Human Rights at Home Blog

New Article: Refugeehood Reconsidered: the Central American Migration Crisis

Macedo, Stephen, Refugeehood Reconsidered: the Central American Migration Crisis (Jan. 18, 2023). Abstract below.

“Who is a refugee?” This essay explores the lively debate on this question in ethics, political theory, and international law. The world now has more refugees than any time since World War II, and there may be no area of public policy in advanced Western states more fraught with deep moral and practical dilemmas. Are state persecution and alienage necessary conditions of refugeehood or is mortal peril sufficient, whatever its cause? The essay describes the various moral grounds relevant to claims for refugeehood, including general humanitarian duties, obligations arising from past and ongoing relations and commitments under international law, and the existence of the state system itself. Particular attention is paid to the Central American migration crisis, and the question of reparative obligations on the part of the U.S. arising from climate change and past state policies that have unjustly harmed sending countries. Further complicating the question of what we ought to do, even for progressive policymakers, is the looming threat of right-wing populist backlash.

New Article:The End of California’s Anti-Asian Alien Land Law: A Case Study in Reparations and Transitional Justice

Gabriel “Jack” Chin and Anna Ratner, The End of California’s Anti-Asian Alien Land Law: A Case Study in Reparations and Transitional Justice, 20 Asian American Law Journal 17 (2022). Abstract below.

For nearly a century, California law embodied a rabid anti-Asian policy, which included school segregation, discriminatory law enforcement, a prohibition on marriage with Whites, denial of voting rights, and imposition of many other hardships. The Alien Land Law was a California innovation, copied in over a dozen other states. The Alien Land Law, targeting Japanese but applying to Chinese, Koreans, South Asians, and others, denied the right to own land to noncitizens who were racially ineligible to naturalize, that is, who were not White or Black. After World War II, California’s policy abruptly reversed. Years before Brown v. Board of Education, California courts became leaders in ending Jim Crow. In 1951, the California legislature voluntarily voted to pay reparations to people whose land had been escheated under the Alien Land Law. This article describes the enactment and effect of the reparations laws. It also describes the surprisingly benevolent treatment by courts of lawsuits undoing the secret trusts and other arrangements for land ownership intended to evade the Alien Land Law. But ultimately, the Alien Land Law precedent may be melancholy. California has not paid reparations to other groups who also have conclusive claims of mistreatment. Reparations in part were driven by geopolitical concerns arising from the Cold War and the hot war in Korea. In addition, anti-Asian immigration policy had succeeded in halting Japanese and other Asian immigration to the United States. Accordingly, one explanation for this remarkable act was that there was room for generosity to a handful of landowners with no concern that the overall racial arrangement might be compromised.

New Article: Access to a Doctor, Access to Justice? An Empirical Study on the Impact of Forensic Medical Examinations in Preventing Deportations

Nermeen S. Arastu, Access to a Doctor, Access to Justice? An Empirical Study on the Impact of Forensic Medical Examinations in Preventing Deportations, 35 Harvard H.R.J. (2022). Abstract below.

Year after year, the United States has remained the world’s largest recipient of humanitarian-based immigration applications. Those seeking protection here must navigate a backlogged and increasingly restrictive system, oftentimes without access to counsel. Most individuals applying for humanitarian relief must prove that they survived egregious past harms or fear future harms if the United States were to deport them. In turn, immigration judges and Department of Homeland Security adjudicators act as gatekeepers, making daily decisions about whose pain and suffering is devastating enough to justify granting them status in the United States. For immigrants privileged enough to gain access to them, forensic medical evaluators can play a crucial role in immigration outcomes by documenting narratives of harm, bolstering credibility, and persuading adjudicators to grant relief. However, despite the exponential growth in medical-legal collaborations and requests for forensic medical evaluations in support of immigrants, there is little data about if and how forensic medical evidence impacts adjudicator decision making. The empirical study discussed in this Article—the largest-of-its-kind quantitative study of over 2,500 cases in which Physicians for Human Rights (“PHR”) facilitated medical evaluations on behalf of immigrants—found that 81.6% of individuals who received a forensic medical evaluation between 2008 and 2018 experienced some form of a positive immigration outcome. In comparison, immigration adjudictors only granted relief to asylum seekers an estimated 42.4% of the time overall during this same period. The significant impact of forensic medical evaluations in contributing to a favorable immigration outcome raises questions about whether adjudicators are holding immigrants to overly-stringent evidentiary standards by constructively creating norms that require immigrants to gain access to health professionals with the requisite training to evaluate them. To the extent such evaluations become essential to the successful outcome of the legal case, access to a medical evaluator may indeed translate into access to justice.

