge, most of the precedents issued by the BIA made it more difficult, rather than easier, for juveniles from the Northern Triangle to get relief.

Nevertheless, juveniles were able to succeed at a fairly high rate where they obtained competent representation, Immigration Judges fairly applied the generous standards for asylum, and also gave the children adequate time to pursue other forms of relief such as those mentioned by Nolan.

The nationwide asylum grant rate in the most recent year was approximately 47%, not 71%. The latter was just one of the courts with a higher rate. But, there were also courts like Atlanta, with a 2% rate who were not doing a fair job of asylum adjudication.

In any event, there is every reason to believe that most of the juveniles in the system had at least a “respectable” chance of success in remaining.

It’s possible that the Trump Administration will attempt to “game” to system to depress grant rates. Such conduct appears on its face to be both illegal and contrary to the generous standard for asylum established by the U.S. Supreme Court in INS v. Cardoza-Fonseca.

To date, I am aware of no such overt attempt by the Administration to interfere with the fair adjudication of asylum claims. However, I do acknowledge that the general tone of the Executive Orders is xenophobic and disparaging to refugees and immigrants. At some point, the Article III Courts will decide whether or not the Administration is complying with the requirements of U.S. law and various international protection agreements.

Finally, I think that Nolan’s suggestion that unaccompanied children be sent to third countries for U.N. processing would be a violation of both the INA and the Wilberforce Act. While there is a provision in the INA for sending individuals who arrived in “safe third countries” back to those countries for asylum adjudication, to date it only applies to Canada and is limited in a way that would make it inapplicable to the Southern Border Central American cases.

The U.S. would do far better to acknowledge the legitimate fears that cause women and children to flee countries in the Northern Triangle. Dealing with the problems at their source, which is likely to be a long-term prospect, while providing at least some type of screening and temporary refuge short of asylum, would, in my view, be a much better and more humane solution to this chronic issue than the enforcement initiatives proposed by the Trump Administration.

PWS

03/27/17

Spend A Few Minutes With Me Behind The Bench! — Read My “Detained Master Calendar” Vignette From The “Journal on Migration and Human Security!”

Part IV: The Immigration Judge

There is widespread consensus that immigration courts are overwhelmed with immense caseloads, inadequate staffing, and lengthy backlogs (Arnold & Porter 2010). Non-detained immigrants in removal proceedings often wait two to three years to have their cases adjudicated. Cases on the detained docket move much faster. Despite the considerable time it takes to access counsel, determine eligibility for defenses to deportation, and gather evidence, the average life of a pro se detained immigrant’s case totals a mere 23 days (Eagly and Shafer 2015, 63).

In addition to facing institutional pressure to quickly move cases while immigrants are detained at government expense, judges are overburdened with the number of detained cases that must be efficiently adjudicated (Lustig et al. 2008). In 2015, immigration judges adjudicated and completed 51,005 detained cases, constituting 28 percent of all immigration cases completed that year (EOIR 2016, gure 11). Judges have very little face time with immigrants in their courtroom, and about half the time spent with pro se detainees involves requests for continuances to seek counsel (Eagly and Shafer 2015, 61). Furthermore, as administrative law judges, immigration judges have obligations to the respondents who appear pro se and are often required to step into the role of counsel in order to fully develop the record through interrogating, examining, and cross-examining an immigrant and any witnesses.”14

Below, a former immigration judge provides a snapshot of a few minutes on the detained docket.

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Prelude15

Wednesday afternoon, detained master calendar. Feeling love and dread. Love: Fast-paced, meaningful, live audience, prepared attorneys, challenging legal questions, teamwork, mediation, problem solving, saving lives, teaching, performing, drama, positive messages, mentoring, full range of life and legal skills in use and on display. Dread: Hopeless cases, sobbing families, watching goodbyes, “not-quite-ready-for-primetime” (“NQRFPT”) attorneys, bad law, missing files, missing detainees, lousy televideo picture of respondent, equipment failures, claustrophobic courtroom, clogged dockets, imprisoned by the system, due process on the run, stress.

Pregame Warm-up

“How many today, Madam Clerk?”

“Fourteen, five bonded, two continued.”

“Thanks, Madam Clerk. Let’s make it happen!”

Showtime.

Politeness, patience, kindness. Listen.

“Please rise, the United States Immigration Court at Arlington Virginia, is now in session, Honorable Paul Wickham Schmidt, presiding.”

Jam-packed with humanity. Live. Uncomfortably hot. Bandbox courtroom. Ratcheting tensions. America’s most important, most forgotten courts. Lots of moving pieces. Put folks at ease. Performance begins.

