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BR Has Another New Lawyer!

5 Feb

We are thrilled to welcome and announce the newest addition to our BR family, Elanie Cintron. Elanie has joined us in DC as an associate attorney from North Carolina by way of Brooklyn, New York (where she received countless awards and honors as a law student at Hofstra University, including the prestigious Lesbian, Gay, Bisexual and Transgender Fellowship) and Denver, Colorado (where she immediately set herself apart as a rising star in the immigration field as an associate attorney with powerhouse firm Lichter Immigration).

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(Elanie with her asylum clients from Honduras)

As the child of two U.S. military service members, Elanie learned from her parents a sense of duty and service to our country. Rather than defending our country through military service, however, Elanie has dedicated herself and her career to defending the American ideals of justice and equality as a true advocate for vulnerable populations. Most recently, Elanie completed about six “tours of duty” volunteering at the Federal Law Enforcement Training Center in Artesia, New Mexico as part of the American Immigration Lawyers Association’s pro bono project.

IMG_1535  image1  In Artesia, Elanie represented detained women and children refugees seeking protection from the domestic and gang violence they had fled in Central America. It is in that setting in which BR Partner Dree Collopy met Elanie and was immediately impressed by her skills as an attorney and passion as an advocate for justice. Through her work in Artesia, Elanie won asylum for a woman and her young son from Honduras, who had fled years of horrific domestic violence. Applying her client’s compelling story to the legal minefield of gender-based and particular social group asylum claims, Elanie convinced an immigration judge that her client and her client’s young son merited protection in this country. Upon being granted asylum, Elanie’s clients were released from the horrific conditions in Artesia, the Obama Administration’s detention center that has now been shut down in shame. Living freely and safely in the United States, Elanie’s clients still send her nearly-daily messages of gratitude for her selfless devotion to their cause.

It is this kind of attorney that we at BR seek out to join us in our shared mission. Elanie, welcome to our family! Fig too, of course.

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(Elanie’s dog, Fig)

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.

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.

Victory! BIA finds Domestic Violence Victims May Qualify for Asylum

27 Aug

U.S. Agents Take Undocumented Immigrants Into Custody Near Tex-Mex Border

In a major victory for immigrants, the Board of Immigration Appeals ruled yesterday that women who are unable to leave domestic violence caused by their husbands may qualify as a particular social group for asylum purposes.  This decision brings to an end a lengthy period of uncertainty regarding the viability of claims to asylum by women fleeing domestic violence.  The Board’s decision in Matter of A-R-C-G-, 26 I.&N. Dec. 388 (BIA 2014), establishing clear and controlling law to the nation’s immigration judge that victims of domestic violence can qualify for asylum.  While the law has been moving in this direction for quite some time, there was still a lack of Board precedent obligating immigration judges nationwide to follow it.  While progressive judges cobbled together legal authority from circuit court cases and unpublished decisions, recalcitrant judges used the lack of directing precedent to deny domestic violence claims.  The Board’s decisions removes any uncertainty that victims of domestic violence can obtain asylum in the U.S. due to the domestic violence they suffered in their home country.  The decision could not be more timely as the influx of women and children on the Southern border being detained in Artesia, New Mexico has shone a spotlight on the ability of victims of domestic violence to seek protection under U.S. asylum law.  The decision gives these applicants a potent new weapon and undermines the administration’s ability to remove them with barely a semblance of due process.

The decision is the result of nearly two decades of litigation on the topic of victims’ of domestic violence eligibility for asylum.  This issue has been pushed for all that time by Karen Musalo of the Center for Gender and Refugee Studies at the University of California at Hastings, who conceived the legal basis for the asylum claim and saw through a terrible BIA precedent called Matter of R-A-, which, in the BIA’s first analysis, denied asylum eligibility to victims of domestic violence.  R-A- eventually got settled with Rodi Alvarado being granted asylum but without a precedent decision.  That precedent decision came down yesterday.

