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BR Clients of the Month- January 2015

5 Jan

Irma and Kenny

At a time of year when we honor togetherness and fresh starts, we are comforted to know that Benach Ragland clients, Kira and her four-year-old son Ricky, have finally been granted asylum and are reunited with their husband/father, Andre, here in the United States.*  This family of faith was tornapart by targeted and systematic violence at the hands of the M-18 gang, the de facto government in Guatemala, all because they preached about peace and encouraged non-violence in their community – in the eyes of the M-18, a message of disloyalty and dissidence that needed to be eradicated.

In 2010, Kira and Andre, a deacon in the local church and the M-18’s main target, decided that he should flee in an attempt to save the family and protect their unborn son Ricky.  They believed and hoped that Andre was the gang’s only target; they were wrong.  Immediately following Andre’s escape to the United States, the gang began its relentless pursuit and persecution of Kira and their son because the gang believes that families breed disloyalty.  They threatened her with rape and murder, restrained her and beat her face bloody on multiple occasions, threatened to cut her unborn son out of her belly, threatened to kidnap Ricky after he was born, and grabbed and held Ricky at knifepoint on multiple occasions.  The gang made their reasons clear: Andre, a man of faith who preaches his message of peace and non-violence against their way of life, is their enemy who must be targeted and punished for his disloyalty and dissidence.  Since Andre was no longer available to target and punish, Kira and their young son Ricky would be his proxy.  By harming them, the M-18 could continue to harm Andre and punish him for his message of peace and non-violence – his disloyalty and dissidence.  Kira went to the police twice, begging for help, but they turned her away, refusing to provide meaningful protection.  After first escaping to her sister’s home, the gang pursued and found Kira there, held her four-year-old son Ricky at knifepoint, and threatened them again.  With no place to hide, Kira and Ricky fled to the United States in search of safety.

After four years filled with horrific and nearly daily violence, followed by a harrowing journey to the United States, Kira and Ricky sought help from a U.S. immigration ofIMG_1537ficer to beg for protection.  Instead of help, these refugees were among the first to be detained at the Federal Law Enforcement Training Center in Artesia, New Mexico, a makeshift detention facility in the middle of the desert, hidden out of sight and out of mind as the Obama Administration sanctioned a series of procedures meant to deport them as quickly as possible right back to the danger from which they had fled.  But the arrival of the American Immigration Lawyers Association’s pro bono project halted the deportation of Kira, Ricky, and the hundreds of other mothers and children detained in Artesia.  Benach Ragland Partner Dree Collopy spent a week volunteering in Artesia to provide pro bono legal services to women and children.  While there, she met Kira and Ricky and was inspired by their courage and strength.  She took their case pro bono, demanding compliance with U.S. and international law and due process on their behalf.

Ricky's additions to Dree's notes.

Ricky’s additions to Dree’s notes.

After five months of detention in inhumane conditions, two lengthy bond hearings, one status hearing, three hearings on the merits of their asylum claim, generous donations to secure an expert witness, Dree’s several trips to Denver and Artesia, and hundreds of pro bono hours by Benach Ragland and the volunteer AILA attorneys on the ground in Artesia, Kira and Ricky have been granted asylum and released from detention.  They are finally safe and have been reunited with Andre in the United States.  2015 is going to be a good year.

Court of Appeals Limits Mandatory Detention

9 Oct

Detention

On October 6, 2014, the U.S. Court of Appeals for the First Circuit issued a decision in Castañeda v. Souza that greatly limits the ability of Immigration & Customs Enforcement to subject individuals to mandatory detention during their removal proceedings.  In Castañeda, the First Circuit interpreted the not very confusing language “when the alien is released” and rejected the Board of Immigration Appeals’ formulation, articulated in Matter of Rojas that the “when released” means “any time after release.  The First Circuit determined that the Board got that wrong and concluded that “when released” means “at the time the individual is released” rather than “any time after release not matter how many days, weeks, months or years later.”  Amazingly, two other circuit courts, the Third and the Fourth, have already upheld the Board’s decision.  Thus, the First Circuit’s decision creates a “circuit split” that may result in the Supreme Court resolving the two differing interpretations.

The Immigration & Nationality Act (INA) allows Immigration & Customs Enforcement (“ICE”) to detain someone without any right to release on bond if they are removable for having been convicted of certain offenses.  This “mandatory detention” causes certain individuals to be held in detention for the duration of their removal proceedings.  They are not entitled to an individualized determination as to whether they present a danger to the community or are not likely to appear for removal proceedings.  The section of the INA that allows for mandatory detention states that DHS “shall take into custody” certain foreign nationals who are deportable on specific criminal grounds “when the alien is released” from criminal custody.  Stewart

For years, individuals have challenged their mandatory detention by arguing that they were not taken into custody “when released,” but weeks or even years later.  By filing actions for habeas corpus in U.S. District Court, individuals obtained decisions from courts nationwide ordering DHS to give the detainee an individualized bond hearing where issues of dangerousness or flight risk could be assessed by an independent judge.   The overwhelming majority of district courts to consider the “when released” language concluded that the Immigration & Nationality Act only subjected those who were taken into custody within a reasonable period of time from criminal custody to mandatory detention.  Courts concluded that mandatory detention did not apply to those who ICE apprehended long after their release from custody and those individuals must be given an individualized bond hearing.  Over the past few years, the government has appealed some of these district court decisions.  The first decision from a Court of Appeals occurred here in the 4th Circuit.  In Hosh v. Lucero, the government appealed a district court’s order that DHS provide Mr. Hosh with a bond hearing in light of the three year gap between his release from criminal custody and his apprehension and detention by ICE.  The 4th Circuit reversed the decision of the district court determining that the Board of Immigration Appeals’ interpretation of the “when released” language was reasonable and not plainly in opposition to the INA and therefore, was entitled to the court’s deference.  About a year after Hosh, the Third Circuit reached the same conclusion in Sylvain v. Attorney General.  Thus, although several district courts across the country rejected the Board’s interpretation, the two circuit courts that considered the question deferred to the Board.

