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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)

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.

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.

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 Revised Credible Fear Lesson Plan: Enough is Enough!

25 Apr

Originally published on the AILA Leadership Blog

This is not just a blog post, but a call to action. Over the past six months, we have seen dog-and-pony hearings by Congress and a series of administrative changes to our asylum system that have deviated from the United States’ longstanding obligations under domestic and international law to the detriment of bona fide refugees. The most recent of these deviations is the U.S. Citizenship and Immigration Services (USCIS) Asylum Division’s revisions to its Lesson Plan on Credible Fear of Persecution and Torture Determinations.

dog and pony

Implicit in the core humanitarian purpose of U.S. asylum law is the requirement that it be as effective as possible in offering reliable protection to bona fide refugees. While effectively protecting refugees may seem like a simple concept, the human rights considerations involved in U.S. asylum law often collide with the challenges involved in maintaining the integrity of the application process. It is this collision that led to the development and implementation of the expedited removal and credible fear provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), which took effect on April 1, 1997.

Expedited removal was a direct result of the Congressional perception that individuals arriving at ports of entry with false or no documentation were abusing the asylum system. Nonetheless, under U.S. asylum law – which was derived directly from international law – the government is prohibited from returning refugees to countries where they would face persecution. In an attempt to address the potential for violations of this obligation of nonrefoulement through the implementation of the expedited removal process, the credible fear provisions were also enacted. Under these provisions, rather than being subjected to immediate removal, an individual arriving at a port of entry who expresses a fear of persecution or torture will be referred to an asylum officer for a “credible fear” interview. If the individual substantiates a “significant possibility” she could establish eligibility for asylum under INA § 208, the asylum officer will find her to have a credible fear of persecution. Such a finding grants the individual her rightful day in court, allowing her to present a full asylum claim before an immigration judge in INA § 240 proceedings.

For those who have been following recent developments in U.S. asylum law and procedure, the rhetoric surrounding – largely unsubstantiated – claims that our asylum system is under attack by abuse and calling for sweeping changes that threaten the core humanitarian purpose of U.S. asylum law sounds all too familiar. With a significant and steady influx of refugees fleeing the violence and turmoil stemming from the entrenchment of gangs and drug cartels in Central America, the human rights considerations involved in U.S. asylum law are once again colliding with the challenges involved in maintaining the integrity of our asylum system. Unfortunately, this collision has resulted in a series of changes that have deviated from the United States’ longstanding obligations under domestic and international law to the detriment of bona fide refugees.

                                                                                                                                                   central america

Over the past six months, we have seen border officers overzealously using expedited removal to deny individuals fleeing real persecution and torture the opportunity to seek asylum. We have seen Congress focus its attention on a series of hearings entitled “Asylum Laws and Abuse,” designed to attack those seeking protection rather than the faulty implementation of the expedited removal and credible fear provisions by Customs and Border Protection and Immigration and Customs Enforcement. We have seen the Board of Immigration Appeals, in Matter of M-E-V-G- and Matter of W-G-R-, dramatically increase the evidentiary burden on asylum-seekers while seeking to rationalize a legal test that is irreconcilable with U.S. obligations under domestic and international law. And just last week, we saw the USCIS Asylum Division join in the backlash against the influx of refugees at our borders with a notable narrowing of the “significant possibility” standard for credible fear determinations made by its asylum officers. Is anyone else out there thinking, “Enough is enough!?”

In this most recent development, USCIS revised its April 14, 2006 Lesson Plan on Credible Fear of Persecution and Torture Determinations, which it uses to train asylum officers. In releasing the revised Lesson Plan, USCIS issued a memorandum describing the changes and the reasons for these changes. In explaining the need for these revisions, USCIS notes the significant increase in credible fear referrals to the Asylum Division and its need to allocate more resources to credible fear adjudications than ever before. Instead of recognizing that this increase in resources devoted to credible fear adjudications may be due to the overall increase in individuals seeking protection at our borders, however, USCIS seemingly attributes this increase to its concern that “the application of the ‘significant possibility’ standard has lately been interpreted to require only a minimal or mere possibility of success.” Although USCIS claims that “these modifications…do not change the ‘significant possibility’ standard or alter the screening function of the credible fear process,” in practice these revisions will considerably narrow the longstanding “significant possibility” standard.

