Asylum – Page 166 – immigrationcourtside.com

AMERICAN GULAG: NGOs Fear Administration’s Planned Detention Empire Will Be Deadly!

http://www.huffingtonpost.com/entry/trump-immigrant-detention_us_58f0e2b7e4b0bb9638e34621

Elise Foley reports in HuffPost:

“WASHINGTON ― Human rights advocates spent years fighting for even small improvements to the system that detains men, women and children waiting to be either deported or released back into the U.S. Now they fear the progress they have made could disappear under President Donald Trump, who has promised harsher treatment of undocumented immigrants.

“This administration is prepared to make conditions at immigrant detention even worse than they already are, which, given that for some people they’re already fatal, is terrifying,” said Mary Small, policy director of the advocacy group Detention Watch Network.

Trump’s Department of Homeland Security is considering looser regulations for new contracts with jails to hold immigrants in deportation proceedings, The New York Times reported earlier this month. That agreement would allow jails to treat immigrants detained for civil offenses the same way they treat people charged with crimes.

The department also plans to eliminate an office at Immigration and Customs Enforcement that focuses on improving the detention system and to ramp up detention and deportation efforts.

Trump’s boosters consider these to be good things ― earlier this month, hosts on “Fox & Friends” gleefully remarked that the “party’s over” at immigrant detention centers, grumbling about detainees being given clean sheets and outdoor recreation time.

In reality, immigrant detention centers ― some of which are inside jails facilities or former prisons ― are bleak places. Inmates report being denied medical care, held in solitary confinement, given inedible food and other mistreatment. This is all on top of the struggle of being locked up, often far from family and legal help.

There’s always a tension between ‘Do we get rid of the cage or do we make a better cage?’Ruthie Epstein, formerly of Human Rights First

The facilities are supposed to be for civil detention, not criminal detention like a prison ― being in the country without authorization is not in itself a crime. Advocates are concerned that the Trump administration’s discussion of new contracts for jails to detain immigrants is more proof that officials will disregard standards meant to make immigrant detention less punitive.

Chris Daley, an attorney with Just Detention International, said his group is “very afraid” those standards aren’t going to be enforced and that “we’re just going to lose any sense that folks are not there under criminal charges.”

. . . .

“If ICE is no longer tracking the use of solitary confinement or no longer requiring that people who are in mental health crisis are checked on every 15 minutes, that can kill,” said Carl Takei, an attorney with the American Civil Liberties Union’s National Prison Project.

It would be difficult for ICE to dismiss the standards set forth in the Prison Rape Elimination Act because they are regulations. But weakening other standards would hurt PREA’s effectiveness, Daley said.

“You can’t have effective sexual abuse prevention programs if you have folks who don’t have access to appropriate materials in the right language; who can’t communicate concerns they have about threats or violence; who are just held in solitary confinement as a matter of course or who otherwise are just being treated in a demeaning way that compromises their dignity,” he said.

ICE hasn’t made any major changes yet, other than eliminating its Office of Detention Policy and Planning. The office’s staff and mission will be absorbed into other parts of the agency, according to ICE spokeswoman Sarah Rodriguez.

Officials are “examining a variety of detention models to determine which models would best meet anticipated detention needs” as part of one of Trump’s executive orders on immigration, Rodriguez said. “As new options are explored, ICE’s commitment to maintaining excellent facilities and providing first class medical care to those in our custody remains unchanged.”

The new contracts could be evaluated based on a checklist from the U.S. Marshals Service, The New York Times reported last week. That checklist is “ridiculous in its lack of detail,” Takei said. The contracts wouldn’t specify what policies jails holding immigrants must maintain for medical health, suicide prevention or solitary confinement, other than that they need to have some sort of policy, according to the Times.

Advocates are bracing for the worst.

“We’ve seen important but very incremental change, so to see change that’s taken so long to come about ― and that still had gaps but that was at least a step toward greater accountability and toward better conditions in these facilities ― to see that now be threatened to be reversed is troubling,” said Katharina Obser, senior program officer at the Women’s Refugee Commission.

They will be watching closely for human rights violations, from detainees being denied due process to poor conditions and even increased deaths in detention.

“These policies are a recipe for a human rights catastrophe in immigrant detention,” Takei said, “and we are prepared to sue as soon as that human rights catastrophe comes to pass.”

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Of course, an unstated reason for purposely allowing immigration detention conditions to deteriorate is to discourage migrants from 1) coming to the U.S. to seek refuge, 2) making claims for refuge, and 3) continuing to pursue those claims.

By locating U.S. Immigration Courts in private prisons and local facilities in obscure locations where counsel are not available, the Department of Justice purposely erodes due process for the purpose of making the courts part of the enforcement, deterrence. deportation mechanism.

At some point, the Article III Courts will have to decide how much of this unseemly travesty of justice they are willing to allow.

PWS

04-26-17

“Send Lawyers, Guns, and Money . . . .” — But, Bipartisan Legalization Is What Undocumented Residents REALLY Need, Says N. Rappaport in THE HILL!