FirstIn Castañeda, the First Circuit determined that the “when released” language did not permit the government to subject an individual to mandatory detention when she was taken into custody ten years after her release from criminal custody.  The First Circuit did not require complete immediacy and stated that ICE’s apprehension must occur within a reasonable period of time after release from criminal custody.  The Court noted the arbitrary nature of mandatory detention and why it offends due process when it is undertaken long after a person completes their criminal sentence:

Despite its years long delay in bringing removal proceedings after the petitioner’s release from custody, the government has offered no explanation for either the delay or the eventual decision to prosecute in these individual cases or for that matter, in the other cases where individuals have been detained years after release.  Indeed, when the district court ordered that the petitioners be given bond hearings, the government actually viewed them as neither dangerous nor likely to flee.  Castañeda was even released on her own recognizance (i.e., without a monetary bond) and before her bond hearing even took place.

Mandatory detention of individuals such as the petitioners appears arbitrary on its face.  We are left to wonder whether the petitioner’s sudden arrest and detention is not to “facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons,” which would offend due process.

The decision in Castañeda creates a circuit split between the 1st Circuit and the 3rd and 4th Circuits.  When federal law is different in different parts of the country, there is a strong incentive for the Supreme Court to step in.  However, the Supreme Court can only step in if the government chooses to appeal.  We will be watching to see what the Department of Justice does.

In each of these circuit court cases, Benach Ragland has submitted amicus (“friend of the court” ) briefs on behalf of the American Immigration Lawyers Association and will continue to do so as long as the issue is litigated.

Montgomery County Maryland Says No to ICE!

8 Oct

MoCo

Great news right out of our own backyard.  Montgomery County, Maryland, the county that surrounds most of Northwest Washington DC and the most populous county in Maryland, announced today that its jails would no longer honor detainers issued by Immigration & Customs Enforcement except under very specific circumstances.  This decision places a vice grip on one of the region’s most reliable ICE enforcement pipelines and is further evidence that local municipalities are rejecting the damage done to communities by the heavy-handed enforcement activities of the current administration.  We answer some basic questions about what this change means.

What is a Detainer?

A detainer is a request filed by Immigration & Customs Enforcement with a jail or prison asking the jail or prison t0o continue to detain an individual beyond their release date so that ICE can assume custody over the individual.

Is this like an “ICE hold?”

Yes, an “ICE hold” is a common name for a detainer.

Are there any rules about detainers?

Yes, under U.S. immigration law, ICE may only request that a jurisdiction hold an individual up to 48 hours beyond their scheduled release date (not including holidays and weekends) for ICE to assume custody of a detainee.

Why does ICE issue detainers?

ICE issues a detainer when it learns that an individual being held in local law enforcement custody may be subject to removal from the United States.  The issuance of a detainer is how ICE expresses an interest in an individual.  It does not necessarily mean that an individual is subject to removal.  A detainer allows ICE to assume custody and determine whether to charge an individual with removal.

Is a jurisdiction obligated to honor ICE detainers?

No.  An increasing number of jurisdictions are rejecting ICE detainers as inconsistent with their own law enforcement prerogatives.  Over 250 jurisdictions including the State of California, New York City, Washington DC, Boston, Denver and San Francisco refuse to honor ICE detainers.

What happens if ICE does not assume custody over an individual after 48 hours?

The facility should release that individual.  The authority to detain an individual beyond their release date is limited to 48 hours.  Municipalities that detain individuals beyond that period are at risk of liability for unlawful detention.

Can an ICE hold prevent someone from being released on bail pre-trial?

Many local judges and prosecutors wrongly assume that a person subject to a detainer can not be released on bail pre-trial.  A detainer does not render someone ineligible for release on bond.  Many jurisdictions have assumed that because a detainer exists, bail may not be ordered.  Sometimes if a person gets bail from a judge, the family has a hard time making the payment because the clerk believes she can not take it due to the detainer.  Individuals eligible for bail should seek bail despite the existence of a detainer.  Once the bail has been made, ICE may assume custody.  However, since an individual will not have been convicted of a deportable offense at that time, ICE’s ability to detain may be limited.  Criminal attorneys seeking bail for clients subject to detainers should coordinate with immigration counsel to pursue the most advantageous strategy for the client.

Why did Montgomery County do this?

In April 2014, Maryland Governor Martin O’Malley determined that jurisdictions in Maryland may face liability for detaining individuals after their eligibility for release.  As counties absorbed the impact of this opinion and sought to protect themselves, counties began to rethink the wisdom of cooperating with detainers.  In August 2014, the City of Baltimore stopped honoring detainers followed by Price George’s County in October.  With Montgomery County, Maryland’s largest county, following suit, the momentum against detainers is unmistakable.O'Malley

Why did Martin O’Malley do this?

O’Malley is widely believed to be running for President as a Democrat in 2016.  O’Malley has clearly chosen to take a more aggressively pro-immigrant stand than other potential Presidential candidates.

ICE Called Him a Terrorist. We Said He’s Not. We Won.