The main problems with the 2014 Lesson Plan stem from deviations that thwart the legislative intent behind the expedited removal and credible fear provisions. The legislative history of IIRAIRA indicates that Congress intended the credible fear provisions to be a safety net and the “significant possibility” standard to be a low standard that would catch any potential refugees in that net. The 2006 Lesson Plan previously included several explicit references to this intent, but in the 2014 Lesson Plan, all such references have been removed.

safety net

Moreover, Congress intended the credible fear process to serve as a threshold screening mechanism for protection claims to ensure that, in its implementation of the expedited removal provisions, the United States was still abiding by its longstanding obligation under domestic and international law not to return an individual fleeing persecution to his or her persecutor. The credible fear process was not intended to be a full assessment or adjudication of an asylum claim, but rather, a gateway to the full assessment and adjudication process.

Contradicting this Congressional intent, the 2014 Lesson Plan: (1) directs officers to apply the significant possibility standard through the lens of a full adjudication, (2) emphasizes that a claim that has only a minimal or mere possibility does not meet the “significant possibility” standard, (3) creates a three-prong test that did not exist in the previous 2006 Lesson Plan standard, requiring the asylum-seeker’s testimony to be “credible, persuasive, and…specific”, and (4) includes extensive statements of the current regulations and case law, similar to those discussions included in the Lesson Plans on full asylum assessments and adjudications. These changes seem to require an asylum officer to complete a full assessment of the asylum-seeker’s potential asylum or Convention Against Torture (CAT) claim, rather than a safety net preliminary screening for a potential refugee.

These changes are likely to yield confusion among asylum officers, as well as a blending of the credible fear standard with the full asylum and CAT standards. Furthermore, they will likely lead to officers applying prohibitively high standards during credible fear interviews, creating yet another source for the increasing number of bona fide refugees who are denied the opportunity to seek asylum in the United States. Finally, since these changes are likely to generate assessments that are closer to full asylum and CAT adjudications than screenings for potentially successful claims, these changes are ironically likely to cost USCIS even more time, money, and resources. Notably, USCIS did not consult key non-governmental organizations or non-governmental stakeholders during its revision process.

Although these Lesson Plan revisions may seem minor in the grand scheme of our broken, punitive, and increasingly unworkable immigration system, to me, they signify another drastic deviation from our system’s founding principles and legal obligations. I don’t know about you all, but for me, “Enough is enough!”ENOUGH

As another AILA year concludes and a new AILA year begins in June in Boston, let us re-commit ourselves to working together on all fronts.  Only together can we fill the next six months with developments that restore protection for bona fide refugees and renew our obligations under domestic and international law, while still maintaining the integrity of our asylum system.  This is not just a blog post, but a call to action.

Written by Dree Collopy, AILA Refugee & Asylum Liaison Committee Chair

How Bob Dylan Helped me Understand the Dream 9

28 Jul

Dream 9

“Something is happening and you don’t know what it is, do you, Mr. Jones?

It wasn’t until Tuesday night at a Bob Dylan concert that I saw the limits of my own vision. I had avoided taking a position on the efforts of the Dream 9.  As a lawyer, you hate to see people take actions that can jeopardize themselves.  As as someone who only vaguely knows, but cares deeply about, Lulu, Marco and Lizbeth, I was worried for them.  Worried that emotion, anger, frustration would lead to a lifetime of regret.  That may yet come to pass.

Moreover, it seemed to me that the reaction from DHS would be utterly predictable.  The requests for humanitarian parole would be denied.  They would be subjected to expedited removal and returned to Mexico within a few hours.  What good was done there?  Ah, but the Dream 9 had a trick up their sleeve.  They asked for asylum.  By asking for asylum, the Dream 9 would be detained by the CBP until they could have a hearing on whether they had a credible fear of persecution.  I have no idea whether they have meritorious claims for asylum, but I do know that an honest application, even if a losing application, is not a frivolous application.  The Dream 9 were then transferred to Eloy Detention Center in Arizona.  Eloy is one of the bigger detention centers in the U.S. where immigrants in removal proceedings are housed.  It is a contract facility by the Corrections Corporation of America, a company that believes so little in America that it makes extraordinary profits by detaining people under contract with the government.  Moreover, CCA lobbies hard for draconian and vindictive immigration laws that increase the use of detention in civil, and not criminal proceedings.  Lest a market opportunity be lost, CCA also loves laws like California’s three strikes law, which mandates lengthy jail time upon conviction of certain third offenses, no matter how minor.  In Eloy, the Dream 9 began to meet with other detainees to get their stories out, to shine a light in the darkest of places operated by the government and its privateers.  CCA reacted by placing them into solitary confinement, a practice increasingly viewed as torture, and limiting their access to telephones.  Of course, this is civil detention.  No crime has been committed here.  These are people who are trying to return home and trying to seek the U.S. government’s protection from a fear of harm in Mexico.