In yesterday’s decision, the BIA squarely held that ” ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.”  The Board considered a case where a married woman suffered atrocious abuse at the hands of her husband, who tried to leave the relationship, and who was rebuffed by the police when she sought help.  The BIA considered the development of case law on particular social groups, the facts of the case, and the social context in which domestic violence occurs and determined that the social group of “married Guatemalan women who are unable to leave their relationship” can support a claim to asylum.

Of course, the individual facts and social context of the case are extremely important.  However, the decision gives strong support to the thousands of women fleeing domestic violence by coming to the U.S. and provides hope that there is an alternative to the violence and degradation they experienced in their home countries.

GUEST BLOG: Special Immigrant Juvenile Status: Maryland Closes Gap with Federal Law to Expand Courts’ Jurisdiction. By Michelle Mendez

25 Aug

This blog post was written by FOBR Michelle Mendez, Senior Managing Attorney at Immigrant Legal Service of Catholic Charities of the Archdiocese of Washington.MM

 

On April 8, 2014, Maryland Governor Martin O’Malley signed into law Chapter 96, which, through a small, technical fix that closes a gap between state and federal law, expands the jurisdiction of an equity court to include custody or guardianship of an immigrant child pursuant to a motion for Special Immigrant Juvenile Status (SIJS) factual findings. 2014Md. Laws, Chap. 96. The law expands the jurisdiction of the court by defining a child for the purposes of SIJS factual finding determinations in guardianship or custody proceedings as an unmarried individual who is not yet 21 years of age thus aligning the definition of child with the federal definition. The idea for this change in law arose from the experience of Catholic Charities Archdiocese of Washington Immigration Legal Services staff as they continued to encounter youth with harrowing life situations that rendered them SIJS eligible but who were already 18 years old. This law goes into effect October 1, 2014, but some judges have already begun accepting cases of those who have already reached the age of 18.

 

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What is SIJS?

There are few groups more vulnerable than immigrant children who are SIJS-eligible. As we have seen with the recent surge of unaccompanied minors fleeing Central America, many have arrived in the United States fleeing APphoto_Immigration Obamaa combination of violence, threats, natural disasters, human trafficking, child labor, and abuse, neglect, and abandonment from their families. Though SIJS-eligible, without competent counsel to guide them through the complexity of this family law and immigration law hybrid relief, these children face the constant threat of deportation and without legal status, access to student loans and work authorization, they face significant barriers to becoming stable, productive members of society. That is why it is imperative that we as attorneys know and understand SIJS.

A Special Immigrant Juvenile is an immigrant child who has been declared dependent on a juvenile court because a state court judge has determined that (1) his or her reunification with one or both parents is not viable due to abuse, neglect, or abandonment and (2) it is not in the best interest of the child to be returned to his or her home country. A juvenile court is defined as “a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles,” and can include a juvenile court, family court, probate court, county court at law, or child welfare court. SIJS is the only area of immigration law that incorporates the best interest of the child principle to take into account the special needs of abused, abandoned, or neglected immigrant children. When introducing SIJS back in 1990, Congress designated this task to state juvenile court judges because federal immigration authorities are not equipped to determine the best interests of children. State juvenile judges do not make immigration determinations and instead only determine if the facts required for SIJS are present in a case; U.S. Citizenship and Immigration Services (USCIS) has sole authority to grant SIJS status via the approval of Form I-360 Petition for Amerasian, Widow(er), or Special Immigrant, subject to extensive background and biometrics checks.

SIJS factual findings are issued in state courts in accordance with foster care, guardianship, delinquency, adoption, or sole custody proceedings, meaning that the request for SIJS factual findings must accompany one of these types of filings. Submitting only a motion for factual findings for SIJS will not vest the state court with jurisdiction. Dependency on a juvenile court does not require state intervention; a judge may commit a minor to the care of a private individual through a guardianship or sole custody determination, which was clarified by William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. A finding for SIJS purposes does not require formal termination of parental rights or a determination that reunification will never be possible, but Special Immigrant Juveniles are ineligible from ever sponsoring their parents for immigration status so the “chain migration” arguments do not apply to this relief.

