"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
As many as 1,000 parents separated from their children are getting a second chance to stay in the US
In a huge reversal, the Trump administration is giving families another chance to claim asylum — and even some parents who’ve already been deported might be eligible.
A Honduran father and his 6-year-old son worship during Sunday mass on September 9, 2018, in Oakland, California. They fled their country seeking asylum in the US.Mario Tama/Getty Images
The Trump administration has just agreed to give parents who were separated from their children at the US-Mexico border earlier this year a second chance to make asylum claims in the US.
The Department of Justice has negotiated an agreement that covers three lawsuits filed against the government over the family-separation policy. Parents in the US who’d been ordered deported would get another chance to pass an interview demonstrating a “credible fear” of persecution — the first step in the asylum process.
If either the parent or the child passes the screening interview, families will be allowed to apply for asylum together. Some parents who don’t pass will be allowed to remain with their children in the US while the children’s cases are adjudicated.
And in some cases, the government is even willing to consider reopening cases for parents who were already deported from the US.
The agreement covers three lawsuits: Ms. L v. ICE, which forced the government to reunite separated families this summer; M- M- M- v. ICE, brought on behalf of children separated from parents; and Dora v. Sessions, a lawsuit from parents who had failed their initial asylum screenings because they were distraught after weeks of separation from their children.
If the agreement is approved by the federal judges overseeing the three lawsuits, it will result in a second chance for hundreds of parents. Muslim Advocates and the Legal Aid Justice Center, who represented the plaintiffs in Dora v. Sessions, believe it could give “well over 1,000” parents another chance at an asylum claim. And for many families, it will eliminate (or at least defer) the impossible choice between giving up a child’s legal case, and separating the family again by keeping the child in the US while the parent is deported.
Separating families made it much harder for parents to seek asylum
Under the Trump administration’s family separation policy, a parent who wanted to seek asylum in the US had one chance: to pass a “credible fear” screening interview with an asylum office.
If a parent passed the credible fear screening, he or she was given a chance to seek asylum before an immigration judge; if the parent failed, he or she could appeal the decision to an immigration judge, with much worse odds. Losing the appeal, or agreeing to drop the case, led to an order of deportation.
Generally, most asylum seekers pass their credible fear screenings. But evidence suggests that parents who were separated from their children often failed their interviews. Parents were often so consumed by grief over their separation from their children that they weren’t able to answer asylum officers’ questions fully and effectively, according to the lawsuit filed in Dora v. Sessions.
“Explaining the basis for an asylum claim is very difficult under the best of circumstances,” said one source familiar with the interview process but not professionally authorized to speak on the record. “When someone is a) detained, b) almost certainly unrepresented, and c) beside herself with fear and desperation because of having had her child taken from her,” the source continued, “it is almost impossible.”
By the time nearly 2,000 parents and children were reunited in July (thanks to Judge Dana Sabraw’s rulings in the Ms. L case ordering family reunification), the overwhelming majority of parents had already lost their cases and been ordered deported. But their children — who’d been placed on a separate legal track as “unaccompanied alien children” after being separated from their parents — often still had ongoing cases and a real chance of winning some form of legal status in the US.
So upon being reunited, hundreds of families were faced with the choice between returning to their home country together (and facing possible peril or persecution), and keeping the child in the US in hopes of winning asylum or another form of legal status — and separating the family anew. (Some parents alleged they weren’t even given this chance, and were coerced into withdrawing their children’s legal claims — and forcibly reseparated without warning if they refused to comply.)
None of this would have happened if families hadn’t been separated to begin with. Under normal circumstances, if either a parent or a child passed an asylum interview, the government would allow them both to file asylum claims. And obviously, parents who weren’t traumatized by family separation might have had a better chance with their interviews. But simply reuniting the family didn’t solve the problem.
The government is agreeing to give reunited families the same chance they’d had if they’d never been separated
Here is what the agreement proposed by the government would actually do, if approved:
Parents who passed their initial “credible fear” interviews for asylum will be allowed to continue; this agreement doesn’t change those cases.
Parents who had lost their cases and been ordered deported will be given a full review to reassess whether or not they have a credible fear of persecution. This review will include a second interview for “additional fact-gathering” — during which a lawyer can be present (or can dial in by phone). Parents will be allowed to do this even if they didn’t ask for a credible fear interview when they were first arrested.
Parents who fail their credible fear screenings will be allowed to remain in the US and apply for asylum if their child passes his or her credible fear screening. The reverse is also true: If a child fails her asylum screening but the parent passes his, both parent and child will be allowed to apply for asylum. This is the way things normally work when families are apprehended together; by instituting it now, the government is essentially wiping away the legal side effects of family separation.
Parents who aren’t eligible for a credible fear interview because they had been deported before and were returning will still be allowed to avoid deportation if they meet a higher standard (“reasonable fear”) and qualify for something called “withholding of removal.” Even if they fail that standard, they will be allowed to stay in the US while their children are going through their asylum cases.
Parents who have already been deported will not have their cases automatically reviewed by the government. However, the plaintiffs in these lawsuits will have 30 days to present evidence to the government that particular parents should be allowed to return, and the government will consider those requests. (The agreement doesn’t make it clear whether deported parents will have their own cases reopened, or whether they will solely be allowed to return to stay with their children while the children’s legal cases are ongoing.)
If the agreement is approved, it will officially send the legal fight over family separation into its endgame phase. While hundreds of parents and children remain separated, the legal fight over reunification is largely about who’s responsible for carrying out various parts of the government’s reunification plan; the new agreement would set a similar plan up for the legal due process of parents and children making claims to stay in the US.
It would almost certainly run into similar implementation obstacles to the reunification plan, but it would set expectations that the government would provide this process by default, rather than moving forward with deportation.
The Trump administration is never going to wholly be able to erase the consequences of its decision to separate families as a matter of course. But it is now agreeing to give up the legal advantages that it accrued by separating parents’ and children’s cases — and forcing parents to go through interviews with life-or-death stakes without knowing when or whether they’d ever see their children again.
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I’ve been saying it over and over again. Why not just do it right, provide full Due Process, and follow the law?
Not only are the policies being promoted by Sessions, Trump, and the rest of the GOP White Nationalists unconstitutional, illegal, vile, and immoral, they are totally wasteful of limited Government resources (particularly in a time of GOP-fueled budget deficits) and unnecessarily tie up the Federal Courts. Contrary to Jeff Sessions’s false narratives, no court system anywhere has unlimited time for all the nonsense that the Government could potentially pursue. When common sense and sane prosecutorial discretion lose out, they whole system suffers.
Think what might have happened if, instead of wasting time and money on illegal family separation, unnecessary criminal prosecutions, and bending protection law out of shape, the Government had done the right thing and spent the money:
Working with NGOs and legal aid groups to release folks in locations where they could get legal assistance, virtually guaranteeing their appearance in Immigration Court;
Agreeing to grant the many domestic violence and other types of gang-related cases that could have been granted after proper preparation and documentation under a proper application of the law (before Sessions messed it up);
Taking all of the cases of long-term law-abiding residents off overloaded Immigration Court dockets so that the real contested asylum cases could be given priority without denying anyone Due Process or moving everything else back through “Aimless Docket Reshuffling” (“ADR”).
Any “bad guys,” or “true economic migrants” could have been given full hearings, denied, and removed. But, totally contrary to Sessions’s racist blather, most of the folks arriving are actually legitimate refugees. They could have been granted status and allowed to go out and work and study to make America better. I’ve found few individuals (including many native-born US citizens) more grateful and willing to work hard and contribute than those granted asylum.
The money spent on wasteful litigation and needless, cruel and inhuman, detention could instead have been used;
to establish a viable overseas refugee screening program in the Northern Triangle;
working with other countries to share resettlement responsibilities;
and trying to correct the situations in the Northern Triangle which gave rise to the refugee flows in the first place.
Sadly, this is hardly the first, and probably by no means the last, time that the US Government has been forced to reprocess large numbers of asylum seekers because of a failure to follow Due Process and do the right thing in the first place. Just check out the history of the ABC v. Thornburgh litigation and settlement (a case I was involved in during my time in the “Legacy INS” General Counsel’s Office).
Indeed, the Trump scofflaws are “doubling down” on every failed policy fo the past. They actually are at it again with their bone-headed proposal to thumb their collective noses at Judge Dolly Gee and withdraw from the Flores settlement and set up a “Kiddie Gulag” by regulation. Good luck with that. The Trump Scofflaws are already wasting your taxpayer money on more “tent cities in the Kiddie Gulag” that they almost certainly will be enjoined from using at some point. Then, cooler heads will prevail and we’ll undoubtedly have a “Flores II” settlement.
Also, compare the real role of immigration lawyers in enforcing the law and holding Goverment scofflaws like Sessions and Nielsen accountable with the totally bogus picture painted by Sessions in his false, unethical, and highly inappropriate speech to US Immigration Judges this week. Truth is exactly the opposite of nearly everything that Jeff Sessions says.
Our country can’t afford the scofflaw conduct, inhumanity, immorality, and wastefulness of Trump, Sessions, Miller and their racist White Nationalist cabal. Vote for regime change this Fall!
Sophia Genovese, Sept. 10, 2018 – “US asylum law is nuanced, at times contradictory, and ever-changing. As brief background, in order to be granted asylum, applicants must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that they are unable or unwilling to return to, or avail themselves of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). Attorneys constantly grapple with the ins and outs of asylum law, especially in light of recent, dramatic changes to asylum adjudication.
Even with legal representation, the chances of being granted asylum are slim. In FY 2017, only 45% asylum-seekers who had an attorney were ultimately granted asylum. Imagine, then, an asylum-seeker fleeing persecution, suffering from severe trauma, and arriving in a foreign land where he or she suddenly has to become a legal expert in order to avoid being sent back to certain death. For most, this is nearly impossible, where in FY 2017, only 10% of those unrepresented successfully obtained asylum.
It is important to remember that while asylum-seekers have a right to obtain counsel at their own expense, they are not entitled to government-appointed counsel. INA § 240(b)(4)(A). Access to legal representation is critical for asylum-seekers. However, most asylum-seekers, especially those in detention, go largely unrepresented in their asylum proceedings, where only 15% of all detained immigrants have access to an attorney. For those detained in remote areas, that percentage is even lower.
Given this inequity, I felt compelled to travel to a remote detention facility in Folkston, GA and provide pro bono legal assistance to detained asylum-seekers in their bond and parole proceedings. I travelled along with former supervisors turned mentors, Jessica Greenberg and Deirdre Stradone, Staff Attorneys at African Services Committee(ASC)/Immigrant Community Law Center (ICLC), along with Lucia della Paolera, a volunteer interpreter. Our program was organized and led by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI). SIFI currently only represents detained asylum-seekers in their bond and parole proceedings in order to assist as many folks as possible in obtaining release. Their rationale is that since bond and parole representation take up substantially less time than asylum representation, that they can have a far greater impact in successfully obtaining release for several hundred asylum-seekers, who can hopefully thereafter obtain counsel to represent them in their asylum proceedings.
Folkston is extremely remote. It is about 50 miles northwest of Jacksonville, FL, and nearly 300 miles from Atlanta, GA, where the cases from the Folkston ICE Processing Center are heard. Instead of transporting detained asylum-seekers and migrants to their hearings at the Atlanta Immigration Court, Immigration Judges (IJs) appear via teleconference. These proceedings lack any semblance to due process. Rather, through assembly-line adjudication, IJs hear several dozens of cases within the span of a few hours. On court days, I witnessed about twenty men get shuffled into a small conference room to speak with the IJ in front of a small camera. The IJ only spends a few minutes on each case, and then the next twenty men get shuffled into the same room. While IJs may spend a bit more time with detainees during their bond or merits hearings, the time spent is often inadequate, frequently leading to unjust results.
Even with the tireless efforts of the Staff Attorneys and volunteers at SIFI, there are simply too few attorneys to help every detainee at the Folkston ICE Processing Center, which houses almost 900 immigrants at any given time, leaving hundreds stranded to navigate the confusing waters of immigration court alone.
During initial screenings, I encountered numerous individuals who filled out their asylum applications on their own. These folks try their best using the internet in the library to translate the application into their native language, translate their answers into English, and then hand in their I-589s to the IJ. But as any practitioner will tell you, so much more goes into an asylum application than the Form I-589. While these asylum seekers are smart and resourceful, it is nearly impossible for one to successfully pursue one’s own asylum claim. To make matters worse, if these asylum-seekers do not obtain release from detention ahead of their merits hearing where an IJ will adjudicate their asylum claim, they will be left to argue their claims in the Atlanta Immigration Court, where 95%-98% of all asylum claims are denied. For those detained and/or unrepresented, that number is nearly 100%.
Despite the Attorney General’s most recent comments that lawyers are not following the letter of the law when advocating on behalf of asylum-seekers, it is clear that it is the IJs, [tasked with fairly applying the law, and DHS officials, tasked with enforcing the law,] who are the ones seeking to circumvent the Immigration and Nationality Act (INA). Throughout the Trump era, immigration attorneys have faithfully upheld asylum law and have had to hold the government accountable in its failure to apply the law fairly. Good lawyers, using all of their talents and skill, work every day to vindicate the rights of their clients pursuant to the INA, contrary to Sessions’ assertions.