CCA fingerman

Whether the Dream 9 intended to or not, they have exposed the profound ugliness of the immigration detention complex.  Young adults who have lived their entire lives in the U.S. have sought to return home, claimed a fear of persecution in their home country and are being held in solitary confinement and deprived of communication with the outside world.  They are being held by a system that treats all immigrants like criminals and is fed by an unholy trinity of corporate greed, government subservience and Congressional posturing.  These are the laws.  They are unjust, immoral and corrupt.  The Dream 9 are  heroic for their willingness to endure these deprivations and for risking so much to expose this system.

“I was so much older then, I’m younger than that now.”

Some have said that the Dream 9 got what was coming to them.  That they knew that this would happen and, therefore, what is happening to them is just desserts.  This is the poking the tiger theory of political action.  However, I think that analogy is wrong.  More appropriate are the people who say that women who dress in provocative ways invited their sexual assaults.  This theory states that there is evil in the world and we are best not to court it.  This theory wrongly fails to focus on the acts of the one committing the wrong and focuses on the one set upon.  It is the rapist that deserves our scorn.  It is the detention industrial complex which deserves our recrimination. Very little has been gained in the world by not confronting evil.  It is only when evil is confronted head on that it wilts in front of the power of justice and right.

It has also been said that the Dream 9 are jeopardizing immigration reform.  As a supporter of the passage of S.744, I am very concerned about the fate of the bill.  While I am in favor of the bill, I am disappointed that it does little to address those problems that the Dream 9 have sought to expose.  The unholy alliance between private prison contractors and Congress, the revolving door between DHS and the privateers, and the use of detention in a civil system remain unchecked, and possibly even enhanced.  It is a flawed bill, but, on balance, worth supporting.  The Dream 9 are reminding us of the failures of our efforts to show the basic inhumanity of the detention system.  If the bill passes, many will think that immigration is “done.”  As long as the gulag archipelago exists, our systems required comprehensive reform and the Dream 9 remind us of that.

The Dream 9 have shown courage in seeking to expose the dark underbelly of immigration reform- what is actually done, what has been left out.  They fit within a great American tradition of civil disobedience against unjust laws.  The reaction of the power structure has been the same both times- excessive force.  It is not firehoses and German Shepherds today, but solitary confinement and prolonged detention.

I did not understand that this would be the outcome of these efforts, but as Bob sang “I was so much older then, I am younger than that now.”

How would a Supreme Court ruling striking down DOMA affect immigration?

27 Mar

Theya & Edie

One of the biggest immigration cases of the current Supreme Court terms is not about immigration at all.  Today, March 27, 2013, the Court heard arguments in U.S. v. Windsor, a case that is about the validity of a same-sex marriage and its recognition under U.S. law.  In 2007, Edie Windsor married her longtime partner, Theya Speyer in Canada, which allows same-sex marriage.  When Speyer died in 2009, Windsor was hit with a $363,000 tax bill that she would not have been required to pay if Speyer had been a man.  Federal law passed in 1996, the Defense of Marriage Act (DOMA), prohibited the federal government from recognizing Windsor and Speyer’s marriage and disallowed Windsor from claiming an exemption to the federal estate tax.  Windsor sued and prevailed in the U.S. Court of Appeals for the Second Circuit.  The government, now being represented by conservative members of the House of Representatives because the Justice Department refuses to defend the Act, sought Supreme Court review and the Justices heard the case today.  A decision is due by June.  According to Supreme  Court guru and editor of the SCOTUSblog.com, Tom Goldstein, there appears to be the votes to invalidate DOMA.  Given our confidence in Tom Goldstein’s analysis, we provide our own analysis how the demise of DOMA would affect immigration law.