Quote from “Lawyers, Guns and Money,” by Warren Zevon, check it out here: http://www.lyricsmode.com/lyrics/w/warren_zevon/lawyers_guns_and_money.html

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http://thehill.com/blogs/pundits-blog/immigration/329310-noncriminal-immigrants-facing-deportation-need-legalization

Nolan writes in a recent op-ed from The Hill:

“The absence of due process protections is permissible because IIRIA “clarified” that aliens who are in the United States without inspection are deemed to be “arriving.” In other words, they are not entitled to the rights enjoyed by aliens who have been admitted to the United States because, technically, they are not in the United States. This legal fiction has been accepted now for more than 20 years.

Previous administrations arbitrarily have limited expedited removal proceedings to aliens at the border and aliens who entered without inspection and were apprehended no more than 100 miles from the border after spending less than 14 days in the country.

But Section 235(b)(1)(A)(iii)(ll) of the Immigration and Nationality Act (INA) authorizes expedited removal proceedings for any alien “who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.”

President Trump can use expedited removal proceedings to deport millions of noncriminal aliens without hearings before an immigration judge or the right to appeal removal orders to the Board of Immigration Appeals.

The only way to stop him is to find a way to work with him on a comprehensive immigration reform bill that includes a legalization program. And time is running out.

The Trump administration is quickly identifying ways to assemble the nationwide deportation force that President Trump promised on the campaign trail.

Preparations are being made for U.S. Customs and Border Protection (CBP) to hire 5,000 new officers and for U.S. Immigration and Customs Enforcement (ICE) to hire an additional 10,000. Also, ICE has identified 27 potential locations that could increase its detention space by 21,000 beds, and CBP plans to expand its detention capacity by 12,500 spaces.

But it is not too late to work on a deal that would meet the essential political needs of both parties … yet.”

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Go over to The Hill at the link to read Nolan’s complete op-ed.

I agree with Nolan that given the huge backlogs in the U.S. Immigration Courts, the Administration will use every device at its disposal to avoid the Immigration Courts and completely eliminate due process protections for as many individuals as possible. Moreover, as I have pointed out in a recent blog, to date the Article III Courts have been willing to turn a blind eye to the rather obvious due process and statutory issues involved in expedited removal. See http://wp.me/p8eeJm-IG.

To state the obvious: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum” is meaningless without a fair opportunity to be heard on the asylum application before an impartial adjudicator, with a meaningful opportunity to present evidence, and represented by counsel of one’s choice. And, the idea that individuals who have spent months in detention in the U.S. aren’t entitled to “due process” in connection with their asylum applications (which are “life or death” applications) is facially absurd.

Yeah, I know that the Third Circuit in Castro v. DHS spent the whole decision on a turgidly opaque discussion of jurisdiction and and “suspension of habeas.” Surprising how folks living in the “ivory tower” with lifetime job security can sometimes drain all of the humanity out of “real life” tragedies.

But, frankly, in four decades of being a “highly interested observer” of immigration litigation, I’ve never seen an Article III Court, including the Supremes, be deterred from running over supposed statutory limitations on judicial review when motivated to do so. Perhaps it will take some Federal Judge’s nanny, maid, gardener, driver, handyman, neighbor, fellow church member, student, or in-law being swept up in the new “DHS dragnet” to “motivate” the courts here.

In the meantime, as pointed out to me by Nolan in a different conversation, there is some hope for due process in the Third Circuit’s dictum in Castro. In “footnote 13,” the court actually indicates that there might be a “constitutional break point” for review of expedited removal:

“Of course, even though our construction of § 1252 means that courts in the future will almost certainly lack statutory jurisdiction to review claims that the government has committed even more egregious violations of the expedited removal statute than those alleged by Petitioners, this does not necessarily mean that all aliens wishing to raise such claims will be without a remedy. For instance, consider the case of an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1). Even though the statute would prevent him from seeking judicial review of a claim, say, that he was never granted a credible fear interview, under our analysis of the Suspension Clause below, the statute could very well be unconstitutional as applied to him (though we by no means undertake to so hold in this opinion). Suffice it to say, at least some of the arguably troubling implications of our reading of § 1252 may be tempered by the Constitution’s requirement that habeas review be available in some circumstances and for some people.”

I suspect that the Administration eventually will push expedited removal and credible fear denials to the point where there will be some meaningful judicial review. But, lots of folks rights are likely to be trampled upon before we reach that point.

Nolan’s suggestion for a bipartisan legislative solution certainly seems reasonable and highly appropriate from the viewpoint of both sides. The Administration is about to invest lots of resources and credibility in a “war to deport or intimidate just about everybody” that it is likely to lose in the long run. But, advocates are likely to be bleeding resources and losing individual battles for some time before the tide eventually turns, if it ever does. Anything that depends on litigation as the solution has many risks and unpredictable outcomes that might leave both sides unsatisfied with the results.

Sadly, nobody in the Administration seems interested in solving this issue. The policy appears to be driven by Attorney General Jeff Sessions, a lifelong opponent of immigration reform who seldom if ever has a kind word to say about any immigrant, legal or undocumented.

Secretary Kelly has become “Sessions’s Parrot,” apparently devoid of any original or constructive thoughts on the subject of immigration. In particular, his recent “put up or shut up” outburst directed at Congressional Democrats who sought some meaningful oversight and clarification of his enforcement policies did not seem to be an entree for better dialogue.