But more importantly, asylum-seekers have suffered from serious human rights abuses and merit protection under our laws. Their cases are not denied because they are not bona fide. Their cases are not denied because they do not qualify as refugees under the INA. Indeed, most of these asylum-seekers were found to possess a credible fear of return upon their initial apprehension. Through a combination of lack of access to counsel, unfair and uneven adjudication by IJs, and impermissible interference by the Attorney General, credible and bona fide cases are frequently denied.
We’ve previously blogged about the due process concerns in immigration courts under Sessions’ tenure. Instead, I want to highlight the stories of some of the asylum-seekers I met in Folkston. If these individuals do not obtain counsel for the bond or parole proceedings, and/or if they are denied release, they will be forced to adjudicate their claims in the Atlanta Immigration Court where they will almost certainly be ordered removed. It is important that we understand who it is that we’re actually deporting. Through sharing their stories, I want to demonstrate to others just how unfair our asylum system is. Asylum was meant to protect these people. Instead, we treat them as criminals by detaining them, do not provide them with adequate access to legal representation, and summarily remove them from the United States. Below are their stories:
Twenty-Five Year Old From Honduras Who Had Been Sexually Assaulted on Account of His Sexual Orientation
At the end of my first day in Folkston, I was asked to inform an individual, Mr. J-, that SIFI would be representing him in his bond proceedings. He’s been in detention since March 2018 and cried when I told him that we were going to try and get him out on bond.
Mr. J- looks like he’s about sixteen, and maybe weighs about 100 pounds. Back home in Honduras, he was frequently ridiculed because of his sexual orientation. Because he is rather small, this ridicule often turned into physical assault by other members of his community, including the police. One day when Mr. J- was returning from the store, he was stopped by five men from his neighborhood who started berating him on account of his sexual orientation. These men proceeded to sexually assault him, one by one, until he passed out. These men warned Mr. J- not to go to the police, or else they would find him and kill him. Mr. J- knew that the police would not help him even if he did report the incident. These men later tracked down Mr. J-’s cellphone number, and continued to harass and threaten him. Fearing for his life, Mr. J- fled to the United States.
Mr. J-’s asylum claim is textbook and ought to be readily granted. However, given Sessions’ recent unilateral change in asylum law based on private acts of violence, Mr. J- will have to fight an uphill battle to ultimately prevail. See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). If released on bond, Mr. J- plans to move in with his uncle, a US citizen, who resides in Florida. Mr. J-’s case will then be transferred to the immigration court in Miami. Although the Immigration Court in Miami similarly has high denial rates, where nearly 90% of all asylum claims are ultimately denied, Mr. J- will at least have a better chance of prevailing there than he would in Atlanta.
Indigenous Mayan from Guatemala Who Was Targeted on Account of His Success as a Businessman
During my second day, I met with an indigenous Mayan from Guatemala, Mr. S-. He holds a Master’s degree in Education, owned a restaurant back home, and was the minister at his local church. He had previously worked in agriculture pursuant to an H-2B visa in Iowa, and then returned to Guatemala when the visa expired to open his business.
He fled Guatemala earlier this year on account of his membership in a particular social group. One night after closing his restaurant, he was thrown off his motorcycle by several men who believes were part of a local gang. They beat him and threatened to kill him and his family if he did not give them a large sum of money. They specifically targeted Mr. S- because he was a successful businessman. They warned him not to go to the police or else they would find out and kill him. The client knew that the police would not protect him from this harm on account of his ethnic background as an indigenous Mayan. The day of the extortionists’ deadline to pay, Mr. S- didn’t have the money to pay them off, and was forced to flee or face a certain death.
Mr. S- has been in immigration detention since March. The day I met with him at the end of August was the first time he had been able to speak to an attorney.
Mr. S-’s prospects for success are uncertain. Even prior to the recent decision in Matter of A-B-, asylum claims based on the particular social group of “wealthy businessmen” were seldom granted. See, e.g., Lopez v. Sessions, 859 F.3d 464 (7th Cir. 2017); Dominguez-Pulido v. Lynch, 821 F.3d 837, 845 (7th Cir. 2016) (“wealth, standing alone, is not an immutable characteristic of a cognizable social group”); but see, Tapiero de Orejuela v. Gonzales, 423 F.3d 666 (7th Cir. 2005) (confirming that although wealth standing alone is not an immutable characteristic, the Respondent’s combined attributes of wealth, education status, and cattle rancher, satisfied the particular social group requirements). However, if Mr. S- can show that he was also targeted on account of his indigenous Mayan ancestry, he can perhaps also raise an asylum claim based on his ethnicity. The combination of his particular social group and ethnicity may be enough to entitle him to relief. See, e.g., Ordonez-Quino v. Holder, 760 F.3d 80, 90 (1st Cir. 2014) (Respondent demonstrated that his “Mayan Quiché identity was ‘at least one central reason’ why he” was persecuted).
As business immigration attorneys may also point out, if Mr. S- can somehow locate an employer in the US to sponsor him, he may be eligible for employment-based relief based on his Master’s degree, prior experience working in agriculture, and/or his business acumen on account of his successful restaurant management. Especially if Mr. S- is not released on bond and forced to adjudicate his claims in the Atlanta Immigration Court where asylum denial rates are high, his future attorney may also want to explore these unorthodox strategies.
Indigenous Mam-Speaking Guatemalan Persecuted on Account of His Race, Religion, and Particular Social Group
My third day, I met with Mr. G-, an indigenous Mam from Guatemala. Mr. G- is an incredibly devout Evangelical Christian and one of the purest souls I have ever met. He has resisted recruitment by rival gangs in his town and has been severely beaten because of his resistance. He says his belief in God and being a good person is why he has resisted recruitment. He did not want to be responsible for others’ suffering. The local gangs constantly assaulted Mr. G- due to his Mam heritage, his religion, and his resistance of them. He fled to the US to escape this persecution.
Mr. G- only speaks Mam, an ancient Mayan dialect. He does not speak Spanish. Because of this, he was unable to communicate with immigration officials about his credible fear of return to his country upon his initial arrival in November 2017. Fortunately, the USCIS asylum officer deferred Mr. G-’s credible fear interview until they could locate a Mam translator. However, one was never located, and he has been in immigration detention ever since.
August 29, 2018, nine months into his detention, was the first time he was able to speak to an attorney through an interpreter that spoke his language. Mr. G- was so out of the loop with what was going on, that he did not even know what the word “asylum” meant. For nine months, Mr. G- had to wait to find out what was going on and why he was in detention. My colleague, Jessica, and I, spoke with him for almost three hours. We could not provide him with satisfactory answers about whether SIFI would be able to take his case, and when or if he would be let out of detention. Given recent changes in the law, we couldn’t tell him if his asylum claim would ultimately prevail.
Mr. G- firmly stated that he will be killed if he was forced to go back to Guatemala. He said that if his asylum claim is denied, he will have to put his faith in God to protect him from what is a certain death. He said God is all he has.
Even without answers, this client thanked us until he was blue in the face. He said he did not have any money to pay us but wanted us to know how grateful he was for our help and that he would pray for us. Despite the fact that his life was hanging in the balance, he was more concerned about our time and expense helping him. He went on and on for several minutes about his gratitude. It was difficult for us to hold back tears.
Mr. G- is the reason asylum exists, but under our current framework, he will almost certainly be deported, especially if he cannot locate an attorney. Mr. G- has an arguable claim under Ordonez-Quino v. Holder, on account of his Mam heritage, and an arguable claim on account of his Evangelical Christianity, given that Mr. G-’s persecution was compounded by his visible Mam ethnicity and vocal Evangelical beliefs. His resistance to gang participation will be difficult to overcome, though, as the case law on the subject is primarily negative. See, e.g., Bueso-Avila v. Holder, 663 F.3d 934 (7th Cir. 2011) (finding insufficient evidence that MS-13 targeted Petitioner on account of his Christian beliefs, finding instead that the evidence supported the conclusion that the threats were based on his refusal to join the gang, which is not a protected ground). Mr. G-’s low prospects of success are particularly heart-wrenching. When we as a country fail to protect those seeking refuge from persecution, especially those fleeing religious persecution, we destroy the very ideals upon which this country was founded.
Twenty-Year Old Political Activist From Honduras, Assaulted by Military Police on Account of His Political Opinion
I also assisted in the drafting of a bond motion for a 20 year-old political activist from Honduras, Mr. O-, who had been severely beaten by the military police on account of his political opinion and activism.
Mr. O- was a prominent and vocal member of an opposition political group in Honduras. During the November 2017 Honduran presidential elections, Mr. O- assisted members of his community to travel to the polling stations. When election officials closed the polls too early, Mr. O- reached out to military police patrolling the area to demand that they re-open the polling stations so Hondurans could rightfully cast their votes. The military police became angry with Mr. O-’s insistence and began to beat him by stomping and kicking him, leaving him severely wounded. Mr. O- reported the incident to the police, but was told there was nothing they could do.
A few weeks later, Mr. O- was specifically targeted again by the military police when he was on his way home from a political meeting. The police pulled him from his car and began to beat him, accusing him of being a rioter. He was told to leave the country or else he would be killed. He was also warned that if he went to the national police, that he would be killed. Fearing for his life, Mr. O- fled to the US in April 2018 and has been in detention ever since.
SIFI was able to take on his bond case in August, and by the end of my trip, the SIFI team had submitted his request for bond. Since Mr. O-’s asylum claim is particularly strong, and because he has family in the US, it is highly likely that his bond will be granted. From there, we can only hope that he encounters an IJ that appropriately follows the law and will grant him asylum.”
(The author thanks Jessica Greenberg and Deirdre Stradone for their constant mentorship as well as providing the author the opportunity to go to Folkston. The author also thanks Lucia della Paolera for her advocacy, passion, and critical interpretation assistance. Finally, the author expresses the utmost gratitude to the team at SIFI, who work day in and day out to provide excellent representation to the detained migrants and asylum-seekers detained at Folkston ICE Processing Center.)
Photos from my trip to Folkston, GA:
The Folkston ICE Processing Center.
Downtown Folkston, GA.
Volunteers from Left to Right: Sophia Genovese (author), Deirdre Stradone (Staff Attorney at African Services Committee), Jessica Greenberg (Staff Attorney at ASC/ICLC), and Lucia della Paolera (volunteer interpreter).
Many thanks to the incomparable Dan Kowalski over at LexisNexis for forwarding this terrific and timely piece! These are the kinds of individuals that Jeff Sessions would like Immigration Judges to sentence to death or serious harm without Due Process and contrary to asylum and protection law.
As Sophia cogently points out, since the beginning of this Administration it has been private lawyers, most serving pro bono or “low bono,” who have been courageously fighting to uphold our Constitution and the rule of law from the cowardly scofflaw White Nationalist attacks by Trump, Sessions, Miller, Nielsen, and the rest of the outlaws. In a significant number of cases, the Article III Federal Courts have agreed and held the scofflaws at least legally (if not yet personally) accountable.
Like any bully, Sessions resents having to follow the law and having higher authorities tell him what to do. He has repeatedly made contemptuous, disingenuous legal arguments and presented factual misrepresentations in support of his lawless behavior and only grudgingly complied with court orders. He has disrespectfully and condescendingly lectured the courts about his authority and their limited role in assuring that the Constitution and the law are upheld. That’s why he loves lording it over the US Immigration Courts where he is simultaneously legislator, investigator, prosecutor, judge, jury, appellate court, and executioner in violation of common sense and all rules of legal ethics.
But, Sessions will be long gone before most of you new US Immigration Judges will be. He and his “go along to get along enablers” certainly will be condemned by history as the “21st Century Jim Crows.” Is that how you want to be remembered — as part of a White Nationalist movement that essentially is committed to intentional cruelty, undermining our Constitution, and disrespecting the legal and human rights and monumental contributions to our country of people of color and other vulnerable groups?
Every US Immigration Judge has a chance to stand up and be part of the solution rather than the problem. Do you have the courage to follow the law and the Constitution and to treat asylum applicants and other migrants fairly and impartially, giving asylum applicants the benefit of the doubt as intended by the framers of the Convention? Will you take the necessary time to carefully consider, research, deliberate, and explain each decision to get it right (whether or not it meets Sessions’s bogus “quota system”)? Will you properly factor in all of the difficulties and roadblocks intentionally thrown up by this Administration to disadvantage and improperly deter asylum seekers? Will you treat all individuals coming before you with dignity, kindness, patience, and respect regardless of the ultimate disposition of their cases. This is the “real stuff of genuine judging,” not just being an “employee.”
Or will you, as Sessions urges, treat migrants as “fish in a barrel” or “easy numbers,” unfairly denying their claims for refuge without ever giving them a real chance. Will you prejudge their claims and make false imputations of fraud, with no evidence, as he has? Will you give fair hearings and the granting of relief under our laws the same urgency that Sessions touts for churning out more removal orders. Will you resist Sessions’s disingenuous attempt to shift the blame for the existing mess in the Immigration Courts from himself, his predecessors, the DHS, and Congress, where it belongs, to the individuals and their attorneys coming before you in search of justice (and also, of course, to you for not working hard enough to deny more continuances, cut more corners, and churn out more rote removal orders)?
