Representation – Page 3 – immigrationcourtside.com

ACLU & SPLC SUE TRUMP ADMINISTRATION ON “MIGRANT REJECTION PROTOCOLS!”

https://www.bustle.com/p/this-update-on-trumps-remain-in-mexico-policy-means-its-about-to-face-a-challenge-15956331

Kavitha George reports for Bustle:

Two weeks ago, immigration authorities began to enforce a new policy that requires some asylum seekers to wait in Mexico while their claims are being processed. NPR and The Washington Post have already reported on migrant families being returned across the border by Department of Homeland Security (DHS) officials. But a new update on Trump’s “Remain in Mexico” policy means it’s about to face a legal challenge.

On Thursday, the American Civil Liberties Union (ACLU) and the Southern Poverty Law Center (SPLC) teamed up, filing a lawsuit to address the matter in Northern California’s District Court. The suit names DHS Secretary Kirstjen Nielsen, as well as numerous Customs and Border Protection (CBP) and Immigrations and Customs Enforcement (ICE) officials. Nielsen has described the policy, officially known as Migrant Protection Protocols as “a huge step forward in bringing order to chaotic migration flows, restoring the rule of law and the integrity of the United States immigration system.” Bustle has reached out to DHS and ICE for comment.

However, some civil rights organizations disagree with that characterization. “Immigration authorities are forcing asylum seekers at the southern border of the United States to return to Mexico — to regions experiencing record levels of violence,” the lawsuit reads. “By placing them in such danger, and under conditions that make if difficult if not impossible for them to prepare their cases, Defendants are depriving them of a meaningful opportunity to seek asylum.”

In its statement, the ACLU rejected the administration’s claims of an immigration crisis at the border.

Before the implementation of the new return policy, asylum-seekers would legally enter the country through a port of entry along the border, and remain in detention while they waited for a “credible fear” assessment. If they were approved, migrants could remain in the country until a future court hearing. However in 2018, CBS News reported, the Trump administration hit a record high in asylum denials, rejecting some 65 percent of applicants.

In a December statement, Nielsen described the “catch and return” policy as a way to prevent migrants trying to “game the system” by obtaining entry and then “disappear[ing] into the United States, where many skip their court dates.” In fact, according to the Department of Justice’s own data from the 2017 fiscal year, some 89 percent of asylum-seekers released into the country return for their court dates.

Under the new plan, CBS reported, migrants crossing at the San Ysidro checkpoint in San Diego, are processed and returned across the border to Tijuana with a toll-free phone number to check on their claim status. Immigration rights activists argue that this system defeats the purpose of an asylum claim for people trying to escape violence and political unrest in Central America.

“They’re just spending their time just trying to survive in Tijuana,” Aaron Reichlin-Melnick, an analyst for the American Immigration Council, told CBS. “We know that there are people who have been turned away from the border who have then been kidnapped, raped. There are likely people who have been murdered.”

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Everybody expected this, including the Trumpsters. Stay tuned for the results.

One problem that I see right off the bat for the DHS is counsel. The immigration law guarantees individuals in removal proceedings the right to be represented by counsel of their own choice at no expense to the Government.

Not only did the Administration put these “Protocols” into operation without consulting with NGOs and pro bono groups on both sides of the border, but there have been credible reports of DHS actually harassing and impeding American lawyers going back and forth to Mexico in an attempt to provide the representation guaranteed by statute (and probably also by Due Process).

Additionally, contrary to Nielsen’s lies and misrepresentations, there really was no coordination with the Mexican Government of what steps would be taken to guarantee U.S. lawyers reasonable access to clients in Mexico. There have also been credible reports that the Mexican authorities have been uncooperative and have placed roadblocks in the way of attorneys representing asylum seekers. Add that to the fact that like Trump himself, Nielsen and DHS are well-known for lying, evading, and misrepresenting to Congress, the Federal Courts, the press, and the American people, and we have the makings for yet another in the series of “failed restrictionist initiatives” taken by the Trumpsters.

PWS

02-15-18

PROVING MY POINT: DOJ/EOIR “NO-SHOW” STATS LIE, PARTICULARLY WHEN IT COMES TO ASYLUM SEEKERS!

http://immigrationimpact.com/2019/01/30/asylum-seekers-show-up-for-court/

Aaron Reichlin-Melnick writes for Immigration Impact:

Immigration restrictionists have often repeated a bold and erroneous claim: that there is a serious problem of asylum seekers who come to the U.S. border and disappear once released from detention. But both fact-checkers and independent studies show this is not true. In reality, the vast majority of asylum seekers diligently attend all of their immigration court hearings.

Given that studies consistently show a high appearance rate for asylum seekers, why do some people keep getting this wrong? Boiled down to its simplest answer: the only government measurement on failures to appear in court has been unreliable for years.

If an immigrant fails to appear for a scheduled immigration court hearing, they may be issued an order of removal “in absentia” (or “while absent”). Each year, the Executive Office for Immigration Review (EOIR) reports the total number of cases that were “completed” by immigration judges. The government report looks at cases that finished with a grant of relief from removal or an order of removal, as well as the percent of case completions which involved an order of removal for failure to appear.

In Fiscal Year 2017, there were 41,384 orders of removal for failure to appear issued out of 149,436 total cases completed. EOIR reported this as a 28 percent failure to appear rate. However, immigration court cases often require multiple hearings before they can be completed and, due to skyrocketing backlogs in the last decade, the average immigration court case takes almost three years to complete.

The government’s statistic counts failures to appear only against the number of cases that are fully completed. By doing this, it neglects to account for the many immigrants who appeared in court in ongoing cases that have not yet reached completion.

As a result, because tens of thousands of immigrants appeared in court in 2017 but did not have a case completed, EOIR’s number does not represent the rate at which immigrants missed court.

Since there are now more than 800,000 people in immigration court, the failure to include these incomplete cases is extremely misleading.

In addition, by only reviewing initial case completions, the statistic doesn’t consider cases where an immigrant missed court through no fault of their own (like in the event of an emergency) and then successfully overturned a removal order. According to an analysis from the Transactional Records Access Clearinghouse (TRAC), excluding cases where the immigrant successfully overturned a removal order for failure to appear “significantly impacts and reduces the calculated rates.”

From 2012 to 2017, over 1.25 million new cases were filed in immigration court, but only 151,000 removal orders were issued for failure to appear; 13.5 percent of the total. When looking only at 2017, cases in which an immigrant was ordered removed for failure to appear constituted just five percent of the 802,503 cases pending or completed in immigration court.

Despite the flaws with using the failure to appear rate as a proxy for the rate at which immigrants miss court proceedings, the government continues to use this number to make policy. This is a mistake; good policy can only be made based on good data.

Given this error, what is the actual rate at which immigrants fail to appear in court? Unfortunately, there is no exact answer for this. But a series of studies has made one thing clear: the vast majority of asylum-seekers attend all their immigration court hearings.

The Detaining Families report, for example, reviewed every case between 2001 and 2016 where a family was detained by ICE and then released. It determined that 86 percent of families had not missed a single court hearing. This number rose to 96 percent when a member of the family filed an application for asylum.

Other studies have come to similar conclusions. According to a review of immigration court records by TRAC, only 22.9 percent of the 167,219 women and children who entered the United States between 2014 and 2017 were ordered removed for failure to appear. Those who managed to obtain counsel were the most likely to appear for their hearings; only 2.3 percent of that group were ordered removed for failure to appear.

Even government studies show similar results. In 2018, U.S. Citizenship and Immigration Services published a study analyzing the outcomes of every person encountered by Customs and Border Protection in 2014. Of the roughly 60,000 individuals who sought asylum at the border that year, only 14 percent had been issued an order of removal that ICE was not able to carry out—likely because the asylum-seeker failed to appear in court and fled.

As long-term studies show, when you actually track individual cases from start to finish, most asylum-seekers diligently appear in court. The government should make policy based on this reality and not their own flawed metrics.

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Trump, Miller, Nielsen, Sessions, Whitaker, and the rest of the “Band of Sycophants” make immigration policy based on a false White Nationalist agenda incorporating intentional lies, distortions, misrepresentations, and racist myths.

Not only do the stats show that asylum applicants show up for Immigration Court, but the also show a high correlation between represented respondents and appearance.

Rather than disgracefully wasting money on all sorts of expensive, ineffective, and often illegal “gimmicks,” one of the best things the Government could do is work with NGOs, pro bono organizations, and the private bar to achieve “universal representation.” It’s much more “doable” and infinitely more effective than the “Wall folly.” The Government could also help facilitate more trained, non-attorney “accredited representatives” to increase Asylum Office and Immigration Court representation.

Instead, Jeff Sessions slandered and went out of his way to disrespect immigration lawyers and make their already difficult jobs next to impossible. And, Nielsen went out of her way to bar, that’s right, bar, attorneys from initial interviews under her inaptly named “Migrant Protection Protocols.” Those protocols also obviously are a thinly veiled attack on representation at the Immigration Court level.

The Trump Administration and its motley crew of corrupt political officials should be confronted with and held accountable for their tireless lies and White Nationalist distortions that endanger the lives and rights of migrants. Harm to one of the most vulnerable among us is harm to all! And, intentional and unnecessary harm to the most vulnerable is a staple of the Trump Administration!

PWS

01-31-19

HON. JEFFREY CHASE ON HOW MANY U.S. IMMIGRATION JUDGES ARE DENYING DUE PROCESS RIGHT AND LEFT TO ASYLUM SEEKERS BY NOT ALLOWING ATTORNEYS TO PARTICIATE IN THE CREDIBLE FEAR REVIEW AND RUBBER-STAMPING DENIALS WITHOUT ANY ANALYSIS!

https://www.jeffreyschase.com/blog/2018/7/22/attorneys-and-credible-fear-review

Jul 22 Attorneys and Credible Fear Review

It is difficult not to cry (as I did) while listening to the recording of a recent immigration court hearing at a detention facility near the border. The immigration judge addresses a rape victim who fled to this country seeking asylum. She indicates that she does not feel well enough to proceed. When asked by the judge if she had been seen by the jail’s medical unit, the woman responds that she just wants to see her child (who had been forcibly separated from her by ICE), and breaks down crying. The judge is heard telling a lawyer to sit down before he can speak. The woman, still crying, repeats that she just wants to see her child. The immigration judge proceeds to matter-of-factly affirm the finding of DHS denying her the right to apply for asylum. The judge then allows the attorney to speak; he points out for the record that the woman was unable to participate in her own hearing. The judge replies “so noted.” He wishes the woman a safe trip back to the country in which she was raped, and directs her to be brought to the medical unit. He then moves on to the next case on his docket. Neither DHS (in its initial denial) nor the immigration judge (in his affirmance) provided any explanation or reasoning whatsoever for their decisions. According to immigration attorneys who have recently represented asylum seekers near the border, this is the new normal.

Under legislation passed in 1996, most non-citizens seeking entry to the U.S. at airports or borders who are not deemed admissible are subjected to summary removal by DHS without a hearing. However, those who express a fear of harm if returned to their country are detained and subjected to a “credible fear interview” by a USCIS asylum officer. This interview is designed as a screening, not a full-blown application for asylum. The noncitizen being interviewed has just arrived, is detained, often has not yet had the opportunity to consult with a lawyer, probably does not yet know the legal standard for asylum, and has not had the opportunity to compile documentation in support of the claim. Therefore, the law sets what is intended to be a very low standard: the asylum officer need only find that there is a significant possibility that the noncitizen could establish in a full hearing before an immigration judge eligibility for asylum.1

If the asylum officer does not find credible fear to exist, the noncitizen has one chance for review, at a credible fear review hearing before an immigration judge. This is an unusual hearing. Normally, immigration judges are trial-level judges, creating the record of testimony and other evidence, and then entering the initial rulings on deportability and eligibility for relief. But in a credible fear review hearing, the immigration judge also functions as an appellate judge, reviewing the decision of the asylum officer not to vacate an already entered order of removal. The immigration judge either affirms the DHS determination (meaning that the respondent has no right to a hearing, or to file applications for relief, including asylum), or vacates the DHS removal order. There is no further appeal from an immigration judge’s decision regarding credible fear.

Appeal courts do not hear testimony. At the appellate level, it is the lawyers who do all of the talking, arguing why the decision below was or was not correct. The question being considered by the immigration judge in a credible fear review hearing – whether the asylum officer reasonably concluded that there is not a significant possibility that the applicant could establish eligibility for asylum at a full hearing before an immigration judge – is clearly a lawyer question. The noncitizen applicant would not be expected to understand the legal standard.

