Immigration Detention – Page 151 – immigrationcourtside.com

DUE PROCESS CRISIS IN THE U.S. IMMIGRATION COURTS: New Report Finds That Detained Migrants In The Arlington & Baltimore Courts Face Severe Access To Counsel Problems Which Can Be “Outcome Determinative!”

This report (see link) was prepared and issued by the Center For Popular Democracy. Here are some key findings:

Every year, nearly 4,000 people in Washington, D.C. metropolitan area courts, Arlington, Virginia, and Baltimore, Maryland, face deportation in civil immigration court without the assistance of a lawyer. Based on original data analysis of Department of Justice records obtained through a Freedom of Information Act request, seven out of ten detained individuals in immigration court removal proceedings in Arlington, VA and eight out of ten in Baltimore, MD did not have any legal representation.
- ■ People without lawyers faced enormous odds in fighting their deportation cases. Among detained immigrants without lawyers, people in Arlington were only successful in their cases 11 percent of the time and unrepresented people in Baltimore only successful 7 percent of the time.
- ■ Having a lawyer in Arlington more than doubled a person’s chances of being able to remain in the U.S. and quadrupled a person’s chance of obtaining relief in Baltimore.
■ Between 2010 and 2015, Immigration and Customs Enforcement (ICE) detained nearly 15,000 people in local and county jails2 throughout the states of Maryland and Virginia. In both regions, people who did not have lawyers were more than twice as likely to remain detained during the entirety of their immigration case, even if they may have been eligible for release on bond.
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Read the entire report which has some case histories in addition to charts and graphs.

The findings are disturbing because the Arlington and Baltimore Immigration Courts generally are considered among the best in the nation in striving to provide due process. The judges in each court are committed to representation and often go out of their way to encourage and facilitate the appearance of counsel. The ICE Chief Counsel’s Offices also appreciate and support pro bono representation.

Additionally, as noted in the report, the DC-Baltimore metropolitan area has a number of great organizations dedicated to providing pro bono lawyers, as well as local practitioners, “big law” firms, and numerous outstanding law school clinics, all of which support the pro bono program.

Yet even under these generally favorable conditions, the overwhelming majority of individuals on the detained dockets in both courts appear pro se, without a lawyer. And, the results with a lawyer are very significantly better than for those forced to represent themselves.

I fear that the new program of expanded immigration detention being planned by DHS, with courts operating in obscure, out of the way locations along the Southern Border, will further impede already limited access to counsel and therefore further degrade due process in our U.S. Immigration Courts.

Frankly, I have not seen any mention of the importance of due process or facilitating access to counsel in any of the many Trump Administration pronouncements on immigration. It’s all about enforcement, detention, removals, and prosecutions. Fairness and due process, which should always be paramount concerns, appear to be ignored.

In the end, it likely will be up to the already overworked and stressed pro bono bar, human rights groups, and community-based NGOs to enforce immigrants’ rights to counsel and to full due process. And, ultimately, that’s probably going to require litigation and intervention by the Article III Courts.

Thanks to Adina Appelbaum, who worked on this report, for bringing it to my attention.

PWS

04/13/17

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

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

Dean Kevin Johnson writes:

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

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

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

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

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

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

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

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

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

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

PWS

04/10/17

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

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

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

Part IV: The Immigration Judge

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

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

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

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Prelude15

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

Pregame Warm-up

“How many today, Madam Clerk?”

“Fourteen, five bonded, two continued.”

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

Showtime.

Politeness, patience, kindness. Listen.

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

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

The Damned

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Yes.”

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

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

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

“Yes, judge, I understand.”

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

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

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

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

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

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

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

“Understood. Thanks, Your Honor.’

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

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

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

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

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

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

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

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

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

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

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

“Yes, you may, Ms. Able.”

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

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

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

“Anything further from either counsel?”

“Nothing from the DHS, Your Honor.”

“Nothing from the respondent, Your Honor.”

“Hearing is continued.”

The Skeptic

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

“Okay.”

“Spanish your best language?”

“Yes.”

“Is this your first appearance before me?”

“Yes.”

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

“Do I need a lawyer, judge?”

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

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

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

“Can I come back next week?”

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

“Okay, Your Honor.”