How will history judge you and your actions, humanity, compassion, understanding, scholarship, attention to detail, willingness to stand up for the rights of the unpopular, and values, in a time of existential crisis for our nation and our world?
Your choice. Choose wisely. Good luck. Do great things!
Attorney General Jeff Sessions on Monday warned incoming immigration judges that lawyers representing immigrants are trying to get around the law like “water seeping through an earthen dam” and that their responsibility is to not let them and instead deliver a “secure” border and a “lawful system” that “actually works.”
He also cautioned the judges against allowing sympathy for the people appearing before them, which might cause them to make decisions contrary to what the law requires.
“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation. Your job is to apply the law — even in tough cases,” he said.
The comments immediately drew criticism from the union that represents the judges and from former judges.
“The reality is that it is a political statement which does not articulate a legal concept that judges are required to be aware of and follow,” said Dana Marks, a spokesperson for the National Association of Immigration Judges and an immigration judge in San Francisco. “It did appear to be a one-sided argument made by a prosecutor.”
Jeffrey Chase, a former immigration judge and now an immigration attorney, said the comments overlooked the fact that asylum laws were designed to be flexible.
“We possess brains and hearts, not just one or the other,” he said. It is sympathy, Chase said, that often spurs legal theories that advance the law in asylum law, civil rights, and criminal law.
“Sessions is characterizing decisions he personally disagrees with as being based on sympathy alone,” he said, “when in fact, those decisions were driven by sympathy but based on solid legal reasoning.”
Unlike other US courts, immigration judges are employees of the Justice Department whose evaluations are based on guidelines Sessions lays out. In that role, Sessions already has instituted case quotas, restricted the types of cases for which asylum can be granted, and limited when judges can indefinitely suspend certain cases. Advocates believe the Trump administration has made these decisions in order to speed up deportations. His comments on sympathy to immigrants appeared intended to bolster a decision he made recently to limit when asylum can be granted out of fear of domestic or gang violence.
Sessions also told the judges that they should focus on maximum production and urged them to get “imaginative and inventive” with their high caseload. The courts currently have a backlog of hundreds of thousands of deportation cases.
Ashley Tabaddor, an immigration judge in Los Angeles and the president of the National Association of Immigration Judges, which represents the nation’s 350 immigration judges, said Sessions’ speech was notable for its lack of any mention of fairness or due process. “We cannot possibly be put in this bind of being accountable to someone who is so clearly committed to the prosecutorial role,” said Tabaddor.
The union has long called for its separation from the Department of Justice in order to be truly independent of political decision-making.
“Good lawyers, using all of their talents and skill, work every day — like water seeping through an earthen dam — to get around the plain words of the [Immigration and Nationality Act] to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty,” Sessions said in a speech to 44 newly hired judges who were being trained in Falls Church, Virginia.
He ended his speech by telling the incoming judges that the American people had spoken in laws and “in our elections.”
“They want a safe, secure border and a lawful system of immigration that actually works. Let’s deliver it for them,” Sessions said.
From the beginning of October through the end of June, immigration judges had granted around 22% of asylum cases and denied around 41% of cases. The rest of the cases were closed. The rate is similar to previous fiscal years. Sessions’ decision to limit the types of cases in which asylum should be granted was made in mid-June.
Attorney General Jeff Sessions said Monday that he plans to increase the number of immigration judges in the U.S. by 50 percent by the end of Fiscal Year 2018 – part of the administration’s effort to take on a case backlog that has ballooned under the Trump administration’s zero-tolerance policy.
The number of immigration cases on hold in the U.S. has risen 38 percent since Trump took office, with 746,049 pending immigration cases as of July 31, up from 542,411 at the end of January 2017, according to an analysis of government data by the Transactional Records Access Clearinghouse at Syracuse University.
Sessions asserted his authority on Monday during remarks welcoming 44 newly hired immigration judges – the largest class in U.S. history – noting that they must operate under his supervision and perform the duties that he prescribes.
As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload,’ he said. ‘I do not apologize for expecting you to perform, at a high level, efficiently and effectively.’
The attorney general said the system for seeking asylum in the U.S. has been ‘abused for years’ and while the judges must respect immigrants’ rights, they should also ‘reject unjustified and sometimes blatantly fake claims.’
Sessions also had harsh words for the attorneys who represent immigrants, describing them as ‘water seeping through an earthen dam,’ who attempt to ‘get around’ immigration laws.
The message follows a series of policy changes that have put increasing pressure on immigration judges to close cases quickly while taking away their authority to prioritize cases based on their own judgment.
‘We’re clearly moving toward a point where there isn’t going to be judicial independence in the immigration courts anymore,’ former immigration Judge Jeffrey S. Chase told DailyMail.com.
U.S. Attorney General Jeff Sessions delivers remarks to the incoming class of immigration judges in Falls Church, Virginia
For example, the Justice Department earlier this year announced a quota system requiring judges to clear at least 700 cases annually in order to be rated as ‘satisfactory’ on their performance evaluations.
Quotas ‘would threaten the integrity and independence of the court and potentially increase the court’s backlog,’ according to the National Association of Immigration Judges, the union representing the judges.
Sessions also issued a decision earlier this year that takes away the authority of immigration judges to administratively close cases, a process that allowed a judge to indefinitely close low-priority cases to make room on the docket for more serious offenses – such as those involving violent criminals and gang members.
From Oct. 1, 2011 through Sept. 30, 2017, 215,285 cases were administratively closed, according to Sessions. Now experts say those cases will be added back to the dockets, further compounding the backlog.
In addition, Sessions issued a legal opinion earlier this year designed to make it impossible for victims of domestic violence and gangs to seek asylum in the U.S. – which some critics say will limit judicial independence.
Legal experts said Monday that Session’s speech was designed to assert his authority over the judges and impress upon them the importance of issuing rulings consistent with his own philosophy.
‘That was an enforcement speech,’ former immigration Judge Paul Wickham Schmidt told DailyMail.com. ‘The whole implication that somehow (people seeking asylum) are bending the law and that there are attorneys trying to go through loopholes is the opposite of the truth … The losers in these asylum cases aren’t simply migrants trying to game the system. They are people facing real dangers when they go home.’
Sessions did not shy away from calling on the new judges to rise to the challenges before them.
‘Let me say this clearly: it is perfectly legitimate, moral, and decent for a nation to have a legal system of immigration and to enforce the system it adopts,’ Sessions said in his prepared remarks. ‘No great and prosperous nation can have both a generous welfare system and open borders. Such a policy is both radical and dangerous.’
Sessions has said that he has introduced a ‘streamlined’ approach for hiring judges – a historically lengthy process – to bring the average hiring time down to 266 days, compared from 742 days in 2017, according to Department of Justice data.
Immigration judges are appointed by the U.S. attorney general. The new additions bring the total number of immigration judges in the U.S. to 397.
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There are lots of helpful charts and graphs accompanying Val’s excellent article. Go to the link above to view them, along with the complete article.
Sessions’s claim that we have a “generous welfare system and open borders” is total BS. We don’t have open borders, and never have had. And SEssions and his GOP cronies have worked hard to make our welfare system not very generous at all, particularly when it comes to foreign nationals. It’s a total insult, as well as an arrogant rewriting of history to imply that the Nixon, Ford, Reagan, Bush I, Clinton, Bush II, and Obama Administrations didn’t care about immigration or border enforcement. All of them took their best shot at it, under the circmstances. I should know, as I served in all of those Administrations except for Bush I. Indeed, if anything, for better or worse, and many would say the latter, enforcement during the Obama era was probably more effective than it has been under the “Trump/Sessions gonzo approach.”
Individuals fleeing from the Northern Triangle aren’t coming for welfare. They are coming to save their lives, something that Sessions’s mindless restrictionist philosophy apparently makes it impossible for him to acknowledge. Moreover, individuals have a statutory right to apply for asylum, regardless of the means of entry. Insuring that asylum, withholding of removal, and protection under the Convention Against Torture are propoerly extended to inbdividuals seeking refuge in the US is just as much a part of “enforcing the rule of law” as are removals. Indeed, the consequencers of wrongfully removing an individual entitled to protection are potentially catestropohic.
OK. Now let’s get beyond Sessions’s White Nationalist screed and get some truth about:
The ethical standards for Immigration Judges;
The real intent of the Refugee Act of 19809; and
What being a fair and impartial immigration judge is really about.
Sessions’s Statement Favoring A Party To Immigration Court Proceedings And Showing Disrespect For The Opposing Party & Their Representatives Violates The EOIR Ethical Code By Showing An “Appearance of Bias.”
Let’s remember that under the strange rules governing EOIR and the Immigration Courts within the USDOJ, Attorney General Jeff Sessions can and has taken on the role as a judicial adjudicator in an individual cases, changing results and setting precedent for the BIA and the Immigration Judges.
So, what does the EOIR Code of Judicial Ethics say about judicial conduct?
V. Impartiality (5 C.F.R. § 2635.101(b)(8))
An Immigration Judge shall act impartially and shall not give preferential treatment to any organization or individual when adjudicating the merits of aparticular case. An Immigration Judge should encourage and facilitate pro bono representation. An Immigration Judge may grant procedural priorities to lawyers providing pro bono legal services in accordance with Operating Procedures and Policies Memorandum (OPPM) 08-01.
VI. Appearance of Impropriety (5 C.F.R. § 2635.101(b)(14))
An Immigration Judge shall endeavor to avoid any actions that, in thejudgment of a reasonable person with knowledge of the relevant facts, wouldcreate the appearance that he or she is violating the law or applicable ethical standards.
. . . .
IX. Acting with judicial Temperament and Professionalism
An Immigration Judge should be patient, dignified, and courteous, and should act in a professional manner towards all litigants, witnesses, lawyers and others with whom the Immigration Judge deals in his or her official capacity, and should not, in the performance of official duties, by words or conduct, manifest improper bias or prejudice.
Note: An Immigration Judge should be alert to avoid behavior, including inappropriate demeanor, which may be perceived as biased. The test forappearance of impropriety is whether the conduct would create in the mind of a reasonable person with knowledge of the relevant facts the belief that the Immigration Judge’s ability to carry out his or her responsibilities with integrity, impartiality, and competence is impaired.
Note: An Immigration Judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the immigration process into disrepute. Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant reference to personal characteristics. Moreover, an Immigration Judge must avoid conduct that may reasonably be perceived as prejudiced or biased. Immigration Judges are not precluded from making legitimate reference to any of the above listed factors, or similar factors, when they are relevant to an issue in a proceeding.
Note: An Immigration Judge has the authority to regulate the course ofthe hearing. See 8 C.F.R. §§ 1240.1(c), 1240.9. Nothing herein prohibits theJudge from doing so. It is recognized that at times an Immigration Judgemust be firm and decisive to maintain courtroom control.
Wow. Sure sounds to me like Sessions is in clear violation of each of these!
Let’s get down to “brass tacks” here. Imagine that you are a represented asylum applicant from the Northern Triangle with an upcoming hearing. The morning of your hearing, you read the statement that Jeff Sessions made to the new Immigration Judges.
That afternoon, when you appear at the hearing you find that none other than Jeff Sessions is yo\ur U.S. Immigration Judge. So, do you think that you and your attorney are going to get a “fair and impartial” hearing, including a possible favorable exercise of discretion” on your asylum application, as our Constitution and laws require? Of course not!
But remember, all asylum applicants are appearing before “judges” who are actually employees of Jeff Sessions. Each judge knows that he or she owes career longevity to pleasing Sessions and his minions. Each judge also knows that at any time Sessions can arbitrarily reach down into the system, without explanation or notice, and “certify” any case or decision to himself.
Clearly, after having publicly taken a pro-DHS, pro-enforcement, anti-asylum applicant, anti-private attorney position, Sessions should not ethically have any role whatsoever in the outcome of cases in the Immigration Court System. But, clearly, he does have such a role. A big one!
If any sitting Immigration Judge conducted himself or herself the way Sessions just did, they would be suspended immediately. How does Sessions get away with disregarding judicial ethics in his own system?
The Refugee Act of 1980 Implements Our International Treaty Obligations Under the UN Convention & Protocol Relating To The Status Of Refugees and Is Actually About “Protecting” Those In Danger, Not Finding Ways Of “Rejecting” Their Claims.
Let’s hear from a former legislator who played a key role in developing and enacting the Refugee Act or 1980, former Representative Elizabeth Holtzman (D-NY) who at that time was the Chair of the House Immigration Subcommittee. This is from the letter that Holtzman recently wrote to Secretary Nielsen resigning from the DHS Detention Advisory Committee because of its perversion of the law, particularly the illegal family separation policy engineered by Sessions.
What is so astonishing to me is how much this country has changed since 1980, when I was privileged as chair of the House Immigration Subcommittee to co-author with Senator Ted Kennedy the Refugee Act of 1980. The Act — which was adopted without serious controversy — created a framework for the regular admission of refugees to the U.S. The immediate stimulus for the bill was the huge exodus of boat people leaving Vietnam. Though the memory of the Holocaust played a role, too, particularly the knowledge that the U.S. could have rescued so many people from the hands of the Nazis but did not. The Refugee Act marked our commitment as a nation to welcoming persons fleeing persecution anywhere.