 

New Article: Professional Indifference?: How One Case Improves Protection for Immigrant Children in United States Detention Centers

Caitlin Fernandez Zamora, Professional Indifference?: How One Case Improves Protection for Immigrant Children in United States Detention Centers, 20 Nw. J. Hum. Rts. 239 (2022). Abstract below.

This Article discusses the case Doe 4 ex rel. Lopez v. Shenandoah Valley Juvenile Center Commission. This case was a class action brought by unaccompanied immigrant children against the Shenandoah Valley Juvenile Center Commission under § 1983 protection for adequate medical care. The plaintiff class alleged that, among other things, the Commission failed to (i) provide adequate mental health care due to punitive practices; and (ii) implement trauma-informed care. The plaintiffs were immigrant children who fled their native countries due to harrowing circumstances, many of whom struggled with severe mental illness. The district court granted the defendant’s motion for summary judgment regarding the mental health care claim, which the plaintiffs appealed. On appeal, the Fourth Circuit considered which standard should be applied to analyzing a claim regarding the detention center’s level of mental health care. This Article explores the approach and impact of Doe 4, as a case of first impression for the Fourth Circuit and effectively for all circuits with regard to this class of immigrant children. Specifically, this Article discusses whether the majority opinion followed precedent or broke away from it in a way that properly embodies federal law and Constitutional guarantees. This Article also discusses the role of international law in United States courts, particularly related to protections for migrants and children. The Article ultimately concludes that the Fourth Circuit’s decision in Doe 4 was correct and explains why and how it should be further adopted and adapted by other federal courts, to promote an end to the professional indifference that the United States judicial system has normalized with regard to care for juveniles in detention centers.

New Article: The Right to Remain

Timothy E. Lynch, The Right to Remain, Washington International Law Journal, Volume 31 (June 2022) Abstract below.

Article 12.4 of the International Covenant on Civil and Political Rights (ICCPR) states, “No one shall be arbitrarily deprived of the right to enter his own country.” Citizens clearly enjoy Article 12.4 rights, but this article demonstrates that this right reaches beyond the citizenry. Using customary methods of treaty interpretation, including reference to the ICCPR’s preparatory works and the jurisprudence of the Human Rights Committee, this article demonstrates that Article 12.4 also forbids States from deporting long-term resident noncitizens—both documented and undocumented—except under the rarest circumstances. As a result, the ICCPR right to remain in one’s own country is a right that should be particularly valuable to the many people in the world who have lived in, and established a relationship with, a country which is not their country of citizenship—including lawful permanent residents, long-term refugees, Dreamers and other long-term undocumented residents, and people born in countries without birthright citizenship. These people cannot be deported from the countries they call home.

New Article: Zero-Tolerance: The Trump Administration's Human Rights Violations Against Migrants on the Southern Border

Jeffrey R. Baker and Allyson McKinney Timm, Zero-Tolerance: The Trump Administration's Human Rights Violations Against Migrants on the Southern Border, 13 Drexel Law Review 581 (2021). Abstract below.

In 2017, the Trump Administration imposed its policy of zero-tolerance immigration enforcement on the southern border. This policy resulted in the forcible separation of families and the prolonged detention of children in harsh conditions, without due process or adequate resources. The Trump Administration unleashed these policies to deter people from immigrating and seeking asylum, consistent with President Trump’s racist rhetoric and campaign promises. This article analyzes and critiques these policies based on international human rights law, noting the resonance human rights norms find among diverse religious traditions.