The Damned

“We’re on the record. This is Judge Paul Wickham Schmidt at the United States Immigration Court in Arlington, Virginia; we’re on a televideo hookup with the DHS Farmville Detention Center, the date is . . . , and this is a master calendar removal hearing in the case of Ricardo Caceres, File number A123 456 789. Counsel, please identify yourselves for the record.”

“Bonnie Baker for the respondent, Mr. Caceres.”

“April Able for the DHS.”
“What are we here for Ms. Baker?”

“Your Honor, we’re seeking a reasonable bond for my client, who has been in the United States for more than two decades. He’s a family man, the sole support of his wife and four US citizen children, who are sitting right behind me. He’s a skilled carpenter with a secure job. He pays his taxes. He’s a deacon at his church. His employer is here this afternoon and is willing to post bond for him. The respondent’s wife is out of work, and the family is on the verge of being evicted from their apartment. The oldest son and daughter are having trouble in school ever since their father was detained. The baby has developed asthma and cries all night.”

“I assume he’s in detention for a reason, Ms. Baker. What is it?”

“Well, Your Honor, he had a very unfortunate incident with one of his co-workers that resulted in his one and only brush with the law. I think he probably got some questionable legal advice, too.”

“What’s the conviction?”
“Aggravated assault with a deadly weapon.”
“Sentence?”
“18 months, with all but three months suspended, Your Honor.”

“Hmmm. Doesn’t sound very promising. What’s your take, Ms. Able?”

“He’s an aggravated felon, Your Honor, under the BIA and Fourth Circuit case law. Therefore, he’s a mandatory detainee. May I serve the records of conviction?”

“Yes, thank you Ms. Able. Isn’t Ms. Able right, Ms. Baker? He’s mandatory detained under the applicable law, isn’t he?”

“Well, Your Honor, technically that might be right. But we’re asking you to exercise your humanitarian discretion in this extraordinary situation.”

“As you know, Ms. Baker, I’m not a court of equity. The law gives me no discretion here. So, based on what you’ve presented, no bond. What’s next? Are you admitting and conceding removability and filing for relief?”

“The family wanted me to ask for bond, Your Honor.”

“You did, Ms. Baker. What’s the next step?”

“Well, the respondent has instructed me that if you didn’t grant a bond, he just wants a final order to go back to Mexico. He’s been in detention for some time now, and he just can’t wait any longer.”

“You’re sure that’s what Mr. Caceres wants to do?”

“Yes, Your Honor.”
“Mr. Caceres, this is Judge Schmidt, can you hear me?”

“Yes.”

“Because of the crime you committed, the law doesn’t permit me to set a bond for you. Your lawyer, Ms. Baker, tells me that you have decided to give up your rights to a full hearing and be removed to Mexico. Is that correct?”

“Yes, Your Honor. I can’t stand any more detention.”

“You understand that this is a final decision, and that once I enter the order you will be removed as soon as DHS can make arrangements.”

“Yes, judge, I understand.”

“And, you’ve discussed this with your family, sir?”

“I just want to go — no more detention. Can I go tomorrow?”

“Probably not. But the assistant chief counsel and DHS officer in court are noting that you want to go as soon as can be arranged.”

“Your Honor, may his wife and children come up and see him for a moment?”

“Yes, of course, Ms. Baker. Please come on up folks.”

“Your Honor, the respondent’s wife would like to make a statement to the court.”

“I don’t think that’s prudent, Ms. Baker. She’s already hysterical, and there is nothing I can do about the situation, as I’m sure you’ll explain to her. We have lots of other people waiting to see me this afternoon.”

“Understood. Thanks, Your Honor.’

“You’re welcome, Ms. Baker. You did the best you could. Take care folks. I’m sorry you’re in this situation. Mr. Caceres, good luck to you in Mexico. Please stay out of trouble. The clerk will issue the final order. Who’s next, Madam Clerk?”

The “Not-Quite-Ready-For-Prime-Time” (“NQRPT”) Lawyer

“Mr. Queless, we’re here for your filing of the respondent’s asylum application.”
“Um, Your Honor, I’m sorry I don’t have it with me. I didn’t have a chance to get to it.”

“Why’s that, Mr. Queless? Your client has been in detention for some time now, and I gave you a generous continuance to get this done.”

“That’s very true, Your Honor, but the power was out at our office for a day, and my son crashed his car and I had to take care of the insurance and the repairs.”

“All right, come back in three weeks with your filing, without fail.”

“Can I come back next week, Your Honor? My client has been in detention a long time.”

“I know that, counsel. That’s why I wanted you to file today, so we could set an individual date. I’m already overbooked for next week, and I can’t justify putting you in front of others who are prepared.”