In those days, the U.S. also showed world leadership on refugee resettlement. For example, America understood that it bore a special responsibility for the refugees fleeing Vietnam because of its long involvement in the Vietnam War. Obviously, we could not absorb all the refugees, but our government worked hard to get resettlement solutions for all. First, it persuaded the countries neighboring Vietnam to which people fled in small boats not to push those refugees back out to sea, where they would confront pirates, drowning and other terrible dangers. (I know because I participated in speaking to those countries.) Then, the U.S. organized a world conference in Geneva, where countries agreed to accept specific numbers of refugees. The U.S. was able to induce other countries to act because it took the largest share. Our country’s leadership turned the boat people crisis into one of the most successful refugee resettlement programs ever.
Now, in response to the influx of (mostly) women and their children fleeing horrific violence in Central America, the U.S. government can think only of building a wall and unlawfully separating children from their parents — something I call child kidnapping, plain and simple — as a deterrent to keep others from coming to the US. How far we have we fallen.
And how easy it would be to do the right thing. The U.S. needs to start with recognizing that it once again has a special responsibility for a dire situation, this time in the Northern Triangle. We overthrew the democratically elected government in Guatemala, which was replaced by one right-wing government after another, including one that committed genocide against the indigenous population. In Honduras and El Salvador, we similarly propped up right-wing governments that did nothing for their people, leaving them without effective governance in place. The fact that gangs have been able to terrorize the population with impunity is a result.
More must be done as well. We should reinstate the Central American Minors Refugee/Parole Program, established under President Obama and cancelled by the Trump Administration, whereby people could apply in their home countries for admission as refugees to the U.S. without facing the perils of the overland trip. Second, we should try to get Canada and other countries in South America to accept refugees from the Northern Triangle countries, reducing the burden on us. To do this, we would have to agree to take a substantial number of refugees from the Northern Triangle countries as well. And then we should work to improve the governance in these countries, perhaps by involving the United Nations and nearby countries, such as Costa Rica.
Unfortunately, the chance of any such enlightened response toward refugees from the Northern Triangle seems remote. These countries probably fall into Trump’s stated “shithole” category. Plainly, the hostile attitude toward the refugees persists. For example, 463 parents may have been deported without their children. Apparently DHS Secretary Kirstjen Nielsen feels no responsibility for reuniting those with their parents, instead making the flimsy excuse that the parents wanted to leave them behind. While possibly true in a small number of instances, given the fact that many of the parents do not speak English, or even Spanish, but their indigenous language, it is more likely that a significant number of the parents had no idea of what was happening or how to get their children back. They may even have been coerced into leaving. In any case, Nielsen has a very poor record of truth-telling. On June 17, she insisted that “We do not have a policy of separating families at the border. Period.”
Most Americans, fortunately, have found the separation policy abhorrent. Those of us who do, need to press the Administration to find a more humane and more comprehensive solution, like our country has done in the past. But if the Administration continues the enforced separation policy, I hope that the courts will enforce their decisions, which have required reunification, by holding the Secretary and others in contempt if necessary. Congress should be called on to act by holding hearings and adopting censure resolutions. None of us can sit idly by when our government stoops to such racist, malign behavior.
Yes, with responsible leadership, it would be relatively easy to do the right thing here. But, it’s not going to happen with the “wrong people” like Donald Trump, Stephen Miller, Jeff Sessions, and Kristjen Nielsen in charge.
The real intent of the Refugee Act of 1980 was to give America the tools to take a leadership role in protecting individuals, particularly those flowing from situations we helped cause like the mess in the Northern Triangle. I’m sure that most of those involved in the bipartisan effort would be shocked by the overtly racist, restrictionist views being pawned off by Sessions as “following the law.” “I call BS” on Session’s perversion of protection laws.
Undoubtedly, cases like Matter of A-R-C-G-, incorrectly overruled by Sessions, actually substantially understated the case for protecting domestic violence victims. There is little doubt in my mind that under a proper interpretation “women in El Salvador” (or Guatemala or Honduras, or many other countries) satisfy the stated criteria for a “particular social group.”
Being a “woman in El Salvador” clearly is :
Immutable or fundamental to identity;
Particularized; and
Socially distinct.
Moreover, there is no legitimate doubt that the status of being a “woman in El Salvador” is often “at least one central reason” for the persecution. Nor is there any doubt that the Governments in the Northern Triangle are unwilling and unable to offer a reasonable level of protection to women abused because of class membership, Sessions’s largely fictional account of country conditions notwithstanding.
At some point, whether or not in my lifetime, some integrity will be re-injected into the legal definition by recognizing the obvious. It might come from Congress, a more qualified Executive, or the Courts. But, it will eventually come. The lack of recognition for women refugees, who perhaps make up a majority of the world’s refugees, is a symptom of the “old white guys” like Sessions who have controlled the system. But, that’s also likely to change in the future.
My esteemed colleague, retired U.S. Immigraton Judge Jeffrey S. Chase said it best:
“Sessions is characterizing decisions he personally disagrees with as being based on sympathy alone,” he said, “when in fact, those decisions were driven by sympathy but based on solid legal reasoning.”
The Proper Role Of a Good Immigration Judge Involves Sympathetic Understanding Of The Plight Of Refugees, What They Have Suffered, & The Systemic Burdens They Face in Presenting Claims.
Let’s see what some real judges who have had a role in the actually fairly adjudicating asylum claims have to say about the qualities of judging.
Here’s one of my favorite quotes from the late Seventh Circuit Judge Terence T. Evans in Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir. 2004) (Evans, J., concurring) that sums up the essence of being a good Immigration Judge:
Because 100 percent of asylum petitioners want to stay in this country, but less than 100 percent are entitled to asylum, an immigration judge must be alert to the fact that some petitioners will embellish their claims to increase their chances of success. On the other hand, an immigration judge must be sensitive to the suffering and fears of petitioners who are genuinely entitled to asylum in this country. A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge. Attaining that balance is what makes the job of an immigration judge, in my view, excruciatingly difficult.
Or, check out this heartfelt statement from my former colleague Judge Thomas Snow, one of “Arlington’s Finest,” (who also, not incidentally, had served as the Acting Chief Immigration Judge and Acting Director of EOIR, as well as being a long-time Senior Executive in the USDOJ) in USA Today:
Immigration judges make these decisions alone. Many are made following distraught or shame-filled testimony covering almost unimaginable acts of inhumanity. And we make them several times a day, day after day, year after year.
We take every decision we make very seriously. We do our best to be fair to every person who comes before us. We judge each case on its own merits, no matter how many times we’ve seen similar fact patterns before.
We are not policymakers. We are not legislators. We are judges. Although we are employees of the U.S. Department of Justice who act under the delegated authority of the attorney general, no one tells us how to decide a case. I have been an immigration judge for more than 11 years, and nobody has ever tried to influence a single one of my thousands of decisions
And finally, because we are judges, we do our best to follow the law and apply it impartially to the people who appear before us. I know I do so, even when it breaks my heart.
Here’s a “pithier” one from my friend and colleague Judge Dana Leigh Marks, former President of the National Association of Immigration Judges (who also was the “winning attorney” representing the plaintiff in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)) — I was on the “losing” INS side that day):
[I]mmigration judges often feel asylum hearings are “like holding death penalty cases in traffic court.”
Finally, here’s my take on being an Immigration Judge after 45 years in the field, including stints at the BIA, the “Legacy INS,” private practice, and academics:
From my perspective, as an Immigration Judge I was half scholar, half performing artist. An Immigration Judge is alwayson public display, particularly in this “age of the Internet.” His or her words, actions, attitudes, and even body language, send powerful messages, positive or negative, about our court system and our national values. Perhaps not surprisingly, the majority of those who fail at the job do so because they do not recognize and master the “performing artist” aspect, rather than from a lack of pertinent legal knowledge.
Compare Sessions’s one-sided, biased outlook with the statements of those of us who have “walked the walk and talked the talk” — who have had to listen to the horrible stories, judge credibility, look at whether protection can legally be extended, and, on some occasions, look folks in the eye and tell them we have no choice but to send them back into situations where they clearly face death or danger.
Sympathetic understanding of refugees and the protection purposes of refugee, asylum, and CAT laws are absolutely essential to fair adjudication of asylum and other claims for relief under the Immigration Laws. And, clearly, under the UNHCR guidance, if one is going to err, it must be on the side of protection rather than rejection.
That’s why Jeff Sessions, a cruel, biased, and ignorant individual, lacking human understanding, sympathy, a sense of fundamental fairness, a commitment to Due Process, and genuine knowledge of the history and purposes of asylum laws has no business whatsoever being involved in immigration adjudication, let alone “heading” what is supposed to be a fair and impartial court system dedicated to “guaranteeing fairness and Due Process for all.”
Senator Elizabeth Warren tried to tell her colleagues and the rest of America the truth about Jeff Sessions and the horrible mistake they were making in putting such a famously unqualified man in charge of our Department of Justice. But, they wouldn’t listen. Now, refugees, families, and children, among his many victims, are paying the price.
Sessions closes with a final lie: that the American people spoke in the election in favor his White Nationalist policies. Whether Sessions acknowledges it or not, Donald Trump is a minority President. Millions more voted for Hillary Clinton and other candidates than they did for Trump.
Almost every legitimate poll shows that most Americans favor a more moderate immigration policy, one that admits refugees, promotes an orderly but generous legal immigration system, takes care of Dreamers, and controls the borders in a humane fashion as opposed to the extreme xenophobic restrictionist measures pimped by Sessions, Trump, Steven Miller, and the GOP far right. In particular, the separation of children, Sessions’s unlawful “brainchild,” has been immensely (and rightfully) unpopular.
Jeff Sessions has never spoken for the majority of Americans on immigration or almost anything else. Don’t let him get away with his noxious plans to destroy our justice system! Whether you are an Immigration Judge, a Government employee, or a private citizen, we all have an obligation to stand up to his disingenuous bullying and intentionally false, xenophobic, racially-motivated, unethical, scofflaw narrative.
New Government Study Attempts to Undermine Legal Orientation Program for Detained Immigrants
Sept. 7, 2018 –
The Department of Justice (DOJ) released “Phase I” of its review of the federally-funded Legal Orientation Program (LOP) this week. The review came after Attorney General Jeff Sessions attempted to end the program in April but was forced to reverse that decision after receiving significant bipartisan pushback from Congress.
The LOP, which is managed by the Executive Office for Immigration Review (EOIR) within the Justice Department, offers legal education as well as referrals for free and low-cost legal counsel to noncitizens in immigration detention. The LOP was started in 2003 under President George W. Bush after a pilot study found that the LOP “helped DOJ ensure that all respondents had a clear understanding of their procedural rights, led to cases being completed more quickly, and increased availability of representation [to detainees] with potential meritorious claims to relief.”
While it is not a substitute for legal counsel, the LOP does provide important information to individuals in detention about their rights and the removal process. There have been multiple studies conducted on the LOP by the federal government, nonprofit organizations, and outside third parties that reaffirm its usefulness. Every study has shown the LOP decreases the average length of time a person is in immigration detention, saving the government up to millions of dollars annually.
The study is the first phase of a three-phase review to be completed by the end of October 2018. Among other findings, it alleges that LOP participants spend more time in detention, costing the government more money; that LOP participants are less likely to get attorneys; and that their cases take longer to resolve.
The report presents these findings and overall numbers to show its methodology but unfortunately does not make their underlying data available for analysis.
The Vera Institute of Justice (Vera), the nonprofit organization who contracts with EOIR to run the LOP program, says this new study has “insurmountable methodological flaws in EOIR’s analysis.”
At DOJ’s request, Vera has completed and will submit its own study next week. Vera reports that it has “starkly different findings that prove the efficiencies” of the program—which would be in line with all studies of the LOP conducted over the last 16 years.
Given the Attorney General’s earlier attempts to unilaterally end the LOP, one could assume that the ultimate goal of these government studies is to justify ending the program. When evaluating the program, it will be important for Congress to take a critical look at these new DOJ studies and review them alongside the totality of evidence in support of the program. Without government-provided counsel, LOP is a critical resource for detained immigrants to receive due process in a complex immigration court system.
America’s Immigration Courts (run by EOIR in the Department of Justice) are failing: disappearing Due Process, horrible morale, incredible backlogs, little automation, and constant legal errors highlighted by the Article III Federal Courts. The highly acclaimed Legal Orientation Program (“LOP”), which helps detained migrants understand their rights and obtain self-help materials, is one of the few bright spots among the carnage. The LOP actually has strong bipartisan support.
So, why would a failing agency “mess with success?” In April 2018, the Center for Immigration Studies (“CIS”) a radical right-wing restrictionist group with strong ties to Attorney General Jeff Sessions, raised questions about the value of the LOP. In the process, CIS made the absurd suggestion that overwhelmed and stressed out Immigration Judges could better perform the LOP’s functions. I certainly found this untrue.
Not surprisingly, shortly after the CIS article appeared, Sessions pressured EOIR into “suspending” the LOP pending a cost-benefit analysis. Only the bipartisan outrage in Congress forced Sessions to back down and “temporarily reinstate” the program. Obviously, the pre-ordained decision by Sessions to can the program because it helped migrants and supported Due Process needed some more work.