9 Sep

Ragland and Hamid

Our Client of the Month for September 2014 is Abdul Hamid. On July 31, 2014, Mr. Hamid walked out of the Stewart Detention Center in Lumpkin, Georgia and tasted freedom for the first time in more than 15 months. Stewart, an immigration detention center brought to you by the friendly folks at Corrections Corporation of America (CCA), is straight out of George Orwell. Along with the high fences and rolls of concertina wire are guards in crisp blue uniforms and inspirational posters on the walls lauding the CCA’s role in “serving America’s detention needs” and “leading the way in quality correctional care.” Not making this up. But call it “detention” or “custody” or “quality correctional care” all you want. The grim reality is that this place is a prison, situated in a truly godforsaken corner of Georgia more than a 3-hour drive from Atlanta, just far enough to make it very tough for lawyers or family members to visit on a regular basis. Stewart issues color-coded jumpsuits to its residents – red being reserved for the most dangerous inmates, violent offenders, and gang members. Mr. Hamid, a soft-spoken 61-year-old Pakistani gentleman who has lived with his family in the United States for the past 14 years, was made to wear red.Stewart

Mr. Hamid has never been arrested, charged, or convicted of any crime – in the U.S. or elsewhere. He fled Pakistan in 2000 to escape extortion and death threats from a group of thugs associated with the Jamaat-e-Islami political party. When he appeared before an Immigration Judge (IJ) in Atlanta in April 2013, Mr. Hamid applied for permanent residence – a green card – based on an approved visa petition filed by his adult U.S. citizen son. But then his case took an unusual turn. The lawyer representing the Department of Homeland Security (DHS) argued that Mr. Hamid’s actions in Pakistan in 1998-99, when he was assailed by representatives of Jamaat-e-Islami and forced on threat of death to pay a “jaga tax,” amounted to material support for terrorism – rendering him ineligible for a green card, deportable from the U.S. with no relief, and subject to mandatory detention by U.S. Immigration and Customs Enforcement (ICE). According to DHS, certain “evidence” (obtained primarily through internet searches) demonstrated a link between Jamaat-e-Islami – a fundamentalist political party in Pakistan – and Hizb-ul-Mujahideen – a militant group fighting to establish an independent Islamic state in Kashmir, India. The IJ agreed, ordered Mr. Hamid deported, and ICE agents immediately took him into custody and transported him from the court to his new digs at the Stewart Detention Center. Mr. Hamid and his family were stunned and distraught, unsure what had happened or how to correct such a grievous error.

Within days, Mr. Hamid’s son, Nadeem Sheikh, drove from Atlanta to Washington, DC to consult with Thomas Ragland about how to overcome the IJ’s decision and secure his father’s release. Ragland took the case and immediately began preparing an appeal to the Board of Immigration Appeals (BIA). The appeal contended that the IJ had committed a number of errors, including finding that the evidence presented by DHS established a “subgroup” relationship between Jamaat-e-Islami (the political party) and Hizb-ul-Mujahideen (the terrorist group). We argued that DHS and the IJ had failed to distinguish between the various different organizations that exist under the Jamaat-e-Islami banner – in Pakistan, in India, in Bangladesh, and in Sri Lanka – or to recognize that these disparate groups operate independently of one another. We argued further that even if the evidence did establish a subgroup relationship, Mr. Hamid fell within the “knowledge” exception to the material support bar – because he did not know, and should not reasonably have known, that money he paid under duress to the Jamaat-e-Islami thugs in Lahore, Pakistan might be used to support violent activities by an entirely different group, Hizb-ul-Mujahideen, in Kashmir, India. A few days before Halloween 2013, and more than six months after Mr. Hamid began his tenure at Stewart, the BIA agreed and remanded the case to the Atlanta Immigration Court for further proceedings.

In the months that followed, Ragland traveled to Atlanta for half a dozen more hearings in Mr. Hamid’s case. The proceedings were repeatedly delayed by confusion over which IJ should be assigned, by the disqualification of two successive court-appointed Urdu interpreters, by a federal government shutdown, and by a system-wide crash of the Immigration Court’s computer system. Meanwhile, Mr. Hamid stoically endured his imprisonment and the indignity of being transported from Lumpkin to Atlanta in chains and leg irons, being handcuffed throughout his court hearings, and being repeatedly vilified by DHS counsel as an untruthful witness and a supporter of terrorism. Mr. Hamid’s entire family – his wife, his sons and daughters and their families, his grandchildren – attended each and every hearing to demonstrate their tireless support and unwavering belief in his innocence of the government’s charges.

In addition to extensive background research, numerous written briefs, and hours of in-court testimony, we deployed a secret weapon that proved crucial to our defense of Mr. Hamid. Pakistan’s former Ambassador to the United States, Mr. Husain Haqqani, is husain_haqqaniamong the world’s foremost authorities on the politics, history, and economy of Pakistan. He has advised four presidents, held various high-level posts over a long and distinguished diplomatic career, and recently authored a best-selling book entitled Magnificent Delusions: Pakistan, the United States, and an Epic History of Misunderstanding. More importantly, he is a long-time client of Benach Ragland. Ambassador Haqqani volunteered to serve as an expert witness in Mr. Hamid’s case, free of charge, authored a lengthy written opinion and flew to Atlanta to testify in Immigration Court. In off-the-record comments after the hearing, the IJ remarked that he was “very impressed” by our expert, and the DHS attorney griped that we had brought in a “million dollar witness.” Faced with great injustice and overwhelming odds, good lawyers must do what it takes to win the day.

Ultimately, the IJ was persuaded by our arguments and evidence, rejected the government’s contentions, and ruled in Mr. Hamid’s favor. Reversing his prior ruling, he found that the evidence failed to demonstrate a subgroup relationship between Jamaat-e-Islami and Hizb-ul-Mujahideen. After 15 months in prison, thousands of dollars in legal fees, and the traumatizing prospect of being deported to a country he had fled in fear for his life, Mr. Hamid was granted permanent residence and allowed to return home to his family. Justice delayed, but not denied. Our heartfelt congratulations to a very deserving client.

California Drops a Day and Improves the Lives of Immigrants

22 Jul

jerrybrown

In a move that will help thousands of immigrants, California governor Jerry Brown signed SB 1310 into law today.  This law imposes a maximum sentence of 364 days in prison for those convicted of misdemeanors in California.  The law is set to take effect on January 1, 2015.  Under current California law, a person convicted of a misdemeanor may be sentenced up to one year, or 365 days, in prison.  The change of subtracting one day from the maximum sentence can help many people convicted of minor crimes avoid certain detention and removal from the U.S.