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

Postlude

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

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

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The full citation is:

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

80-263-2-PB

PWS

03/22/17

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

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

March 14, 2017

Media Contact:

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

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

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

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

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

Dial-In: (855) 557-3561

Conference ID: 89214839

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

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

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

In his findings, Judge Donohue noted:

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

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

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

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

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

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

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

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

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

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

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

Dial-In: (855) 557-3561

Conference ID: 89214839

###

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

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

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

MANNY RIVERA // RALLY

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323-892-2080
626-864-7467

6565 Sunset Blvd. Suite 400
Los Angeles, CA 90028

www.WeAreRALLY.comU.S.

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

PWS

03/14/17

NEW SCHOLARSHIP: Hon. Dorothy Harbeck Compares Immigration Bonds With The NJ Bail Reform Act

Harbeck – BondArticle for Dissemination

The article is entitled

“A NEW CALCULUS FOR THE MEASURE OF MERCY: DOES THE NEW JERSEY BAIL REFORM AFFECT THE IMMIGRATION COURT BOND HEARINGS?” It’s published in the Rutgers Law Record.

Judge Harbeck writes:

“[T]he New Jersey Bail Reform will not directly affect how the immigration courts determine immigration bonds. However, while the state criminal system is wholly distinct from the federal immigration system, there are increasing intersections of state law having unintended consequences in immigration proceedings. Under the Supremacy Clause of the US Constitution, federal law is the “Supreme Law of the Land,” and states have no authority to regulate immigration enforcement. That said, there are a number of similar rationales between the new state bail reform and the existing bond determination criteria in the immigration court. This article outlines those similarities as well as the differences between the two. It is also important to note from a practical point of view that New Jersey bail reform has no impact on immigration detainers. An immigration detainer is the process by which Immigration and Customs Enforcement (ICE), a component of the Department of Homeland Security (DHS) may detain a non-citizen without a warrant, but only if ICE has “reason to believe” that the non-citizen “is likely to escape before a warrant can be obtained for his arrest.”

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Read the full article at the link. While Judge Harbeck’s timely scholarship is of particular interest to New Jersey lawyers, it is also helpful for any lawyer seeking to understand the bond setting process in U.S. Immigration Courts. With the Administration’s new enforcement initiatives underway, bond is sure to be a “hot topic.”

PWS

02/26/17

HuffPost: Sessions Reinstates Dangerous Private Prisons — Health & Safety of Inmates Takes Back Seat to Expediency And Profits For Private Prison Industry!

http://www.huffingtonpost.com/entry/doj-private-prisons-sessions_us_58af529ce4b0a8a9b780669a

Ryan J. Reilly a Ben Walsh report:

“WASHINGTON ― Attorney General Jeff Sessions on Thursday withdrew an Obama-era Justice Department memo that set a goal of reducing and ultimately ending the Justice Department’s use of private prisons.

In a one-page memo to the acting head of the Bureau of Prisons, Sessions wrote that the August 2016 memo by former Deputy Attorney General Sally Yates “changed long-standing policy and practice, and impaired the Bureau’s ability to meet the future needs of the federal correctional system.”

A Justice Department spokesman said Sessions’ memo “directs the Bureau of Prisons to return to its previous approach to the use of private prisons,” which would “restore BOP’s flexibility to manage the federal prison inmate population based on capacity needs.”

BOP currently has 12 private prison contracts that hold around 21,000 inmates. Yates had said that private prisons compared “poorly” to BOP prisons. Her memo followed a damning report from the Justice Department’s inspector general which found that privately run facilities were more dangerous than those run by BOP.

The two largest private prison companies have told investors that they have room to accommodate increased use of their prisons by federal or state and local authorities. On an earnings call with stock analysts this week, executives at GEO Group emphasized that their company has a total of 5,000 spots in its prisons that are presently either unused or underutilized.

GEO senior vice President David Donahue put it fairly bluntly, telling analysts that their idle and underutilized cells are “immediately available and meet ICE’s national detention standards.”

CoreCivic, formerly known as CCA, told investors on Feb. 17 that the company has nine idle prisons that can hold a total of 8,700 people. Those prisons are ready to accept inmates on short notice. “All of our idle facilities are modern and well maintained, and can be made available to potential state and federal partners without much, if any capital investment or the lead-time required for new construction,” CEO Damon Hininger said.