Now, the EOIR apparatchiks have obliged Sessions by presenting a skewed analysis that conflicts with every other analysis of the LOP. The study also equates shorter hearings and faster deportations of detained individuals, therefore supposedly saving the Government millions of detention dollars, with better results. But, Due Process is supposed to be about fair process, not just results the Government favors.
To give the obvious analogy, I’m sure that the vast majority of criminal defendants are ultimately convicted of something. But, that doesn’t mean that investing in the process of conducting fair trials, rather than racing everyone through the system without a fair chance to put in a defense, is constitutionally permitted.
Trump admin seeks to keep immigrant families in detention indefinitely
By Tal Kopan, CNN
The Trump administration has released a proposal to overhaul the way that undocumented immigrant families are treated in custody, a maneuver that would allow the government to keep the families in detention as long as their immigration court case remains open.
The proposed federal regulations would notably revoke the court case known as the Flores Settlement Agreement, which governs how undocumented children can be treated in custody. The regulations are scheduled to be published in the Federal Register on Friday.
The more than 200-page rule would have sweeping implications for the immigration detention system in the US and is likely to face swift resistance from advocates who brought the Flores case and those who have supported it.
One of the biggest proposed changes would create a federal license system to allow for detention centers that could hold families. The administration argues that it is the state-based licensing system that is causing issues that would restrict family detention.
The arguments for the rule are similar to the case the administration has made in court before Judge Dolly Gee, who oversees the settlement. Gee has rejected those arguments in her courtroom.
“This rule would allow for detention at (family detention centers) for the pendency of immigration proceedings … in order to permit families to be detained together and parents not be separated from their children,” the rule states. “It is important that family detention be a viable option not only for the numerous benefits that family unity provides for both the family and the administration of the INA, but also due to the significant and ongoing influx of adults who have made the choice to enter the United States illegally with juveniles or make the dangerous overland journey to the border with juveniles, a practice that puts juveniles at significant risk of harm.”
Pretty outrageous. But, about what we would expect from a racist White Nationalist Administration with no respect for the Constitution, laws, Federal Courts, or human dignity, and that is hell-bent on wasting our taxpayer money on evil causes.
I predict that this will “reactivate” the Flores litigation before Judge Gee. She, in turn, will “stuff” the Administration on its insulting, contemptuous, and clearly bogus justification for the detention.
These individuals are coming to the US seeking to exercise legal rights to apply for protection. Every reliable study shows that if released under alternatives to detention, informed of what the system requires, given adequate notice, and, most important, given reasonable access to lawyers they show up for their hearings nearly 100% of the time and actually prevail on the merits in a significant number of cases (the success rate is kept artificially low by the disingenuous anti-asylum jurisprudence created by Sessions and by a pre-existing legal bias in the system against many asylum seekers from the Northern Triangle, also fanned and encouraged by Sessions’s overt xenophobia).
Stay tuned for another monumental waste of taxpayer money on yet another misguided Administration attempt to impose a White Nationalist immigration agenda!
In July, I left my wife and two little girls and traveled from Denver to Dilley, Texas, to join a group of volunteers helping migrant women in detention file claims for asylum. I am not a lawyer, but I speak Spanish and have a background in social work. Our task was to help the women prepare for interviews with asylum officers or to prepare requests for new interviews.
The women I worked with at the South Texas Family Residential Center in Dilley had been separated from their children for up to two and a half months because of a policy instituted by the Trump administration in April 2018, under which families were targeted for detention and separation in an attempt to dissuade others from embarking on similar journeys. Although the separations have stopped because of the resulting public outcry, hundreds of families have not been reunited (including more than 20 children under 5), families continue to be detained at higher rates than adults crossing the border alone, and the trauma inflicted on the women and children by our government will have lifelong consequences.
To be clear, this is a policy of deliberately tormenting women and children so that other women and children won’t try to escape life-threatening conditions by coming to the United States for asylum. I joined this effort because I felt compelled to do something to respond to the humanitarian crisis created by unjust policies that serve no purpose other than to punish people for being poor and female ― for having the audacity to be born in a “shithole country” and not stay there.
I traveled with a group of amazing women gathered by Carolina, a powerhouse immigration lawyer and artist from Brooklyn. My fellow volunteers were mostly Latinas or women whose histories connected them deeply to this work. Through this experience, we became a tight-knit community, gathering each night to process our experiences and try to steel ourselves for the next day. Working 12-hour shifts alongside us were two nuns in their late 70s, and it was one of them who best summed up the experience as we entered the facility one morning. “What is happening here,” she said, “makes me question the existence of God.”
It was a nun who best summed up the experience as we entered the facility one morning. ‘What is happening here,’ she said, ‘makes me question the existence of God.’
I am still in awe of the resilience I witnessed. Many of the women I met had gone for more than two weeks without even knowing where their children were. Most had been raped, tormented, threatened or beaten (and in many cases, all of the above) in their countries (predominantly Honduras and Guatemala). They came here seeking refuge from unspeakable horrors, following the internationally recognized process for seeking asylum. For their “crime,” they were incarcerated with hundreds of other women and children in la hielera (“the freezer,” cold concrete cells with no privacy where families sleep on the floor with nothing more than sheets of Mylar to cover them) or la perrera (“the dog kennel,” where people live in chain link cages). Their children were ripped from their arms, they were taunted, kicked, sprayed with water, fed frozen food and denied medical care. Yet the women I encountered were the lucky ones, because they had survived their first test of will in this country.
Woman after woman described the same scene: During their separation from their children ― before they learned of their whereabouts or even whether they were safe ― the women were herded into a room where Immigration and Customs Enforcement officials handed them papers. “Sign this,” they were told, “and you can see your children again.” The papers were legal documents with which the women would be renouncing their claims to asylum and agreeing to self-deport. Those who signed were deported immediately, often without their children. Those who refused to sign were given sham credible-fear interviews (the first step in the asylum process), for which they were not prepared or even informed of asylum criteria.
The women were distraught, not knowing what ICE had done with their children or whether they would see them again. Their interviews were conducted over the phone, with an interpreter also on the line. The asylum officer would ask a series of canned questions, and often the women could reply only, “Where is my child? What have you done with my child?” or would begin to give an answer, only to be cut off midsentence. Not surprisingly, almost all of them got negative results — exactly the outcome this policy was designed to produce. Still, these women persisted.
After a court battle, my clients were reunited with their children and were fortunate enough to have access to free legal representation (many do not) through the CARA Pro Bono Project. The women arrived looking shell-shocked, tired, determined. Some of their children clung to them, afraid to be apart even for a few minutes, making it very hard for the women to recount their experiences, which often included sexual violence, death threats and domestic abuse. Other children stared into space or slept on plastic chairs, exhausted from sleepless nights and nightmares. Still others ran manically around the legal visitation trailer. But some of the children showed incredible resilience, smiling up at us, showing off the few English words they knew, drawing pictures of mountains, rivers, neat little houses. They requested stickers or coloring pages, made bracelets out of paper clips. We were not allowed to give them anything ― no treats or toys or books. We were not allowed to hug the children or their mothers ― not even when they sobbed uncontrollably after sharing the details of their ordeals.
In the midst of this sadness and chaos, the humanity of these women shined through. One of my clients and her son, who had traveled here from Guatemala, took great pleasure in teaching me words in their indigenous language, Mam. She taught me to say “courageous” ― hao-tuitz ― and whenever our work got difficult, we would return to this exhortation. These lessons were a welcome break from reviewing the outline of the experiences that drove them to leave, fleshing it out with details for their interview. They wearied of my pressing them to remember facts I knew the asylum officer would ask about. They wanted only to say that life is very hard for indigenous people, that their knowledge of basic Spanish was not enough to make them equal members of society. Mam is not taught in schools, and almost everyone in Guatemala looks down on those who speak it. They were so happy to have a licenciada (college graduate) interested in learning about their culture. We spent almost an hour finding their rural village on Google Earth, zooming in until we could see pictures of the landscape and the people. As we scrolled through the pictures on the screen, they called out the people by name. “That’s my aunt!” and “There’s my cousin!” There were tears of loss but mostly joy at recognizing and feeling recognized ― seen by the world and not just dismissed as faceless criminals.
A diabetic woman who had not had insulin in over a week dared to ask for medical attention, an infraction for which she was stripped naked and thrown in solitary confinement.
There were stories of the astonishing generosity of people who have so little themselves. One colleague had a client who had been kidnapped with her daughter and another man by a gang while traveling north from Guatemala. The kidnappers told the three to call their families, demanding $2,000 per person to secure their release. The woman was certain she and her daughter were going to die. Her family had sold, mortgaged and borrowed everything they could to pay for their trip. They had never met the man who was kidnapped with them. She watched as he called his family. “They’re asking for $6,000 for my release,” she said he told them. He saved three lives with that phone call. When they got to the U.S.-Mexico border, they went separate ways, and she never saw him again, never knew his last name.
Not everything I heard was so positive. Without exception, the women described cruel and degrading treatment at the hands of ICE officials at the Port Isabel immigrant processing center, near Brownsville, Texas. There was the diabetic woman who had not had insulin in over a week and dared to ask for medical attention, an infraction for which she was stripped naked and thrown in solitary confinement. Women reported being kicked, screamed at, shackled at wrists and ankles and told to run. They described the cold and the humiliation of not having any privacy to use the bathroom for the weeks that they were confined. The children were also kicked, yelled at and sprayed with water by guards, then awoken several times a night, ostensibly so they could be counted.
Worse than the physical conditions were the emotional cruelties inflicted on the families. The separation of women from small children was accomplished by force (pulling the children out of their mothers’ arms) or by deceit (telling the women that their children were being taken to bathe or get medical care). Women were told repeatedly that they would never see their children again, and children were told to stop crying because they would never see their mothers again. After the children were flown secretively across the country, many faced more cruelty. “You’re going to be adopted by an American family,” one girl was told. Some were forced to clean the shelters they were staying in and faced solitary confinement (el poso) if they did not comply. Children were given psychotropic drugs to ameliorate the anxiety and depression they exhibited, without parental permission. One child underwent surgery for appendicitis; he was alone, his cries for his mother were disregarded, and she was not notified until afterward.
The months of limbo in which these women wait to learn their fate borders on psychological torture. Decisions seem arbitrary, and great pains are taken to keep the women, their lawyers and especially the press in the dark about the government’s actions and rationales for decisions. One woman I worked with had been given an ankle bracelet after receiving a positive finding at her credible fear interview. Her asylum officer had determined that she had reason to fear returning to her country and granted her freedom while she pursues legal asylum status. Having cleared this hurdle, she boarded a bus with others to be released, but at the last moment, she was told her ankle bracelet needed a new battery. It was removed, and she was sent instead to a new detention center without explanation. A reporter trying to cover the stories of separated families told me about her attempt to follow a van full of prisoners on their way to be reunited with their children so that she could interview them. First ICE sent two empty decoy vans in different directions, and then it sent a van with the detainees speeding down a highway, running red lights to try to outrun her. Every effort is being made to ensure that the public does not know what is happening.
The accounts of the horrors that women were fleeing are almost too graphic to repeat. Of the many women I spoke to, only one did not report having been raped.
The accounts of the horrors that women were fleeing are almost too graphic to repeat. Of the many women I spoke to, only one did not report having been raped. The sexual assaults the women described often involved multiple perpetrators, the use of objects for penetration and repeated threats, taunting and harassment after the rape. A Mormon woman I worked with could barely choke out the word “rape,” much less tell anyone in her family or community what had happened. Her sweet, quiet daughter knew nothing of the attack or the men who stalked the woman on her way to the store, promising to return. None of the women I spoke with had any faith that the gang-ridden police would or could provide protection, and police reports were met with shaming and threats. Overwhelmingly, the women traveled with their daughters, despite the increased danger for girls on the trip, because the women know what awaits their little girls if they stay behind. Sometimes the rapes and abuse were at the hands of their husbands or partners and to return home would mean certain death. But under the new directives issued by Attorney General Jeff Sessions, domestic violence is no longer a qualifying criterion for asylum.
Two things I experienced during my time in Dilley made the purpose of the detention center crystal clear. The first was an interaction with an employee waiting in line with me Monday morning to pass through the metal detector. I asked if his job was stressful, and he assured me it was not. He traveled 80 minutes each day because this was the best-paid job he could get, and he felt good about what he was doing. “These people are lucky,” he told me, “They get free clothes, free food, free cable TV. I can’t even afford cable TV.” I did not have the presence of mind to ask him if he would give up his freedom for cable. But his answers made clear to me how the economy of this rural part of Texas depends on prisons. The second thing that clarified the role of the detention center was a sign in the legal visitation trailer, next to the desk where a guard sat monitoring the door. The sign read, “Our stock price today,” with a space for someone to post the number each day. The prison is run by a for-profit corporation, earning money for its stockholders from the incarceration of women and children. It is important to note the exorbitant cost of this cruel internment project. ICE puts incarceration costs at $133 per person per night, while the government could monitor them with an ankle bracelet for $10 to $15 a day. We have essentially made a massive transfer of money from taxpayers to holders of stock in private prisons, and the women and children I met are merely collateral damage.