U.S. immigration law attaches consequences to many convictions based upon what the potential sentence is or what the sentence imposed is.  Immigration law treats a suspended sentence as the equivalent of a served sentence.  So, an individual convicted of petty larceny who gets a year in prison with a full year suspended is considered to be an aggravated felon because he has been convicted of a theft offense with a sentence of a year.   Even though the sentencing judge s1.reutersmedia.netdid not see fit to incarcerate, the Department of Homeland Security will jail and likely removal such an individual.  The new law goes a long way to preventing this inequitable result.  For example:

  • A noncitizen is deportable for a single conviction of a crime involving moral turpitude committed within five years of admission, if the offense has a potential sentence of one year or more. INA § 237(a)(2)(A), 8 USC § 1227(a)(2)(A).   As of the effective date, a single California misdemeanor conviction will not cause deportability under this ground, because it will carry a maximum possible sentence of 364 days.
  • Conviction of certain offenses becomes an aggravated felony only if a sentence of a year or more is imposed. For example, crimes defined as: crime of violence, theft offense, obstruction of justice, forgery, perjury, receipt of stolen property are only aggravated felonies if the sentence imposed is a year or more.  And, yes, misdemeanors can be aggravated felonies.  However, with the change in California law, misdemeanor versions of these categories of offenses can not be aggravated felonies.  Designation of an offense as an aggravated felony is often very prejudicial to a non-citizen as not only does it establish removability, it causes mandatory detention and serves as exclusion to nearly all forms of relief from removal.

There are myriad other ways that this simple change in the law will aid immigrants and their families.  As Congress remains stuck, inventive advocates are pursuing a variety of creative remedies in a variety of fora to slow down the deportation machine and improve lives for thousands of immigrants, their communities and their families.

 

FOBR Olsi Vrapi Tries to Represent a Child in Artesia, New Mexico

21 Jul

kob ice facility artessia

Olsi Vrapi is a Friend of Benach Ragland who practices in Albuquerque, New Mexico.  He recently found himself on the front line of the battle of how to handle the major influx of refugee children at the Southern Border.  In this chilling blogpost entitled “The Artesia Experience,” Olsi describes his experience visiting his client in the new facility in Artesia, New Mexico where the government is detaining Central American children and families.  His conclusion is brutally honest:

My impression of the Artesia makeshift detention center is that it is a due process travesty.  Is it really coincidence that a detention center was set up overnight in the middle of nowhere where the closest immigration lawyer or non-profit (which by the way can’t provide direct representation) is 3+ hours away?  In the few weeks it has been in operation, there have been no non-profits doing legal orientation programs, there are no non-profits that provide direct representation to those detained there and asylum interviews and hearings are happening so fast and are so short that even the most diligent detainees can’t get counsel fast enough to be advised before they are interviewed or are given any meaningful opportunity to tell their stories.  It appears the government is paying lip service to due process and just going through the statutory and regulatory requirements as fast as possible so they can give a semblance of compliance while the airplane to central America is warming its engines in nearby Roswell.  This is the same as a child being asked to clean his room, and he stuffs everything under the bed to “comply” with the command and ends up making it worse, except in our cases it’s not a matter of putting dirty laundry in the hamper, it’s women and children that can get killed if returned home.  As a father of three small children, I can’t help the kids’ analogies.

To make matters worse, Congress is using the crisis as an attempt to roll back well-established asylum protections.  Yesterday, Dree Collopy wrote about the horrendous legislation being proposed by Congressman Bob Goodlatte (R-VA) that would undermine critical protections for refugees and asylum-seekers.  As bad as the current system is, Congress can make it worse.  The Capital Area Immigrants Rights Coalition has a good summary of the legislation and provides a quick link to contact Congress.

Thanks to Olsi for representing families in Artesia and sharing their story with the world.

We will keep you informed about pro bono opportunities and donation opportunities as this crisis continues to unfold.

 

The Obama Administration’s Border Disaster

30 Jun

kids

Media reports over the weekend indicate that the Obama administration is reacting in the worst way possible to the influx of unaccompanied minors along the Southwest Border.  As the prospect of comprehensive immigration reform dies and leading House GOP members call for removal of Deferred Action for Childhood Arrivals (DACA) grantees, the administration, once again, seeks to placate the most anti-immigrant portions of the population.  Such a move is consistent with the administration’s long-held, and far too long stuck to, policy of ratcheting up enforcement to appeal to the nativists in the House GOP, hoping that this show of good faith would get them to support CIR.  Well, that strategy has not worked ever, yet the administration has chosen to stick with it, even though it means causing untold hardship to children fleeing horrific conditions in their home countries.

The Southwest border has once again become a focal point for the immigration debate.  Since October, over 52,000 unaccompanied minors have been apprehended by U.S. Customs and Border Protection.  Most of these children are from El Salvador, Honduras and Guatemala, where gang violence, extreme poverty and broken homes force kids to make the very dangerous journey to the U.S.  Many of these children have a parent in the U.S., who may or may not be here legally.  And many of these children may have learned that, if you make it to the U.S., you have a chance of staying.  But what is clear is that it is conditions in their home countries that are driving these kids out of their homes and across deserts and rivers.  The know-nothing chorus on FOX News has bleated that the arrival of so many children means that the border is not secure, that the administration has encouraged these children to come to the U.S., and that these children represent a danger to America.  Meanwhile, CBP is overwhelmed with these children.  However, rather than following the law which requires a careful and humane screening process, CBP has embarked on tactics to convince these children to turn back around.  A recent lawsuit against CBP by the ACLU asserts that children are being held in horrific conditions, pressured to go home, and subjected to casual violence.