“Ah, could we just set an individual date now, Your Honor, and I’ll promise to file within a week?”

“That sounds like a really bad idea, Mr. Queless, in light of actual performance to date. I want to see the completed filing before I assign the individual date. That’s how we do things around here. You’ve been around long enough to know that.”

“Excuse me, Your Honor, but may I be heard?”

“Yes, you may, Ms. Able.”

“With due respect, Your Honor, at the last master calendar you said this would be the final continuance. This detained case has been pending for months, and you have given counsel a more than reasonable opportunity to file for relief. At this point, the DHS must request that you deny any further continuance and move that you enter an order of removal.”

“Well, I sympathize with your position, Ms. Able. I did say this would be the last continuance, and I’m as frustrated as you are. But I note that the respondent is from a country where we routinely grant asylum, often by agreement or with no objection from your office. Therefore, I feel that we must get to the merits of his claim. Let’s do this. Mr. Queless, I’m going to give you an ‘incentive’ to get this filed. If the I-589 is not complete and ready to file at the next hearing — no more excuses, no more ‘dog ate my homework’ — I’m going to agree with Ms. Able, grant her motion, and enter an order of removal against your client. Do you understand?”

“Yes, Your Honor. I’ll have it here at the master in three weeks.”

“Anything further from either counsel?”

“Nothing from the DHS, Your Honor.”

“Nothing from the respondent, Your Honor.”

“Hearing is continued.”

The Skeptic

“How are you this afternoon, Mr. Garcia?”

“Okay.”

“Spanish your best language?”

“Yes.”

“Is this your first appearance before me?”

“Yes.”

“You’re going to look for a lawyer before we proceed with your case?”

“Do I need a lawyer, judge?”

“Depends on what you want, Mr. Garcia. I can send you back to Guatemala at government expense or give you voluntary departure if you wish to pay your own way and avoid having a formal removal order on your record. Is that what you want?”

“Oh, no, judge. I don’t want to go back.”

“Then, you need a lawyer, sir. Officer, please give Mr. Garcia the legal services list. Mr. Garcia, this is a list of organizations in Virginia that might be willing to represent you at little or no charge if you can’t afford a lawyer. You should also check with family and friends to see if they can help you nd a free or low-cost lawyer to take your immigration case. I’ll set your case over for three weeks to give you a chance to look.”

“Can I come back next week?”

“You won’t be able to find a lawyer by then, sir. Take the three weeks. If you don’t have a lawyer by then, we’ll go forward without one.”

“Okay, Your Honor.”

“Good luck in finding a lawyer, Mr. Garcia. The clerk will issue the notices. Who’s next, Madam Clerk?”

Postlude

Out of court. Satisfied. Tired. Drained — like a Steph Curry three-pointer. Find my colleagues. Fresh air. Walk in the park. Talk sports, politics, weather. Visit Starbucks. Final refill. Recharge batteries. Master tomorrow morning. Fifty non-detained. Too many. The beat goes on. Walking free. Not an “alien.” Glad. Lucky. Thankful.

14 Immigration and Nationality Act (INA) § 240(b)(1).
15 This account is written by Hon. Paul Wickham Schmidt, who served as the chairman of the Board of Immigration Appeals before being appointed to the Arlington Immigration Court in May 2003, where he served as an immigration judge for 13 years before recently retiring from that position. While the names he has provided in this account are entirely fictional, the situations he describes are based on his own wealth of experience adjudicating cases in immigration court.

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

The full citation is:

Ahmed, Saba; Jordan, Rachel; Appelbaum, Adina, The Human Cost of IIRIRA — Stories From Individuals Impacted by the Immigration Detention System, 5 JMHS 194, 206-11 (2017). Co-author Adina Appelbaum is a former Arlington Immigration Court legal intern and one of my “all-star” students from “Refugee Law & Policy” at Georgetown Law. Read the entire collection of interesting and moving human stories here:

80-263-2-PB

PWS

03/22/17

GIBSON DUNN PUBLIC COUNSEL: Chief U.S. Magistrate Judge Recommends That USDC, WD WA Maintain Habeas Jurisdiction Over Detained Dreamer’s Case

From: Manny Rivera <mrivera@wearerally.com>
Date: Tue, Mar 14, 2017 at 2:30 PM
Subject: BREAKING: Federal Court Finds Jurisdiction to Hear DREAMer Case
To: Manny Rivera <mrivera@wearerally.com>
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FOR IMMEDIATE RELEASE

March 14, 2017

Media Contact:

Manny Rivera, mrivera@wearerally.com, (323) 892-2080

FEDERAL COURT FINDS JURISDICTION TO HEAR CONSTITUTIONAL CLAIMS BROUGHT BY DREAMER DANIEL RAMIREZ MEDINA

Magistrate Judge James P. Donohue Recommends Court Hear Arguments on the Constitutionality of Mr. Ramirez’s Arrest and Detention; Denies Petitioner’s Motion for Immediate Conditional Release

Government’s Attempt to Throw Out Petitioner’s Claims Dismissed by the Court

MEDIA ALERT: Press Teleconference Call with Mr. Ramirez’s Legal Team Scheduled for TODAY at 3:30pm Pacific/6:30pm Eastern

Dial-In: (855) 557-3561

Conference ID: 89214839

SEATTLE, Wash. March 14, 2017 — Chief U.S. Magistrate Judge James P. Donohue today issued a recommendation denying the Government’s Motion to Dismiss, specifically acknowledging federal district court jurisdiction in the habeas petition filed by Daniel Ramirez Medina. Because of uncertainty of the impact of DACA, the court did not order the immediate release of Mr. Ramirez, the DACA beneficiary unconstitutionally detained by Immigration and Customs Enforcement (“ICE”) in Seattle for more than a month, but deferred ruling on the merits of whether he should be released while the merits of the habeas petition is being adjudicated. Mr. Ramirez’s release, called for by immigration advocates, community leaders and Members of Congress from throughout the country, was requested by Mr. Ramirez pending the final determination of the merits challenging his unconstitutional detention. Counsel for the petitioner believes that DACA supports his immediate release.

“We are pleased that the court rejected the government’s effort to evade judicial review,” said Theodore J. Boutrous, Jr., a partner at Gibson, Dunn & Crutcher, and a member of Mr. Ramirez’s legal team. “This is an important ruling because one of the core purposes of habeas corpus is to ensure judicial review of executive detentions and hold the executive branch accountable.”

“But at the same time, Daniel has been wrongfully detained for too long,” added Mr. Boutrous. “We plan to immediately file an objection to the magistrate judge’s denial of our motion seeking immediate conditional release. The government itself has already determined that he represents no threat to public safety or national security. Dreamers like Daniel who have followed the rules and kept their part of the DACA promise deserve to have their rights recognized and vindicated by the court. This is especially true where, as here, the government has failed to keep its promise, and has provided no independent evidence to support its baseless claims.”

In his findings, Judge Donohue noted:

“The Ninth Circuit has not yet decided whether a district court has the authority to conditionally release a habeas petitioner pending a decision on the merits of the petition. United States v. McCandless, 841 F.3d 819, 822 (9th Cir. 2016), pet. for cert. filed (Feb. 16, 2016) (citing In re Roe, 257 F.3d 1077, 1080 (9th Cir. 2001) (per curiam)). Authority from other circuits strongly supports the conclusion that this Court may exercise such authority in the appropriate circumstances.”

The Court also recommended that because Mr. Ramirez remains in custody, and because there are nearly 800,000 DACA beneficiaries who are interested in the outcome of these proceedings, that the merits phase of the case be treated on an expedited schedule.

The case could have broader implications on other DACA beneficiaries, as the lawsuit calls on the court to issue a declaratory judgement that Mr. Ramirez and other Dreamers have constitutionally-protected interests in their status conferred under the Deferred Action for Childhood Arrivals (“DACA”) program.

“Our objective all along has been to end this DREAMer’s nightmare so that Daniel Ramirez may return to his family and his three-year-old citizen child,” said Mark Rosenbaum, director of Opportunity Under Law at Public Counsel, and a member of Mr. Ramirez’s legal team. “While the court today has taken one step towards justice, the government’s attempts to delay justice for this young man who has been detained now for over a month and never been charged with any crime sends an unmistakable message that the word of executive branch cannot be trusted, that it can ‘play bait and switch’ with the life of a DACA recipient.”

Mr. Ramirez was brought to this country as a child and knows no home but the United States. He gave the government sensitive personal information, paid a substantial fee, and voluntarily subjected himself to rigorous background checks—twice—as part of the DACA program, most recently in May 2016. He has no criminal history and has not been charged with any unlawful conduct. Despite this, he was arbitrarily arrested without a warrant or probable cause. The U.S. Government has had more than a month to submit any evidence of wrongdoing or criminal activity, yet no evidence has been presented because no evidence exists.

“Daniel has been in detention for more than a month without ever being charged with a crime, and to this day the government has shown us no evidence that he has done anything wrong” said Ethan Dettmer, a partner at Gibson, Dunn & Crutcher, and a member of Mr. Ramirez’s legal team. “No one should be treated that way, and it is unconstitutional. We are arguing the merits of this case in federal court.”