Although there almost certainly is a majority of Democrats and Republicans in favor of reasonable immigration reform, which the majority of the country would also like to see, leadership of both parties seems fairly discombobulated. There seems to be “zero interest” in putting together a legislative coalition consisting of Democrats and a minority of Republicans to get anything done. And, even if such a coalition were to coalesce, President Trump likely would veto any constructive result in the area of immigration.

As I’ve pointed out before, there are a number of reasons why folks don’t always act in their best interests or the best interests of the country. But, I appreciate Nolan’s efforts to promote “thinking beyond conflict.” I want to think that it can come to fruition.

PWS

04-20-17

PRECEDENT: BIA Gives Guidance On Admin Closing & Avetisyan — PD Should Not Be A Factor Unless Parties Agree — Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017)

https://www.justice.gov/eoir/page/file/958526/download

BIA Headnotes:

“(1) The primary consideration for an Immigration Judge in evaluating whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), clarified.

(2) In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.”

Panel: Appellate Immigration Judges Malphrus, Mullane, & Creppy

Opinion by Judge Malphrus.

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While at first blush it might appear that the unrepresented respondent “won” this appeal, the victory is likely to be phyrric at best.

There was a time (now apparently gone) when the DHS gave individual Assistant Chief Counsel broader authority to offer prosecutorial discretion (“PD”) in cases that were not enforcement priorities.

In Arlington, where I was an Immigration Judge, the Assistant Chief Counsel were very reasonable and fair, and usually agreed to “short docket” hearings on well-documented asylum cases that fell squarely within the BIA precedents. Consequently, when they offered “PD” in an asylum case it usually was a “signal” that they saw the equities in the case, but also had difficulties with the asylum application that would require them to fully litigate the case and probably appeal a grant. Since the Assistant Chief Counsel in Arlington did not normally contest asylum cases unless there were significant proof or legal issues involved, their views had great credibility with both the private bar and with me.

Generally, in such situations I “suggested” that counsel accept the proffer of PD and continue to work with the Assistant Chief Counsel on overcoming her or his problem with the asylum case. If the parties eventually were able to reach agreement that the case could be heard on the “short docket” (30 minutes or less), I would be happy to restore the case to the docket upon joint motion. Usually, counsel got my “message.”

The few cases that went forward after “PD” had been turned down by counsel usually proved to be “losers” for the respondent, either before me or before the BIA. In a couple of cases, where I could see the respondent’s case “going south in a hurry,” I simply stopped the hearing and granted the DHS motion for Administrative Closing for PD over the respondent’s objection. I don’t think anyone ever appealed. But, under Matter of W-Y-U-, I probably could not have done that.

I suspect that when this unrepresented respondent eventually gets his wish and has a merits asylum hearing, he will lose. At that point, the DHS, even prior to the Trump Administration, would be unlikely to exercise PD, even if there were outstanding equities.

Sometimes in litigation you get what you ask for, and later wish you hadn’t asked.

PWS

04-19-17

USA TODAY: Even Without Trump’s “Fully Enhanced” Enforcement, U.S. Immigration Courts Are Drowning In Cases — Limits On “Prosecutorial Discretion” By DHS Already Adversely Affecting Dockets!

https://www.usatoday.com/story/news/2017/04/17/immigration-courts-new-rules-trump/98674758/

Rick Jervis, Alan Gomez, and Gustavo Solis report:

“In San Antonio, an immigration judge breezes through more than 20 juvenile cases a day, warning those in the packed courtroom to show up at their next hearing — or risk deportation.

A Miami immigration lawyer wrestles with new federal rules that could wind up deporting clients who, just a few weeks ago, appeared eligible to stay.

Judges and attorneys in Los Angeles struggle with Mandarin translators and an ever-growing caseload.

Coast to coast, immigration judges, prosecutors and defense attorneys are straining to decipher how the federal immigration rules released in February by the Trump administration will impact the system — amid an already burgeoning backlog of existing cases.

The new guidelines, part of President Trump’s campaign promise to crack down on illegal immigration, give enforcement agents greater rein to deport immigrants without hearings and detain those who entered the country without permission.

But that ambitious policy shift faces a tough hurdle: an immigration court system already juggling more than a half-million cases and ill-equipped to take on thousands more.

“We’re at critical mass,” said Linda Brandmiller, a San Antonio immigration attorney who works with juveniles. “There isn’t an empty courtroom. We don’t have enough judges. You can say you’re going to prosecute more people, but from a practical perspective, how do you make that happen?”

Today, 301 judges hear immigration cases in 58 courts across the United States. The backlogged cases have soared in recent years, from 236,415 in 2010 to 508,036 this year — or nearly 1,700 outstanding cases per judge, according to the Transactional Records Access Clearinghouse, a data research group at Syracuse University.

Some judges and attorneys say it’s too early to see any effects from the new guidelines. Others say they noticed a difference and fear that people with legitimate claims for asylum or visas may be deported along with those who are criminals.

USA TODAY Network sent reporters to several immigration courts across the country to witness how the system is adjusting to the new rules.”

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Read the entire article, with reports from the Miami, Los Angeles, and San Antonio U.S. Immigration courts at the above link.

As I mentioned in the previous post, http://wp.me/p8eeJm-IG, one of the ways the Trump Administration apparently plans to deal with the U.S. Immigration Court “bottleneck” is by avoiding the court altogether through expanded use of “Expedited Removal” before DHS officers.