So, after a month of hesitation and half-measures, the administration comes up with a plan to increase CBP’s authority to expedite the removal of these children.  U.S. law requires CBP to place a child encountered at the border with the Department of Health and Human Services (HHS).  That child will still be placed into removal proceedings, where a judge will determine whether the child has any legal right to remain in the U.S.  Children in HHS custody are often put into the custody of a relative.  Those without relatives are kept in HHS custody in, generally, better conditions than adults in DHS custody.  Many of these children qualify for Special Immigrant Juvenile visas, which are available to abused, abandoned or neglected children for whom a state court has found that the best interests of the child require her remaining in the U.S.  Others may qualify for asylum.  A recent study from the United Nations High Commission on Refugees (UNHCR) estimates that a significant portion of these children meet the legal definition of “refugee,” the starting point for a grant of asylum.  There are systems in place and organizations dedicated to securing these benefits for children.  For example, I serve on the Board of the Capital Area Immigrant Rights Coalition (CAIR Coalition), which provides legal services to unaccompanied minors in the custody of HHS.  Part of CAIR’s funding comes from U.S. government grants.  An increase in those grants would seem appropriate at this time.

The administration’s proposal is a disaster.  It reminds me of the old saying, “If all you have is a hammer, everything looks like a nail.”  In addition to being cruel and heartless, it displays an amazing lack of imagination.  The administration’s response is to make enforcement easier, give children less due process, and increase the authority of an agency, CBP, that has shown time and time again that it can not be trusted with the authority it currently has.  What the administration seeks to do is to treat children from El Salvador, Honduras and Guatemala as it treats Mexican children.  Here is what the law allows CBP to do with Mexican children:

(A) DETERMINATIONS- Any unaccompanied alien child who is a national or habitual resident of a country that is contiguous with the United States shall be treated in accordance with subparagraph (B), if the Secretary of Homeland Security determines, on a case-by-case basis, that–

(i) such child has not been a victim of a severe form of trafficking in persons, and there is no credible evidence that such child is at risk of being trafficked upon return to the child’s country of nationality or of last habitual residence;

(ii) such child does not have a fear of returning to the child’s country of nationality or of last habitual residence owing to a credible fear of persecution; and

(iii) the child is able to make an independent decision to withdraw the child’s application for admission to the United States.

(B) RETURN- An immigration officer who finds an unaccompanied alien child described in subparagraph (A) at a land border or port of entry of the United States and determines that such child is inadmissible under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) may–

(i) permit such child to withdraw the child’s application for admission pursuant to section 235(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1225(a)(4)); and

(ii) return such child to the child’s country of nationality or country of last habitual residence.

Setting aside for a moment that this is grossly unfair to Mexican children, the administration should be pushing for more protection of all children and not less.  The administration is asking for $2 billion to help CBP detain and deport these kids.  This makes the CBP officer at the time of apprehension, the police, judge, jury and executioner.  The administration’s plan does not appear to be asking for additional resources to provide hearings before immigration judges, for interpreters and lawyers for children or to assist the non-governmental organizations that work with the children.  Rather the administration seeks funds to make it easier for CBP to remove kids who may qualify for relief and who may likely face danger in their home country.  Bob Goodlatte and Steve King could not have come up with a more cruel policy.

Another option that the White House apparently never considered is the fact that many of these unaccompanied minors have a parent in the U.S. with temporary protected status (TPS), a status which allows an individual from certain designated countries to remain and work in the U.S. but without any opportunity to bring family or seek residence.  Salvadorans who entered the U.S. before 2001 may have TPS and Guatemalans who entered before 1999 might as well.  Why not ask Congress to amend the TPS statute to allow for admission of children of TPS holders?  Why not ask Congress to covert some of these TPS beneficiaries into residents after over a decade of living here legally? Did anyone even consider these ideas?  Seems unlikely given that the administration’s response is to crack down (hammer meet nail) without any concession to due process or humanity.

Perhaps some of these children are the beneficiaries of petitions and are waiting for a visa.  Conditions in their home country deteriorated to the point that they decided to flee before the decade or so was up before a visa could be granted.  In the past Congress passed laws to grant temporary visas to people waiting in such queues.  But, alas, that was a different Congress and a bolder administration.

Finally, the USCIS Asylum Division has, historically, done a very good job dealing with asylum claims by children.  There are serious protocols that asylum officers must follow in dealing with juveniles and assessing their asylum claims in a generous light seems appropriate.  Yet, instead of providing the Asylum Division with the resources they need to address this humanitarian crisis, more and more funds are being thrown at CBP and expedited removal.  These children have navigated hundreds of miles and faced smugglers, deserts, trains, deserts, rivers and assorted criminals.  The least we can do is listen to their story as to why they did that.

Many have recognized for several months that the know-nothing caucus in the GOP has prevented the House from taking up immigration reform.  The hope, under such circumstances, is that the President would take decisive administrative action to ameliorate the human damage of our dreadful immigration laws.  The administration’s first effort to deal with immigration after CIR has been declared officially dead by the papers of consensus, the Washington Post and the New York Times, fails miserably and mocks the faith that many of us put in this President to do the right thing.

GUEST BLOG: Catholic University Law Students Win Protection for South African Client!