First, DOMA prohibits the federal government from recognizing same-sex marriages legally performed in U.S. states.  Currently, there are nine states, Massachusetts, Connecticut, Vermont, New Hampshire, Maine, New York, Iowa, Maryland, Washington and the District of Columbia, that allow same-sex couples to get married.  Presumably some of those marriages would be between an American citizen and a foreign national.  However, while an American citizen can file an immigrant petition on behalf of their foreign national opposite-sex spouse, DOMA prevents the approval of an immigrant petition by an American citizen in a same-sex marriage.  Although the marriage between the two men or two women is perfectly legal in the state in which it was performed, DOMA relieves the federal government from recognizing that marriage.  Therefore, a U.S. citizen can not sponsor their foreign same-sex spouse for residence.

The inability of a U.S. citizen to sponsor their foreign spouse has led many binational couples to pursue very unconventional solutions to live together in the U.S. We have seen individuals take the long, difficult and expensive route to seek their residence because the simple path is foreclosed.  In addition, we have seen adoptions between partners, the establishment of businesses to bring their spouse-employee to the U.S., and desperate resort to fake marriages.  When a law causes good people to break the law, there is often something wrong with the law.  If DOMA is struck down, a U.S. citizen could file an immigrant petition on behalf of their same-sex spouse and have the same expectation of approval as a heterosexual couple has.

Second, same-sex spouses could serve as “qualifying relatives” for relief from removal.  Foreign nationals facing removal often can seek to avoid removal by applying for relief from removal.  Many of these forms of relief require a demonstration of hardship to a U.S. citizen or permanent resident spouse.  In the past, one member of a same sex couple could face removal and not be eligible to apply for relief due to the absence of a spouse, regardless of how long that individual were in a relationship with an American of the same sex.

Third, it may help multinational corporations transfer employees more easily.  U.S. law provides for temporary visa for foreign employees needed in the U.S.  Spouses and children of the foreign employee are entitled to derivative visas.  However, same-sex spouses do not get the same benefit and key employees do refuse transfer to the U.S. due to the inability of their same-sex spouse to join them.  DOMA’s prohibitions deprive U.S. business of workers they have determined they need.

DOMA’s demise would be a very good thing for the development of immigration law.  The pernicious effect of DOMA on the lives of thousands of Americans and their partners/ spouses has led Immigration Equality, the nation’s leading LGBT immigrant rights organization, to file suit on behalf of five gay binational couples challenging DOMA in the immigration context.  Those cases are on hold pending the Supreme Court’s decision in Windsor.  We are hopeful that the Supreme Court makes the Immigration Equality suits moot.

Hey FAU! Drop GEO!

20 Feb

geo-group-splash-13

Yesterday, after receiving a gift of $6 million, Florida Atlantic University announced that it was renaming its stadium “The Geo Group Stadium,” after the for-profit prison company, best known for operating detention facilities on behalf of Immigration & Customs Enforcement.  It is remarkable that any university would name a stadium after a prison company, but simply stunning that Florida Atlantic University, which sits in South Florida, a community that has been decimated by the overuse of civil immigration, would be so tone deaf as to think this was a good idea.  Although $6 million can certainly affect one’s “hearing,” FAU’s renaming of its stadium displays a failure of a university’s most cherished obligation, to empower students to make intelligent, ethical and moral decisions in a complex world.

FAU is a public school with over 30,000 students and boasts that 44% of its students are “minority or international students.”  Twenty-three percent of FAU students identify as “Asian” or Latino.”  And FAU sits in Southern Florida, where GEO operates a notorious link in the immigration gulag, the Broward Transitional Center, in FAU’s hometown of Boca Raton.

Universities have long been at the forefront on civil and human rights issues.  Universities nurtured the civil rights movement, the women’s and gay liberation efforts.  Universities divested from South Africa during apartheid and universities have led the charges against foreign sweatshops that made apparel sold in college bookstores.  And it is no surprise that universities have been actively involved in the immigrant rights movement.  Leading educators have stood up for the DREAM Act, have supported efforts to get individuals out of detention and deportation proceedings, and have led urgency to the need for a better system for employment-based immigration.  So, why would FAU accept a donation and so prominently highlight a company who makes it profits off the maintenance of an immigration detention apparatus that is morally dubious if not downright repugnant?