I have been back home for almost a month now. I am finally able to sleep without seeing the faces of my clients in my dreams, reliving their stories in my nightmares. I have never held my family so tight as I did the afternoon I arrived home, standing on the sidewalk in tears with my 7-year-old in my arms. I am in constant contact with the women I volunteered with, sharing news stories about family detention along with highlights of our personal lives. But I am still waiting for the first phone call from a client. I gave each of the women I worked with my number and made them promise to call when they get released. I even told the Mormon woman that I would pray with her. No one has called.
I comb the details of the Dilley Dispatch email, which updates the community of lawyers and volunteers about the tireless work of the on-the-ground team at Dilley. This week the team did 379 intakes with new clients and six with reunified families. There were three deportations ― two that were illegal and one that was reversed by an ACLU lawsuit. Were the deported families ones I worked with? What has become of the Mam-speaking woman and her spunky son, the Mormon woman and her soft-spoken daughter, the budding community organizer who joked about visiting me? Are they safely with relatives in California, North Carolina and Ohio? In each case, I cannot bear to imagine the alternative, the violence and poverty that await them. I have to continue to hope that with the right advocates, some people can still find refuge here, can make a new life ― that our country might live up to its promises.
Catherine Powers is a middle school social studies teacher. She lives in Colorado with her wife and two daughters.
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Yes, every Administration has used and misused immigration detention to some extent. I’ll have to admit to spending some of my past career defending the Government’s right to detain migrants.
But, no past Administration has used civil immigration detention with such evil, racist intent to penalize brown-skinned refugees, primarily abused women and children from the Northern Triangle, so that that will not be able to assert their legal and Constitutional rights in America and will never darken our doors again with their pleas for life-saving refuge. And, as Catherine Powers points out, under Trump and Sessions the “credible fear” process has become a total sham.
Even in the “Age of Trump & Sessions,’ we still have (at least for now) a Constitution and a democratic process for removing these grotesquely unqualified shams of public officials from office. It starts with removing their GOP enablers in the House and Senate.
Get out the vote in November to oust the GOP and restore humane, Constitutional Government that respects individuals of all races and genders and honors our legal human rights obligations. If decent Americans don’t act now, 1939 might be here before we know it!
In the wake of the government separating thousands of asylum-seeking families, the Trump administration has scrambled to reunite families. In place of family separation, the administration is pursuing the expansion of an equally horrific practice: holding families in detention camps. This practice has sadly persisted in the United States since 2001.
Neither option—separation or detention—is suitable for families. According to a recent study that analyzed 15 years of government data, detention poses significant barriers to justice for asylum-seeking families. The study’s findings, released this week in a report from the American Immigration Council, provide further evidence that detaining families seeking protection is unnecessary, costly, and inhumane.
The United States currently detains more asylum-seeking families than any nation in the world—even without the expansion proposed by the current administration. This practice has skyrocketed since 2001, when the United States began operating the first detention center to exclusively hold families. But what do we know about the impact of detaining families?
Until now, there was little information about how detained families fare in the immigration court process and what barriers they face in pursuing their asylum claims. “Detaining Families: A Study of Asylum Adjudication in Family Detention” is the first empirical study of family detention and the U.S. immigration court process. The report presents the analysis of government records from more than 18,000 immigration proceedings initiated between fiscal years 2001 and 2016, which involved families held in one of five family detention centers in the United States.
The findings detailed in the report are vital as the government weighs policies that affect asylum seekers and the immigration courts. The report reveals that over the course of 15 years, the United States relied on—and overused—detention in various ways to imprison families seeking asylum, sometimes for prolonged periods.
The thousands of family members included in the study faced serious barriers accessing the court system and a fair asylum process. Notably, the report finds that access to legal representation is limited in detention and in fast-track removal proceedings. Having counsel is critical when navigating the U.S. immigration system—and may be the difference between life and death for an asylum seeker.
These hurdles are particularly concerning given the findings from the period studied (2001 to 2016), which show that families pursue viable claims for protection and had increased representation when released from detention.
Specifically, the main findings discussed in the report include:
Family members who were released from detention had high compliance rates; the overwhelming majority (86 percent) of family members released from detention showed up for their court hearings.
Representation increased among family members who were released from detention; 76 percent of released family members were represented by counsel at their most recent merits hearing, whereas only 47 percent of family members who remained detained had counsel.
Family members who were released from detention and obtained counsel had a relatively high rate of success in their completed cases; 49 percent of released family members with counsel successfully obtained relief from removal. This rate dropped significantly for unrepresented family members who remain detained—only 8 percent had the same success in their cases.
In addition, the report reveals the important role that the immigration courts can play in maintaining due process in asylum proceedings. While the courts are vulnerable to variability based on different jurisdictions, they serve as a vital check on the detention decisions of immigration officials. For example, in the period studied, Immigration and Customs Enforcement (ICE) officers issued initial custody decisions that unnecessarily prolonged the detention of families. These decisions were regularly overturned after immigration judges found that family members were eligible for release.
The study adds to mounting evidence against family detention, underlining the fact that detaining families is unnecessary, costly, and inhumane. In contrast, the study’s findings provide strong support for different policy choices—ones that uphold access to justice for families and respect a system with checks and balances.
As a country, we must choose policies in line with our values and end the horrible practice of detaining families. Family unity does not, and should not, require imprisonment.
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One obvious answer as to why this horrible and counterproductive practice remains prevalent across Administrations of both parties: although punishment, deterrence, and “sending messages” are not appropriate reasons for immigration detention, that’s what’s really at work here. Even though there is little or no documentable “deterrent value” to such detention, Administrations of both parties like to send “hard-line border enforcement” messages to certain constituencies. Add to that individuals and entities from both parties who stand to profit from immigration detention, and you have a prescription for a major disaster. Not surprisingly, that’s exactly what overuse of immigration detention has been!
Ironically, the Trump Administration’s widespread public misuse of immigration detention has focused public attention on its immorality and wastefulness, and therefore might ultimately lead to the curtailment of the practice.
An amicus brief was recently filed on behalf of a group of 20 former Immigration Judges and BIA Members (including myself) in the case of Rodriguez et. al. v. Robbins. The case, which was remanded back to the Ninth Circuit by the U.S. Supreme Court in its February 2018 decision in Jennings et. al. v. Rodriguez, is the latest chapter in an ongoing conflict over the constitutionality of indefinite civil detention of noncitizens.
The concept of indefinite detention is at odds with our legal system’s well-known practice of meting out specific time frames for incarceration as part of the sentencing of convicted criminals. Indefinite non-punitive civil detention is even stranger to American concepts of liberty. For this reason, the U.S. Court of Appeals for the Ninth Circuit rendered its decision in Rodriguez in 2015, requiring three classes of indefinitely detained noncitizens – those seeking entry to the U.S., those awaiting decisions on their removal from the U.S., and those convicted of certain classes of crimes but not subject to a final order of removal – to be afforded bond hearings every six months. The court noted that its order did not require “Immigration Judges to release any single individual; rather, we are affirming a minimal procedural safeguard…to ensure that after a lengthy period of detention, the government continues to have a legitimate interest in the further deprivation of an individual’s liberty.”
At around the same time the Ninth Circuit decided Rodriguez, the Second Circuit took the same approach in Lora v. Shanahan, also requiring bond hearings every 6 months, and further holding that bail must be afforded unless ICE establishes “by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community.”
The Supreme Court disagreed with Rodriguez, and remanded the matter back to the Ninth Circuit, where that court will consider the issue of whether the detainees have a constitutional right to a bond hearing.
Our amicus brief argues that not only is the right to a bond hearing every six months consistent with principles of due process, but that such policy also assists with the immigration court’s efficient administration of justice. Given the huge backlog of some 715,000 cases in the nation’s immigration courts, the brief argues that prolonged detention has the effect of bogging down immigration court dockets by decreasing the detainees’ ability to obtain representation, impeding on the ability of represented detainees to communicate with their counsel, and creating obstacles for unrepresented respondents to present their cases. Many ICE detention facilities are in remote locations, often 100 or more miles from the nearest legal services provider or from cities with sizable populations of immigration lawyers. As a result, a recent study found that only 14 percent of detained immigrants obtain representation. Such distances create obstacles to communication between the lucky few who are represented and their counsel. The great majority who are left to defend themselves are hindered by the detention centers’ inadequate legal resources, including a lack of foreign language materials. As a result, cases take longer to complete, and the lack of legal briefs and supporting documentation places a greater burden on the already overworked immigration judges.
Our brief also argues that those facing the longest periods of detention are often those with the strongest cases for relief. The brief further opines that immigration judges are well-equipped to make individualized bond determinations, and that those released on bond do not present a flight risk.
We offer our heartfelt appreciation to attorneys David Lesser, Jamie Stephens Dycus, Adriel I. Cepeda Derieux, and Jessica Tsang of the law firm of WilmerHale for their outstanding efforts in the drafting of the brief.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
As some of you may know, today is my last day at EOIR. I just want to thank everyone at the court for your friendship and a very rewarding and fruitful time, I will certainly miss you.
I’d like to share a few thoughts before bidding farewell.
To the Civil Servants (IJs, AAs, Legal Assistants, Interpreters, Administrators, etc.): I commend you for choosing to serve your country.I have only the greatest respect for each and everyone of you, and there is not a doubt in my mind that your heart is in the right place. I just want to remind you that before being government employees, you are Citizens of the United States of America: the most extraordinary country in world’s history. That as Civil Servants, you don’t work only for the administration in power—as administrations change, but most of you remain, having chosen to dedicate your lives to serve your country.Instead, you work for “the People.” That you have a voice and your opinion matters, this is your country too.So when an administration plans to do something you suspect is wrong or unconstitutional you can, and should, ask questions.You are the backbone of our government, and for some people you are the only face of the government they’ll ever see. Finally, you’re not alone in this. Talk to each other, you’d be surprised to discover how many others share your same concerns. So organize, share thoughts and ideas, because with unity comes strength.
If Civil Servants are so great why are you leaving then, you may ask? Like you, I take pride in the work I do, and I consider serving my country as the highest form of secular calling, and a way to give back to this country that has been so generous to me.At the same time, we are the results of our experiences.I was born and raised in XXXX, a great country in many respects, but also the country that bears an indelible and shameful scar—the birth and spreading of fascism.An ideology that, through its different permutations, almost brought the world as we know it to an end. Sadly, history has taught me that good countries do bad things—sometimes indescribably atrocious things.So I have very little tolerance for authoritarianism, extremism, and unilateral and undemocratic usurpations of Constitutional rights. I believe that DOJ-EOIR’s plan to implement individual annual numerical performance measures—i.e., quotas—on Immigration Judges violates the Due Process clause of the Fifth Amendment of the United States Constitution, and the DOJ’s own mission to “ensure the fair and impartial administration of justice.”This is not the job I signed up for. I strongly believe in the positive value of government, and that the legitimacy of our agency—and any other governmental institution for that matter—is given by “the People’s” belief in its integrity, fairness, and commitment to serve “the People.” But when the government, with its unparalleled might and coercive force, infringes on constitutionally enshrined rights, I only have two choices: (1) to become complicitous in what I believe is a flagrant constitutional violation, or (2) to resign and to hold the government accountable as a private citizen. I choose to resign because I cannot in good conscience continue serving my country within EOIR.[1]
To the Political Appointees: Civil Servants are not part of the problem, they are part of the solution.They are not mercenaries or hired guns paid to merely execute orders, they are United States Citizens and they care about their country as much as you do. So talk to them, engage with them and come up with synergetic plans and solutions. Civil Servants have invaluable insight on what kind of processes and improvements can be implemented because they experience the problems in these processes on a daily basis. And it is also no secret that cooperation and dialogue lead to improved morale. So engaging with Civil Servants is clearly a win-win. Finally, for what it’s worth, I haven’t heard one single Civil Servant who thinks that the imposition of quotas on the Immigration Judges is a good idea. On the other hand, many Civil Servants—if only they had a meaningful chance to be heard—have excellent ideas that, if implemented, would improve efficiency without violating due process.It’s not too late to prevent being on the wrong side of history.[2]
Thank you for your time. I wish you all the best.
[1] Omitted.
[2] Before becoming the United States of America, this land served as refuge for the social outcast, who fled the persecution and the rejection of their native countries in search for survival and a fresh start in life. Their descendants declared independence and founded the United States of America. They too had experienced what an oppressive government does to “the People,” so they created a system of government that included checks and balances—with “separation of powers” paramount among them—to prevent tyranny. A renowned application of separation of powers provides that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” United States v. Carolene Prod. Co., 304 U.S. 144, 153 n. 4 (1938) (emphases added). So while it is probably true that no other country offers trials and judges to immigrants, this is in fact an unmitigated positive, as the greatness of a civilization is measured by how it treats its weakest.This is also what makes America special: the Rule of Law is sovereign upon everyone.
[“REDACTED” VERSION PUBLISHED WITH PERMISSION]
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Pretty easy to see why Due Process is failing in our Immigration Courts. Short answer: It’s not a priority for the politicos in the DOJ who pull the strings. Actually, Due Process has become an anathema for Sessions and his White Nationalist cabal.
What kind of “court system” would impose arbitrary “performance quotas,” developed by non-judicial officials responding to political pressure over the objections of and without even consulting the Immigration Judges who actually are doing the work? Loss of control over dockets, scheduling, and policies affecting court procedures is a major problem in this system. In the past, it has led to the travesty of “Aimless Docket Reshuffling” (“ADR”).