20 Mar

Judy and Tarun

By Judith Muñoz and Tarunpal Dhillon, Student Attorneys with the Catholic University Law School Immigration Litigation Clinic

 

We met our client, Tanya,[i] for the first time on December 18, 2013 at the Baltimore Immigration Court. She stood behind a glass door, in a navy blue jumpsuit, handcuffed and shackled. As she told us her story of survival in South Africa, a few points became very clear about our client: she is a source of inspiration, a fighter, and a seeker of justice. Her story is similar to that of David and Goliath.  She is an individual who, against all odds, dared to question and challenge a powerful, dominating, and resourceful enemy. The enemy in our client’s story is not a single individual but an all-powerful entity, consisting of hundreds of corCorrupt SA police 1rupt men going against the very principle of righteousness they vowed to abide by and the very principle of justice they vowed to uphold – the South African Police. The South African Police conspired with a notorious criminal gang to target and harm our client, Tanya, due to a deeply rooted animosity surrounding the controversial death of Tanya’s brother, a former police reservist.  Tanya had sought answers from the corrupt South African Police regarding her brother’s death, answers the police did not want to give.  For that, she became their target.

Fleeing imminent death threats, Tanya came the United States with a J1 visa in 2005. Once in the United States, Tanya obtained a U visa as a victim of domestic violence. In 2011, however, Tanya’s U visa was revoked after she was found guilty of a criminal offense during which she was acting in self-defense against her abuser. She was placed in removal proceedings before the Baltimore Immigration Court, and ultimately, she was ordered removed to South Africa, the very country she had fled years before. Although she had an appeal pending before the Board of Immigration Appeals, the Department of Homeland Security deported Tanya to South Africa.  In an effort to hide and protect herself from the police and the gang, Tanya relocated and took extreme measures to change her identity. Despite her efforts, however, the police used its mighty resources to track her down. Again, they used the notorious criminal gang to do their dirty work for them. The gang found Tanya and attacked her on two different occasions, threatening her life and destroying any sense of security she had gained by her relocation and change of identity. Tanya moved around, staying in the homes of friends and acquaintances, trying to stay out of reach of the police and the gang, until December of 2013, when she received news that the Board of Immigration Appeals had granted her appeal. The Board remanded her case back to the Baltimore Immigration Court and requested that she return to the United States to litigate her application for protection under the Convention Against Torture.

After hearing our client’s story, we quickly realized the enormous responsibility that we agreed to put on our shoulders. We were to become protectors, fighters-for-justice, and zealous advocates for a woman who feared she would be brutally and viciously attacked and killed by a notorious criminal gang working under the orders of the South African Police. Our most important and challenging task was to establish the relationship and collusion between these two criminal, corrupt entities and relay it persuasively in front of the immigration judge during Tanya’s individual merits hearing.

Corrupt SA police 2

We spent the next three months dedicating our lives to fighting for our client’s life. As law students, the real world of immigration practice had arrived very quickly and was knocking on our door. We made the choice to open that door and step through it to try to save our client. The process was overwhelming and stressful because the stakes were so very high, but at the same time, this case was an opportunity to transition from inexperienced first-time litigators to zealous advocates fighting for justice for our deserving client. We seized the opportunity and have felt a true transformation from students to advocates, a trait that has now become a part of our identities.

The individual merits hearing represented the most difficult and costly law school exam that we agreed to partake in. We agreed, amongst ourselves, to view the outcome as an indicator of our skill level.  We were students, up against an experienced attorney for the Department of Homeland Security.  We had a decision to make: we could either act like students and fall back to our insecurities and uncertainties, or we could step into the real world of advocacy and put everything on the table for our client. We viewed the hearing as our opportunity to fight for Tanya, for justice, and for humanity – everything Tanya was unable to procure in her native South Africa. After months of preparation, there was nowhere else in the world we would have wanted to be other than at our client’s side, defending her and seeking justice.

The hearing consisted of three-and-a-half hours of direct and cross examinations, client and witness testimony, evidentiary challenges, responses to objections by opposing counsel, and answers to tough questions from the immigration judge.  It ended with an oral decision given by the immigration judge. When the immigration judge stated that he was ready to make his decision, we took a big breath and silently prayed. The wait was unbearable and our hearts were beating at an exceptionally high rate, but we knew we had done everything in our ability to fight for our client. When the immigration judge announced his decision to grant our client deferral of removal under the Convention Against Torture, we experienced a type of joy and accomplishment never before experienced by either of us in our lifetime. It hit us: we had saved our client’s life.

Our client’s reaction made the three months of insanity, stress, frustration with complicated legal theories, and uncertainty as students in the challenging world of immigration law all worthwhile.  Tears poured down her face while she repeatedly whispered the words “thank you”. Tanya was released from immigration detention that afternoon, and we were able to walk out of the immigration court building with our client, who was literally jumping and skipping for joy, a free woman who can now live safely in the United States. Walking out of the court with Tanya was an amazing feeling. Fighting for justice to save a woman from torture at the hands of the corrupt South African Police is an accomplishment we will never forget. It was one of the best days of our lives.

The success of our case is attributable to a number of exceptional individuals that worked tirelessly and vigorously with us over the three-month timeframe. We had the support of two amazing supervising attorneys, our professors, Michelle Mendez and Dree Collopy, who taught us immigration law and the skills we needed to practice before the U.S. immigration courts, and prepared us for the countless scenarios that could be thrown at us during the individual hearing. They were our mentors and educators, and were always present as a source of optimism and encouragement. We were also fortunate to have had the opportunity to work with an exceptionally wonderful human being, who donated many hours of her time to work with us as our expert on police collusion in South Africa, Dr. Fran Buntman of George Washington University.  Lastly, we had the tremendous support of our fellow classmates and participants in the Immigration Litigation Clinic at the Catholic University of America Columbus School of Law.

As a direct result of our particDavid-Vs-Goliathipation in Catholic University’s Immigration Litigation Clinic, we were blessed with the opportunity to meet an amazing client who came to us with a David and Goliath scenario, but left us with the confidence to face seemingly impossible odds and the passion to fight for what’s right. For us, the clinic was not just a class…it was a transformation.


[i] Our client’s name has been changed to protect her identity.