Additionally, Attorney General Jeff Sessions has announced plans to “streamline” the existing hiring process for U.S. Immigration Judges and to seek an additional 125 Immigration Judges over the next tow years (although those new judgeships would require congressional approval). http://wp.me/p8eeJm-Gp

PWS

04-17-17

DEPORTATION EXPRESS: U.S. Courts Appear Ready To “Green Light” Summary Removal Of Asylum Seekers Without Regard To Due Process — Advocates Striking Out In Attempts To Get Meaningful Judicial Review Of Expedited Removal — Trump Administration’s Plans To Expand Expedited Removal Likely To Deny Thousands Day In Court!

http://www.cnn.com/2017/04/17/politics/supreme-court-castro-expedited-removal/index.html

By Ariane de Vogue, CNN Supreme Court Reporter writes:

“(CNN)The Supreme Court on Monday left in place a lower court opinion rejecting claims by undocumented Central American women and children — who were apprehended immediately after arriving in the country without authorization — seeking asylum.

Lawyers for the families sought to challenge their expedited removal proceedings in federal court arguing they face gender-based violence at home, but a Philadelphia-based federal appeals court held that they have no right to judicial review of such claims.

The court’s action means the government can continue to deny asylum seekers placed in expedited removal a chance to have their cases heard by federal court.

Justice Neil Gorsuch, who has his first full week on the court starting Monday, did not participate in the decision.

The case, initially brought under the Obama administration, comes as the Trump administration has vowed to more strictly enforce immigration laws.

Originally, 28 mothers and their children entered the US border in Texas in late 2015. They were immediately placed in expedited removal proceedings. Represented by the American Civil Liberties Union, they argue they suffered “gender-based violence, including sexual assault, by men from whom they could not escape” and that they were targeted by gangs because “they are single women residing without a male household member to protect them.” They sought to challenge their removal proceedings in federal court, arguing that they did not receive substantive procedural rights to which they were entitled.

A federal appeals court ruled against the petitioners, arguing that Congress could deny review for those who have been denied initial entry into the country who were apprehended close to the border. The court essentially treated the petitioners as equal to those who arrived at the border but had not yet entered.

“We conclude that Congress may, consonant with the Constitution, deny habeas review in federal court of claims relating to an alien’s application for admission to the country, at least as to aliens who have been denied initial entry or who, like Petitioners, were apprehended very near the border and, essentially, immediately after surreptitious entry into the country,” wrote the majority of the Third Circuit Court of Appeals.

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Here’s a link to the Third Circuit’s decision in Castro v. DHS: http://www2.ca3.uscourts.gov/opinarch/161339p.pdf

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This could be the real “sleeper” in the Trump Administration’s “get tough” immigration enforcement plan. Given the 540,000+ backlog in the U.S. Immigration Courts, the Administration appears to be looking for ways to circumvent the court process entirely wherever possible.

DHS could easily change the existing regulations to “max out” so called “Expedited Removal” by DHS enforcement officers by applying it to everyone unable to establish at least two years’ continuous residence in the U.S. (Currently, the cutoff is 14 days if apprehended within 100 miles of the border.)

Even individuals who meet the two-year requirement could be subsumed in the Expedited Removal regime. Without a right to be represented by counsel, to have a full hearing before an impartial decision maker, and to appeal to the Article III Federal Courts, an individual wrongly placed in the expedited process would have little chance of avoiding summary removal without a chance to apply for relief that might be available before the Immigration Court.

While the Supreme Court’s refusal to grant certiorari in Castro is not a decision on the merits, to date no circuit has ruled in favor of the claimants. Unless and until that happens, it is unlikely that the Supremes will even consider the advocates’ arguments for at least some degree of judicial review of Expedited Removal.

PWS

04-17-17

IT’S TRUE! — DOJ Eliminates U.S. Immigration Judges’ Only Annual Training! — Quality & Professionalism “De-Prioritized” In Trump Era — Billions For Enforcement & Incarceration — Crumbs For Due Process — When Is Congress Going To “Just Say No?”

Reliable sources have now confirmed what I reported in this blog earlier this week (http://wp.me/p8eeJm-Ge): the DOJ has eliminated the U.S. Immigration Court’s only formal annual training. U.S. Immigration Judges have been ordered to schedule cases during the week normally reserved for advanced training, continuing judicial education, and professional development.

This news couldn’t come at a worse time for the beleaguered U.S. Immigration Courts. Dozens of new U.S. Immigration Judges have been appointed in the last year, most of whom have never met their judicial colleagues across the nation.

Moreover, this would be their only opportunity beyond some brief “basic training” to pursue continuing judicial education in this complex, controversial, and ever-changing field. It’s also an opportunity to “catch jump” on what all the Circuit Courts of Appeals are doing, as well as to hear from BIA Appellate Immigration Judges about developments at the Board. Additionally, it is a key opportunity to address the disturbing, continuing problem of inexplicable discrepancies in asylum adjudication (84% grant rate in one Immigration Court; 2% grant rate in another) within the Immigration Court system.

Some of the training at the Annual Conference is statutorily required, such as updates under the International Religious Freedom Act, which, perhaps ironically, often highlights the persecution faced by Christian groups in China and the Middle East, a subject on which the Administration has expressed concern. Other sessions cover ethics training required by DOJ regulations.