At the present time, determining the legal standard is especially complicated. In light of the Attorney General’s recent decision in Matter of A-B-, all claims involving members of a particular social group fearing what the A.G. refers to as “private criminal actors” must clearly delineate the particular social group, explain how such group satisfies the requirements of immutability, particularity, and social distinction, meet a heightened standard of showing the government’s inability or unwillingness to protect, and show that internal relocation within the country of nationality is not reasonable.

An experienced immigration lawyer could make these arguments in a matter of minutes, by delineating the group, and explaining what evidence the applicant expects to present to the immigration judge to meet the required criteria.

However, the Office of the Chief Immigration Judge’s Practice Manual states the following:

(C) Representation. — Prior to the credible fear review, the alien may consult with a person or persons of the alien’s choosing. In the discretion of the Immigration Judge, persons consulted may be present during the credible fear review. However, the alien is not represented at the credible fear review. Accordingly, persons acting on the alien’s behalf are not entitled to make opening statements, call and question witnesses, conduct cross examinations, object to evidence, or make closing arguments. (emphasis added).

Therefore, at best, a credible fear review hearing consists of the immigration judge asking the respondent an abbreviated version of the questions already asked and answered by the asylum officer. Often, the judge merely asks if the information told to the asylum officer was true (without necessarily mentioning what the asylum officer notes contain), and if there is anything else they wish to add. If the issue was whether the respondent was believable, this might make sense.2 However, the issue is more often whether the facts will qualify for asylum under current case law.

I have canvassed retired immigration judges, as well as attorneys whose clients have been through such hearings. The good news is that it is the practice of a number of judges (past and present) to allow attorney participation. And in some cases, it is making a difference. One lawyer who recently spent a week in south Texas was allowed by the judge there to make summary arguments on behalf of the respondents; the judge ended up reversing DHS and finding credible fear in all but one case. In Fiscal Year 2016 (the last year for which EOIR has posted such statistics), immigration judges nationally reversed the DHS decision and found credible fear less than 28 percent of the time (i.e. in 2,086 out of 7,488 total cases).

However, other judges rely on the wording of the practice advisory to deny attorneys the right to participate. According to a July 14 CNN article, one lawyer recently had a judge deny 29 out of 29 separated parents claiming credible fear. Another lawyer was quoted in the same article citing a significant increase in credible fear denials since the Attorney General’s decision in A-B- last month. https://www.cnn.com/2018/07/14/politics/sessions-asylum-impact-border/index.html This demonstrates why it is now even more important to allow attorney participation to assist judges in analyzing the facts of the respondent’s case in light of this confusing new decision that many judges are still struggling to interpret. And as I recently reported in a separate blog post, USCIS just recently issued guidelines to its asylum officers to deny credible fear to victims of domestic violence and gang violence under a very wrong interpretation of Sessions’ A-B- decision.

It is hoped that, considering the stakes involved, the Office of the Chief Judge will consider amending its guidelines to ensure the right to meaningful representation in credible fear review hearings.

Notes:

1. It should be noted that when legislation created the “well-founded fear” standard for asylum in 1980, both INS and the BIA seriously misapplied the standard until the Supreme Court corrected them seven years later. Although when it created the “credible fear” standard in the 1990s, INS assured that it would be a low standard, as credible fear determinations may not be appealed, there can be no similar correction by the federal courts.

2. Although credibility is not usually an issue, attorneys point out that while they are merely notes which contain inaccuracies and are generally not read back to the asylum-seeker to allow for correction, the notes are nevertheless often treated as verbatim transcripts by immigration judges.

Copyright Jeffrey S. Chase 2018. All rights reserved.

JEFF CHASE

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

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Amen, Jeffrey, my friend, colleague, and fellow fighter for Due Process and human rights! Jeffrey[s article was also republished by our good friend and colleague Dan Kowalski in BIBDaily here http://www.bibdaily.com/

Not that the EOIR OCIJ is going to do anything to change the process and further Due Process in the “Age of Sessions.” After all, they all want to hold onto their jobs, at any cost to the unfortunate human beings whose lives are caught up in this charade of a “court system.”

In what kind of “court system” don’t lawyers have a right to represent their clients? The Star Chamber? Kangaroo Court? Clown Court? And, to be fair, this outrageous “advice” from OCIJ on how to deny Due Process and fundamental fairness preceded even Sessions. The well had already been well-poisoned!

But, let’s not forget the real culprits here. First, the spineless Article III Courts who have shirked their duty to intervene and require U.S. Immigration Judges to comply with Due Process, respect human rights and dignity, and use at least a minimum of common sense.

And, the greatest culprit is, of course, Congress, which created this monstrosity and has failed for decades to take the necessary corrective action to comply with our Constitution!

PWS

07-23-18

TAL @ CNN: UNDER SESSIONS’S “DUE PROCESS FREE REGIME” ASYLUM APPLICANTS RETURNED TO DANGER IN HOME COUNTRIES WITHOUT FAIR CONSIDERATION OF CLAIMS — US IMMIGRATION JUDGES PARTICIPATE IN “DEPORTATION RAILWAY!”

Impact of Sessions’ asylum move already felt at border

By: Tal Kopan, CNN

Immigrants are already being turned away at the border under Attorney General Jeff Sessions’ recent reinterpretation of asylum law. And advocates for them fear there may be no end to it anytime soon.

In fact, immigration attorneys fear tens of thousands of migrants could be sent home to life-threatening situations before the courts are able to catch up.

Signs have already popped up across the border that their fears are being realized.

Over just a few days in immigration court early this month near Harlingen, Texas, CNN witnessed multiple judges upholding denials of claims of credible fear of return home, explicitly saying that gang violence and such fears do not qualify.

Immigration Judge Robert Powell at Port Isabel Detention Center, for example, upheld two denials of credible fear for immigrants, one man and one woman, paving the way for their immediate deportation.

Tightly clutching a rosary, the woman, Marcella Martinez, begged the judge to reverse the decision. With tears in her eyes, Martinez asked to provide testimony to the court.

“I can’t go back to Honduras” she said. “I was threatened over the phone, and need to stay here for the opportunity.”

The judge found, nevertheless, that Martinez didn’t enter anything into evidence that would qualify as going beyond the burden of proof required for her initial fear assessment. He informed her that the decision of denial was affirmed.

She exited the courtroom sobbing.

In another courtroom, Immigration Judge Morris Onyewuchi heard the case of Sergio Gavidia Canas, who had an attorney. But the judge said that because of the scope of proceedings, the attorney could not advocate on Canas’ behalf.

Canas, an El Salvador native, said he feared for his life back home, as he had been threatened and beaten by three gang members in front of his currently detained minor daughter.

He said he was a proud owner of a bus company in his native country, and that a gang had come to him demanding the transport of weapons and drugs. When he refused, he was severely beaten in front of his child.

He added that his initial asylum interview took place when he was distraught and worried about his daughter, which is why he didn’t provide this additional information at the time.

The judge indicated that “gang threats don’t fall under the law for asylum” and upheld his denial.

Much more:

http://www.cnn.com/2018/07/14/politics/sessions-asylum-impact-border/index.html

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Important to remember:

These asylum applicants are being returned, without appeal, under Matter of A-B- which has never been “tested,” let alone upheld, by any real Article III Court;
These unrepresented individuals have no idea what Matter of A-B- says;
Outrageously, and in violation of both common sense and and common courtesy, Sergio Gavidia Canas actually had a lawyer, but Judge Morris Onyewuchi wouldn’t let the lawyer participate in the hearing (by contrast, I never, ever, prevented a lawyer from participating in a credible fear review — in fact, if the person were represented and the lawyer were not present, I continued the hearing so the lawyer could appear, as required by Due Process and fairness);
Even though Matter of A-B– left open the possibility of some valid individual claims involving domestic violence or gang violence, these Immigration Judges appear to be making no such inquiry (the, apparently intentional, misapplication of Matter of A-B- by Asylum Officers and EOIR was mentioned in a previous blog by Judge Jeffrey Chase (https://wp.me/p8eeJm-2Ob));
These Immigration Judges also do not appear to be exploring the possibility of asylum claims based on other grounds;
These Immigration Judges do not appear to be making an inquiry into whether these individuals might also have a reasonable fear of torture;
In other words, this is a system specifically designed and operated to reject, rather than protect under our laws!

PWS

07-16-18

WHILE SESSIONS “BLOWS OFF” VIEWS OF “OUR GANG” OF RETIRED US IJs & BIA JUDGES, ARTICLE III (“REAL’) COURTS (& EVEN “OIL”) ARE PAYING ATTENTION – J.C. Andre of Sidley Austin Reports That 10th Circuit Has Remanded Matumona v. Sessions On The Issue Of Access To Counsel!

Judge Schmidt –

Thank you so much for the flattering post about our work with you all in recent months.

On that front, we have two updates for you all.

First, please see attached the as-filed versions of all three briefs filed last week in Cantarero-Lagos v. Sessions, CA5 No. 18-60115 (the petitioner’s brief, our amicus brief, and the nonprofit immigration legal services’ amicus brief). As some of you will see, there were a couple of you whom we could not include as signatories to our brief because we received your joinders too late. Our apologies for not being able to work those of you in by name, but we had a hard filing deadline of 10 p.m. PST on May 23. Rest assured, however, that the helpful comments you gave us along the way are reflected in the brief.

Second, in case some of you were not yet aware, all of our work two months ago in Matumona v. Sessions, CA10 No. 18-09500, paid off. On the government’s concession, the Tenth Circuit last week remanded the case to the BIA. A copy of the remand order also is attached.

It’s been a pleasure and an honor to work with you guys so much over the last two months.

Hope everyone had a great Memorial Day weekend,

jc

JEAN-CLAUDE ANDRÉ

SIDLEY AUSTIN LLP
+1 213 896 6007
JCAndre@Sidley.com

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Here’s a copy of the remand order:

2018-05-22_Order Remanding

And, here’s a link to Hon. Jeffrey Chase’s previous blog on the Matumona Amicus effort:

https://wp.me/p8eeJm-2ko

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The pleasure is all ours, J.C.! Thanks for everything that you and Katelyn Rowe have done for us and to Sidley Austin for agreeing to undertake this important pro bono project!

Always interesting how folks sometimes give your views more attention after you’re gone.

Sessions is setting a course for disaster in the Article III Courts. If he keeps on interfering with the judicial process and listening to only one side (as he has done all his life), DHS & DOJ are likely to get themselves so tied up in litigation that nobody will be deported as the Immigration Court system disintegrates and the Article IIIs move in to clean up the mess.

My current Immigration Law & Policy students at Georgetown Law seemed surprised to learn that there is a so-called “court system” in America where the Chief Prosecutor appoints the judges, sets the rules, and can change the result of any decision that he doesn’t like. Sure sounds like something out of a Kafka novel or the Country Report on a Third World dictatorship.

PWS

05-30-18

THE GIBSON REPORT – 05-29-18 – COMPLIED BY ELIZABETH GIBSON, ESQUIRE, NY LEGAL ASSISTANCE GROUP — Highlighting Significant, Yet Unfortunately Unpublished, BIA Holding That 2 Weeks Was An Inadequate Continuance To Seek an Attorney!

THE GIBSON REPORT 05-29-18

TOP UPDATES

TRAC Finds ICE Deportations Dropped by Almost Half Over Past Five Years

TRAC released a report on ICE deportations, updated through October 2017, finding that deportation levels have dropped by almost half since October 2012. TRAC also provided updated web tools on ICE deportation data including a breakdown on convictions and number of ICE deportations. AILA Doc. No. 18052231

BIA Holds Two-Week Continuance Not Sufficient Time to Find an Attorney

Unpublished BIA decision finds that IJ denied respondent’s right to counsel by providing only two weeks to find an attorney. Special thanks to IRAC. (Matter of Santos-Gijon, 6/22/17) AILA Doc. No. 18052337

Neglect and Abuse of Unaccompanied Immigrant Children by U.S. Customs and Border Protection

ACLU: Documents obtained by the American Civil Liberties Union featured in a new report released today show the pervasive abuse and neglect of unaccompanied immigrant children detained by U.S. Customs and Border Protection.

She came to the US for a better life. Moments after arrival, she was killed

CNN: Claudia Patricia Gomez Gonzalez traveled 1,500 miles to the United States, hoping to find a job and a better future. Shortly after she set foot in Texas, a Border Patrol agent shot and killed her.