The article begins with detailed analysis of the Trump Administration’s policies that divided families and detained children in wretched conditions, in violation of U.S. law. It proceeds to evaluate and criticize these policies under treaties ratified by the U.S., conventions it has signed but not ratified, and established customary international law. In the name of border enforcement and immigration deterrence, the Trump Administration’s policies violated the fundamental human rights of migrants and people seeking asylum in the United States, including the right to family life, rights of the child, and rights to be free from ill-treatment and arbitrary detention. The abrupt and often permanent separation of families, the indefinite detention of children without proper care, and the failure of process in these policies are all stark violations of binding international human rights laws. These policies affront the moral conscience of multitudes, eliciting sustained protest from civil society and faith leaders.

The article concludes with a recognition that international institutions and legal mechanisms may not be adequate to compel the Trump Administration to respect international law, so political and electoral responses are vital to ensure that human rights remain at the heart of the American enterprise. It suggests the accord between religious, ethical perspectives and human rights principles is valuable to reinforcing popular support for these norms. As the world bears witness to these cruel abuses of human rights, Americans must decide whether and how to hold the government accountable for the inherent dignity of all people within the rule of law.

Labor Trafficking: America’s New Slavery

By Emily Horsford, 3L and Student Attorney with the Human Rights at Home Litigation Clinic at St. Louis University School of Law

Labor trafficking is modern-day slavery. People, often immigrants, are forced to perform work through the use of force or fraud. Victims are kept enslaved through violence, threats and coercion. This is an ongoing issue in our world today.

Mario said goodbye to his wife and daughters and began the long, slow walk to freedom. Thirty-three days later, he crossed the border into the United States of America—the land of the free. He came here because economic opportunities in his native country of Guatemala are nonexistent. He came here because America is the land of opportunity; a place where anyone who works hard can succeed. He came here because America promises a refuge for those who yearn to breathe free, for the homeless, for the tempest-tossed. He came here because, to the world, America means freedom.

For Mario, America did not live up to her promises. After several years of transient living around the country, Mario came to St. Louis, Missouri, lured by the promise of a job in construction that included housing. He worked hard. He did good work. He didn’t complain. For three months, Mario worked despite never being paid for his efforts. When his co-workers pressed their boss, he threatened to call the police. Scared of that threat because of their illegal status, the men continued to work for free, once for 23 hours straight. Mario kept his head down and did what he knew how to do: he worked hard.

Then, just a week before Thanksgiving, the boss gathered the mostly Latin American workers together and told them they were fired and evicted from the job-sponsored housing. Mario had nowhere to go. He was still owed thousands of dollars for all of his hard work. Wasn’t this America, the place where you worked hard and were rewarded with success? In confusion, Mario put all his belongings into a storage locker and sought help from a church. The church directed him to an attorney who could help him file a lawsuit to attempt to recover some of his unpaid wages. The case is ongoing.

In the meantime, Mario lives in an apartment with another of the fired workers, Julian, and Julian’s wife and three children. Without a job bringing in any money, Mario lost all of his belongings when he couldn’t pay the storage unit fees. Work has been uncertain and sporadic. Mario hopes the lawsuit will resolve in his favor, giving him some of his wages from the many months of work he did. In the meantime, he waits.

Mario’s story is, unfortunately, not unique. There are thousands of immigrants trafficked each year in America. They are forced to work without pay or in dangerous conditions and when they complain, they are threatened. Fearful of their legal status being discovered, confused about their rights, hesitant to make trouble, they suffer in silence. This is modern-day slavery and it must be stopped. That leads us to the question: What can be done?

In the long term, America needs a comprehensive overhaul of its immigration laws. With partisan gridlock, that may not occur for quite some time but that doesn’t mean all is lost. More immediate solutions are available. President Joe Biden campaigned on reducing trafficking in the United States. We must hold him to those promises. More support should be given to victims’ rights groups including assistance in paths to citizenship.

In 2000, the Victims of Trafficking and Violence Protection Act was passed, creating the T Visa, a visa designed to protect victims of trafficking. Twenty-plus years later, this visa is under-utilized. An emphasis must be placed on helping trafficking victims apply for this visa so they can stay in America and help prosecute their abusers. By cracking down on those who utilize enforced labor, our government can help victims of trafficking move forward in their lives. Then, aid organizations can step in and provide assistance for these victims to become citizens and productive members of American society.

Those who exploit workers must be prosecuted to the full extent of the law and used as an example of the pain and punishment awaiting any who might be considering using trafficked labor. Americans must show the world that we have banished slavery to the history books and it is not tolerated by our citizens today.