In addition, the DOJ considers U.S. Immigration Judges to be “DOJ attorneys.” As a consequence, judges are required to maintain “active” status in at least one state bar, even though they perform only quasi-judicial duties and therefore would be eligible for “active judicial status” in many states.

The Annual Conference usually meets the “mandatory CLE” requirements of various state bars. But, when there is no Annual Conference, individual judges must take leave from the bench to complete the coursework required by their respective state bars. Therefore, Immigration Judges are off the bench learning about state real estate transactions and changes in tort law, when they could instead be advancing their knowledge in immigration and refugee law as well as “best judicial practices” in Federal Courts.

I get frequent reports of cratering morale among Immigration Judges and court staff, increases in the already extraordinary levels of stress, and impending retirements of some of the best and most experienced judges. Some Immigration Judges returning from details to hastily thrown together so-called “Immigration Courts” in DHS detention centers were shocked, upset, and angered to see with their own eyes that individuals with viable claims for relief, most of them asylum or related protection, were being “duressed” by the coercive conditions and atmosphere in DHS detention to abandon their claims and take “final orders of removal,” just to be out of detention. And, the Administration is just getting started on its plans for “Incarceration Nation.”

Lawyers report that they show up at Immigration Court with clients and witness in tow prepared for merits cases which have been pending for years, only to find out that the cases have been rescheduled to a dates several more years in the future, without advance notice, so that the Immigration Judges can be detailed to a detention centers in other parts of the country.

When is Congress finally going to step in and provide some meaningful oversight of the unfolding due process disaster in U.S. Immigration Courts? Regardless of where one stands on the philosophical issues surrounding immigration enforcement, providing due process and complying with constitutional, statutory, and international treaty obligations, including reasonable access to counsel (which is not available in most DHS detention center locations), should be a bipartisan priority.

Isn’t it time for a bipartisan group of GOP legislators concerned about the billions of dollars being mindlessly poured into immigration enforcement and Democrats who are concerned about due process getting together and holding the Trump Administration accountable for what’s really happening in our Immigration Courts?

PWS

04-13-17

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

GibsonRpt041017

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

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

PWS

04-10-17

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

04-07-17

The Asylum Seeker Assistance Project (“ASAP”) — A Wonderful New DC Area Community Service Organization Making America Really Great! — Special Public Event On Saturday, April 29 — Register Here!

The Asylum Seeker Assistance Project

We thank Judge Paul W. Schmidt for giving us the opportunity to share with you an exciting new project that will provide critically important support to asylum seekers as they pursue their claims for protection in our backlogged immigration court system. We also want to invite those of you who may be local to the DC metro area to join us as we celebrate our first class of 12 asylum seekers completing our job-readiness program. But, first, a bit about the Asylum Seeker Assistance Project (ASAP) and what we do!

Founded in 2016, ASAP is the first and only community-based nonprofit providing comprehensive services to support the estimated 50,000 individuals pursing asylee status in the D.C. Metro region. Our mission is to provide services that support the safety, stability, and economic security of asylum seekers and their families.

Grounded in a strengths-based approach, ASAP combines direct client services with advocacy initiatives to develop programming that promotes community belonging and engagement. By providing access to information, services, and support, ASAP seeks to empower asylum seekers to rebuild their lives in the U.S. and to ensure that we, as a community, take full advantage of their presence and potential.

OUR PROGRAMS

Employment: ASAP’s employment program combines individualized career planning, 30-hours of job readiness training, and job placement services to address common employment barriers encountered by asylum seekers. Our goal is to equip asylum seekers with the knowledge, skills, and resources needed to secure and retain safe, legal, and purposeful employment.

Community: ASAP’s community program facilitates opportunities for asylum seekers to connect with each other, ASAP volunteers, and the larger community. We also maintain a list of asylees willing and able to provide support and guidance to newly arrived asylum seekers.

Legal: ASAP offers asylum law trainings, legal information sessions, and “Know Your Rights” workshops on demand to clients, attorneys, law students, and community partners. ASAP can also provide targeted referrals to pro bono and low bono immigration legal service providers.

Outreach: ASAP conducts educational awareness events co-facilitated by asylum seekers and asylees. We have given talks and presentations to audiences ranging from elementary school-aged children to adults. By engaging audiences of all ages, we work to plant the seeds of social change.

(Coming 2018) Social Services: ASAP works with clients to create a comprehensive assessment of their life in the U.S. in order to identify client needs, recognize strengths, and prioritize goals. ASAP works with a coalition of community partners to provide information, resources, and referrals to ensure client safety and stability.

Come and Learn More About Us in Person and Celebrate Asylum Seekers!

Please join us in Bethesda, MD, on Saturday, April 29th from 3-6pm to learn more about the Asylum Seeker Assistance Project (ASAP) as we celebrate our launch with the first class of ASAP clients. This is a family-friendly event with planned activity stations (including face-painting, arts and crafts, henna art, and fishing for ducks!) to entertain the little ones. Food, drinks, and lots of good company will be provided.

Please purchase tickets and sign up for the event here: https://www.eventbrite.com/e/together-we-rise-a-family-friendly-celebration-tickets-32993122317

How can I contact the organizer with any questions?