Border Patrol union calls Trump’s National Guard deployment ‘colossal waste’

LA Times: A month after President Trump called for sending National Guard troops to the U.S.-Mexico border, the head of the national Border Patrol union called the deployment “a colossal waste of resources.” “We have seen no benefit,” said Brandon Judd, president of the union that represents 15,000 agents, the National Border Patrol Council.

Swept up in the Sweep: The Impact of Gang Allegations on Immigrant New Yorkers

NYIC: Through an extensive field study, the report shows how Immigration and Customs Enforcement (ICE), with other federal agencies and law enforcement, uses arbitrary methods to profile immigrant youth of color to allege gang affiliation.

Deportation by Any Means Necessary: How Immigration Officials Are Labeling Immigrant Youth as Gang Members

ILRC: This report details findings from a national survey of legal practitioners concerning the increased use of gang allegations against young immigrants as a means of driving up deportation numbers, at the encouragement of the Trump administration.

Pretermitting Gang PSGs

AILA Listserv: It appears that, at least in some jurisdictions, DHS is moving to pretermit gang PSGs for asylum before merits hearing. Looks like we must also be prepared to respond to these arguments going forward. See useful gang PSG resources attached.

Civil rights groups slam DeVos for saying schools can report undocumented students

WaPo: Civil rights groups slammed Education Secretary Betsy DeVos for saying Tuesday that schools can decide whether to report undocumented students to immigration enforcement officials, saying her statements conflict with the law and could raise fears among immigrant students.

DHS Prosecutes Over 600 Parents in Two-Week Span and Seizes their Children

AIC: Following implementation of a “zero tolerance” policy, the Department of Homeland Security (DHS) announced that 638 parents who crossed with children had been prosecuted in just a 13-day span this month.

New RFE Policy

From the USCIS District Director’s meeting: Starting immediately if you are issued an USCIS RFE that you need to submit to 26 Federal Plaza they will be issuing a notice giving you a time to hand deliver it. The dates will always be on Fridays and the notice will state that you can come in anytime between 7am-12pm on that date to hand the RFE response in at the indicated window. There will be no interview – you will just hand in the response and get your copy stamped. They are moving away from mail in RFE responses because of too many problems with the post office.

U-visa Categories (attached)

ASISTA: The AAO seems to have paid attention to our amicus arguments on U visa crimes as “categories” in their decision in the case underlying our amicus, see attached redacted decision and the amicus. We will need to keep pushing this framework, however, so please continue using the arguments in the amicus when arguing crime categories. We do not, for instance, agree that the DV category contemplates only the facts involving relationships; many crimes are DV depending on the facts of the crimes, not just the relationships. See attached.

Stay Requests

HerJustice: On this topic, I learned last year that ICE ERO (NYC) wasn’t even accepting applications for stay of removal if the applicant didn’t have a current passport—is this still the case?

LSNYC: As I understand it, it’s always been ICE’s policy that the applicant for a stay (I-246) must have a current passport. Really, the Officers are all over the place when it comes to stays. Some say they are not accepting stays, some say so long as the client has something pending (appeal, MTR, U/VAWA/T, etc) no removal will be effectuated and that no stay is needed until removal is imminent.

Sanctuary: Our office recently filed a stay of removal, and in the alternative request for deferred action, for a client with a removal order from 2009 whose son has hemophilia. ERO accepted the stay without her passport. ERO said that they would make a decision on within 3 months, and if not, she is to return for another check-in at the end of June.

Immigrant Legal Aid Group Withdraws Request for Montgomery County Funding with Carve Out

Bethesda Mag: A Washington, D.C., nonprofit set to receive about $374,000 in Montgomery County funds to provide deportation defense to detained immigrants has withdrawn its request for the money in response to an updated list of criminal convictions that would bar certain immigrants from receiving legal aid.

Anti-Immigrant Extremist Nominated to Run Refugee Office at State Department

HRF: In response to the nomination of Ronald Mortensen to serve as Assistant Secretary of State for Population, Refugees and Migration, the senior-most American diplomat representing the United States in matters relating to the most vulnerable populations in the world, Human Rights First’s Jennifer Quigley issued the following statement: “Mortensen has spent the past several years working at an anti-immigrant hate group, spewing vile, extremist views that have no relation to reality.”

Immigration dominating GOP candidates’ TV ads in House contests across the country

USA Today: House Republican candidates are blanketing the airwaves with TV ads embracing a hard line on immigration — a dramatic shift from the last midterm elections in 2014 when immigration was not on the GOP’s political radar, according to a USA TODAY analysis of data from Kantar Media.

U.S. Immigration Courts, Long Crowded, Are Now Overwhelmed

The Wall Street Journal reports on the U.S. immigration court system’s backlog increasing 25 percent since President Trump took office, with insights on the situation from AILA National Secretary Jeremy McKinney. AILA Doc. No. 18052342

This Salvadoran Woman Is At The Center Of The Attorney General’s Asylum Crackdown

NPR: Attorney General Jeff Sessions is stirring panic in immigrant communities by moving to limit who can get asylum in the United States. Perhaps no one is more alarmed than one Salvadoran woman living in the Carolinas…Now Sessions has personally intervened in her case, questioning whether she and other crime victims deserve protection and a path to American citizenship.

LITIGATION/CASELAW/RULES/MEMOS

SIJS Family Court Appellate Case

2d dept remanded and ordered a new judge be assigned after a Nassau County Fam Court Judge dismissed a mother’s petition for guardianship and refused to set the motion for special findings, without any hearing. They also made note of the judge’s wildly inappropriate remarks.

Supreme Court Delays Further in Deciding Certiorari Petition in Case Involving Abortion by Undocumented Teen

ImmProf: [May 21], the Supreme Court granted certiorari in four cases and also issued orders (denied cert, etc.) in a number of cases. The press room, as it has been for so many weeks, was buzzing about the possible disposition of the U.S. government’s cert petition in Azar v. Garza, a case involving the undocumented pregnant teenager. The government wants the Supreme Court to vacate the D.C. Circuit decision that cleared the way for her to get an abortion. The Court did not act on the case this morning.

Detainees in Stewart Detention Center File Suit Challenging Forced Labor Practices

Plaintiffs filed a class action suit against private prison company CoreCivic challenging its practice of depriving detained immigrants of basic necessities so they are forced to work at well below minimum wage to purchase items at the prison commissary. (Barrientos v. CoreCivic, 4/17/18) AILA Doc. No. 18052163

DOJ Announces Airlines Staffing Executive Sentenced for Immigration Fraud

DOJ announced that Eleno Quinteros, Jr., the former vice president of operations for two airline mechanic staffing companies, was sentenced today to 12 months in prison for making false statements in support of legal permanent resident petitions for dozens of the companies’ mechanics. AILA Doc. No. 18052162

DOJ Settles Immigration-Related Discrimination Claim Against University of California, San Diego

Posted 5/25/2018

DOJ announced a settlement agreement with the University of California, San Diego. The settlement resolved whether the University’s Resource Management and Planning Vice Chancellor Area discriminated against workers in violation of the INA when verifying their continued authorization to work.

AILA Doc. No. 18052532

Documents Relating to Los Angeles’s Challenge to Immigration Enforcement Conditions on Federal Law Enforcement Grants

The court issued an order granting the government’s request to expedite the case. The case will be calendared for September 2018. (Los Angeles v. Sessions, 5/15/18) AILA Doc. No. 18041638

BIA Holds Two-Week Continuance Not Sufficient Time to Find an Attorney

Unpublished BIA decision finds that IJ denied respondent’s right to counsel by providing only two weeks to find an attorney. Special thanks to IRAC. (Matter of Santos-Gijon, 6/22/17) AILA Doc. No. 18052337

BIA Holds Child Abuse Ground of Deportability Does Not Apply to Attempt Crimes

Unpublished BIA decision holds that attempt to endanger the welfare of a child under N.Y.P.L. 260.10 is not a crime of child abuse because INA §237(a)(2)(E)(i) only applies to completed crimes. Special thanks to IRAC. (Matter of B-Q-, 6/20/17) AILA Doc. No. 18052432

BIA Finds Wisconsin Prostitution Statute Is Categorically an Aggravated Felony

The BIA reinstated removal proceedings, after finding that INA §101(a)(43)(K)(i) encompassed offenses related to the operation of a business that involves engaged in, or agreeing or offering to engage in, sexual conduct for anything of value. Matter of Ding, 27 I&N Dec. 295 (BIA 2018) AILA Doc. No. 18052164

BIA Holds Possession of Drug Paraphernalia in Arizona Is Not a Controlled Substance Offense

Unpublished BIA decision holds possession of drug paraphernalia under Ariz. Rev. Stat. 13-3415(A) is not a controlled substance offense because the state schedule is overbroad and the identity of the drug is not an element of the offense. Special thanks to IRAC. (Matter of Lopez, 6/16/17) AILA Doc. No. 18052160

BIA Reverses Discretionary Denial of Adjustment Application

Unpublished BIA decision reverses discretionary denial of adjustment application where respondent had five U.S. citizen children, was active in church, and last DUI offense was more than eight years prior. Special thanks to IRAC. (Matter of Rodriguez, 6/15/17) AILA Doc. No. 18052230

BIA Limits Application of Firm Resettlement Bar

Unpublished BIA decision holds that the firm resettlement bar does not apply to asylum applicants who fear persecution in the country of alleged resettlement. Special thanks to IRAC. (Matter of L-K-U-, 6/16/17) AILA Doc. No. 18052332

CA4 Upholds CBP Search of Smartphone Seized While Defendant Was Exiting the United States

The court found it was reasonable for the CBP officers who conducted a month-long forensic analysis of the defendant’s smartphone to rely on precedent allowing warrantless border searches of digital devices based on at least reasonable suspicion. (U.S. v. Kolsuz, 5/9/18, amended 5/18/18) AILA Doc. No. 18052165

White House Releases Fact Sheet on MS-13

The White House released a purported fact sheet on MS-13, in which it refers to these individuals as “animals.” AILA Doc. No. 18052232

USCIS Issues Policy Guidance on CSPA

USCIS issued policy guidance in the USCIS Policy Manual regarding the Child Status Protection Act (CSPA). This guidance is controlling and supersedes any prior guidance on the topic. Comments are due by 6/6/18. AILA Doc. No. 18052339

USCIS Notice on the Termination of the Designation of Nepal for Temporary Protected Status

USCIS notice on the termination of the designation of Nepal for TPS on 6/24/19. Holders of TPS from Nepal who wish to maintain their TPS and receive an EAD valid through 6/24/19 must re-register for TPS in accordance with the procedures set forth in the notice. (83 FR 23705, 5/22/18) AILA Doc. No. 18052236

EOIR Released Percentage of Detained Cases Completed Within Six Months

EOIR released statistics on the percentage of detained cases completed within six months. As of 3/31/18, 89 percent of initial case completions were completed in less than six months. AILA Doc. No. 18052237

ICE Announces 24-Month Imprisonment for ICE Agent Impersonator

ICE announced that Matthew Ryan Johnston was sentenced to 24 months in federal prison after possessing multiple destructive devices and using fake ICE badges and uniforms to falsely represent himself as an ICE agent to unsuspecting members of the public. AILA Doc. No. 18052561

ACTIONS

AILA Call For Examples: Delays in Receiving Green Cards, EADs, and Travel Documents Due to USCIS Error or Delay

AILA Call for Examples: Continuances and Administrative Closure Following EOIR Policy Changes

AILA: ake Action: Congress Must Vote to Protect Dreamers

June 1st National Day of Action for Children

AIC: Challenge the unconstitutional conditions in short-term detention facilities, often called “hieleras.”

Center for Gender and Refugee Studies action toolkit in light of this Administration’s efforts to break the promise of protection for refugee women

RESOURCES

NaturalizeNY: This latest round runs from May 1, 2018 – June 15, 2018. By visiting www.NaturalizeNY.org, users can screen themselves for citizenship eligibility, find out their eligibility for the Federal Fee Waiver, and enter a lottery to win a fee voucher to cover the cost of the $725 naturalization application fee.