At a hearing in Seattle last Wednesday, counsel for Mr. Ramirez presented oral arguments on why federal court is the only appropriate venue to hear and decide the habeas petition challenging the constitutionality of his arrest and extended detention. In his decision, Judge Donohue agreed with the Petitioner’s arguments that federal court has jurisdiction over this case because of the critical constitutional issues at stake.

Mr. Ramirez has now been subjected to unconstitutional detention for 32 days without being charged with a crime and with no evidence presented to justify his continued detention.

Petitioners will file a written objection to the Magistrate Judge’s Report and Recommendation by no later than March 28, 2017.

A national press teleconference call with members of Mr. Ramirez’s legal team is scheduled for 3:30pm Pacific/6:30pm Eastern. Counsel will be available during this call to discuss today’s decision and answer questions from members of the media. To view the court’s Report and Recommendation, click here.

Press Teleconference with Counsel for Daniel Ramirez Medina—Dial-In Information:

Dial-In: (855) 557-3561

Conference ID: 89214839

###

Public Counsel is the nation’s largest pro bono law firm. Founded in 1970, Public Counsel strives to achieve three main goals: protect the legal rights of disadvantaged children; represent immigrants who have been the victims of torture, persecution, domestic violence, trafficking, and other crimes; and foster economic justice by providing individuals and institutions in underserved communities with access to quality legal representation. Through a pro bono model that leverages the talents and dedication of thousands of attorney and law student volunteers, along with an in-house staff of more than 75 attorneys and social workers, Public Counsel annually assists more than 30,000 families, children, immigrants, veterans, and nonprofit organizations and addresses systemic poverty and civil rights issues through impact litigation and policy advocacy. For more information, visit www.publiccounsel.org.

Gibson, Dunn & Crutcher LLP is a leading international law firm. Consistently ranking among the world’s top law firms in industry surveys and major publications, Gibson Dunn is distinctively positioned in today’s global marketplace with more than 1,200 lawyers and 20 offices, including Beijing, Brussels, Century City, Dallas, Denver, Dubai, Frankfurt, Hong Kong, Houston, London, Los Angeles, Munich, New York, Orange County, Palo Alto, Paris, San Francisco, São Paulo, Singapore, and Washington, D.C. For more information on Gibson Dunn, please visit our Web site.

Barrera Legal Group focuses on complex immigration issues ranging from family reunification, removal defense and unlawful detention. Barrera legal has represented clients all over the US and in several different countries and maintains committed to represent the immigrant community.

MANNY RIVERA // RALLY

o
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323-892-2080
626-864-7467

6565 Sunset Blvd. Suite 400
Los Angeles, CA 90028

www.WeAreRALLY.comU.S.

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Thanks to Pilar Marrero of La Opinion for sending this in!

PWS

03/14/17

EAST BAY EXPRESS: Are U.S. Immigration Court Hearings For Unrepresented Individuals Unconstitutional? Darwin BondGrahm Seems To Think So — Perhaps Darwin Is Right!

http://www.eastbayexpress.com/oakland/inside-immigration-court-are-deportation-hearings-in-the-bay-area-unconstitutional/Content?oid=5642504

Darwin BondGraham reports in a profile of justice at the U.S. Immigration Court in San Francisco, CA:

“Ilyce Shugall can rattle off a similarly long list of due-process problems. The directing attorney of Community Legal Services in East Palo Alto, Shugall is one of a couple dozen pro-bono lawyers who try to provide counsel to a fraction of the people facing deportation in San Francisco.

“Procedural protections don’t really exist, despite the consequences of banishment,” she said at a recent legal symposium held by the Thelton E. Henderson Center for Social Justice in Berkeley. “There’s no right to an attorney, but the government is represented in every case by an ICE attorney.”

As Shugall sees it, the ICE attorney also has a kind of home-field advantage: Being in the same courtrooms day-in, day-out, allows an attorney to establish better rapport with judges.

And the judges and ICE attorneys all have the same boss: The President of the United States.

The immigration judges are employees of the Executive Office for Immigration Review, which is overseen by the attorney general — they’re not members of the independent judicial branch of government. The ICE attorneys work for the Department of Homeland Security.

Over her career practicing immigration law, Shugall said she’s seen ICE attorneys frequently miss filing deadlines without consequences; file motions on the day of a hearing, preventing review by the defense; and withhold records in a case from the person being targeted for deportation, thereby forcing them to file a burdensome Freedom of Information Act request to get the documents.

She’s also seen extended detention result, countless times, in what Mr. Gonzales apparently did in Judge Murry’s courtroom this past December: Give up on his case and beg to be deported, just to get escape the misery of jail.”

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The full article, which I found through ImmigrationProf Blog, is well worth a read.