For those inclined, there are numerous organizations dedicated to helping trafficking victims that can use your financial support: https://castla.nationbuilder.com/donate; https://donate.polarisproject.org/page/54176/donate/1

May DACA Dreams Come True

Dreamers have been specific pawns in the Administration's anti-immigrant efforts.  The status of DACA youth has been a pawn since immigration "negotiations" began early in the Trump presidency.  When Congress refused to cede to Trump's demands, then the administration took action to strip the Dreamers of protections afforded them by the prior administration.  The Dreamers are US residents who came to the United States as children.  To deport this population means sending these young people to a country of which they have no memory of the country where they were born, and in many cases do not speak the language.   

Finally, on December 4, 2020, Brooklyn Federal Judge Nicholas Garaufis, ordered the government to immediately accept applications from Dreamers for work permits.  This restores Obama Era protections. Let's hope that the Biden administration fast-tracks Dreamers' citizenship 

The Other Heroes

By Guest Blogger Prof.  Hillary B. Farber of UMass Law School

At this moment when our nation is celebrating the heroism of our immigrant work force, who in large numbers are among those the government now deems ‘essential workers’, President Trump is banning almost all migration into the U.S. The truth is immigrants have always been indispensable to our economy and this crisis amplifies that reality.

Immigrants are disproportionately represented among those who are risking their safety, their lives and the lives of their families to transport food to our tables, remove hazardous waste from our medical centers, and sanitize rooms in our hotels so medical workers can isolate from their families and continue caring for our sickest. We hail their heroism, applauding them every night, sponsoring rallies of honking cars down our streets, and filling our windows and doors with colorful rainbows and thank you signs.  A local grocery worker originally from Mexico recently remarked “who would have thought that I would be considered an essential worker, literally risking my life to stock shelves at my local grocery store?” 

Where were these workers a year ago, two years ago, a decade ago? Many of them were here, working as hard as they are today. We took them and their commitment to do these jobs for granted and they were nearly invisible to us. We may have noticed them behind a cart in a hotel hallway or asked them for fresher lettuce in the produce section of our local market. Could we have imagined that they would be the heroes we would cheer and the people whose unwavering work would keep us alive?  We say “it takes a village” but often ignore the thousands, if not millions, of immigrant workers laboring in the supply chain for all of our basic necessities, often silently sustaining our society. Now, the COVID-19 pandemic has shone a bright light on their faces and exposed their dedication. When the busyness of our lives came to a screeching halt we finally took notice of the identities of those whose plight we otherwise ignored as the immigration debate reached a fever pitch in our country. 

The worst of times often bring out the best in people. If we’re honest about who is sustaining us through this hardship, we may find a silver lining of clarity and compassion in our darkest hour. After 9/11 we said “we will never forget” and after the Boston Marathon bombing we were one as “Boston Strong”. When this pandemic is over let us remember and uphold those who have kept the shelves stocked and the hallways clean. Let us be more honest and more accepting of those who drive the engine of our economy and perform the tasks that save lives. Let us acknowledge President Trump’s actions simply play into a xenophobia that distracts from what we have learned about the power of unity in a crisis.

In These Times - Who Are We? What Is Justice?

By guest editor UMass Law Professor Irene Scharf

An editorial in The Boston Globe in late February lamented the “mid-case deportations” that ICE has been conducting in Massachusetts and presumably elsewhere.  Rather than allow the state’s criminal justice system to “do its job” by conducting trials in cases involving serious charges against immigrants already found deportable, ICE has been swooping in and deporting them. It’s unclear from the article whether the Globe editors were more concerned by the failure to provide “justice” for the crime victims, which they frequently referenced, or by the unfairness of these deportations to the accused immigration detainees.

While I of course deplore the acts these crimes involved, as an immigration lawyer and advocate I am deeply disturbed by ICE’s systematic and ongoing attacks on the Massachusetts judicial system.  The Globe editors referred to their hope that the federal courts will address and contain these actions. However, given what we’ve seen recently, it is unclear whether the federal government, acting through ICE, would even abide by a federal ruling.  To me, that is the most alarming issue behind these ICE moves.