We can be reached at asylumprojectdc@gmail.com, or you can engage with board member Lindsay M. Harris, Assistant Professor of Law at UDC Law teaching in the Immigration and Human Rights clinic at Lindsay.harris@udc.edu.

How can I learn more about ASAP?

Visit our Facebook page at: https://www.facebook.com/asylumprojectdc/

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Thanks to my good friend Professor Lindsay Harris of UDC Law for providing this information. Please note the event on April 29, 2017 is open to all! Please come out to learn, meet, and support this worthy group in its important work!

PWS

04/04/17

“Come Together” — A Great New 1-Min. Video From The GW Immigration Clinic All-Stars! — “Why We Are Motivated To Work for Immigrants!”

GW Immigration Clinic 2017 – Medium

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Looks like lots of new recruits for the “New Due Process Army.” These guys are the real “heart and soul” of today’s American law. Thanks to Professor Alberto Gonzalez for sending this in.

PWS

04/03/17

SLATE: Into The Void — Appalled Attorney Dan Canon Says Immigration Detention Diminishes, Dehumanizes All Of Us!

http://www.slate.com/articles/news_and_politics/cover_story/2017/04/ice_detainees_enter_an_unbelievably_cruel_system_designed_to_make_them_disappear.html

“A couple of weeks ago, for the first time ever, I represented an undocumented worker in deportation proceedings. Or rather, I tried to. My attempts to navigate this system were not what I would call successful. Part of this may be due to the fact that, though I have been a practicing attorney for 10 years, this was my first go at immigration law. But another part of it—most of it, I’d venture—is due to the fact that the U.S. immigration system is designed to be opaque, confusing, and inequitable.

Under most circumstances, I would not wade into this kind of thing at all. I’m primarily a civil rights lawyer, and immigration is a highly specialized area of law with a unique set of risks awaiting unwary practitioners. I would not, for example, take someone’s bankruptcy case or file adoption papers. I would refer those to lawyers with experience in those areas. But the crisis of unrepresented detainees is too big and too pressing to leave to the few organizations and individual practitioners with expertise in immigration law. One recent study found that only about 14 percent of detainees have representation. That’s out of nearly 300,000 cases in the immigration courts every year.*

If I killed someone on the street in broad daylight, I‘d be entitled to an attorney. But those summoned before the immigration courts, including infants who have been brought here by their parents, have no right to counsel. They can hire immigration lawyers, but only if they can pay for them. Most of them can’t, and volunteer lawyers are scarce. So children, parents, and grandparents are locked up for months, sometimes years, waiting for a day in court. When they show up in front of a judge, they do so alone and terrified. Those who don’t speak English are provided an interpreter who tells them what’s being said, but no one is there to tell them what’s really happening.

Undocumented people who live here in Louisville and southern Indiana are driven 90 minutes to the jail in Boone County, Kentucky. There, they are placed in the general population with locals who have actually been accused of crimes. That’s where my client, who was assigned to me by an overburdened immigration firm, was taken after he was scooped up by Immigration and Customs Enforcement in the parking lot of his apartment building.

Entering the United States, even without proper documentation, is not a criminal offense. The only “crime” my client committed is trying to get his family away from the drug cartels that overtook his Central American village. Unlike many who come here fleeing crippling poverty, he and his family were getting along fairly well in their home country. A little success, it turns out, can make you a target for violent extortionists. His wife, who fled the exact same situation in the exact same place, was apparently catalogued as an asylum-seeker, but her husband was not.

The Kentucky facility doesn’t allow a phone call, even for an attorney, without an appointment. Requests to call your client must be made by fax. Sometimes the jail will call you to say your 2 p.m. time slot has been changed to 6 p.m., and sometimes you won’t get any notification at all. The visitation restrictions for families are no more accommodating. Visitation amounts to 45 minutes a week, tops. If my client’s wife, daughter, or grandkids want to visit him, they have to drive 90 minutes and hope for the best.

. . . .

What happened to my client and his family wasn’t anomalous. It wasn’t even unusual. It happens all over the country, every single day. Part of what makes our immigration system so reprehensible is that it’s so easy to ignore. Most of us don’t ever have to deal with it in any meaningful way or even think about it. But stop and consider that this practice of moving detainees from place to place randomly, with no notice given to their families or their attorneys, is indescribably cruel. Stop and consider that locking up human beings in jail for months to coerce them into submission is maddeningly unjust. And then consider the possibility that the whole system is not just dysfunctional, but utterly diabolical.

Further consider that the practice of breaking up families and making people disappear into black holes is the result of a set of loosely defined policy goals that are in no way based on reality. There’s no real evidence to support the notion that undocumented immigrants are any more dangerous than anyone else, or that they “steal” jobs from Americans, or that they do anything but contribute to the economy overall. There is no policy reason for inflicting this misery on people. It’s just cruel.

Lest anyone think this is just more liberal railing against the Trump administration, this system pre-dates the orange guy. The Obama administration sucked more than three million people into the lungs of this administrative monster and spit them out all over the world. Having seen up close what this system does to families, it’s hard to forgive that, especially when you consider that American trade policies contributed to the collapse of Latin America. But hell, we’re all complicit in this. We let it happen every day.