The GEO Group operates 73,000 “beds,” but it is not the Best Western.  “Beds” is corrections-speak for “places where detainees can try to sleep.”  It has a ignominious track record.  Before they were GEO, they were they were the Wackenhut Correctional Corporation.  British journalist Greg Palast wrote of Wackenhut’s operation of private prisons in New Mexico, “New Mexico’s privately operated prisons are filled with America’s impoverished, violent outcasts — and those are the guards.”  The Wackenhut name was so tarnished with scandal that the board changed the name in 2003.   Yet, transforming the way that they did business was much more elusive. Some of GEO’s greatest hits include:

In addition, the GEO groups lobbies for punitive immigration laws and resists efforts to introduce more discretion for judges to release detained individuals.  After all, the trough must be refilled.  It has a very cozy relationship with ICE.  Just last week, we learned that a former ICE bureaucrat David Venturella, who had some ambitious ideas about pumping up removal numbers, has left ICE for his payday at GEO.  The revolving door between government and for profit incarceration is quite lucrative for ICE bureaucrats, but there is no such door for detainees.

It is simply stunning that a university would agree to name a stadium after this behemoth.  It is especially galling in South Florida, where brave immigrant activists Marco Saavedra and Viridiana Martinez infiltrated the Broward Transitional Center to document abuses and conditions.  Would FAU name their stadium after the Bushmaster assault rifle? Or after Phillip Morris (rebranded as Altria)?  No university in their right mind would ever be associated with such corporate pariahs.  The goal for immigrants rights communities is to make the name of GEO as toxic as those names.  The devastating impact that GEO has had on the immigrant community in South Florida simply makes it an unacceptable choice for naming rights at a stadium.  Especially one in South Florida.  FAU must know that GEO is as much a pariah as gun manufacturers and cigarette pushers.  How many FAU students have been detained by GEO?  How many FAU student’s parents and loved ones languished in GEO’s dungeons?  How many kids never got a chance to attend a football game because GEO got them first?

Dream Activist has started a petition.  Please sign.  Please share on all your networks.  While FAU may be intoxicated with GEO’s money, they need to be reminded that their community or “customers” reject GEO’s profiteering on detention misery.

Opportunity Lost- Administration Seeks Supreme Court Review of De Osorio

26 Jan

On the same day that the immigration world was abuzz with news that the President would unveil his immigration reform plan next week, the administration filed a brief to preserve the unnecessary family separation caused by its cramped  understanding of the Child Status Protection Act reflected in the Board of Immigration Appeals decision in Matter of Wang.  The juxtaposition of the prospect of common sense immigration reform with the wholly unnecessary appeal of the U.S. Court of Appeals for the Ninth Circuit’s decision in Cuellar de Osorio v. Mayorkas provides significant doubt that the administration really understands the pain caused to American families by the immigration laws and the decisions that the administration takes on a daily basis that make those immigration laws worse than perhaps Congress even intended.  When the administration is more restrictive then Congress, that is a sorry state of affairs.

Enough editorializing.  We can write more about what a disastrous decision this was for the administration once emotions are less raw.  For now, we will focus on what happens.

The administration has filed a petition for a writ of certiorari to the Supreme Court to review the decision of the 9th Circuit.  A writ of certiorari is a statement from the Supreme Court that they will review a case.  “I will review” is the basic Latin translation of certiorari.  By petitioning for the writ, the government is asking the court to review a case.  Review at the Supreme Court is discretionary, meaning that the Supreme Court does not review all cases in which certiorari is sought.  In fact, the Supreme Court rejects the overwhelming majority of cert petitions filed each year.  The Supreme Court grants only about 2% of all petitions for certiorari. That might be comforting, but the odds are improved when the petitioner is the Department of Justice, as it is here.  In addition, other factors, such as the split between circuit courts to have reviewed the CSPA, and the national implications of the decision are factors that indicate that the government’s petition for a writ of certiorari in de Osorio are better than the 2% average.

