Sunday, September 16, 2018

Canaries in the Coal Mine: How the Government is Treating Immigrants and Their Advocates

By Guest Blogger Prof. Dina F. Haynes of New England Law School





During the summer of 2018, I, like hundreds of other immigrant rights activists, volunteered to work with children and parents who had been separated from one another by the U.S. government upon reaching the border and seeking asylum.   The experience was dispiriting for me, confirming my fears that access to justice for migrants, refugees and asylum seekers is currently undergoing a slow but inexorable execution.

At its most basic level, the locations of and conditions within and around the detention centers, the places where asylum seekers are held – people who have committed no crimes, many of them very young children -- have the effect of limiting the number of people who can afford to volunteer to assist detainees. More specifically, when I compare the conditions and arbitrary rules within these centers with those in other places I have lived and worked, places decimated by violent civil war, I am struck by the fact that conditions in the U.S. are often worse. For example, I have lived in several countries barely past the formal end of violent civil wars, but I could still drink the water there. I lived in the country that had the lowest life expectancy on the planet at the time, but I could still find fresh food to eat. I have visited prisoners in some of the world’s worst facilities, but I was not told that I could not touch or even shake hands with my clients.   I have sat across the table from war criminals and men intent on perpetuating their nativist agendas, but even those war criminals did not police the clothing that I could wear to the meeting.

I have been a human rights lawyer for more than twenty years, and lived all over the world. And yet, in my own country, working as an immigration lawyer volunteering my time in one “family residential center” run by a private prison company and funded by US taxpayers, I was unable to drink the water. Not only was the town’s water supply contaminated from fracking, it regularly tested positive for e coli. I had to stop on my drive in and buy a week’s worth of drinking water. I was encouraged to bring in food for the week as the quality and availability of fresh food was uncertain at best. I was prohibited from wearing open toed shoes, dresses or skirts that showed my knees, or sleeveless dresses. I could not bring in electronics that would have helped me prepare my cases, or medication that I might need, or crayons and things to distract very young children from listening while their mothers told me their stories of rape and domestic violence and dismemberment and violent murder. I could not shake hands to greet my clients, nor hug them to express empathy. Some of these rules, created by DHS and the private prison companies who operate their detention centers, are designed to dehumanize the detainees. Other rules are designed to complicate the work anyone who volunteers to assist those detainees, and to deter them from those efforts.

In the past several years, two private prison companies, GEO Group and Core Civic, sustained by US taxpayers, and emboldened by their multi-billion dollar annual contracts with DHS, have opened up detention facilities in the most remote, inaccessible and uninhabitable parts of the US. The remoteness and inhospitable conditions seem intentional. Located as they are, hours away from grocery stores, hotels and other services necessary for an out of town lawyer seeking to provide representation (or family member of a detained person), the number of skilled representatives who can get to these locations and wait while immigration judges and asylum officers schedule hearings, is limited.

All immigration lawyers have been overwhelmed by the regular changes to immigration law, policy and procedures enacted daily since the Trump Administration came to power. The sheer volume and frequency of these changes indicates that they are designed in part to keep lawyers scrambling to update their knowledge and arguments. People perpetually in emergency mode have a harder time engaging in longer term strategizing and impact litigation. Combined with the remoteness of the centers in which asylum seekers are detained, it looks as if the US government is making every effort to render the representation of immigrants by counsel as difficult, burdensome, costly, and mentally and emotionally draining as possible. It is as if the government of the United States is intent on eliminating public interest lawyering on behalf of immigrants by erecting inhumane barriers to access.

I have worked all over the world as a human rights lawyer, where part of my job was defending the rights of local human rights activists being targeted by their own governments. Now, it appears, I am the target. This statement is not meant to compare the burdens faced by myself and other immigration lawyers in the US with rights activists elsewhere who risk being jailed or killed for their work. It is meant to call attention to the slippery slope that we appear to be on.   Hungary recently outlawed the representation of asylum seekers.   It is now illegal in that country to provide legal advice to asylum seekers and refugees, and those who do can be criminally prosecuted. Those who teach these issues in Hungary have had a tax placed on the instruction, designed to be so burdensome as to eliminate that instruction. How far along this path are we?

Several months ago, in a speech delivered at a federal building, the Attorney General of my own country referred to me and those in my profession, as “dirty”. He was at it again last in September when, speaking to a group of newly invested immigration judges, he said "[g]ood lawyers, using all of their talents and skill, work every day—like water seeping through an earthen dam—to get around the plain words of [immigration law] to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty.” Incomprehensible metaphors aside, he implied that immigration lawyers work to thwart the law, while immigration judges must work to enforce it. The job of an immigration judge is to adjudicate, not to enforce. The job of DHS is to enforce. That is an entirely different agency than the one that the Attorney General heads. As the superior officer of immigration judges across the country, who do work for DOJ and are therefore subordinate to him, he attempted to once again impugn the integrity of immigration lawyers.   The name calling by the “highest lawyer in the land” alone is incredible.   The threat to the rule of law and the implication that he effectively heads not one but two federal agencies is terrifying.  

Immigration lawyers, among them many of my former students, continue to meet the government head on. Despite the name calling, the barriers erected, the cruel and arbitrary daily procedural changes designed to keep everyone off balance, we are persisting. Immigration lawyers are giving weeks of their lives, giving up time with their families and loved ones, to travel to these remote and resourceless places. We should have a system that does not place this heavy burden on a few, but until we have that system, immigration lawyers are working together to support one another, to persist through periods of frustration and hopelessness -- to overcome the hurdles erected by the government in the short term, and eradicate those hurdles in the longer term. It may not yet be apparent to all, but our democracy and our historical role as a country deeply respectful of human rights depends on this work.

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