Family Court U certifications to the Google Tracking Doc

Migratory Notes Weekly Roundup

IDP: Making Constitutional Arguments in the Second Circuit to Challenge Prolonged Mandatory Detention after Jenningsand Lora

IDP and NYU: Making Statutory Arguments in the Second Circuit on the Meaning of “When…Released” and “Released” in U.S.C. § 1226(c) To Challenge Mandatory Detention After Jennings and Lora

ACLU Report: Neglect and Abuse of May 2018 Unaccompanied Immigrant Children by U.S. Customs and Border Protection

List of Law Student Immigration Organizations

Ethical Considerations in Declining Representation

DOS Field Offices Directory

Bite-Sized Ethics: Choosing Between Loyalty and Lying

DOJ Fact Sheet: Attorney General Jeff Session Issues Opinion in the Matter of Castro-Tum

Filing DACA Applications in the Wake of Federal Court Rulings

The Refugee Caravan: Human Rights First’s Observations from the Border

Timeline: How the Trump Administration is Rolling Back Protections for Children

KIND: Death By A Thousand Cuts: The Trump Administration’s Systematic Assault On The Protection Of Unaccompanied Children

NIJC: The Trump Administration’s Checklist To Destroy The U.S. Asylum System 1

Gang PSG resources attached.

Hofstra Training on SIJS AAO appeals, RFEs NOIDs

State Department redefines public charge standard

Levin-Goffe Scholarship for LGBTQI Immigrants

EVENTS

5/30/18 Challenging Conditions of Release and Creative Uses of Habeas
5/31/18 3rd Annual Iftar in the City
5/31/18 Immigration Court Practice
5/31/18The State of Federal Social Welfare Policy Under the Trump Administration: Doubling-Down on Failed Welfare Reform Policies that Punish Low-Income and Immigrant Community Members
6/1/18June 1st National Day of Action for Children
6/5/18 CLINIC:Four-Part Asylum Series: Overview of Asylum and Related Relief
6/7/18Strengthening the Global Refugee Protection System: The Global Compact on Refugees
6/7/18Immigrant Women Summer Art Fest
6/11/18Protecting Immigrant Youth from Gang Violence & the Deportation Machine
6/12/18 CLINIC:Four-Part Asylum Series: Overview of Asylum and Related Relief
6/13-16/18 2018 AILA Conference
6/13/18 Manhattan Legal Services Immigration Rights Forum
6/16/18 Open Mic: Writing on Race & Immigration
6/20/18 Leadership and Advocacy Training (LAT)intended for emerging advocates from Southeast Asian American and ally communities to learn how to advocate effectively for policy change – Apply by February 28
6/26/18 Complex Immigrant Visa Processing Matters
7/1-3/18 National Institute for Trial Advocacy & CLINIC Training in Boulder, CO
7/26/18 Defending Immigration Removal Proceedings 2018
9/26/18Representing Children in Immigration Matters 2018: Effective Advocacy and Best Practices

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The second item on Elizabeth’s List is well worth a look. Although the BIA has stayed away from addressing in a precedent the length and number of continuances required to meet minimum standards of Due Process, this unpublished BIA decision finds that a two-week continuance to locate counsel was inadequate.

That certainly would have been the case in Arlington when I was there, particularly given the unnecessary pressure being put on pro bono counsel by the Obama’s Administration’s policies of “ADR” and “gonzo scheduling” of so-called “priority cases.”

This decision also confirms and reinforces what many of us retired U.S. Immigraton Judges and BIA Appellate Immigration Judges have been saying all along: by pushing the court system to move more cases, faster, and with limited continuances, Immigration Judges are effectively being encouraged to deny Due Process to respondents who do have a right to be represented at no expense to the Government. That right clearly includes reasonable access to, and a resonable opportunity to locate, pro bono counsel. Clearly that didn’t happen here. I suspect it’s also not happening in thousands of other cases — particularly detained cases — across the country.

Instead of protecting Due Process and encouraging “best practices” by U.S. Immigration Judges, Sessions and EOIR Management are feverishly working to instill “worst practices” in the Immigration Courts. The BIA won’t catch all of them, particularly in the absence of helpful precedents. Indeed, and quite remarkably, even this modest declaration of minimum Due Process produced a “split” BIA panel with Judge Roger Pauley signing the order, joined by Judge Edward Grant, but with Judge Ana Mann “dissenting without opinion.”

All of this is likely to mean 1) more denials of Due Process in Immigration Court; 2) more lives ruined; and 3) more “otherwise avoidable” remands from the Courts of Appeals.

Just like mother always said: “Haste Makes Waste!”

PWS

05-30-18

GONZO’S WORLD: LATEST DUE PROCESS OUTRAGE: ATTACK ON LEGAL RIGHTS PROGRAM IN IMMIGRATION COURT — Dumping On The Most Vulnerable & Those Trying To Help Them Is A Gonzo Specialty! — “This is a blatant attempt by the administration to strip detained immigrants of even the pretense of due-process rights,” said Mary Meg McCarthy, executive director of the National Immigrant Justice Center, one of the organizations that offers the legal services with Vera.

https://www.washingtonpost.com/local/immigration/justice-dept-to-halt-legal-advice-program-for-immigrants-in-detention/2018/04/10/40b668aa-3cfc-11e8-974f-aacd97698cef_story.html?utm_term=.c604b3ff4532

Maria Sacchetti reports for the Washington Post:

The U.S. immigration courts will temporarily halt a program that offers legal assistance to detained foreign nationals facing deportation while it audits the program’s cost-effectiveness, a federal official said Tuesday.

Officials informed the Vera Institute of Justice that starting this month it will pause the nonprofit’s Legal Orientation Program, which last year held information sessions for 53,000 immigrants in more than a dozen states, including California and Texas.

The federal government will also evaluate Vera’s “help desk,” which offers tips to non-detained immigrants facing deportation proceedings in the Chicago, Miami, New York, Los Angeles and San Antonio courts.

The Executive Office for Immigration Review, which runs the Justice Department’s immigration courts, said the government wants to “conduct efficiency reviews which have not taken place in six years.” An immigration court official, who spoke on the condition of anonymity because the audit has not been formally announced, said the review will examine the cost-effectiveness of the federally funded programs and whether they duplicate efforts within the court system. He noted, for example, that immigration judges are already required to inform immigrants of their rights before a hearing, including their right to find a lawyer at their own expense.

But advocates said the programs administered by Vera and a network of 18 other nonprofits are a legal lifeline for undocumented immigrants.

“This is a blatant attempt by the administration to strip detained immigrants of even the pretense of due-process rights,” said Mary Meg McCarthy, executive director of the National Immigrant Justice Center, one of the organizations that offers the legal services with Vera.

In a statement, the Vera Institute said a 2012 study by the Justice Department concluded that the program was “a cost-effective and efficient way to promote due process” that saved the government nearly $18 million over one year.

The Trump administration has also clashed with the Vera Institute over whether its subcontractors were informing undocumented immigrant girls in Department of Health and Human Services custody about their right to an abortion. The issue was later resolved.

The Justice Department is ramping up efforts to cut an immigration court backlog of 650,000 cases in half by 2020. Attorney General Jeff Sessions last week imposed production quotas on immigration judges to spur them to clear cases more quickly.

Immigration courts are separate from U.S. criminal courts, where defendants are entitled to a government-appointed lawyer if they cannot pay for their own legal counsel.

The Vera Institute said approximately 8 in 10 detainees in immigration court face a government prosecutor without a lawyer.

The Executive Office for Immigration Review says on its website that it launched the legal-aid program in 2003, during the administration of George W. Bush, to orient immigrants so that court proceedings would move more quickly.

In Vera’s Legal Orientation Program, lawyers and others hold hour-long group information sessions with detainees to explain their rights, how the court process works and their possible defenses to deportation in federal law, such as seeking asylum if they are in fear for their lives. They also meet with detainees individually and refer detainees to free or low-cost lawyers, but do not represent them in court.

“Experience has shown that the LOP has had positive effects on the immigration court process: detained individuals make wiser, more informed, decisions and are more likely to obtain representation; non-profit organizations reach a wider audience of people with minimal resources; and, cases are more likely to be completed faster, resulting in fewer court hearings and less time spent in detention,” the agency’s website says.

The help desk answers questions and provides similar information to immigrants who are not detained but are facing deportation.

Maria Sacchetti covers immigration for The Washington Post. She previously reported for the Boston Globe.

Follow @mariasacchetti

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The idea expressed by an “anonymous” DOJ official that the brief, often rote “in court” warnings given by Immigration Judges in open court can take the place of a “Know Your Rights” session being conducted in advance, out of court by Vera is preposterous. The “average” initial hearing or “Master Calendar” takes fewer than 10 minutes. My former Arlington Immigration Court colleague Judge Lawrence O. Burman was once “clocked” by a reporter at seven minutes per case, and he is probably more thorough than most Immigration Judges. Moreover, with Immigration Judges being pressured to churn out more final orders of removal faster, required warnings are just one of the aspects of Due Process that are likely to be truncated as Sessions’s “haste makes waste” initiative continues to destroy even the appearance of justice in our U.S. Immigration Courts.

In other words this totally bogus “audit” couldn’t come at a worse time for the beleaguered Immigration Judges of the U.S. Immigration Courts and particularly the often defenseless immigrants who come before them seeking (but far too often not finding) the justice supposedly “guaranteed” to them by our Constitution.

In my long experience, “Know Your Rights” presentations, which often allowed individuals to assess their cases and retain lawyers before their first Immigration Court appearance were one of the best “bang for the buck” programs ever undertaken by EOIR. Immigration Judges relied heavily on them to “keep the line moving” without denying due process.

Sessions methodically is stripping U.S. Immigration Judges of the tools that allow them to do their jobs fairly and efficiently: administrative closing, continuances, ability to control their own court schedules, time and resources to do research and write opinions, and now the assistance of the “Know Your Rights” Programs.

Harm to the most vulnerable among us is harm to all. Jeff “Gonzo Apocalypto” Sessions is a coward who consistently uses bogus narratives and specious reasons to pick on the most vulnerable in our legal system. Join the New Due Process Army and stand up to Gonzo and his anti-American, anti-Constitutional, anti-human agenda! Today, Gonzo is eliminating immigrants’ rights. Tomorrow it will be YOUR RIGHTS. Who will stand up for YOU if you remain silent while the weak and dispossessed are attacked by Gonzo and his ilk!

PWS

04-11-18

HON. JEFFREY CHASE RETURNS WITH MORE ANALYSIS OF RETIRED JUDGES’ AMICUS BRIEF IN C.J.L.G. V. SESSIONS

https://www.jeffreyschase.com/blog/2018/3/21/amicus-brief-filed-in-cjlg-v-sessions

Mar 21 Amicus Brief Filed in C.J.L.G. v. Sessions

On March 15, lawyers with the firm of Simpson, Thacher & Bartlett filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit on behalf of 11 former immigration judges and BIA Board members in the case of C.J.L.G. v. Sessions. The case involves a child from Honduras who appeared in immigration court accompanied only by his mother. As the respondent could not obtain a lawyer in the time afforded, the immigration judge went forward with the hearing, informing the mother that she would “represent” her son.

The respondent is an asylum applicant whose gang-related claim rested on his ability to precisely delineate a particular social group pursuant to requirements complex enough to stump most attorneys. As his mother lacked any legal training, his hearing did not go well. On appeal, the BIA affirmed the IJ’s denial of the claim. In its decision, the BIA determined that the respondent did not suffer past persecution when at the age of 13, members of MS-13, a brutal, multinational gang, threatened to kill him, his mother, and his aunt if he refused to join their ranks, put a gun to his head to emphasize their point, and told him that he had one day to decide. The BIA also found the hearing before the IJ to have been fair, and that the respondent was not denied due process because the immigration laws do not require the appointment of counsel in removal proceedings.

Hon. Dana Marks, an outstanding jurist and president emeritus of the National Association of Immigration Judges, often states that immigration judges hear “death penalty cases under traffic court conditions.” What she means by this is that a genuine asylum seeker who is denied relief and deported faces the risk of death in the country from which he or she fled. Yet the conditions under which such life-or-death claims are heard are inadequate; the limited time and resources afforded to the judges hearing such claims are better suited for a court hearing much lower stakes matters such as traffic tickets. Courts hearing cases involving matters of life and liberty have a higher obligation to afford due process. First and foremost, a defendant facing criminal charges in a state or federal court is entitled to assigned counsel. However, although the stakes may be higher in an asylum case, respondents in immigration court have no such entitlement. Although the respondent in C.J.L.G. may face death if deported, having a judge determine it was fine to proceed, and telling his mother that she would represent him sounds like something that might be appropriate in traffic court.