I’m going to suggest something I have never suggested to any working person: If you are part of this machine—if you are a guard, an agent, a janitor, or anything in between—quit. Walk off your job. Right now. You’ve got bills to pay? A family to support? I get it. So do the people who come here looking for a better existence. The system you are contributing to is preposterously evil. It separates mothers from their children. It kills innocent people. It exists only to make easy punching bags out of those damned by their circumstances, some of whom have already lived through unspeakable horrors.

For everyone else: If you’ve never thought about your tacit support for this system, start thinking about it. Start resisting it. Start demanding its abolition. A Kafkaesque bureaucracy needs participants, both willing and unwilling. We have the power to dismantle it.”

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As noted in Canon’s article, immigration detention originated long before the Trump Administration. The Obama Administration certainly wasn’t afraid to use detention as an attempted deterrent to asylum seekers. Additionally, the Obama administration essentially argued for “eternal detention” pending final determinations in Removal Proceedings in a case that is currently pending decision before the Supremes. Jennings v. Rodriguez, see previous blog here: http://wp.me/p8eeJm-kp. The often prolonged detention of women and children asylum seekers from the Northern Triangle by the Obama Administration will go down as one of the darker chapters in American human rights history.

Unfortunately, however, we haven’t hit bottom yet. The Trump Administration’s plans for enhanced immigration enforcement will certainly involve even more widespread use of immigration detention as a tool of deterrence, coercion, and denial of due process, with all of the additional human abuses that is likely to engender.

One qualification/explanation of Canon’s statement that: “Entering the United States, even without proper documentation, is not a criminal offense.” In fact, it usually is. Under 8 U.S.C. 1325, “improper entry by an alien” is a misdemeanor, although often not prosecuted. A second conviction is a felony.

An individual without documentation who appears at a U.S. port of entry ands applies for asylum would not be committing a criminal offense. But, according to a number of recent media accounts, such individuals currently are being sent back to Mexico and told to await “an appointment.”

Additionally, the Trump Administration has indicated that it would like to develop a process to return non-Mexican asylum seekers to Mexico while they are awaiting hearings in U.S. Immigration Court. So far, the Mexican government has indicated that it would not agree to such a program.

PWS

04/03/17

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

03/31/17

WSJ: “The Wall” In Maps & Pictures

http://www.wsj.com/graphics/border-wall/

Stephanie Stamm, Renée Rigdon, and Dudley Althaus put together this outstanding illustrated article about the border wall, giving you a real life picture of what’s there now and where the most entries occur:

“President Donald Trump has promised to build a wall along the 2,000-mile U.S. border with Mexico, a project that would total $21 billion, according to an internal Department of Homeland Security estimate. Only about 650 miles of the border have some sort of fencing today, and adding to that is complicated by geography, politics, land-ownership issues and funding.
Here’s a breakdown of which Southwest border-patrol sectors have the most apprehensions—defined as an arrest of removable aliens—versus the most or least amount of fencing. It is important to note that border security is defined by more than fencing. According to Homeland Security, manpower, communication, lights and technology all aid physical barriers.

. . . .

This stretch of the border is where most migrants—including large numbers of Central Americans and other non-Mexicans—have been crossing. In many cases, people are turning themselves over to Border Patrol agents.”

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The last sentence of the above quote is worthy of some consideration. Contrary to popular notions that folks are trying to evade detection and “lose” themselves in the U.S. many, perhaps the majority, of the individuals fleeing the “Northern Triangle” of Central America turn themselves in to the Border Portal or at ports of entry and seek asylum.

I think that it is unlikely that increased detention, summary proceedings, and sophomoric warnings about the dangers of the journey (anyone seriously think that folks south of the border don’t understand the danger — come on man!) will in the long run deter those fleeing to save their lives.

However, it is possible that we eventually could convince refugees that we will mistreat them or not fairly hear their claims. In that case, they are likely to stop turning themselves in and simply invoke “self help refuge” by evading apprehension and losing themselves in the vastness of America — similar to what those crossing the border illegally have been doing for the most of the four decades that I have been involved with immigration enforcement, policy, and adjudication.

Human migration, border control. law enforcement, and refugee/asylum policy are extremely complex subjects. So far, the Trump Administration has chosen to address them in simplistic, one-dimensional ways that, to various degrees, have failed in the past and are likely to continue to do so.

PWS

03/30/17

Judge Posner Slams BIA For Ignoring Evidence Of Worsening Conditions In South Sudan — Deng Arej v. Sessions — 7th Cir.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D03-28/C:15-2061:J:Posner:aut:T:fnOp:N:1937333:S:0

“Arej has conceded that he qualifies as a criminal alien under 8 U.S.C. § 1252(a)(2)(C), so our review of the Board’s decision is limited to issues of law. 8 U.S.C. § 1252(a)(2)(D). But it was a serious legal error for the Board to have ignored Arej’s evidence. As we noted in Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008), the Board cannot make a reasoned decision to deny a motion to reopen if it ignores the evidence that a petitioner presents.