What does Chapter 96 change?

Maryland law already permitted courts to issue SIJS factual findings. However, prior to Chapter 96, juvenile courts in Maryland could only exercise jurisdiction to consider individuals for SIJS up to age 18, which is the age of majority for guardianship and custody matters, even though federal immigration law permits anyone to apply for SIJS who is under age 21. This three-year gap significantly abrogated the federal law and caused undue hardship on the most vulnerable immigrant children. Chapter 96 closes this gap for this discrete class of Marylanders to carry out the will of the federal law on SIJS.

How Does Chapter 96 Benefit Maryland?

By expanding Maryland courts’ jurisdiction when determining whether immigrant youth qualify for SIJS, Maryland will have more stable families and community members. Through guardianship and sole custody proceedings, private individuals who want to take on the full legal and financial responsibilities of youth who have been abused, neglected, and abandoned can do so, providing an adult role model and easing reliance on state resources. At the tender age of 18, adult supervisiMD mapon makes a critical difference – studies show that involvement of surrogate parents is a key factor in educational achievement and avoiding risks such as alcohol and drug abuse, teen pregnancy, and violence. SIJS youth can gain protection against being forced to return to unstable, life-threatening environments as well as obtain legal status, making it easier to qualify for student loans and attend school, learn English, and work legally. These youth become productive members of society, benefiting Maryland’s economy and increasing tax revenue and consumption. Moreover, SIJS proceedings are fiscally neutral to the state: the Department of Legislative Services determined the changes made by Chapter 96 fit within existing judicial procedures and carry no additional fiscal effect.

With children from Honduras, El Salvador, and Guatemala seeking safety in United States and Maryland having received 2,205 of these children from January 1 to July 7, 2014, Maryland will be able to serve the families of these children better than any other state thanks to Chapter 96. Chapter 96 will allow SIJS-eligible children to pursue this relief consistent with the intent of the Congressional framework, and not needlessly close the courthouse door on them on their 18th birthdays. This is crucial because the number of non-profit and private attorneys with SIJS competency do not meet the demand for representation for SIJS-eligible children so the wait lists are long and the cases slow-moving. Thanks to Chapter 96, the abused, abandoned, or neglected undocumented immigrant children who come to Maryland will have better chances and a longer opportunity of becoming documented, fully-contributing members of our society.

To learn more about SIJS, consider taking a case pro bono case from one of the following reputable non-profits with in-house SIJS expertise and a pro bono program offering mentorship and sample materials:

 

Catholic Charities of the Archdiocese of Washington

Immigration Legal Services

Pro Bono Coordinator Jim Feroli, James.Feroli@catholiccharitiesdc.org

 

Kids in Need of Defense (KIND)

Washington, DC Office

Christie Turner, cturner@supportkind.org

Baltimore Office

Liz Shields, lshields@supportkind.org

 

Catholic Charities of the Archdiocese of Baltimore

Esperanza Center

Managing Attorney Adonia Simpson, asimpson@catholiccharities-md.org

 

Capital Area Immigrant Rights (CAIR) Coalition

Legal Director Heidi Altman, haltman@caircoalition.org

*Detained cases only

 

To learn more about how this law came to fruition, visit: https://cliniclegal.org/resources/articles-clinic/maryland-law-expands-eligibility-special-immigrant-juvenile-status

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.

 

America’s Leaders Are Failing the Children

19 Jul

Our country is facing one of its greatest moral challenges in years: how will we treat the migrant children fleeing violence in Central America and seeking refuge within our borders? I know how I want us to treat them. Fairly, humanely, and within the parameters of the anti-trafficking law passed by bipartisan consensus in 2008 and signed by then-President George W. Bush.