A three-judge panel of the Ninth Circuit denied the respondent’s petition for review. Interestingly, the respondent was found credible in his recounting of the death threats he suffered and as to his fear of return; the court accepted the statistics provided by respondent’s counsel that unrepresented respondents succeed on their claims only 10 percent of the time, whereas as represented minors enjoy a 47 percent success rate. The court also assumed that the respondent qualifies as an indigent (due to his mother’s inability to afford private counsel), and that ordering him removed would send him “back to a hostile environment where he has faced death threats in the past implicates his freedom.” The court further acknowledged that the immigration laws and regulations include assuring minors “the right to a ‘full and fair hearing,’ which includes the ‘opportunity to present evidence and testimony on one’s behalf,’ cross-examine witnesses, and examine and object to adverse evidence.” It would be difficult to argue that an unrepresented minor is capable of exercising such rights.

In spite of this, the court denied the petition, determining that there was no Constitutional right to assigned counsel at government expense to minors in removal proceedings. The court further found that the respondent had not demonstrated prejudice, as he had not established a nexus to a protected ground as required to establish eligibility.

The ACLU has filed a petition for the Ninth Circuit to rehear the case en banc. It is in support of this latest petition that the latest amicus brief was filed. I am one of the former IJs included in the brief; I join my colleagues in being proud to assist in such a noble effort as securing assigned counsel for immigrant children facing the legal complexities and dire consequences of immigration proceedings. In a nutshell, the brief argues that the efforts of an immigration judge to provide a fair hearing is no substitute for counsel. Immigration judges can only do so much faced with “overburdened and growing dockets, the complexity of immigration law, and, as Department of Justice (DOJ) employees, the constraints of administrative policy.”

The problem is compounded in cases in which the asylum claim is based on membership in a particular social group. The BIA has recently held that an asylum applicant must specifically delineate such group, a requirement that is clearly beyond the ability of a child (or his or her mother) to do. As the brief points out, in this case, the respondent “ and his mother showed no understanding of why a gang-related threat alone would not warrant asylum, but the IJ’s cursory inquiry ended without seeking the motivation for the threat.”

Of course, the entire issue could be resolved by the Department of Justice choosing to do what is right by agreeing to provide assigned counsel at government expense to this most vulnerable group.

Heartfelt thanks to partner Harrison J. “Buzz” Frahn and associate Lee Brand of the law firm of Simpson Thacher & Bartlett for their dedication and effort in drafting the excellent brief.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE
Mar 10 The AG’s Strange Decision in Matter of E-F-H-L-
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Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First. He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

Blog Archive Contact

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As pointed out by Jeffrey, this is an incredibly important case for Due Process under our Constitution! Let’s hope that the en banc Ninth gives it a close look.

PWS

03-22-18

9th SLAMS DUE PROCESS DOOR ON ENDANGERED HONDURAN TEEN — FLAWED ASYLUM HEARING WAS “GOOD ENOUGH FOR GOVERNMENT WORK” — NO RIGHT TO APPOINTED COUNSEL! — C.J.L.G. V. SESSIONS!

9th-CJLG-Consel

C.J.L.G. v. Sessions, 9th Cir., 01-29-18, published

PANEL: Consuelo M. Callahan and John B. Owens,
Circuit Judges, and David A. Faber,* District Judge.

* The Honorable David A. Faber, United States District Judge for the Southern District of West Virginia, sitting by designation.

OPINION BY: Judge Callahan

CONCURRING OPINION: Judge Owens

SUMMARY BY COURT STAFF:

“The panel denied C.J.L.G.’s petition for review of a Board of Immigration Appeals decision, holding that neither the Due Process Clause nor the Immigration & Nationality Act creates a categorical right to court-appointed counsel at government expense for alien minors, and concluding that the Board’s denial of asylum, withholding of removal, and relief under the Convention against Torture was supported by substantial evidence.
The panel held that it is not established law that alien minors are categorically entitled to government-funded, court-appointed counsel and, applying the three-part test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), held that C.J. had not shown a necessity for such counsel to safeguard his due process right to a full and fair hearing.
The panel incorporated its analysis of C.J.’s asylum claim into its Mathews analysis in determining that C.J. was not prejudiced by any procedural deficiencies in his proceeding. The panel concluded that the record compelled a finding that C.J. had a well-founded fear of persecution based on threats he received from the Mara gang when he resisted their recruitment efforts, but rejected C.J.’s asylum claim because he had not established that the threats had a nexus to a protected ground, or that the government was unable or unwilling to control the Maras. The panel deemed waived any argument that he was denied due process on his withholding and CAT claims, but noted that his withholding claim would also fail.
The panel also rejected C.J.’s argument that the INA’s fair hearing provision, § 1229a(b)(4)(B), implicitly requires court-appointed counsel at government expense for all alien minors.
The panel further held that the IJ was not required to inform C.J. that he might be eligible for Special Immigrant Juvenile status, concluding that the IJ’s duty to inform aliens of “apparent eligibility” for relief was not triggered because, at the time of his removal proceeding, C.J. did not have a state court order that could have made him apparently eligible for SIJ status.
Finally, the panel concluded that the agency’s denial of CAT relief was supported by substantial evidence. The panel concluded that 1) the Board did not err in concluding that C.J.’s experience of having a member of the Maras put a gun to his head did not amount to “severe pain or suffering;” 2) there was no showing that the Honduran government acquiesced in the act; and 3) the record did not compel the conclusion that the government either turned a blind eye to the Maras’ threats or that it would be unable or unwilling to control the Maras in the future.
Concurring, Judge Owens wrote that the majority’s opinion does not hold, or even discuss, whether the Due Process Clause mandates counsel for unaccompanied minors, and observed that that is a different question that could lead to a different answer.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.”

KEY QUOTE FROM MAJORITY:

“We are mindful that our decision means that, absent a reprieve offered by the government, C.J. will likely be returned to a country in turmoil. We sympathize with his personal plight, as C.J. appears to have displayed courage in the face of serious adversity. But while “our hearts are with [C.J.],” the law does not support his requested relief. Cf. Dugard v. United States, 835 F.3d 915, 917 (9th Cir. 2016). Neither Supreme Court nor circuit precedent compels the remedy that C.J. seeks: court-appointed counsel at government expense. And to the extent the IJ failed to provide all the trappings of a full and fair hearing, any shortcomings did not prejudice the outcome because the IJ adequately developed the record on issues that are dispositive to C.J.’s claims for relief. Attorney representation could not have altered this reality, which forecloses C.J.’s claim to an implied right to court-appointed counsel under the Due Process Clause. Moreover, the INA itself neither provides for nor implies a right to court-appointed counsel at government expense.

We further hold that the IJ was not required to advise C.J. of a separate state court process that could ultimately form the predicate for C.J.’s application for SIJ status with the IJ. The IJ is only required to advise an alien of relief for which he is “apparent[ly] eligib[le].” Because C.J.’s claimed relief—SIJ status—depends on a state court making certain findings before an IJ may grant him such relief—something that has not occurred here—C.J. is not “apparent[ly] eligib[le]” for SIJ status.
Finally, we decline to reverse the Board’s denial of C.J.’s asylum, withholding of removal, and CAT claims, because substantial evidence supports the Board’s determination that he is ineligible for any such relief.”

CONCURRING OPINION BY JUDGE OWENS:

“I concur in the majority opinion and its narrow scope. It holds that the Due Process Clause does not mandate government-funded counsel for C.J.L.G, an accompanied minor. The opinion does not hold, or even discuss, whether the Due Process Clause mandates counsel for unaccompanied minors. That is a different question that could lead to a different answer. See, e.g., Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 31–32 (1981) (holding that whether the Due Process Clause requires the appointment of counsel is considered on a case-by-case basis); J.E.F.M. v. Lynch, 837 F.3d 1026, 1039–41 (9th Cir. 2016) (McKeown, J., jjoined by M. Smith, J., specially concurring) (outlining unique challenges that unrepresented unaccompanied minors in immigration proceedings confront).”

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BOTTOM LINE: This kid should join the gang in Honduras to save his life (and the lives of his family), or they should all die. We really don’t care as long as he doesn’t darken our door!
We’re willing to send this teen back to death or a life of forced gang membership after a hearing that none of us, and probably no American citizen, would consider fair or just if it were applied to us or someone we cared about. The key here is not to care about human lives.
It would be easy enough to define “those who resist gang membership” as a “particular social group” entitled to protection under our asylum and related laws. We have just intentionally chosen not to do so to avoid having to give protection to kids like this.
We also have ample authority to exercise Executive discretion to allow individuals in danger in their home countries to remain here in safety even if they don’t satisfy the technical requirements for asylum or withholding of removal. We have just chosen not to do so.
Contrary to the majority’s holding, a lawyer, particularly one who could find “expert” evidence or testimony probably could have secured protection for this young man under the Convention Against Torture (“CAT”). The latest State Department Country Report shows that gang torture is reported in Honduras, that the government and the justice system are inherently corrupt and incompetent, and that criminal justice system often fails to protect citizens.
While perhaps “well-meaning,” Judge Owens concurring opinion suggesting a different result for a “truly unaccompanied” minor is highly disingenuous. From the record, it appears that this kid’s mother was barely literate, (not surprisingly) didn’t understand asylum law, and couldn’t even fill out his application coherently in English. Her lack of understanding that the case depended on (counterintuitively) proving something “other than pure gang recruitment” was at work here actually appears to have undermined his case. If clearly incompetent “assistance” by a lay person like this like this is the dividing line between “due process” and “no due process,” that would be an absurd result!
The panel basically shirks its duty by conferring upon the trial judge, the U.S. Immigration Judge, the responsibility of acting as the unrepresented child’s attorney and developing the record. But, this runs directly counter to the most recent “OPPM” from the Chief Immigration Judge “reminding” Immigration Judges to “maintain neutrality” and not be too helpful to unrepresented minors as they are being railroaded out of the country.
The “Trump/Sessions Deportation Railroad” is up and running. At least this panel of Article III Judges in the 9th Circuit appear anxious to establish themselves as “Just Another Whistle Stop on the Deportation Railroad.”
The blood of this young man and others like him who come seeking protection, only to find rejection based on a twisted hyper-legalistic reading of our laws and an abdication of moral responsibility to protect those in harm’s way will be on our hands as a nation. At some point it will stain. At some point, the stain will become indelible.
As a national policy, telling kids in the Northern Triangle that they have no choice but to join gangs or die is not likely to “solve” the “gang problem” here or there in the short or long run. Essentially, we’ve already demonstrated that. But, nobody is paying attention.

PWS

01-30-18

SPLIT 9TH SHRUGS OFF DUE PROCESS VIOLATIONS IN EXPEDITED REMOVAL – BUT DISSENTING OPINION GIVES DUE PROCESS HOPE FOR THE FUTURE — GOMEZ-VELAZCO V. SESSIONS

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/10/14-71747.pdf

Gomez-Velazco v. Sessions, 9th Cir., 01-10-18, published

STAFF HEADNOTE:

“The panel denied Eladio Gomez-Velazco’s petitions for review from the Department of Homeland Security’s final administrative order of removal under 8 U.S.C. § 1228(b), concluding that Gomez-Velazco’s due process claim, based on his contention that he was denied the right to counsel, failed because he made no showing of prejudice.

Gomez-Velazco argued that DHS officers violated his right to counsel by pressuring him to concede removability without advice of counsel in his proceedings under 8 U.S.C. § 1228(b), a form of summary removal proceedings in which he did not have a hearing before an immigration judge. The panel concluded that it had jurisdiction to review Gomez- Velazco’s constitutional claim and assumed, without deciding, that the officers’ conduct violated his right to counsel.

The panel held that Gomez-Velazco was required to show prejudice in order to prevail on his claim, rejecting his contention that, in the context of a due process violation based on the denial of the right to counsel, prejudice should be conclusively presumed and automatic reversal should follow. The panel concluded that, at least in cases like that of Gomez-Velazco, where an individual is in administrative removal proceedings under 8 U.S.C. § 1228(b), does not waive the 14-day waiting period for judicial review, and is allowed to consult with counsel before the removal order is executed, a showing of prejudice is required. The panel further concluded that Gomez-Velazco failed to establish prejudice.

Dissenting, Chief District Judge Navarro wrote that she would grant the petition for review and vacate the final administrative order of removal. Judge Navarro would first make the distinct finding that Gomez-Velazco’s right to counsel was violated, and would hold that no prejudice is required to vacate the order, and that even if prejudice were required, Gomez-Velazco demonstrated sufficient prejudice.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.”

PANEL: Paul J. Watford and John B. Owens, Circuit Judges, and Gloria M. Navarro,* Chief District Judge.