Furthermore, a competent immigration service would not ignore world events. The dramatically worsening conditions in South Sudan have been widely reported, with the young nation described as “cracking apart” and United Nations officials raising concerns about genocide. See, e.g., Jeffrey Gettleman, “War Consumes South Sudan, a Young Nation Cracking Apart,” New York Times, March 4, 2017, https://nyti.ms/2lHeELw. “Tens of thousands of civilians have been killed”; “every major cease‐fire that has been

No. 15‐2061 5

painstakingly negotiated by African and Western officials has been violated”; and “dangerous fissures are opening up within the South Sudanese military.” Id. And time doesn’t stand still. The Board’s order dismissing Arej’s appeal from the immigration judge’s denial of his motion to reopen was issued on May 8, 2015—almost two years ago. Considering that Arej has not yet been removed and that the order was perfunctory, the Board should consider whether he should be allowed to present evidence concerning current conditions in the two Sudans. See 8 C.F.R. § 1003.2(a).

The petition for review is therefore granted, the decision of the Board vacated, and the case remanded to the Board for further proceedings consistent with this opinion.”

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Seems like a South Sudan case would be a “no brainer” for reopening by the BIA. Not sure we even deport folks there. And, actually reviewing the evidence carefully would be a great first step toward becoming “the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Or, has the vision become just a slogan from bygone years? He’s probably only eligible to apply for withholding or CAT, though, because of the nature of his criminal conviction.

PWS

03/29/17

Update On Singapore Asylum Grant — Grossman Law Reports That Amos Yee Remains Detained In Wisconsin Pending Possible DHS Appeal!

MEDIA UPDATE:
ICE REFUSES TO RELEASE AMOS YEE DESPITE GRANT OF ASYLUM BY THE IMMIGRATION JUDGE
On March 27, 2017, Officers at Immigration and Customs Enforcement (ICE), Chicago Field Office informed Grossman Law, LLC that Amos Yee will remain in detention despite the Honorable Immigration Judge’s asylum grant on March 24, 2017. Yee has been detained since December 17, 2016.

When ICE officers first detained Yee, they stated he would be released on parole and that ICE had no interest in keeping Yee detained for the pendency of his proceedings. Then, after release of the new Administration’s Executive Orders, ICE informed Grossman Law that they would not release Yee. Subsequently, after Yee’s merits hearing, ICE moved him to another detention facility without informing counsel about the transfer. Now, ICE officers are basing the decision to keep Yee detained on a potential, but not yet filed, appeal by the Department of Homeland Security.

Grossman Law has learned from the Assistant Field Office Director for ICE’s Chicago Field Office that “…detained aliens who are granted relief remain in custody during the pendency of an ICE appeal, except in extraordinary circumstances.” Additionally, Amos Yee informed us via telephone that other individuals he has met at the Dodge County facility, remain in detention despite a grant of asylum. The decision to deny Yee his freedom is not limited just to him, but to many others.

ICE’s decision to continue to detain individuals granted asylum, especially when there are no security concerns, brings up serious questions about this country’s compliance with basic principles of international law regarding the treatment of asylees. There is no provision under the Immigration and Nationality Act, or under any Presidential Executive Order, that justifies the continued detention of an individual who has been granted asylum and is deemed to be a refugee. The supposed pendency of the Department’s appeal is immaterial; Yee should have been released immediately after he was granted asylum.

As the American Immigration Lawyers Association notes:

“America’s immigration detention practices undermine the fundamental principles of due process and fairness, and require immediate systemic reform. Annually, the Department of Homeland Security (DHS) unnecessarily detains more than 400,000 people, including asylum seekers and other extremely vulnerable immigrants. Many detainees are held for prolonged periods despite the fact that they have strong ties to the United States and pose no threat to public safety.

Detention is extremely expensive, costing American taxpayers $2 billion per year. Proven alternatives to detention, by contrast, cost between 17 cents and $17 per day. Detention should be a last resort, used only when other means of supervision are not feasible, and only after a truly individualized assessment of someone’s public safety and flight risk.”

Grossman Law, LLC is renewing a request to release Yee on humanitarian parole and is exploring all other viable legal options.

For further Media inquiries on this case please contact:

ICE – Chicago Field Office: 312-347-2168

Melissa Chen – Movements
Email: mchen@movements.org
Cell: 857-285-0975

The American Immigration Lawyers Association can be reached at:
George Paul Tzamaras
AILA Senior Director, Strategic Communications and Outreach
202.507.7649
GTzamaras@aila.org

Grossman Law, LLC
4922 Fairmont Avenue, Suite 200
Bethesda, Maryland 20814
Phone: (240) 403-0913
Website: www.GrossmanLawLLC.comAmos

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Sadly, notwithstanding the equities here, my recollection of the “black letter law” is that the Immigration Judge’s order is not “final” during the appeal period unless appeal is immediately waived. If either party files an appeal, the order does not become final while the appeal is pending. In other words, it is as if the case were never completed; it remains a pending case while it is before the BIA, and the rules governing detention are basically the same as they are when the case is pending before the Immigration Court.

If the respondent had “entered” the U.S., the asylum grant could be viewed as a “changed circumstance” giving the Immigration Judge a basis to redetermine custody upon his or her own motion or upon the respondent’s request. But, Mr. Yee appears to be an “arriving alien.” Therefore under the somewhat arcane rules applying to such aliens, neither the Immigration Judge nor the BIA has jurisdiction to redetermine custody. Continuing custody is within the sole jurisdiction of the DHS, unless a U.S. District Court intervenes by habeas corpus and directs either the DHS or the Immigration Judge to conduct an individualized bond hearing.

Tough system. But, I doubt the Trump Administration is going to make it any easier for respondents to get released from detention.

PWS

03/29/17

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