Nine Ways Obama Could Make Immigration Law Better Without Bothering to Wake Congress

13 Mar

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The House of Representatives passed the Enforce Act yesterday.  This piece of legislation, which is never going to become law, provides a cause of action to Members of Congress to sue the President for failure to enforce the laws as they see fit.  The Enforce Act is aimed squarely at the President’s Deferred Action for Childhood Arrivals program, which has given hope to so many young undocumented immigrants.  How this vote fits with the immigration statement of principles that the House GOP released in January is beyond us.  When in doubt, votes, much more than “statements of principles,” reflect where Congress truly is.  And the House actually managed to get worse on immigration.  So, in case, it is not perfectly clear- THE HOUSE HAS NO INTENTION OF PASSING ANY MEANINGFUL IMMIGRATION REFORM.  IF THE PRESIDENT WANTS TO BE A CHAMPION OF IMMIGRANTS, HE NEEDS TO DO SO ON HIS OWN.  Got it??Grumpy-Cat

My internet marketing professionals tell me that lists are very effective ways to get readers to a blog.  And cats in a foul mood.

So, here are nine things that the President could do administratively to grant some relief from the deportation machine.  That is, nine things that the President could do without Congress acting.  Any of these steps would ease the deportation crisis and provide relief and assistance to hundreds of thousands of people left hopeless by Congressional inaction.

Now, we have heard a lot from this President that he does not have the authority to simply ignore the law.  That simple statement is true enough.  However, the President does have broad authority to determine how to interpret ambiguous statutory language.  And the Immigration and Nationality Act is pretty darn ambiguous.  For example, Congress has stated that cancellation of removal for people who are not permanent residents is limited to those who have U.S. citizen or permanent resident family members who would suffer “exceptional and extremely unusual hardship” if the applicant were deported.  It is the role of the immigration agencies to define what is “exceptional and extremely unusual hardship.”  Whereas the Board of Immigration Appeals has been pretty stingy with that standard, the agency could depart from such a parsimonious interpretation and create a more generous standard.  The President’s power to fill-in the details and context of statutes was discussed by the Supreme Court in Chevron v. National Resources Defense Council.  In that case, the Supreme Court stated that it will defer to an agency’s reasonable interpretation of ambiguous statutory language.  As a practical matter, where a court finds a statutory command to be ambiguous, it will almost always defer to the agency’s interpretation of the statute.  Most statutory language is ambiguous.  Recently, for example, courts of appeals have found the term “when the alien is released” to be ambiguous as to time.  If an agency’s interpretation conflicts with an ill-expressed Congressional mandate, the Court reasoned, Congress could legislate more specifically.  It is here that the President can use Congressional inaction in his favor.  Since Congress seems incapable of passing any legislation, it is unlikely that the President’s liberalized policies will be overturned by a vengeful Congress.

Another Supreme Court case sheds some light on the powers of Congress vis-a-vis the President.  In INS. v. Chadha, the Supreme Court invalidated a statutory scheme in which the House of Representatives could veto a INS decision to grant relief from removal known as suspension of deportation to a particular individual.  The Court reasoned that the power to decide particular immigration cases has been delegated by statute to the executive and that it violated the Separation of Powers for the Congress to be able to veto a decision regarding a particular individual.  This case shows that Congress may disapprove of decisions that the agency makes, but absent legislation, can not do anything about them.  Again, the difficulty of getting legislation through Congress gives the President a lot of leeway.

Presumably, the President, a constitutional law professor, knows all that, so he is ready to take actions that would dramatically improve the lives of immigrants in America, re-capture his status as “immigration reform champion in chief,” and get himself measured for a monument on the Mall.

  • Parole in place.  This is the big kahuna of administrative reform.  Parole in place is a mechanism that would allow the agency to “parole” individuals who entered without inspection into the U.S.  While parole is normally thought of as something done to allow people to enter the U.S., parole in place allows the government to parole them from within the U.S.  The administration recently did this for the undocumented spouses of members of the U.S. military, but there is no reason why the concept can not be applied to tens of thousands of others.  Through parole in place, people who have U.S. citizen family members or job offers may be able to adjust their status.  Friends of Benach Ragland (FOBRs) Cyrus Mehta and Gary Endelman wrote the definitive piece on parole in place, so we will not go into excessive detail here.
  • Reconsider Matter of Rojas.  In Matter of Rojas, the BIA held that ICE may hold someone as a mandatory detainee regardless of how long it has been since the individual was released from criminal custody when ICE encounters the immigrant.  Many district courts have held that a person is only subject to mandatory detention if ICE apprehends them “when released” from criminal custody.  By reconsidering Rojas, ICE would allow immigration judges to determine whether particular individuals are dangerous or likely to flee before a removal hearing.  This would have the effect of drastically reducing the detained population.
  • Redefine custody.  Alternatively, ICE could interpret “custody” to include alternatives to detention such as ankle bracelets and home monitoring, as many criminal agencies do.
  • Issue a regulation stating that the separation of a parent from U.S. citizen child is, per se, presumptively “exceptional and extremely unusual hardship.”  This would allow parents of U.S. citizens to have more solid claims to cancellation of removal, removing the biggest obstacle to grants of cancellation of removal.  The INS created a presumption of hardship before when it issued regulations underillegal-immigrants-children-deport-parents NACARA allowing certain Central American and Eastern European immigrants to seek suspension of deportation.  The INS issued a regulation stating that NACARA applicants were entitled to a presumption of extreme hardship.  The immigration agency would be free to limit the presumption of exceptional and extremely unusual hardship, but should begin with the recognition that deporting the parent of a U.S. citizen child is an inherently traumatic act with horrific long term consequences.
  • Issue a directive to ICE and CBP stating that, unless significant criminal issues are present, the agencies should decline to enter administrative removal orders and instead seek removal through removal proceedings in immigration court.  DHS issues a wide variety of administrative removals.  Only about one-third of removal orders are entered by an immigration judge.  The rest are issued by ICE either due to reinstatement of a prior removal order, visa waiver overstays, expedited removal of arrivals and of non-resident criminals and voluntary returns.  DHS could issue a directive (not guidance or suggestions but orders) requiring ICE to bring these cases before an immigration judge, where the individual could apply for relief.
  • Issue a directive to ICE attorneys in immigration court to seek two year continuances in all cases in immigration court where there is no criminal ground of removability and no relief.  This would force ICE to work on the hardest cases and clear the backlog of cases where a person has done nothing more than entered illegally or overstayed a visa.
  • Issue a directive that detainers should only be lodged where a person has been convicted of a deportable offense.  Detainers are issued to people who have been arrested regardless of whether there is a conviction.  Removal proceedings are often started due to an arrest that does not lead to any criminal charge because a detainer has been issued.  Limit detainers only to those who have been convicted of a deportable offense.
  • Issue a precedent decision affirming the low standard for the exceptions to the one year rule for asylum.  The law requires an asylum applicant to seek asylum within one year of entry to the U.S.  There are exceptions to this rule and the statute requires that an applicant must prove the applicability of the exception “to the satisfaction of the attorney general.”  This is the lowest legal standard.  Yet, courts routinely hold applicants to a much higher standard.  The Attorney General can issue a decision making it clear to the courts that the exception to the one year rule should be liberally applied.I-821-TPS-Facts
  • Grant Temporary Protected Status to Mexicans, Salvadorans, Guatemalans, Hondurans, Venezuelans, and Ukrainians.  Temporary Protected Status is granted to nationals of countries where there is disaster or upheaval.  It provides individuals already in the U.S. with temporary status, protection against removal, and work authorization.  It is possible to make a cogent claim to TPS for each of those countries.  Mexico and the Central American countries have been beset by drug and gang violence creating a humanitarian disaster on the ground and Ukraine is the flashpoint of a major crisis in Europe.  These are all legitimate uses of Temporary Protected Status.