The Supreme Court will vote on whether to hear the case.  Four justices must vote in the affirmative to hear the case. It is difficult to say when the Supreme Court will rule on whether to grant certiorari.  A good discussion of Supreme Court procedure can be found here. If the Supreme Court denies the petition for certiorari, the decision of the Ninth Circuit will stand.  If the Supreme Court grants the petition, it will receive briefs from the parties and all sorts of other interested people and organizations.  It will hold oral argument.  It is unlikely that the Supreme Court will hold oral argument before October as the Court recesses from June to October.  A decision would likely come about a year from now.

So, there remain two more opportunities to end this struggle.  The first chance is whether the Supreme Court grants cert.  The second is when, if it grants cert, it decides on the case.

There remains substantial hope.  The lawyers handling this are some of the best in the business.  Many other interested parties will weigh in.  Benach Ragland will continue to be a part of this litigation and continue to advocate for sane immigration laws.  Also, cert is rarely granted.  The government still has an uphill road to follow.  This is a setback and not a defeat.

Someone(s) at ICE Needs to Be Fired

11 Jan

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Those of us on the East Coast woke up this morning to the news that Maria Arreola and her son Heriberto Arreola were arrested in their home Thursday night by Immigration & Customs enforcement in Phoenix, Arizona.  Another day in immigration, where ICE enters people home’s homes and removes individuals who have done little more than entered into or remained in the country without permission.  Yep, this was a normal case except that Maria is Erika Andiola’s mother and Heriberto is her brother.  And Erika is one of the most, to paraphrase Junot Diaz, activistingest activists of activism on immigrant rights and reform and by the time ICE officials in Washington had their morning coffee, their inboxes were full of email, the phones full of messages and their press representatives scrambling to figure out what happened in Arizona.  Why is it always Arizona?

Well, it did not take long for the ICE brass to realize something was dreadfully wrong.  After all, the Director of ICE states that ICE has priorities and those priorities were securing the homeland, protecting the national security, keeping our communities secure, and maintain the integrity of the immigration system.   Memos have been written!  Trainings have been held!  Testimony has been given!  ICE is going to focus on the worst of the worst.  ICE is going to engage in smarter law enforcement and target those who threaten our national security and our public safety.  Fifty something women who entered illegally and never left and their teenage son are not considered priorities!

So, what happened in Phoenix?  Was this the action of local ICE agents who were just going about business as usual?  Was this the action of local ICE agents who had an axe to grind against Erika Andiola?  Did they even know that Maria was Erika’s mother?  If they knew, did they clear this with headquarters?  Did they consult the guidance on enforcement priorities before acting?

Evidence seems to point to another circumstance where ICE agents in a district far away from Washington went about their business without regard to the multiple expressions of policy from headquarters.   As readers of this page know, much of the ICE bureaucracy has been in open rebellion against the political leadership since the President took office and his ICE Director assumed controlIn addition, by mid morning, ICE had reversed itself.  An ICE spokeswoman stated: “One of two individuals detained by ICE in Phoenix, AZ has been released. The other individual will be released imminently. Although one individual had been previously removed from the country, an initial review of these cases revealed that certain factors outlined in ICE’s prosecutorial discretion policy appear to be present and merit an exercise of discretion. A fuller review of the cases is currently on-going. ICE exercises prosecutorial discretion on a case-by-case basis, considering the totality of the circumstances in an individual case.”  Maria was on a bus heading to Mexico when she learned of the stay of removal.  Looks like Phoenix ICE was trying to get her out as fast as possible before Washington could react.

I really hope that there was a lot of anger at ICE headquarters when they learned of the actions.  I hope that phones were slammed down and much screaming occurred.  I hope that people within ICE headquarters said “This is it!  This is the last straw.  Heads are going to roll!”  By now, it should be perfectly clear to the ICE political leadership that they are dealing with a rogue agency of bureaucrats who are in open contempt of the policy decisions of their bosses.  Moreover, the ICE bureaucrats do not have the courage to quit their positions and make a political stand.  They sabotage from the inside.  This is known as contempt and insubordination and it can no longer be tolerated.  ICE Director John Morton should demand the resignations of the Phoenix Field Office Director and anyone else who participated in this tragicomedy.  And if he can not do this, the President is the one who should be demanding Morton’s resignation.