Indeed, Haninger said that CoreCivic was already holding more detained immigrants for the federal government than they anticipated. “Our financial performance in the fourth quarter of 2016 was well above our initial forecast due, in large part, to heightened utilization by ICE across the portfolio,” he said.

And, Haninger said, the Trump administration’s actions could boost financial performance even further. “When coupled with the above average rate crossings along the Southwest border, these executive orders appear likely to significantly increase the need for safe, humane and appropriate detention bed capacity that we have available in our existing real-estate portfolio,” he said. “We are well positioned,” to get more business from ICE, Haninger said.

David C. Fathi, who directs the American Civil Liberties Union’s National Prison Project, said that giving for-profit companies control of prisons is “a recipe for abuse and neglect.” He said the Sessions memo was a further sign the U.S. “may be headed for a new federal prison boom” under the Trump administration.”

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The disaster of Jeff Sessions as U.S. Attorney General continues to unfold. Contrary to what he told Senators during his contentious confirmation hearings, he’s the same old tone-deaf, insensitive, hard-liner he’s always been. There will be wrongful death suits in Sessions’s future naming him personally. While these so-called “Bivens actions” are usually a steep uphill climb for plaintiffs, given that Sessions acted with knowledge of both the Inspector General’s highly negative findings and his predecessor’s resulting action to curb private prison use, there could be a case there. I hope he took out personal liability insurance and got the highest amount of coverage. He might need it before his tenure is up.

And, as for the inmates and civil immigration detainees who are going to be kept in substandard conditions, I guess it’s just “tough noogies” as far as Sessions is concerned.

PWS

“Brief Of The Two Steves” — Read The Yale-Loehr/Legomsky Amicus Brief Explaining Immigration Detention Filed With The Supremes in Jennings v. Rodriguez!

Jennings final amicus brief

TABLE OF CONTENTS

Interest of amici curiae………………………………………………. 1 Introduction and summary ………………………………………… 2 Argument…………………………………………………………………… 5

Aliens arriving in the United States at a port
of entry…………………………………………………………….6
1. Arriving asylum seekers are detained
  under color of Section 1225(b)(1)(B)(ii),
  even after an asylum officer has found a credible fear of persecution………………………… 6
  1. Asylum seekers detained under Section 1225(b)(1)(B)(ii) have limited oppor- tunity for review of detention or re-
    lease ……………………………………………………… 7
  2. Aliens seeking asylum may be detained for lengthy periods ……………………………….. 9
2. Arriving aliens who are not subject to expedited removal, but are not “clearly
  and beyond a doubt entitled to be
  admitted,” are detained under color of Section 1225(b)(2)(A)………………………………… 11
Aliens apprehended in the United States………. 13
1. Aliens apprehended in the United States
  but not convicted of a qualifying crime may be detained and are only sometimes permitted a bond hearing pending a
  removal decision ………………………………………. 13
2. Aliens apprehended in the United States
  who are convicted of a qualifying crime are subject to mandatory detention and are
  not provided opportunities for conditional release except in limited circumstances……. 16(I)

Table of Contents—Continued:

Aliens convicted of qualifying crimes are detained under Section 1226(c)…………… 16
Aliens detained under Section 1226(c) are released from detention in only narrow circumstances…………………………………….. 17
Aliens held under Section 1226(c) general- ly are detained for longer periods of time than are other aliens ………………………….. 19

C. Aliens ordered removed are generally detained until the removal order is
executed ………………………………………………….. 21

III. The bond hearing process provides limited procedural rights, which vary across the circuits………………………………………………………….. 22

Aliens detained under Section 1226(a) are entitled to bond hearings in certain circumstances………………………………………….. 22
Federal courts have held that aliens
detained under Sections 1225(b), 1226(a),
and 1226(c) are entitled to bond hearings when detention becomes prolonged………….. 28
1. The Ninth and Second Circuits provide for bond hearings for aliens detained
  over six months…………………………………… 30
2. The First, Third, Sixth and Eleventh Cir- cuits provide for bond hearings on a case- by-case basis………………………………………. 31
3. Bond hearings based on prolonged deten- tion are procedurally similar to Section 1226(a) bond hearings ………………………… 32

III

Table of Contents—Continued:

Conclusion…………………………………………………………………33 Appendix…………………………………………………………………..1a

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This is an absolutely fantastic resource for anyone litigating, writing, speaking, or reporting on immigration detention written by two of the “best in the business.”