* The Honorable Gloria M. Navarro, Chief United States District Judge for the District of Nevada, sitting by designation.

OPINION BY: Judge Watford

DISSENT BY: Chief USDC Judge Navarro

KEY QUOTE FROM MAJORITY:

“Under the Immigration and Nationality Act, the Department of Homeland Security (DHS) can seek to remove non-citizens from the United States through several different means. The most formal process involves a hearing in immigration court before an immigration judge, at which the individual to be removed can contest the charges against him and request various forms of relief from removal. See 8 U.S.C. § 1229a. Today, however, most non-citizens are ordered removed through streamlined proceedings— expedited removal, administrative removal, and reinstatement of removal—that do not involve a hearing before an immigration judge. See Jennifer Lee Koh, Removal in the Shadows of Immigration Court, 90 S. Cal. L. Rev. 181, 183–84 (2017); Shoba Sivaprasad Wadhia, The Rise of Speed Deportation and the Role of Discretion, 5 Colum. J. Race & L. 1, 2–3 (2014). The proceedings are summary in nature and conducted by front-line immigration enforcement officers employed by DHS.

This case involves administrative removal under 8 U.S.C. § 1228(b). A DHS officer ordered Eladio Gomez-Velazco, a native and citizen of Mexico, removed from the United States. Gomez-Velazco contends that his due process rights were violated because he did not have counsel present at the outset of the removal process. We will assume that a violation occurred. The question we address is whether Gomez-Velazco must show that he was prejudiced by the violation. We conclude that he must and that he has not done so. We therefore deny his petitions for review.”

TEXT OF CHIEF USDC JUDGE NAVARRO’S DISSENT:

“NAVARRO, Chief District Judge, dissenting:

I would grant the Petition for Review and vacate the Final Administrative Removal Order (“FARO”) issued on June 12, 2014.

I would first make the distinct finding—as opposed to the majority’s assumption—that Gomez-Velazco’s right to counsel was violated. “Although there is no Sixth Amendment right to counsel in an immigration hearing, Congress has recognized it among the rights stemming from the Fifth Amendment guarantee of due process that adhere to individuals that are the subject of removal proceedings.” Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (citing Rios-Berrios v. I.N.S., 776 F.2d 859, 862 (9th Cir. 1985)). While “[t]he right to counsel in immigration proceedings is rooted in the Due Process Clause,” Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005), the right to counsel in expedited removal proceedings is also secured by statute. 8 U.S.C. § 1228(b)(4)(B) (“[T]he alien shall have the privilege of being represented (at no expense to the government) by such counsel, authorized to practice in such proceedings, as the alien shall choose.”); 8 C.F.R. § 238.1(b)(2)(i) (“[The Notice of Intent] shall advise that the alien: has the privilege of being represented, at no expense to the government, by counsel of the alien’s choosing, as long as counsel is authorized to practice in removal proceedings”);

16 GOMEZ-VELAZCO V. SESSIONS

see also 8 C.F.R. § 238.1(b)(2)(iv) (requiring ICE to provide aliens facing expedited removal “with a list of available free legal services programs”).

Moreover, expedited removal proceedings under § 1228 require “conformity with section 1229a” and the “privilege of being represented” is further codified in that section as well. See 8 U.S.C. § 1229a(b)(4)(A). This right to be represented at no cost to the government is also listed on the “Notice of Intent to Issue a FARO” under “Your Rights and Responsibilities.” If the right to counsel under § 1228 is only for the noncitizen to be advised of the right to have counsel, with no practical effect, then it would be no right to counsel at all. See Rios-Berrios, 776 F.2d at 863 (explaining that the right to counsel must be respected in substance as well as in name).

Indeed, this Circuit has consistently emphasized the critical role of counsel in deportation proceedings. See, e.g., Reyes-Palacios v. I.N.S., 836 F.2d 1154, 1155 (9th Cir. 1988) (“The importance of counsel . . . can neither be overemphasized nor ignored.”); United States v. Cerda-Pena, 799 F.2d 1374, 1377 n.3 (9th Cir. 1986) (referring to “an outright refusal to allow an alien the opportunity to obtain representation” as “an egregious violation of due process”). We have characterized the alien’s right to counsel of choice as “fundamental” and have warned the agency not to treat it casually. Rios-Berrios, 776 F.2d at 863–64.

Here, the record clearly demonstrates that Gomez- Velazco asserted that he had counsel and wanted his counsel present. First, in Form I-213, ICE Officer Stewart explains that during the FARO proceedings, Gomez-Velazco “was unwilling to provide a sworn statement without an attorney

GOMEZ-VELAZCO V. SESSIONS 17

present.” Second, on the “Record of Sworn Statement” dated June 12, 2014, the first question states, “Are you willing to answer my questions?” to which Gomez-Velazco answered: “I prefer not to until I talk to my attorney.” DHS nevertheless proceeded with the expedited removal proceedings without first affording Gomez-Velazco the opportunity to notify and speak with his counsel as he requested. In doing so, DHS directly disregarded Gomez-Velazco’s ability to exercise this fundamental right.

Having found that Gomez-Velazco’s right to counsel was violated, I would then find that under Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012), no prejudice is required to vacate the FARO. The Montes-Lopez court held “an alien who shows that he has been denied the statutory right to be represented by counsel in an immigration proceeding need not also show that he was prejudiced by the absence of the attorney.” 694 F.3d at 1093–94. In support, the court stated that “the absence of counsel can change an alien’s strategic decisions, prevent him or her from making potentially-meritorious legal arguments, and limit the evidence the alien is able to include in the record.” Id. at 1092.

The majority here distinguishes Montes-Lopez by a distinction without a difference. First, the majority regards Montes-Lopez as “an exception to the general rule requiring a showing of prejudice;” however, prior to Montes-Lopez, there was no general rule that required a showing of prejudice—a fact that Montes-Lopez, Hernandez-Gil, and Biwot, the cases the majority relies so heavily on, all specifically identify. Id. at 1090 (“We have never decided, however, whether prejudice is an element of a claim that counsel has been denied in an immigration proceeding.”);

18 GOMEZ-VELAZCO V. SESSIONS

Hernandez-Gil v. Gonzales, 476 F.3d 803, 808 (9th Cir. 2007) (“Because we determine that Hernandez-Gil has shown that he was prejudiced by the denial of his statutory right to counsel ‘we again leave unanswered the question whether a petitioner must show prejudice when he has been denied the right to counsel in removal proceedings.’”) (citing Biwot, 403 F.3d at 1100).

Second, the right to counsel is substantively the same under both the § 1228 expedited removal proceeding before a DHS deciding officer, as used here, and the § 1229 proceeding before the immigration judge, as in Montes- Lopez.1 Compare § 1228(b)(4)(B) with § 1229(b)(1); see also United States v. Peralta-Sanchez, 847 F.3d 1124, 1130 (9th Cir. 2017) (emphasizing the similarity of §§ 1228 and 1229 in the right to counsel context). Montes-Lopez’s holding refers to “an immigration proceeding” without differentiating between a proceeding before an immigration judge and a DHS deciding officer. Montes-Lopez, 694 F.3d at 1093–94.

Notably, the Montes-Lopez court purposefully distinguished pure immigration proceedings from collateral attacks on a removal order in a § 1326 illegal reentry criminal case, the latter of which requires prejudice specifically because of “the limitations on criminal defendants’ right to collaterally attack the result of a prior proceeding.” Montes- Lopez, 694 F.3d at 1093; see also Villa-Anguiano v. Holder, 727 F.3d 873, 876 n.1 (9th Cir. 2013) (contrasting the § 1326 illegal reentry collateral attack standard under Reyes-Bonilla with the immigration proceedings petition for review standard

1 The Government decides under which process to pursue deportation by issuing either a Notice of Intent to Issue a FARO under § 1228 or Notice to Appear under § 1229.

GOMEZ-VELAZCO V. SESSIONS 19

under Montes-Lopez). The Montes-Lopez court compared the collateral attack versus petition for review in the immigration context to the difference between a criminal collateral attack and a direct appeal: “A criminal defendant who alleges ineffective assistance of counsel must generally show prejudice, Smith v. Mahoney, 611 F.3d 978, 1001 (9th Cir. 2010), but a defendant who has been denied counsel need not. Campbell v. Rice, 408 F.3d 1166, 1176 (9th Cir. 2005).” 694 F.3d at 1092.

Deprivation of counsel is per se prejudicial. See Cerda- Pena, 799 F.2d at 1377 n.3 (“[A]n outright refusal to allow an alien the opportunity to obtain representation may be such an egregious violation of due process so as not to require any further showing of prejudice”); Garcia-Guzman v. Reno, 65 F. Supp. 2d 1077, 1087 (N.D. Cal. 1999) (explaining that “Cerda-Pena therefore suggests that if the violation of the right to counsel is sufficiently egregious—i.e., a clear denial of representation or outright refusal to permit an alien to obtain representation—prejudice needn’t be shown.”).

The majority attempts to downplay the inherent prejudice of this situation by comparing it to discrete stages of a criminal proceeding, such as a preliminary hearing, a court- ordered psychiatric examination, post-indictment interactions with undercover police officers, and pre-trial line-ups. However, none of these situations are comparable to the instant case. Here, Gomez-Velazco was in custody by DHS when he asked for an attorney—a situation that, in a non- immigration case, would normally mandate an attorney as soon as a defendant requests one.

Furthermore, in drawing comparisons to these Sixth Amendment situations, the majority attempts to illustrate how

20 GOMEZ-VELAZCO V. SESSIONS

the standard in those cases are only “subject to harmless error review rather than an automatic reversal rule,” and the majority concludes that because this is a similar discrete stage, prejudice is required rather than presumed. However, in arguing this, the majority once again completely disregards Montes-Lopez. There, the court held that “[w]hen this court concludes that an agency has not correctly applied controlling law, it must typically remand, even if we think the error was likely harmless.” Montes-Lopez, 694 F.3d at 1092 (citing INS v. Orlando Ventura, 537 U.S. 12, 16–17 (2002)). Importantly, Montes-Lopez adopts the reasoning of the Second Circuit, which “declined to add a prejudice requirement to this rule because [the court] reasoned that automatic reversal upon violation of such a regulation would encourage agency compliance with its own rules and serve the interests of judicial economy.” Id. at 1091 (citing Montilla v. INS, 926 F.2d 162, 169 (2d Cir. 1991)). We must recognize that in mandating automatic reversal, not only will we continue to protect this right to counsel, but also we will better hold these agencies accountable in their actions and conduct by enforcing their own regulations more strictly upon them. In holding that this situation is akin to a harmless error review, the majority disregards Montes-Lopez’s holding and downplays the right to counsel.

The majority attempts to distinguish Montes-Lopez by stating that it is different than the instant case because it is “based in part on the practical difficulties one would face in trying to prove that the outcome of the merits hearing would have been different had counsel been able to assist.” The majority reasons that Montes-Lopez differs because “Gomez- Velazco was not denied the assistance of counsel throughout the entirety of the administrative removal process” but that he “lacked counsel at one discrete stage of the process.”

GOMEZ-VELAZCO V. SESSIONS 21

To carve out such a nuanced distinction undermines the fundamental nature of the right to counsel. See, e.g., Hernandez-Gil, 476 F.3d at 806 (“The high stakes of a removal proceeding and the maze of immigration rules and regulations make evident the necessity of the right to counsel.”); Montes-Lopez, 694 F.3d at 1091 (“No showing of prejudice is required, however, when a rule is ‘intended primarily to confer important procedural benefits upon indiv[i]duals’’ or ‘when alleged regulatory violations implicate fundamental statutory or constitutional rights.’”) (quoting Leslie v. Attorney Gen., 611 F.3d 171 (3d Cir.2010)). Likewise, to permit an agency to continue to ignore its own regulations undermines the fundamental nature of the right to counsel. Finally, to ignore established precedent in favor of the majority’s new exception undermines the fundamental nature of the right to counsel. Accordingly, I would vacate the FARO because Gomez- Velazco established a right to counsel due process violation and therefore need not show prejudice.