Now, a blatantly biased, anti-asylum, anti-immigrant, anti Due Process agenda has been added to the totally out of control ADR.
That’s why the key to restoring a functioning Immigration Court System is 1) an independent, Article I Court outside of Executive control; and 2) professional court administration controlled by and responsible to the JUDGES who actually decide the cases, rather than to politicos in Washington.
Like the writer of the above message, I believe that there are lots of good ideas on how to improve the system and restore Due Process within the judiciary that are being suppressed. Additionally, the judges should be working with respondents’ counsel, NGOs, the Article III Courts, Court Administrators, and the DHS Chief Counsel to develop systems that serve everyone’s needs and capabilities.
That would be an essential improvement over the present system which is being run by Sessions and his cronies solely for the benefit of one party: DHS Enforcement. How would YOU like to appear before a judge who essentially is working for the opposing party? Not fair, right? But, that’s exactly what today’s Immigraton Court system is! And, that’s why it’s failing our country.
We need an independent Article I U.S. Immigration Court that operates with Due Process as its one and only mission. Until that happens, all of our Constitutional rights will be in jeopardy. Because, as the writer above perceptively states, “the greatness of a civilization is measured by how it treats its weakest.” Harm to one is harm to all!
Thanks again to the writer of he above message for agreeing to share!
Temporary deprivations of immigrants’ physical liberty “may sometimes be justified by concerns about public safety or flight risk” but must “always be constrained [by] the requirements of due process.” Hernandez v. Sessions, 872 F.3d 976, 981 (9th Cir. 2017). Petitioners in this case naturally focus on the constitutional concerns raised by prolonged detention in the absence of a bond hearing. But lengthy pretrial detention of immigrants in removal proceedings also has a profoundly negative impact on the administration of the nation’s immigration laws. Such detention renders already complicated and challenging administrative proceedings even more so by limiting immigrants’ access to counsel and impairing even counseled immigrants’ presentation of their cases. At the same time, such detention requires a large expenditure of resources that could instead be devoted to other urgent needs of the immigration system. Amici respectfully submit that providing a bond hearing where pretrial detention of an immigrant in removal proceedings exceeds six months, as Petitioners urge, is not only consistent with the requirements of due process but also a straightforward and effective means of addressing these issues.
HERE ARE THE FORMER JUDGES WHO SIGNED ON:
Hon. Steven Abrams
Hon. Sarah M. Burr
Hon. Jeffrey S. Chase
Hon. George T. Chew
Hon. Joan V . Churchill
Hon. Bruce J. Einhorn
Hon. Cecelia M. Espenoza
Hon. Noel Ferris
Hon. John F. Gossart, Jr.
Hon. William P. Joyce
Hon. Edward Kandler
Hon. Carol King
Hon. Margaret McManus
Hon. Charles Pazar
Hon. Lory D. Rosenberg
Hon. Susan Roy
Hon. Paul W. Schmidt
Hon. William Van Wyke
Hon. Gustavo D. Villageliu
Hon. Polly A. Webber
AND HERE’S THE “ALL-STAR TEAM” THAT REPRESENTED US AND TO WHOM WE WILL ALWAYS BE INDEBTED:
It is difficult not to cry (as I did) while listening to the recording of a recent immigration court hearing at a detention facility near the border. The immigration judge addresses a rape victim who fled to this country seeking asylum. She indicates that she does not feel well enough to proceed. When asked by the judge if she had been seen by the jail’s medical unit, the woman responds that she just wants to see her child (who had been forcibly separated from her by ICE), and breaks down crying. The judge is heard telling a lawyer to sit down before he can speak. The woman, still crying, repeats that she just wants to see her child. The immigration judge proceeds to matter-of-factly affirm the finding of DHS denying her the right to apply for asylum. The judge then allows the attorney to speak; he points out for the record that the woman was unable to participate in her own hearing. The judge replies “so noted.” He wishes the woman a safe trip back to the country in which she was raped, and directs her to be brought to the medical unit. He then moves on to the next case on his docket. Neither DHS (in its initial denial) nor the immigration judge (in his affirmance) provided any explanation or reasoning whatsoever for their decisions. According to immigration attorneys who have recently represented asylum seekers near the border, this is the new normal.
Under legislation passed in 1996, most non-citizens seeking entry to the U.S. at airports or borders who are not deemed admissible are subjected to summary removal by DHS without a hearing. However, those who express a fear of harm if returned to their country are detained and subjected to a “credible fear interview” by a USCIS asylum officer. This interview is designed as a screening, not a full-blown application for asylum. The noncitizen being interviewed has just arrived, is detained, often has not yet had the opportunity to consult with a lawyer, probably does not yet know the legal standard for asylum, and has not had the opportunity to compile documentation in support of the claim. Therefore, the law sets what is intended to be a very low standard: the asylum officer need only find that there is a significant possibility that the noncitizen could establish in a full hearing before an immigration judge eligibility for asylum.1
If the asylum officer does not find credible fear to exist, the noncitizen has one chance for review, at a credible fear review hearing before an immigration judge. This is an unusual hearing. Normally, immigration judges are trial-level judges, creating the record of testimony and other evidence, and then entering the initial rulings on deportability and eligibility for relief. But in a credible fear review hearing, the immigration judge also functions as an appellate judge, reviewing the decision of the asylum officer not to vacate an already entered order of removal. The immigration judge either affirms the DHS determination (meaning that the respondent has no right to a hearing, or to file applications for relief, including asylum), or vacates the DHS removal order. There is no further appeal from an immigration judge’s decision regarding credible fear.
Appeal courts do not hear testimony. At the appellate level, it is the lawyers who do all of the talking, arguing why the decision below was or was not correct. The question being considered by the immigration judge in a credible fear review hearing – whether the asylum officer reasonably concluded that there is not a significant possibility that the applicant could establish eligibility for asylum at a full hearing before an immigration judge – is clearly a lawyer question. The noncitizen applicant would not be expected to understand the legal standard.
At the present time, determining the legal standard is especially complicated. In light of the Attorney General’s recent decision in Matter of A-B-, all claims involving members of a particular social group fearing what the A.G. refers to as “private criminal actors” must clearly delineate the particular social group, explain how such group satisfies the requirements of immutability, particularity, and social distinction, meet a heightened standard of showing the government’s inability or unwillingness to protect, and show that internal relocation within the country of nationality is not reasonable.
An experienced immigration lawyer could make these arguments in a matter of minutes, by delineating the group, and explaining what evidence the applicant expects to present to the immigration judge to meet the required criteria.
However, the Office of the Chief Immigration Judge’s Practice Manual states the following:
(C) Representation. — Prior to the credible fear review, the alien may consult with a person or persons of the alien’s choosing. In the discretion of the Immigration Judge, persons consulted may be present during the credible fear review. However, the alien is not represented at the credible fear review. Accordingly, persons acting on the alien’s behalf are not entitled to make opening statements, call and question witnesses, conduct cross examinations, object to evidence, or make closing arguments. (emphasis added).
Therefore, at best, a credible fear review hearing consists of the immigration judge asking the respondent an abbreviated version of the questions already asked and answered by the asylum officer. Often, the judge merely asks if the information told to the asylum officer was true (without necessarily mentioning what the asylum officer notes contain), and if there is anything else they wish to add. If the issue was whether the respondent was believable, this might make sense.2 However, the issue is more often whether the facts will qualify for asylum under current case law.
I have canvassed retired immigration judges, as well as attorneys whose clients have been through such hearings. The good news is that it is the practice of a number of judges (past and present) to allow attorney participation. And in some cases, it is making a difference. One lawyer who recently spent a week in south Texas was allowed by the judge there to make summary arguments on behalf of the respondents; the judge ended up reversing DHS and finding credible fear in all but one case. In Fiscal Year 2016 (the last year for which EOIR has posted such statistics), immigration judges nationally reversed the DHS decision and found credible fear less than 28 percent of the time (i.e. in 2,086 out of 7,488 total cases).
However, other judges rely on the wording of the practice advisory to deny attorneys the right to participate. According to a July 14 CNN article, one lawyer recently had a judge deny 29 out of 29 separated parents claiming credible fear. Another lawyer was quoted in the same article citing a significant increase in credible fear denials since the Attorney General’s decision in A-B- last month. https://www.cnn.com/2018/07/14/politics/sessions-asylum-impact-border/index.html This demonstrates why it is now even more important to allow attorney participation to assist judges in analyzing the facts of the respondent’s case in light of this confusing new decision that many judges are still struggling to interpret. And as I recently reported in a separate blog post, USCIS just recently issued guidelines to its asylum officers to deny credible fear to victims of domestic violence and gang violence under a very wrong interpretation of Sessions’ A-B- decision.
It is hoped that, considering the stakes involved, the Office of the Chief Judge will consider amending its guidelines to ensure the right to meaningful representation in credible fear review hearings.
Notes:
1. It should be noted that when legislation created the “well-founded fear” standard for asylum in 1980, both INS and the BIA seriously misapplied the standard until the Supreme Court corrected them seven years later. Although when it created the “credible fear” standard in the 1990s, INS assured that it would be a low standard, as credible fear determinations may not be appealed, there can be no similar correction by the federal courts.
2. Although credibility is not usually an issue, attorneys point out that while they are merely notes which contain inaccuracies and are generally not read back to the asylum-seeker to allow for correction, the notes are nevertheless often treated as verbatim transcripts by immigration judges.
Copyright Jeffrey S. Chase 2018. All rights reserved.
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Amen, Jeffrey, my friend, colleague, and fellow fighter for Due Process and human rights! Jeffrey[s article was also republished by our good friend and colleague Dan Kowalski in BIBDaily here http://www.bibdaily.com/
Not that the EOIR OCIJ is going to do anything to change the process and further Due Process in the “Age of Sessions.” After all, they all want to hold onto their jobs, at any cost to the unfortunate human beings whose lives are caught up in this charade of a “court system.”
In what kind of “court system” don’t lawyers have a right to represent their clients? The Star Chamber? Kangaroo Court? Clown Court? And, to be fair, this outrageous “advice” from OCIJ on how to deny Due Process and fundamental fairness preceded even Sessions. The well had already been well-poisoned!
But, let’s not forget the real culprits here. First, the spineless Article III Courts who have shirked their duty to intervene and require U.S. Immigration Judges to comply with Due Process, respect human rights and dignity, and use at least a minimum of common sense.
And, the greatest culprit is, of course, Congress, which created this monstrosity and has failed for decades to take the necessary corrective action to comply with our Constitution!
Go on over to Dan Kowalski’s LexisNexis Immigration Community at this link to see how advocacy groups are striking back in behalf of defenseless children being tormented, tortured, and abused by our Government!
They come fleeing persecution in the Northern Triangle, only to find persecution and torture of a different type here. And, this is certainly “Government sponsored” persecution, even by “the Jeff Sessions test.”
Is this really how we want to be known to the world and remembered by future generations?
HERE’S FORMER INS COMMISSIONER DORIS MEISSNER’S PROFESSIONAL BIO:
Doris Meissner
Senior Fellow and Director, U.S. Immigration Policy Program
Doris Meissner, former Commissioner of the U.S. Immigration and Naturalization Service (INS), is a Senior Fellow at MPI, where she directs the Institute’s U.S. immigration policy work.
Her responsibilities focus in particular on the role of immigration in America’s future and on administering the nation’s immigration laws, systems, and government agencies. Her work and expertise also include immigration and politics, immigration enforcement, border control, cooperation with other countries, and immigration and national security. She has authored and coauthored numerous reports, articles, and op-eds and is frequently quoted in the media. She served as Director of MPI’s Independent Task Force on Immigration and America’s Future, a bipartisan group of distinguished leaders. The group’s report and recommendations address how to harness the advantages of immigration for a 21st century economy and society.
From 1993-2000, she served in the Clinton administration as Commissioner of the INS, then a bureau in the U.S. Department of Justice. Her accomplishments included reforming the nation’s asylum system; creating new strategies for managing U.S. borders; improving naturalization and other services for immigrants; shaping new responses to migration and humanitarian emergencies; strengthening cooperation and joint initiatives with Mexico, Canada, and other countries; and managing growth that doubled the agency’s personnel and tripled its budget.
She first joined the Justice Department in 1973 as a White House Fellow and Special Assistant to the Attorney General. She served in various senior policy posts until 1981, when she became Acting Commissioner of the INS and then Executive Associate Commissioner, the third-ranking post in the agency. In 1986, she joined the Carnegie Endowment for International Peace as a Senior Associate. Ms. Meissner created the Endowment’s Immigration Policy Project, which evolved into the Migration Policy Institute in 2001.
Ms. Meissner’s board memberships include CARE-USA and the Wisconsin Alumni Research Foundation. She is a member of the Council on Foreign Relations, the Inter-American Dialogue, the Pacific Council on International Diplomacy, the National Academy of Public Administration, the Administrative Conference of the United States, and the Constitution Society.
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Colleagues:
My good friend and colleague Ross Pattee, Executive Director of the Immigration & Refugee Board of Canada just told me that the “Canadian Delegation” to the upcoming IARMJ conference will be 30 strong!