I think that the Administration’s ill-advised “pedal to the metal” detention and removal plans, combined with elimination of funding for various Government sponsored outreach, information, and self-help programs is very likely to bring the due process weaknesses of the current U.S. Immigration Court system to a head.

I would not be surprised if a U.S. District Judge somewhere issues a TRO preventing the Government from proceeding in certain types of cases unless the individual is represented. After all, the Government was recently blocked in the 9th Circuit from proceeding against incompetent individuals without establishing some viable system for determining competency and representing those determined to be incompetent.

I also predict that the Administration’s ill-conceived plan to “jack up” detention, particularly by using private facilities which have been determined to have a greater incidence of problematic conditions, is likely to result in major “conditions of detention” litigation and, perhaps, further intervention by the Article III Courts.

Rather than studying the situation and looking for ways to fix our broken immigration justice system so that individuals receive the due process to which they are entitled, the Trump Administration seems determined to make matters worse by turning up the volume. That’s likely to have unhappy consequences not only for the individuals, but also for the Administration.

PWS

03/13/17

NEW FROM 4TH CIR: Cantallano-Cruz v. Sessions — 4th Rips BIA’s “Excessively Narrow” & “Shortsighted” Treatment Of “Nexus” Issue In Honduran Family PSG Asylum Case!

http://www.ca4.uscourts.gov/Opinions/Published/152511.P.pdf

“Our decision in Hernandez-Avalos is particularly instructive in the present case. There, the BIA denied asylum to a petitioner who fled El Salvador after gang members threatened to kill her because she prevented her son from joining the gang. 784 F.3d at 946-47. The petitioner had argued that at least one central reason for her persecution was her nuclear family relationship with her son. Id. at 949. The BIA disagreed, holding that she actually was targeted because she did not consent to her son’s criminal activity. Id.

We held that this application of the nexus requirement by the BIA was “excessively narrow,” and explained that there was no meaningful distinction between the existence of a maternal relationship and a mother’s decision to forbid her son from participating in a gang. Id. at 949–50. We held that the record compelled a factual conclusion that the petitioner’s relationship with her son was a central reason for her persecution, because that relationship was the reason “why she, and not another person, was threatened.” Id. at 950.

We likewise conclude in the present case that the BIA and IJ applied an improper and excessively narrow interpretation of the evidence relevant to the statutory nexus requirement. The BIA and IJ shortsightedly focused on Avila’s articulated purpose of preventing Cantillano Cruz from contacting the police, while discounting the very relationship that prompted her to search for her husband, to confront Avila, and to express her intent to contact the police. See Oliva, 807 F.3d at 59-60 (although the applicant’s refusal to pay the gang rent was the “immediate trigger” for an assault, the applicant’s membership in the social group of individuals who left the gang led to threats, and thus the two reasons were linked). The BIA’s and IJ’s focus on the explanation Avila gave for his threats, while failing to consider the intertwined reasons for those threats, manifests a misapplication of the statutory nexus standard.

The full record before us compels a conclusion that Avila’s threats were motivated, in at least one central respect, by Cantillano Cruz’s membership in Martinez’s nuclear family. Although, as the IJ observed, any person interested in Martinez’s disappearance may have confronted Avila concerning Martinez’s whereabouts, this fact does not adequately explain the ongoing threats Avila made against Cantillano Cruz and her children over a period of two years at her home. See Cordova, 759 F.3d at 339-40 (although the applicant was first attacked by the persecutor to force the applicant to join the gang, the BIA failed to consider evidence showing that later attacks were motivated by family ties). Avila persisted in threatening Cantillano Cruz after she promised him that she would not contact the police. Avila placed threatening telephone calls to Cantillano Cruz at her home, the center of life for Martinez and his nuclear family. Also at the Martinez family’s home, Avila and his associates killed the family’s dogs, brandished and fired weapons, and threatened to harm Cantillano Cruz and her children.”

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Read the full opinion at the link.

In too many cases, the BIA appears to strain the law and misconstrue facts to avoid granting protection to deserving applicants from Northern Triangle countries in Central America who clearly face harm upon return. Misapplication of the highly technical concept of “nexus” is a device sometimes used by by the Board and some Immigration Judges to deny claims of vulnerable individuals who could and should be granted protection under U.S. laws.

In doing so, the BIA jettisons the generous spirit of the Supreme Court’s decision in Cardoza-Fonseca and their own precedent decision in Mogharrabi warranting generous treatment of credible asylum seekers in need of protection. Indeed, the BIA often seems more willing to “rote cite” Mogharrabi than to actually follow their own precedent.

The purpose of asylum and other protections laws is to protect individuals facing harm wherever possible, not to find hyper-technical ways to deny or limit protections.