Even if prejudice were required, however, it should be assessed under the “plausibility” standard set forth by United States v. Cisneros-Rodriguez, 813 F.3d 748, 760 (9th Cir. 2015): “[W]hether the defendant had identified a form of relief it was plausible he would have obtained absent the due process violation.” In Cisneros-Rodriguez, the defendant argued that “had she obtained counsel [during her predicate § 1228 proceeding], it is plausible that she would have applied for and obtained a U-visa.” Id. at 753. The court agreed that because she demonstrated prima facie U-Visa eligibility, it was plausible that she would have obtained a U- Visa had she applied for one at the time of her original § 1228 proceeding. Id. at 761. This finding was made despite the

22 GOMEZ-VELAZCO V. SESSIONS
fact that the defendant later applied for a U-Visa and was

rejected. Id. at 762.

Here, the record demonstrates that Officer Stewart—the arresting ICE officer who provided the evidence to Deciding Officer Elizabeth C. Godfrey for the issuance of the FARO—knew that Gomez-Velazco was represented by counsel and that Gomez-Velazco had a pending U-Visa application. When Officer Stewart nevertheless chose to arrest Gomez-Velazco and continue with the § 1228 proceeding without allowing him to consult with his attorney, Gomez-Velazco was prejudiced more than the defendant in Cisneros-Rodriguez because he had a plausible and pending U-Visa application. As such, I cannot agree with the majority that Gomez-Velazco failed to demonstrate sufficient prejudice under Cisneros-Rodriguez.

Ultimately, even without a finding of prejudice, the majority’s decision to deny Gomez-Velazco’s petition for review dilutes the fundamental right to counsel and completely ignores indistinguishable precedent. See Hernandez v. Holder, 545 Fed. Appx. 710, 713 (9th Cir. 2013) (Ikuta, J., concurring) (unpublished opinion) (stating disagreement with Montes-Lopez while still acknowledging that the Ninth Circuit is bound by its decision). Accordingly, I must respectfully dissent.”

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

Sure seems to me that Chief Judge Navarro is right that the majority fails to follow the Ninth Circuit’s long-stnding precedent in Rios-Berrios v. I.N.S., 776 F.2d 859, 862 (9th Cir. 1985). Indeed, if anything the due process need for counsel in so-called “Expedited Removal” before an Immigration Officer appears even greater than that before an Immigration Judge which was found to be per se prejudicial in Rios-Berrios. Also, it’s quite ironic that a District Judge sitting by designation has a better understanding of 9th Circuit precedent than her 9th Circuit colleagues in the majority!

In any event, there is some “good stuff” in this dissent for anyone challenging the lack of counsel in Expedited Removal on due process grounds. Also, I wouldn’t be surprised to see Chief Judge Navarro’s views prevail in some other Circuits as the Trump Administration and DHS “push the envelope” on Expedited Removal.

PWS

01-13-18

CHECK OUT MY 17-POINT “IMMIGRATION CONSUMERS’ PROTECTION PROGRAM” (“ICPP”)!

IMMIGRATION CONSUMERS’ PROTECTION PROGRAM (“ICPP”)

BY Paul Wickham Schmidt, United States Immigration Judge (Retired)

Get a lawyer.
Make sure lawyer is real & reputable.
- Confirm bar admission and check complaints online.
- Firm website should confirm that immigration is a primary area of practice.
- Google published immigration cases and check results.
Get it in writing.
- In a language you understand.
If it’s too good to be true, it probably isn’t.
Play to tell the truth.
- With lawyer, court, DHS.
Keep your appointments with your lawyer.
- Time is money – YOUR money!
- Lawyer needs complete and accurate information to help.
Show up for all Immigration Court hearings at least 30 minutes early.
- Failing to appear (“FTA”) is the worst possible thing you can do in Immigration Court.
- FTA = Final Order of Removal = Arrest, Detention & Immediate Removal = YOU become “low hanging fruit” for DHS’s “jacked up” removal goals!
Dress the part.
- No cutoffs, t-shirts, flip-flops, halter-tops, crop tops, underwear showing, muscle shirts, flashy distracting jewelry, “rainbow hair,” shirts with (particularly political) slogans, baseball caps in Immigration Court.
- Dress as you would to go to the funeral of someone you respected.
Avoid the “Big Five:”
- Alcohol
- Drugs
- Domestic violence
- Gangs
- Driving violations of all types.
  - OWLs can be a problem and eventually turn into felonies in Virginia!
  - That’s what busses, trains, friends, co-workers, bikes, and strong legs are for.
- Keep all documents – originals and at least one copy.
  - Never give away originals (unless the judge requires it) or your only copy of a document.
- Pay taxes.
- Stay in school or keep employed.
- Ask questions.
  - Insist on an explanation that you understand in a language you understand.
- Don’t sign anything you don’t understand.
  - Make sure everything has been translated for you.
- Comply with all court orders.
- Use available resources:
  - Internet
  - 1-800 number
  - Immigration Court Practice Manual (“ICPM”) (online).
- Don’t forget family and friends.
  - They can be some of your best resources.

(12-10-17)

This outline contains some of the points that I emphasized during my two Spanish-language radio appearances in Richmond, Virginia on Friday, December 8, 2017!

PWS

12-10-17

DUE PROCESS DENIED! — NIJC REPORT FINDS THAT DHS DETENTION IN OBSCURE LOCATIONS DEPRIVES MIGRANTS OF MEANINGFUL ACCESS TO COUNSEL! — This Is What Happens When We Enable The “American Gulag!”

http://www.immigrantjustice.org/research-items/report-what-kind-miracle-systematic-violation-immigrants-right-counsel-cibola-county

A new in-depth study by the National Immigrant Justice Center (“NIJC”) shows how the Administration is intentionally using detention to deny Constitutional Due Process of Law to some of the most vulnerable:

“Introduction

When Donald Trump was elected president, the immigration detention system was already mired in such dysfunction that it routinely threatened the lives of those trapped inside. More than a year later, the administration intentionally uses its broken network of hundreds of immigration jails to advance an agenda that prioritizes mass deportation above respect for basic rights. This report focuses on the Cibola County Correctional Center, a prison complex in rural New Mexico owned and operated by the private prison giant CoreCivic (formerly Corrections Corporation of America)¹ with the capacity to jail 1,100 immigrants facing deportation. Located far from any major urban center in a state with no immigration court, the prison has become a black hole of due process rights.

The National Immigrant Justice Center (NIJC) is particularly alarmed by the lack of meaningful access to counsel at the Cibola prison. Federal immigration law allows immigrants the right to counsel in deportation proceedings, but immigrants must locate and pay for it themselves. Immigrants detained in Cibola and many other immigration jails nationally are unable to avail themselves of this right because the capacity of nearby legal service organizations to provide representation is dwarfed by the need. An NIJC survey of legal service providers reveals that New Mexico and Texas immigration attorneys, at their maximum capacity, are only able to represent approximately 42 detained individuals at the Cibola prison at any given time — six percent of the jail’s population in April 2017. The due process violations occurring at Cibola and other Department of Homeland Security (DHS) prisons are the latest consequences of the Trump administration’s scheme to jail so many immigrants, and in such remote locations, that their right to representation is rendered meaningless.

An NIJC survey of legal service providers reveals that New Mexico and Texas immigration attorneys, at their maximum capacity, are only able to represent approximately 42 detained individuals at the Cibola prison at any given time – six percent of the jail’s population in April 2017.

In light of DHS’s systematic and willful rights violations, NIJC calls on the agency to close detention facilities like Cibola, where due process is non-existent given individuals’ lack of access to counsel, and demands that Congress immediately cut funding for DHS’s enforcement and detention operations. (See Recommendations.)

U.S. Immigration Detention National Average Daily Population From 1994 To 2017²

. . . .

The Future Of Immigration Detention: Why Cibola Matters

DHS paid little heed to the dearth of affordable legal services near Cibola when it entered its agreement with Cibola County and CoreCivic. Such a lapse is by no means new or unique. DHS has grown and maintained the immigration detention system in a manner incompatible with civil rights and due process protections.

In many ways, the Trump administration inherited an immigration detention system already riddled with abuse and neglect. Detained individuals, advocacy organizations including NIJC, and DHS’s Office of Inspector General have reported for decades on the profoundly inhumane conditions pervasive throughout the detention system, including: the excessive and arbitrary use of solitary confinement;²² inadequate, unsafe and spoiled food service;²³ abuse of force by officers;²⁴ and deaths attributable to medical negligence.²⁵ Rather than assess possible reforms to address these problems—as the non-partisan Homeland Security Advisory Council advised in late 2016²⁶—the Trump administration quickly implemented changes that exacerbated existing harms. Today, DHS jails approximately 40,000 immigrants daily —more than any administration in recent history²⁷— and holds them longer.²⁸ The administration has publicly embraced the use of prolonged detention for asylum seekers²⁹ and moved to weaken the standards governing conditions of detention.³⁰

The administration seems poised to duplicate Cibola throughout the country. Its goal is clear: by undermining detained immigrants’ access to counsel, the administration ratchets up its removal rates.

Immigrants in detention centers throughout the country face the same frustrations as those jailed at Cibola when they try to find a lawyer. Nationally, fewer than one in every five immigrants in detention is able to find a lawyer.³¹ The Los Angeles Times recently reported that about 30 percent of detained immigrants are jailed more than 100 miles from the nearest government-listed legal service provider,³² with a median distance between the facility and the service provider of 56 miles.³³

Access to counsel is important. Unrepresented, a detained immigrant, who often does not speak English, must develop her own legal arguments for relief eligibility, gather evidence that is often only available from within her country of origin (where she may fear for her own or her family’s safety), complete an application in English, and present a coherent presentation of her case to an immigration judge, all while a government-funded DHS prosecutor argues for her deportation.³⁴ Faced with such a daunting task, immigrants enduring the isolation of detention are far less likely than those living in the community to defend against deportation and less likely to win their cases when they do so. The psychological harms caused by detention, especially for those with previous histories of torture or trauma,³⁵ are so debilitating that even those with the strongest claims to legal protection in the United States often abandon the process and choose deportation instead.³⁶ Detained immigrants with lawyers are 11 times more likely to pursue relief and are at least twice as likely to obtain relief as detained immigrants without counsel.³⁷ A study analyzing the impact of appointed counsel for detained immigrants in New York City found a 1,100 percent increase in successful outcomes when universal representation became available..³⁸

There is no doubt that DHS knows what it is doing. NIJC’s 2010 report Isolated in Detention documented the due process crisis already unfolding in the immigration detention system. At that time, NIJC found that 80 percent of detained immigrants were held in facilities that were severely underserved by legal aid organizations, with more than 100 immigrants for every full-time nonprofit attorney providing legal services.”⁴⁰ The report presented eight recommendations to DHS and the Department of Justice to improve access to legal counsel for detained immigrants.⁴¹ Not one of the recommendations has been adopted or implemented by either agency.

Recently, DHS announced its interest in building new prisons in or near southern Texas; Chicago, Illinois; Detroit, Michigan; St. Paul, Minnesota; and Salt Lake City, Utah. The agency stated its goal was to increase the system’s capacity by up to 4,000 more beds.⁴²Legal aid organizations in these regions sent a letter to DHS explaining that they would have little or no capacity to provide meaningful access to counsel if the government carries out this expansion.⁴³ As of publication of this report, DHS has not responded to this letter nor contacted any of the organizations to assess access to legal counsel.

The administration seems poised to duplicate Cibola throughout the country. Its goal is clear: by undermining detained immigrants’ access to counsel, the administration ratchets up its removal rates.

When the administration flaunts its record rates of deportations, it is telling a story of what happens to immigrants like Christopher and hundreds of others at Cibola who face insurmountable barriers to justice, not describing a legitimate outcome of enforcement of United States law. Jailing immigrants during their deportation proceedings makes it significantly more likely they will be deported, regardless of the merits or strength of their defense to deportation. At Cibola and prisons like it throughout the United States, incarceration has become another weapon in the administration’s arsenal, intended to facilitate mass removals no matter the cost to due process or civil rights.

Recommendations

DHS must close detention facilities like Cibola, where due process is non-existent given individuals’ lack of access to counsel.

Congress must cut appropriated funds for immigration detention, in light of the civil rights and due process crisis within the system.

Specifically, Congress must:

Cease funding to detain individuals where there is no evidence of flight or security risk.

Engage in robust oversight to ensure that when DHS does utilize detention, funding is only available for facilities where there is sufficient access to legal counsel (an established immigration bar) and adequate health care for individuals in detention.