UACs

Under the TVPRA of 2008, a child apprehended by Customs and Border Protection (CBP) undergoes initial processing and screening to see if he or she is an unaccompanied child (UAC) from a non-contiguous country, such as El Salvador, Honduras, or Guatemala. CBP must notify Immigration and Customs Enforcement and the Office of Refugee Resettlement (ORR) and transfer the child within 72 hours of apprehension to ORR custody. ORR places the child in the least restrictive setting available that is in the best interest of the child, and then completes a screening to determine whether: (1) the child has been a victim of trafficking; (2) there is credible evidence that the child is at risk if returned; and (3) the child has a possible claim to asylum. The child is not automatically permitted to stay in the United States. Rather, he or she is placed in removal proceedings before an immigration judge pursuant to section 240 of the Immigration and Nationality Act. While proceedings are pending, the child is released to the custody of a family member or to an ORR shelter or foster home. If the child is not eligible for any relief, he or she is ordered removed from the United States and is repatriated.

But this process, which allows for proper screening for trafficking and persecution, as well as fair and full consideration of their legal claims available under U.S. law, and which takes the best interest of the child into consideration, is not what others are advocating. Instead, we have an administration that is prejudging these children’s eligibility for relief and proposing streamlined procedures that would prejudice real claims for protection. Instead, we have Congress focusing its efforts on undermining the legal protections already in existence under U.S. law for these children and curtailing due process. Recently, the Texas-duo of Senator Cornyn (R-TX) and Representative Cuellar (D-TX) have introduced their HUMANE Act, and even more troubling, Representatives Goodlatte (R-VA) and Chaffetz (R-UT) have introduced the Asylum Reform and Border Protection Act, a bill that shows zero understanding of how difficult it is under our current laws to seek and be granted asylum in the United States.

The Asylum Reform and Border Protection Act would eviscerate our already stringent asylum process, strip away the protections that do exist under current law to offer these children a fair chance at due process, and shut out bona fide refugees, returning them to situations of persecution and torture in violation of our domestic and international legal obligations. This legislation would place these children’s fate in the hands of CBP officers, a law enforcement branch with a terrible track record of unaccountability and no transparency, abuse with impunity of those apprehended, and coercion of bona fide refugees to accept removal with no process in lieu of protection. This legislation would subject these children to streamlined procedures, resulting in the removal of children after cursory screenings that have already proven entirely inadequate in identifying genuine refugee claims and the return of these children to dangerous and deadly situations.

Specifically:

  • All children caught at the border would be subject to expedited removal, a process allowing removal without a hearing before an immigration judge if a child has no credible fear of persecution or torture, and which triggers an automatic five-year bar on legal reentry.
  • The screening standard of review for children’s asylum claims would be raised, requiring a child to convince an asylum officer that his or her claim was “more probable than not” in order to even appear before a judge.
  • Under the proposed new definition of “unaccompanied,” all children would be detained until their asylum applications were adjudicated.
  • The arbitrary one-year deadline requiring adults to file their asylum applications within one year of their entry to the United States would be extended to children.
  • Children apprehended at the border could be immediately removed without any asylum screening to a “safe third party country,” such as Mexico, without any agreement from that third party country, as required under current law.

Presenting these changes as “fair” and “humane” is simply offensive. These changes are anything but fair, anything but humane. Using children who have suffered horrific violence and abuse in their home countries, survived a dangerous journey of over 1,000 miles, and arrived in search of protection as political pawns to push partisan agendas is heartless and un-American. We need real leadership, not leaders who decide that treating migrant children from Central America humanely is too difficult, and not leaders who prefer politicking and political posturing to problem solving and standing up for our country’s values.

Our leaders should be working together to secure and implement the coordination and resources necessary to address this major regional humanitarian crisis and ensure due process for children who have braved a harrowing journey to seek safety and protection from violence, persecution, torture, and trafficking. I encourage all AILA members, stakeholders, and constituents to call their Senators and Representatives and implore them not to support the HUMANE Act or the Asylum Reform and Border Protection Act. If this legislation is passed, our country would be turning its back on these children and on our nation’s values.

[This blog post was originally written by Dree Collopy for the AILA Leadership Blog.]