Never in my lifetime has the role of Immigration Judges and other judges involved in asylum, refugee, and immigration adjudication been more in the news or more important than now! We all know the stress, tension, and pressure, as well as excitement, that comes from such constant public attention.
Now is the perfect time to take a few days off from the bench to share notes, helpful suggestions, best practices, and otherwise get to know and appreciate your colleagues performing similar functions elsewhere in the world. Knowing that “you are not alone” and that many others share and are dealing with the same challenges as you are has been one of the best features of IRMJ membership and participation for me throughout the years. You’ll also be learning from, and in dialogue with, world-class speakers and scholars, like my long-time friend and “fellow Badger” Doris Meissner, in one of the best legal learning environments in America — the facilities at Georgetown Law.
As one of the original “founding members” of the IARMJ, I know that it has been many years since we have had an event of this magnitude and caliber here in the United States. Who knows when another such opportunity will come our way?
I sincerely hope that you can and will join me and my colleagues from the IARMJ in August.
Rosales Justo v. Sessions, 1st Cir., 07-16-18, published
PANEL: Torruella, Lipez, and Kayatt Circuit Judges
OPINION BY: Judge Lipez
KEY QUOTE:
In sum, the BIA’s justifications for its holding that it was clearly erroneous for the IJ to find that the Mexican government is unable to protect Rosales reflect multiple errors. The BIA failed to consider evidence of the Mexican government’s inability to protect Rosales and his nuclear family, as distinct from evidence of the willingness of the police to investigate the murder of Rosales’s son. That error in conflating unwillingness
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and inability was compounded when the BIA discounted country condition reports which, when combined with Rosales’s testimony about the particular circumstances of his case, were sufficient to support the IJ’s finding that the police in Guerrero would be unable to protect Rosales from persecution by organized crime.
The BIA committed further error by concluding that the IJ’s finding that Rosales did not report threats by organized crime to the police refuted the IJ’s ultimate finding of inability. The BIA both ignored our precedent stating that a failure to report a crime does not undermine an assertion of inability if a report would have been futile, and failed to consider evidence in the record that would support a finding of futility, thereby misapplying the clear error standard. Moreover, in another misapplication of the clear error standard, the BIA incorrectly concluded that the IJ’s inability finding was clearly erroneous because the Mexican government’s failure to protect Rosales was indistinguishable from the struggles of any government to combat crime, when the record before the IJ supported a finding that it was distinguishable.
Because of these errors, we grant Rosales’s petition and remand to the BIA for further proceedings consistent with this opinion. See I.N.S. v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam) (holding that remand to the BIA is generally the appropriate remedy when the BIA commits a legal error).
So ordered.
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Nice to see a Circuit Court, particularly a fairly conservative one like the First Circuit, take strong stand against the nonsense and mockery of Due Process and justice going on at EOIR under Sessions;
Expect more of these in the future as the “Just Find A Way To Deny & Deport” initiative by the xenophobic, scofflaw AG goes into high gear at EOIR;
Quite contrary to everything Sessions has been saying, which completely ignores the lessons of the Supreme Court’s decision in INS v. Cardoza Fonseca, asylum law is supposed to be interpreted and applied generously in favor of those seeking life saving protection;
This case illustrates the importance of dissent at the BIA, as the First Circuit basically adopted the correct interpretation of the law and facts set forth by a dissenting (female) BIA Appellate Immigration Judge;
This also shows the importance of full three-judge review by the BIA on asylum cases, rather than single judge panels or summary denials;
The number of fundamental errors committed by the BIA panel majority in reversing this asylum grant and the persistence of the DOJ in advancing untenable legal positions before the Court of Appeals is simply appalling, even if consistent with Session’s own lack of scholarship and total disrespect for fundamental fairness to respondents in Immigration Court;
This case also highlights a chronic problem in EOIR asylum adjudication: conflating “willingness to protect” with “ability to protect.” Too many Immigration Judges and BIA Appellate Judges seize on ineffective efforts by local police, cosmetic improvements by governments, and failure to seek (largely useless and perhaps actually harmful) police assistance to find that there has been “no failure of state protection;”
That’s exactly what Sessions himself did in his fundamentally flawed opinion in Matter of A-B-. He encouraged judges to conflate ineffective efforts to protect with actual ability to protect. And, his comparison of how domestic violence is policed and prosecuted in the United States with El Salvador’s pathetic efforts in behalf of domestic violence victims was simply preposterous;
This decision also addresses another chronic problem at EOIR: judges “cherry picking” the record and particularly Department of State Country Reports for the information supporting a denial, even though the record taken as a whole lends support to the respondent’s claim;
Once again, how would any unrepresented applicant make the kind of potentially winning asylum case presented by this respondent with the assistance of counsel? When are Courts of Appeals finally going to state the obvious: proceeding to adjudicate an asylum claim by an unrepresented respondent is a per se denial of Due Process!
This case should be taken as a message that Immigration Judges and BIA panels following the misguided Sessions’ dicta on “unwilling or unable to protect,” rather than applying the correct standards set forth by most Circuits are going to be getting lots of “do overs” from the Circuit Courts;
How could anybody justify “speeding up” a system with this many fundamental (and life-threatening) flaws to begin with? Under Sessions, EOIR is on track to becomes veritable “reversible error factory” — as well as a “Death Railroad!”
Over the course of four days in June, Keylin says, U.S. Border Patrol guards would kick her body to keep her awake throughout the night. The 16-year-old, whose last name was redacted from court documents, told a lawyer that she would lie in fear on the cement floor of the Border Patrol station in Texas, surrounded by chain-link fence. She was separated from her mother, who had been held at gunpoint three times in Honduras, after they crossed the U.S. border.
According to a court filing, Keylin says the female guards also made girls “strip naked” in front of them before taking a shower, so they could leer at their bodies (her mother, Daise, corroborated her daughter’s account in a statement she gave to a lawyer). She adds that guards called the group of migrants “filthy” and “made fun of us.”
Keylin barely ate because she says the food was frozen, and she wasn’t given a toothbrush or toothpaste. Though she says the cells were so cold that she shivered and developed pain in her leg, the teen kept quiet. The guards said that anyone with an injury would be detained longer, and she couldn’t take that chance.
“I was very frightened and depressed the entire time,” Keylin told a lawyer on June 29, after she had been transferred to a family detention center and reunited with her mother. “I am still depressed. I also have nightmares and a lot of anxiety because of the separation.” At the time of their June 29 declaration, there was no plan for Keylin and her mother’s release.
HuffPost learned that the Center for Human Rights and Constitutional Law filed a report in a federal court in Los Angeles on Monday with more than 200 accounts from migrant children and their parents, detailing the horrific conditions they face in Border Patrol stations, Immigration and Customs Enforcement facilities and detention centers. The allegations, which HuffPost reviewed, include physical and verbal assault, untenable sleeping conditions and unsanitary drinking water.
JOHN MOORE VIA GETTY IMAGES
A girl from Central America rests on thermal blankets at a detention facility run by the U.S. Border Patrol on Sept. 8, 2014, in McAllen, Texas.
Peter Schey, the executive director of the law center’s foundation, wrote in the case filing that roughly 90 percent of the testimony he and a team of about 100 lawyers collected is “shocking and atrocious” and that the children they’ve spoken to were “crying, trembling, hungry, thirsty, sleepless, sick, and terrified.”
“The treatment of these children amounts to torture,” Schey told HuffPost, adding that the situation has become worse under the Trump administration. “We see a policy of enforced hunger, enforced dehydration and enforced sleeplessness coupled with routine insults and physical assaults.”
ICE and U.S. Customs and Border Protection (CPB) did not return HuffPost’s requests for comment.
Over the past two months, Schey and other lawyers have conducted interviews with migrant parents and children, some of whom were separated from one another under Trump’s zero tolerance policy, which stepped up the use of criminal prosecutions. The court filing does not include the current status of each child, and most said they were not told of their legal rights, including the right to be speedily released to a legal guardian or relative.
On July 27, the attorney will argue in federal court that the stations and facilities housing children are failing to meet the basic standards for hygiene, food, sleeping conditions and medical care, which are outlined in a 1997 court case called the Flores settlement.
Once migrants cross the border, they are put in short-term Border Patrol stations for a few days before being transferred to detention centers or shelters. While some kids have reported good conditions in longer-term shelters ― friendly staff, movie nights and field trips ― advocates and immigration experts have long considered Border Patrol facilities to be inhumane.
In May, Dixiana, whose last name is edited out along with those of all the other migrants interviewed in the court filing, says she was separated from her mother and taken to a Border Patrol station known as a “hielera” ― Spanish for “ice box” in reference to the cold temperature. The 10-year-old from Honduras told a lawyer her cell was so crowded that she and other girls had to sleep on the floor or while sitting up under bright lights.
She cried at the thought of never seeing her mother again, as did others in her cell.
For breakfast, Dixiana says a guard gave her a frozen ham sandwich but failed to bring her and her cellmates water. “The ham was black,” she told a lawyer. “I took one bite, but did not eat the rest because of the taste.” (One mother from Honduras said, “You could feel the ice when you bit into the sandwich.”)
After 12 hours, Dixiana was transferred to what she calls the “perrera”―Spanish for “dog house,” a reference to the chain-link fencing ― where she could see her mom in another cell. At one point when she was half asleep, Dixiana says a male officer kicked her awake while looking for a girl with a similar name to hers. Over the course of the next few days, she sat in a windowless cell with no idea if it was day or night, crying because she missed her mother.
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The statements collected by lawyers clearly show that Border Patrol stations are no place for children. One mother, Floridalma, described how she and her 3-year-old were put in a 10-by-10-foot room with three other mothers and their children. Since they had only two mattresses, the group slept with their heads on the padding and their bodies on the cement floor.
U.S. CUSTOMS AND BORDER PROTECTION VIA REUTERS
Children at Customs and Border Protection’s Rio Grande Valley Centralized Processing Center in Rio Grande City, Texas, on June 17.
Ruth, the mother of a 7-year-old boy, says the Border Patrol station was so cold that children were crying and getting sick. While she was separated from her son, she watched other women’s children get fevers, vomit and cough, while the guards refused to provide medicine.
The Border Patrol stations also fail to meet basic hygiene standards, according to the court filing. Many of the children describe the guards giving them water that tasted like chlorine. “I only drank it twice because I didn’t trust it,” said Justin, a 13-year-old from El Salvador. “It made me feel funny in my stomach the times I drank it.“ One mother, named Yojana, said, “We had to drink water from the toilet to keep hydrated.”
Children described going more than five days without bathing and having limited access to soap, toothbrushes and toothpaste. Fatima says that her 8-year-old daughter had to wear soiled underwear for two days because the guards wouldn’t allow her to use the shower.
Children also spoke to lawyers about issues in family detention centers and Office of Refugee Resettlement shelters, where they are detained for longer periods of time. Since June 8, 15-year-old Elmer has been staying in Casa Padre, America’s largest migrant children’s shelter, which MSNBC’s Jacob Soboroff described as resembling a “prison or jail.”
Elmer says that he is always hungry because there’s not enough food and that he wasn’t allowed to see a doctor when he felt sick. The 16-year-old says he told a lawyer that, although the boys, ages 10 to 17, are allowed outside for two hours a day, it is “unbearable” because there is nothing to protect them from the scorching sun. Elmer says that the guards don’t allow him to go to church and that he is rarely given any alone time in his room to process his feelings of loneliness and anxiety.
In addition to the horrible conditions within stations and shelters, children complained about the staff. The case filing contains multiple accounts of kids who say they were kicked by guards while sleeping, as well as instances of verbal abuse. Sixteen-year-old Erick says the guards in a California Border Patrol station call him and the other Guatemalan boys “burros,” the Spanish word for “donkey” or “stupid.” Another youth, whose name was completely blacked out in the court filing, said to a lawyer: “When I told the CPB officer that my mother was killed they made fun of me and said that I was ‘weak.’ I did not feel comfortable after that sharing my fear.”
While pediatricians and counselors have spoken about the long-term trauma that will result from family separation, children say in the court filing that their guards are less sympathetic.
Since Sergio was separated from his father and taken to Casa Padre in early June, he’s become so consumed with worry he can’t sleep. The 16-year-old has only been able to speak with his dad for 20 minutes in the last 45 days, and he told a lawyer that his father is getting deported. When a guard found him crying in the bathroom one night, Sergio said the man accused him of being a “crybaby,” an insult he followed with an English phrase that another boy translated as “swear words.” “The way I have been treated makes me feel like I don’t matter,” he said, “like I am trash.”
Schey, who conducted interviews with children in Casa Padre last week, said the separated kids he spoke with are “traumatized.” “They are not getting mental health services. They are experiencing depression and anxiety… and nightmares and sleeplessness.”
The law center’s court filing, which is more than 1,500 pages long, paints a dark picture of the cruel conditions many migrant children suffer through. On July 27, Schey will present their declarations in federal court and ask U.S. District Judge Dolly Gee to appoint an independent monitor who has the power to make sure facilities are meeting the standards outlined in the Flores settlement.
“This story is more than just separating children from their parents,” he told HuffPost. “The bigger picture is forced starvation and sleeplessness and terrorizing these children.”
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What kind of country puts innocent kids in abusive prisons while letting their abusers hold public office?
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