A Note On Methodology

For the survey cited in this report, the National Immigrant Justice Center (NIJC) undertook a census of all the attorneys we could identify who regularly practice immigration law in New Mexico and Texas. The intent was to determine 1) the number of attorneys available to take immigration cases out of the Cibola County Correctional Center and 2) the maximum number of cases each attorney could take at a given time. NIJC staff identified all attorneys in New Mexico who, as of July 2017, were members of the American Immigration Lawyers Association (AILA), the primary membership association for immigration attorneys in the United States (identified using the membership directory at http://www.aila.org/member-directory). Through informal conversations with AILA members and legal aid organizations, NIJC staff added other New Mexico- and Texas-based attorneys to the list who were identified as providing even minimal legal representation at Cibola. NIJC staff and interns reached out to each of these attorneys via email and telephone. NIJC communicated directly via phone or email with an attorney or authorized staff person at all but nine of the 60 offices on the final list. Each attorney was asked whether they were able and willing to provide legal representation to individuals detained at Cibola, for a fee or on a low-cost or pro bono basis, and if so approximately how many cases they could take at maximum capacity. The detailed results of this census are on record with NIJC.

In addition to these census questions, NIJC staff held more extensive interviews with staff members at the following nonprofit legal service providers: Catholic Charities of Southern New Mexico (Las Cruces, NM); Diocesan Migrant and Refugee Services (El Paso, TX); Instituto Legal (Albuquerque, NM); Las Americas Immigrant Advocacy Center (El Paso, TX); the New Mexico Immigrant Law Center (Albuquerque, NM); and Santa Fe Dreamers Project (Santa Fe, NM). Additionally, in June 2017 NIJC staff members visited the Cibola prison, where they spoke with 12 individuals detained at the facility whose insights inspired and contributed to this report. Notes from these conversations are on record with NIJC. Notes from all of these conversations are on record with NIJC.

Acknowledgements

The principal authors of this report are NIJC Director of Policy Heidi Altman and NIJC Director of Communications Tara Tidwell Cullen, with research and editing contributions from NIJC colleagues Keren Zwick, Diane Eikenberry, Mary Meg McCarthy, Claudia Valenzuela, Julia Toepfer, and Isabel Dieppa. NIJC interns Linda Song and Anya Martin also contributed to this report. Sincere thanks for insights and support from Jessica Martin and Rebekah Wolf of the New Mexico Immigrant Law Center, Allegra Love of the Santa Fe Dreamers Project, Yazmin Ruiz of United We Dream, and the detained immigrants whose experiences are described in this report.

All photos credit the National Immigrant Justice Center.”

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

Read the complete report at the link.

NIJC confirms what most of us involved in the immigration justice system already know — that the Trump Administration has “doubled down” on the Obama Administration’s misguided detention policies to create an “American Gulag.” A key feature of the Gulag is using captive so-called “U.S. Immigration Courts” in prisons. Such “captive prison courts” actually are parodies of real independent courts empowered to require Due Process for migrants and adherence to the rule of law. Immigration detention is a national disgrace for which all of us should be ashamed.

But, don’t expect any improvement from the Trump Administration unless the Article III Courts require it or we get a different Congress at some point. (I note that a few Democrats have honed in on this issue and introduced the “Dignity for Detained Immigrants Act” which unfortunately is DOA in this Congress.) Given the performance of the Article IIIs to date in this area, and the Trump Administration’s “quietly successful” program to stock the Article IIIs with right-wing ideologues, I wouldn’t count on that either. On the other hand, I’ve seen even very committed conservative jurists reach their “breaking point” on Government immigration abuses once they become life-tenured Federal Judges and are no longer directly accountable to their right-wing “political rabbis.” Denial of statutory, Constitutional, and Human Rights sometimes crosses over ideological fault lines.

Kudos to my good friends and dedicated defenders of Due Process and Human Rights Heidi Altman and Diane Eikenberry of the DC Office of the of the NIJC/Heartland Alliance for their leadership role in exposing these continuing abuses and making a record for future generations to understand and hopefully act on our current failure to make “equal justice for all” a reality in America and the related failure of our U.S. Immigration Courts to live up to their commitment to use “best practices” to “guarantee fairness and due process for all.”

PWS

12-05-17

TRAC: DECLINING IMMIGRATON COURT REPRESENTATION RATES FOR ASYLUM SEEKERS & DECLINING ASYLUM GRANT RATES SHOW HOW TRUMP ADMINISTRATION IS INTENTIONALLY SHORT-CIRCUITING DUE PROCESS!

==========================================
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE

Greetings. Very recent Immigration Court records reveal that the proportion of asylum seekers who are unable to obtain representation has risen markedly. Ten years ago during FY 2007, only 13.6 percent were unrepresented. Five years ago (FY 2012), 15.8 percent were unrepresented. In FY 2017 the unrepresented figure was 20.6 percent.

At the same time, asylum decisions were up sharply during FY 2017. A total of 30,179 cases were decided by judges last year, a marked increase from 22,312 cases in FY 2016. This is the largest number of asylum cases decided in any one year since FY 2005. While asylum grants increased, denials grew even faster. This pushed the percent who were denied asylum to 61.8 percent. This is the fifth year in a row that denial rates have risen. Five years ago the denial rate was just 44.5 percent.

Without representation, the deck is stacked against an asylum seeker. Statistically, only one out of every ten win their case. With representation, nearly half are successful.

During FY 2012 – FY 2017, Jamaica had the highest denial rate (91.4%), followed closely by Laos (89.9%), the Philippines, (89.7%) and Mexico (88.0%). At the other extreme, the Soviet Union had the lowest denial rate (9.5%), with Byelorussia and Egypt with almost as low denial rates at 11.1 percent each.

More details on national trends, plus the impact of representation status and nationality on asylum outcome, are available in the second of TRAC’s two-part series available at:

http://trac.syr.edu/immigration/reports/491/

To read the first report in the series focusing on judge-by-judge differences in asylum decisions, go to:

http://trac.syr.edu/immigration/reports/490/

In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through October 2017. For an index to the full list of TRAC’s immigration tools go to:

http://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

————————————–

Rather than working on reforms that would increase access to pro bono counsel for asylum seekers, the Administration has intentionally “ramped up” detention and placed so called “Detained Courts” in obscure locations where access to pro bono counsel and ability to prepare and present cases is restricted.

PWS

11-28-17

JOE PATRICE @ ABOVE THE LAW: WE NOW HAVE “SCIENTIFIC PROOF” THAT IMMIGRATION LAWYERS ARE “INCREDIBLY USEFUL” — IN FACT, THEY ARE ESSENTIAL TO DUE PROCESS — So, Why Are Sessions & His Minions Smearing Lawyers & Trying To Railroad More Migrants Through The System Without Fair Hearings?

https://abovethelaw.com/2017/11/we-have-scientific-proof-that-lawyers-are-incredibly-useful/

Patrice writes:

“So instead of fighting whether or not the feds can order cops to bust up the local Motel 6, cities can just hire some lawyers.

This is the lie of every talking head that praises building a wall but adds, with all faux sincerity, that they have “no problem with legal immigrants.” Almost half of the people shuttled through assembly line deportation hearings actually fit within legal immigration protections, but the complexity of the system — not to mention language barriers — make them victims of the bureaucracy.

If that projection is correct, NYIFUP cases result in immigrant victories 48 percent of the time. As Oren Root, director of the Vera Institute’s Center for Immigration and Justice, puts it, that means that of every 12 immigrants who are winning at Varick Street right now, 11 would have been deported without a lawyer.

That finding challenges a widely held assumption about immigration court: that most immigrants who go through it don’t qualify for the types of protection that Congress has laid out for particularly compelling cases. The Vera finding implies that, in fact, many immigrants do deserve relief as Congress and the executive branch have established it — but that hundreds of thousands of them have been deported without getting the chance to pursue those claims.

New York’s program has inspired 12 more cities to adopt the program. It’s put up or shut up time for the Department of Justice — if they’re really committed to proving some undocumented migrant is in violation of the law, then stand up and make that case in court.

Against a real attorney.

Unless they’re chicken.”

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

Read the complete article at the link. I have previously reported on the VOX News Article and the Vera study.

I think Patrice has hit the nail on the head. Sessions, Miller, Bannon and the White Nationalist crowd are biased bullies picking on the most vulnerable and disadvantaged. Like all bullies, they have absolutely no desire to compete fairly on a level playing field.

The Vera report confirms what many of us involved in the field have been saying for years: a significant portion of those going through Immigration Court, probably 50% or more are entitled to be in the US. Without lawyers, such individuals have little or no chance of making and succeeding on claims that would allow them to stay. Since at least one-third of individuals (and a much higher percentage of detained individuals) are unrepresented, we are unlawfully removing tens of thousands of individuals each year, in violation of due process. And nothing aggravates this unfairness more than unnecessary detention (in other words, the majority of immigration detention which involves individuals who are not criminals, security threats, or threats to abscond if they are represented and understand the system).

A competent and conscientious Attoyney General would work cooperatively with private bar groups, NGOs, and localities to solve the representation crisis and drastically reduce the use of expensive and inhumane immigration detention. But, Sessions is moving in exactly the opposite direction, in violation of constitutional principles of due process, practical efficiency, and basic human decency.

PWS

11-13-17

CHICAGO TRIBUNE: MAKING DUE PROCESS WORK — CITY OF CHICAGO PROGRAM RESULTS IN MORE REPRESENTATION IN IMMIGRATION COURT!

http://www.chicagotribune.com/news/immigration/ct-met-immigrants-represented-in-court-20171031-story.html

Vikki Ortiz Healy reports:

“Immigrants in Chicago have seen a dramatic increase in legal representation since earlier this year, thanks in part to a fund established by the city, according to an independent study released this week by researchers at Syracuse University.

According to the report, the percentage of immigrants in Chicago who were represented in deportation hearings spiked from 30 percent in May to 57 percent in August.

“The more representation we have in court, the more we have a balanced system,” said Mary Meg McCarthy, executive director of the National Immigrant Justice Center, a Chicago-based immigrant advocacy group that partnered with the city to help give legal counsel and services to thousands of immigrants threatened with deportation.

The Legal Defense Fund, approved by the Chicago City Council in January, uses $1.3 million in city funds to pay for immigrants’ legal services or to help them navigate other options to try to avoid deportation.

The fund has been used to hire attorneys at the National Immigrant Justice Center and also issue grants to 10 community organizations for outreach. So far, 1,560 Chicago residents have received free legal screenings, and immigrants have had representation in court for 766 cases. Advocates hope to offer legal representation in 1,000 cases and Know Your Rights training sessions to 20,000 people in the first year, according to officials at the center.

“Good legal advice … reduces the chances of (immigrants) being deported to a country where their lives may be in danger or of them being permanently separated from their families,” McCarthy said.

. . . .

The TRAC report showed that immigrants in all pending cases in Chicago and the collar counties had higher odds of representation than those in rural areas of the state — inconsistencies that mirror those in other states. In Cook County, immigrants were represented 72 percent of the time; 77 percent in DuPage County; 67 percent in Lake; 76 percent in Kane; 80 percent in Will; and 76 percent in McHenry. Meanwhile, immigrants in downstate Sangamon County were represented 34 percent of the time, and those in Morgan County were represented 39 percent of the time.

Because the data on legal representation is the first of its kind collected, researchers hope it will help both immigrant advocacy groups and the public understand how effective funds like the one in Chicago are over time, Long said.

“Chicago is part of a movement of trying to come up with methods to provide representation. The natural question is how effective is it? Being able to monitor that … we thought would be very useful,” she said.

Laura Mendoza, an immigration organizer for the Resurrection Project, said many immigrants she works with are grateful to learn there is a fund to help cover the cost of legal counsel. In some cases, immigrants facing deportation need documentation from a police station to prove they are victims of a crime who may qualify to stay. Lawyers and legal advocates walk them into the police stations to help get the needed paperwork.

“That could be incredibly intimidating. They may not speak the language; they may not know how things work,” Mendoza said. “They’re incredibly thankful that there is the ability to be able to get a legal consultation and to get some clarity on the questions that they have.”

Reem Odeh, a Chicago immigration attorney who owns her own firm, said she was glad to see more immigrants gaining access to attorneys because of the complexity of most cases.

“The laws for immigration are so Draconian, which means you forget one technicality or blow one deadline and you may not be able to reopen that case permanently,” Odeh said. “You drop the ball on one element and you could potentially destroy that person’s future for him and his entire family.”

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

Representation in Immigration Court saves lives. Many of the individual human beings that restrictionists like to demean by calling “illegals” actually have a right to remain in the US in some status. And, all of them in the US are entitled to Due Process under our Constitution. Without lawyers, Due Process is unlikely to be achieved.

PWS

11-05-17

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