I am pleased that one of the cases cited by the Fourth Circuit is Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011). Crespin is one of the “seminal” fourth Circuit cases recognizing family as a “particular social group” for asylum purposes. I had granted the asylum applications in Crespin only to have the BIA reverse those grants after the DHS appealed. However, upon judicial review, the Fourth Circuit agreed with me and reversed and remanded the case to the BIA.

This case also vividly illustrates the absurdity of forcing individuals to pursue these types of claims in Immigration Court without a lawyer. Even the Immigration Judge and the BIA were confused about the proper standards here! Fortunately, this individual not only had a lawyer but a good one.

But, how would an unrepresented individual, without English language skills, and perhaps with minimal education, and therefore no ability to access or understand the important and complicated Fourth Circuit precedents showing the BIA and the IJ to be wrong have any legitimate chance of achieving success? Yet, the Administration proposes to race just such individuals through expedited hearings at inconveniently located and often poorly run detention facilities where chances of getting competent legal assistance are minimal.

PWS

03/13/17

REUTERS: U.S. Immigration Court’s “Night Court” Plan Shows Why Due Process Is A Mirage In A “Captive” Court System — Will EOIR Cave To Administration’s Move To Put “Due Process Veneer” On Assembly Line Removals!

http://mobile.reuters.com/article/idUSKBN16H030

Julia Edwards Ainsley reports:

“The Department of Justice is deploying 50 judges to immigration detention facilities across the United States, according to two sources and a letter seen by Reuters and sent to judges on Thursday.

The department is also considering asking judges to sit from 6 a.m. to 10 p.m., split between two rotating shifts, to adjudicate more cases, the sources said. A notice about shift times was not included in the letter.

The Justice Department did not respond to a request for comment.”

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Thanks much to Zoe Tillman over at BuzzFeed News for bringing this article to my attention.

“Judges” working “shifts” on the “removal assembly line!” “Come on, man!” A “real” court would be strongly resisting this mockery of justice and due process.

But, because the U.S. Immigration Court is a “wholly owned subsidiary” of the Administration, EOIR leadership will likely “go along to get along” with a transparent scheme to railroad human beings in real danger back to the “death zone” of the Northern Triangle with “rubber stamp” justice. In other words, the Immigration Courts are considered by the Administration and the DOJ to be part of the “enforcement team,” rather than an independent due-process focused judiciary.

Scheduling early in the AM and late at night is likely to make it more difficult to get pro bono lawyers, witnesses, interpreters, etc. It isn’t just judges.

Also, some folks don’t function very well at those hours. Sounds sort of “gulag like” to me.

And, what about court clerks and other support staff? Additionally, by putting courts in out of the way detention locations and scheduling hearings at odd times, DOJ limits transparency. It’s harder for the press and other “outsiders” to observe.

Moreover, what happens to existing dockets of those IJs who “volunteer?” Reassigning 50 currently sitting Immigration Judges to the Southern Border on a rotating basis for one year would require the rescheduling of nearly 40,000 cases from their “home” dockets. Those cases, many already years old, are likely to be sent to the end of the docket, several years out. This is classic “aimless docket reshuffling” which increases backlogs and inhibits fairness and due process.

Finally, what’s going to happen to a “volunteer” Immigration Judge who takes due process seriously, slows down the cases so individuals can get lawyers, takes time for full presentation of the cases by both sides, and writes carefully reasoned decisions granting asylum or alternative forms of protection. Chances are they will be considered “unproductive,” “not with the program,” “not carrying their weight,” or “not committed to carrying out the Attorney General’s priorities” (yes, folks, Immigration Judges actually are given “performance ratings,” and one of the elements has to do with supporting “agency priorities”)? That’s likely to be “career limiting.”

Final question: How would you like to have your life determined by a judge working (for the “chief prosecutor”) under these conditions?

PWS

03/10/17

TIME: Deportation Can Be a Death Sentence — We Should Be Concerned About “Quick Removal Schemes” By The Administration & Continued Deterioration of Due Process And Fairness For Asylum Seekers – Particularly Those Unrepresented — In U.S. Immigration Court!

http://time.com/4696017/deportation-death-refugees-asylum/

Conchita Cruz and Swapna Reddy, co-founders of the Asylum Seeker Advocacy Project at the Urban Justice Center, write:

“For one immigrant group—asylum seekers already living in the United States—the fear is especially intense: deportation is a death sentence.
While thousands showed up to support refugee families at airports in response to the refugee ban, many Americans do not realize that a different group of refugee families stands to be picked up in raids, detained and wrongfully deported from the United States. These refugees are called “asylum seekers” because they are seeking refugee status from inside the United States instead of abroad.
For many asylum seekers, there is no mechanism to apply for refugee status abroad, which causes them to come to the U.S.-Mexico border and turn themselves in, seeking refuge. Like their counterparts in airports, they have experienced incredible violence in their countries of origin. They have been brutally raped, threatened by gunpoint to join gangs, or witnessed the murder of loved ones.
In response, the Department of Homeland Security (DHS) holds asylum seekers in detention centers for weeks or months until they pass a preliminary interview with an asylum officer. If they secure release, they move in with relatives or friends while remaining in deportation proceedings pending a full asylum trial.
Asylum seekers do not have a right to government-appointed counsel though their lives hang in the balance. Instead, families are forced to navigate the complex immigration system alone in a language they do not understand. Many also suffer from trauma-based disabilities such as post-traumatic stress disorder due to the persecution they experienced in the countries they fled.”

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Perhaps contrary to popular perception, we often return individuals to dangerous and life-threatening situations. That’s because of the somewhat arcane “nexus” requirement for asylum that only covers persecution because of race, religion, nationality, membership in a particular social group, or political opinion.

By manipulating these definitions, U.S. Government authorities often can deny protection even to individuals who clearly face life-threatening danger upon return. The Government has worked particularly hard to develop technical legal criteria to disqualify those fleeing danger in the Northern Triangle.

Given the complexity and the highly legalistic nature of the system, competent representation by an attorney is a requirement for due process. For example, according to TRAC, for a sample population of Northern Triangle “women with children,” slightly more than 26% of those with lawyers got favorable decisions from the Immigration Court. Without lawyers, only 1.5% succeeded.

And, if the law were interpreted more reasonably and generously, in accordance with the spirit of asylum protection, I think that a substantial majority of those applying for asylum from the Northern Triangle would be granted relief. Pressure for more favorable interpretations will not come from unrepresented individuals who can’t speak English, let alone articulate, document, and support sophisticated legal arguments for better interpretations of protection laws.

PWS

03/09/17

My Message To Cornell Law — “Fight For Due Process” — Join The “New Due Process Army” — Due Process In Peril At The U.S. Immigration Court!

I spoke to an audience of approximately 120 members of the Cornell University community in Ithaca on Wednesday, March 8, 2017, as part of the Berger International Programs Lecture Series at Cornell Law. Many thanks to Professor Stephen Yale-Loehr for inviting me.

Read my entire speech

“EXISTENTIALISM AND THE MEANING OF LIFE AT THE U.S. IMMIGRATION COURT – CORNELL LAW VERSION”

here:

EXISTENTIALISM — Cornell — AND THE MEANING OF LIFE AT THE U

Here are a few “Highlights:”

“Sadly, the Immigration Court System is moving further away from that due process vision. Instead, years of neglect, misunderstanding, mismanagement, and misguided priorities imposed by the U.S. Department of Justice have created judicial chaos with an expanding backlog now exceeding an astounding one half million cases and no clear plan for resolving them in the foreseeable future.”

“Nobody has been hit harder by this preventable disaster than asylum seekers, particularly scared women and children fleeing for their lives from the Northern Triangle of Central America. In Immigration Court, notwithstanding the life or death issues at stake, unlike criminal court there is no right to an appointed lawyer.”

“First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the DOJ – as proved by over three decades of history, particularly recent history.”

“This is hardly “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all!” These unusually low asylum grant rates are impossible to justify in light of the generous standard for well-founded fear established by the Supreme Court in Cardoza-Fonseca and the BIA in Mogharrabi, and the regulatory presumption of future fear arising out of past persecution that applies in many asylum cases. Yet, the BIA has only recently and fairly timidly addressed the manifest lack of respect for asylum seekers and failure to guarantee fairness and due process for such vulnerable individuals in some cases arising in Atlanta and other courts with unrealistically low grant rates.”

“Over the past 16 years, the BIA’s inability or unwillingness to aggressively stand up for the due process rights of asylum seekers and to enforce the fair and generous standards required by American law have robbed our Immigration Court System of credibility and public support, as well as ruined the lives of many who were denied protection that should have been granted. We need a BIA which functions like a Federal Appellate Court and whose overriding mission is to ensure that the due process vision of the Immigration Courts becomes a reality rather than an unfulfilled promise.”

“So, do we abandon all hope? No, of course not! Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former student, and those who have practiced before the Arlington Immigration Court.”

“They form what I call the “New Due Process Army!” And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of “guaranteeing fairness and due process for all!”

“Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.”

“Now is the time to take a stand for fundamental fairness! Join the New Due Process Army! Due process forever!”

PWS

03/10/17