Rodriguez could be a problem for the Administration and the Immigration Courts. President Trump’s Executive Orders ramp up border enforcement, interior enforcement, immigration detention, and will further clog the already overwhelmed U.S. Immigration Courts.

If the Supreme Court places time limits on the Government’s ability to detain individuals without individual bond hearings pending the completion of Removal Hearings on the merits in Immigration Court, it could lead to an increase in the number of bond hearings conducted by U.S. Immigration Judges. Combined with pressure from the Administration to complete Removal Hearings before bond hearings are required, it likely will lead the Administration to “torque up” the pressure on Immigration Judges to cut corners and expedite hearings without regard to the requirements of due process. This is likely to force the issue of due process in Immigration Court into the Article III Federal Courts for resolution .

PWS

02/14/17

Newsweek: Bannon Wants “American Gulag” — Will Anyone Have The Guts To Stop Him?

http://www.newsweek.com/steve-bannon-fever-dream-american-gulag-551472

Jeff Stein writes in this week’s Newsweek:

“Imagine: Miles upon miles of new concrete jails stretching across the scrub-brush horizons of Texas, New Mexico, Arizona and California, with millions of people incarcerated in orange jumpsuits and awaiting deportation.

Such is the fevered vision of a little-noticed segment of President Donald Trump’s sulfurous executive order on border security and immigration enforcement security. Section 5 of the January 25 order calls for the “immediate” construction of detention facilities and allocation of personnel and legal resources “to detain aliens at or near the land border with Mexico” and process them for deportation. But another, much overlooked, order signed the same day spells out, in ominous terms, who will go.

Trump promised a week after the November elections that he would expel or imprison some 2 million or 3 million undocumented immigrants with criminal convictions—a number that exists mainly in his imagination. (Only about 820,000 undocumented immigrants currently have a criminal record, according to the Migration Policy Institute, a nonpartisan think tank. Many of those have traffic infractions and other misdemeanors.)

Still, the spectre of new, pop-up jails housing hundreds of thousands of people is as powerful a fright-dream for liberals as it is a triumph for the president’s “America first” Svengali, Steve Bannon. But, like the fuzzy Trump order dropping the gate on travelers from seven Muslim-majority states, the deportation measure presents so many fiscal and legal restraints that is also looks suspiciously like just another act of ideological showboating from the rumpled White House strategy chief.

“I’m a Leninist,” Bannon proudly proclaimed to the writer Ronald Radosh at a party at his Capitol Hill townhouse in November 2013. “Lenin,” he said of the Russian revolutionary, “wanted to destroy the state, and that’s my goal too. I want to bring everything crashing down, and destroy all of today’s establishment.”

The executive orders were “not issued as result of any recommendation or threat assessment made by DHS to the White House,” Department of Homeland Security officials conceded in a closed-door briefing on Capitol Hill Wednesday, according to a statement from Missouri Senator Claire McCaskill. They were all Bannon-style revolutionary theater.

. . . .

Expect DHS to start advertising for bids from private prison operators, a much-maligned industry that was collapsing in the latter years of the Obama administration. Two of the largest, GEO Group Inc. and CoreCivic Inc., are already seeing windfalls from their second chance at life: Their stock prices have nearly doubled since the election.

All of which recalls another Leninist idea that Bannon may have forgotten: Prisons are universities for revolution.”

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

Stein’s article confirms what many of us had suspected all along — these draconian and unnecessary measures were were “’not issued as result of any recommendation or threat assessment made by DHS to the White House.’” No, they were part of a pre-hatched anti-immigrant, anti-Muslim program cooked up by Bannon and others in the White House to “make good” on Trump’s campaign promises (regardless of whether the measures were necessary of sensible).

But they will be a boon for two important U.S. industries: the private prison industry and the legal industry, as both sides “lawyer up” for a long-term, avoidable, and wasteful fight. Who needs foreign enemies when the Administration is so determined to wage warfare against a large number of our own citizens and residents who disagree with his ill-considered and ill-timed policies?

Stein’s full article (well worth the read) is at the link.

PWS

02/03/17

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