The House’s action yesterday makes it clear that the House has no intention of moving on immigration reform.  The only thing that the President has to lose is his dwindling support in the immigrant community.  And he loses that by not acting, rather than acting.

Witnessing Justice: Transgender Woman Granted Asylum in Baltimore by FOBR Liz Keyes

22 Nov

This is a guest post by FOBR Liz Keyes, who direct the Immigrant Rights Clinic at the University of Baltimore.

Today was a beautiful day in Baltimore immigration court. A young woman from Honduras, born male but always feeling female inside, won asylum after suffering relentless torment from her earliest days until she fled at age 17. Everyone she ever knew in Honduras treated her with cruelty, from the teachers who brutally punished her, to the classmates hurling slurs, to her father who beat her viciously, and her sister who attacked with her with a machete when she saw our client wearing girl’s clothes. The brutality escalated the older she got, and after being attacked with knives and a gun by homophobic gang members, she finally fled, deeply traumatized by her experience. She knew nothing of asylum in the United States, and did not apply within one year, as the law requires. When she came to the attention of immigration authorities in New Jersey, she was placed in detention for months–and the wonderful non-profit Immigration Equality found her there, filed an initial asylum application for her, and got her out of immigration detention.

Since she had friends in Maryland, she moved here and became a client of the University of Baltimore School of Law Immigrant Rights Clinic. We assigned her case to a second year law student, Jose Perez, who threw himself into the case, interviewing our client many times, finding a psychologist through Physicians for Human Rights who could provide an evaluation of our client’s level of trauma, and developing an extraordinarily comprehensive set of evidence corroborating exactly how bad life was for transgendered individuals in Honduras, as well as a compelling legal brief addressing the complications of the case. Jose could have handed off his work to another student this fall, but he wanted to stay on and see it through–even knowing that his firstborn child was due three weeks before the hearing date.

Today, his work and commitment paid off.

As a clinical teacher, it is hard to let a student stand in the well of the court alone, even when you know how prepared they are. The burden feels too great, and I well remember being in the same position twice as a law student. But he had done his preparation, and as he said in a last email to me last night, “LET’S DO THIS THING.”

So he did. And it went so well that I felt bewildered. Grateful and moved, but bewildered. First, the attorney for the government let him know it was a strong case, and he only had a few reservations. Then the judge said that because the written application was so extensive and detailed, we could skip over much of our planned testimony. Jose asked a few questions about our client’s childhood experiences, eliciting some tremendous emotion, after which he simply asked her if her statement in the record was truthful and correct. She said yes, and Jose moved quickly through remaining issues, including what the client’s hopes were for her life here. This question finally elicited a small smile, as she said she hoped she could marry some day and adopt a child. She spoke of how she wanted to study and work, if the court was kind enough to grant her status here.

And when the government assured the Judge that it had no opposition to asylum, the Judge issued her opinion, welcomed our client to America, and said, “America is grateful you are here.”

The words stunned me. And perhaps I misheard. I tend to prepare for the worst, and imagine every way a case could go off track. So I was already disoriented by how well everything had gone. But this is what I heard, and these words moved me deeply. They seemed to create a perfect symmetry: this young woman who had known nothing but suffering and rejection for the first 17 years of her life, was being accorded respect and welcome by our government, by every single individual in that courtroom.

I know that life for transgender people in the United States remains dangerous and difficult. But this morning was a beautiful, inspiring measure of how far our society has moved toward tolerance and acceptance. The child who had been so unloved was finally welcomed, and not one person this morning stood in the way of that just outcome.

For our client, today meant safety, and the promise that she could start building the life she dreamed of, free from fear of returning to a country where she would likely be killed for being herself.

For my student, it was a beautiful reminder of why he had come to law school, and why he wants to be an immigration lawyer.

And for me, it was a much needed reminder of what justice can look like. It was a privilege to be in that court this morning to observe justice in action. May it always be so. La lucha sigue.