There is already sufficient evidence that our judicial system has become severely compromised, that lack of adherence to the rules of precedent, and even of procedure, threaten to take down this third branch of government that helps to avoid lawlessness.  If thwarting of court rulings, currently on the upswing, becomes the norm, it is a small step to “take the law into our own hands” when we have grievances against one another.

A case out of the Seventh Circuit highlights the creeping lawlessness in our judiciary.  In Baez-Saenz v. Barr (947 F.3d 1033 (7^th Cir. 2020)), the Court chastised the Board of Immigration Appeals (BIA), the administrative appellate court for immigration cases, for flouting its remand instructions.  The case involved a Mexican national who appealed the BIA’s denial of his request for a waiver while he sought a U visa (crime victim protection) from the DHS. The Court remanded the case, but on remand, the BIA defied the Appeals Court.  Following Mr. Baez-Saenz’s second appeal to the Seventh Circuit, Judge Easterbrook wrote:

“We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold (at 1035) them in contempt, with all the consequences that possibility entails. …  Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government. …. We acted under a statutory grant of authority to review the Board’s decisions.  … Once we reached a conclusion, both the Constitution and the statute required the Board to implement it.   … The Attorney General, the Secretary, and the Board are free to maintain …      that our decision is mistaken—… But they are not free to disregard our mandate in the very case making the decision. … The Solicitor General did not ask the Supreme Court to review our decision, and the Department of Justice is bound by it.

The Attorney General’s brief … asks us to remand so that the Board may “address … whether an immigration judge may adjudicate an application for a nonimmigrant waiver … in removal proceedings.” The request is bizarre. We have already held that immigration judges do possess this power …. We directed the Board to consider whether the power has been transferred by statute, regulation, or reorganization plan to the Secretary of Homeland Security. The Board chose not to address that question, and we are hardly going to remand so that the Board can write another opinion about whether we erred in construing  8 C.F.R. sec. 1003.10(a). That’s water under the bridge. … we held that the regulation is unambiguous. An agency is entitled to reinterpret an ambiguous regulation, …, but cannot rewrite an unambiguous one through the guise of interpretation. Change requires rulemaking.

The only remaining question is what should happen next. After concluding that an administrative decision is flawed, a court of appeals normally must remand to the agency. …. Yet we have already remanded, only to be met by obduracy. The remand rule is designed to afford the agency an opportunity (at 1036) to have its say on an issue,… The Board had that opportunity and disdained it. Another remand would do little beside give the Board a free pass for its effrontery, while delaying the alien’s entitlement to a final decision. … Baez-Sanchez has waited long enough. ...  The petition for review is granted, and the Board’s decision is vacated. This leaves the immigration judge’s decision in force. The Executive Branch must honor that decision, ….” (at 1037) (emphasis supplied)

More recently, a former Hawaii state judge, James Dannenberg, resigned from the Supreme Court bar because of his lost faith in the Court.  In a letter to Chief Justice John Roberts, the Judge explained his decision:

“... You are doing far more – and far worse – than “calling balls and strikes.”  Your are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law …  It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America." 

One question … might this actually be America?

 

Federal Court Stops Policy Forcing Migrant Returns to Mexico

On Friday the 9th Circuit Court of Appeals entered a nationwide ban on the Trump Administration's practice of forcibly returning migrants to Mexico to await their asylum hearings under the administration's Migrant Protection Policies.  According to the UC Hastings Center for Gender and Refugee Center, the Center along with the American Civil Liberties Union, and the Southern Poverty filed suit against the policy in 2019 and won a preliminary injunction.   "In the months since (the suit was filed) nearly 60,000 asylum seekers have been left stranded in Mexico, where they have faced grave human rights abuses. Human Rights First documented over 1,000 public reports of murder, torture, rape, kidnapping, and other violent attacks against asylum seekers and migrants returned under MPP, a figure that represents only the tip of the iceberg."

“Although the ruling cannot repair the profound pain and suffering that MPP has caused over this last year, we are hopeful the United States can once again stand as a safe haven for the persecuted.”

The full opinion may be read here.

Vaccinating Migrants

In an effort to prevent additional deaths of migrants doctors and others have encouraged vaccination of border migrants. But Custom and Border Patrol refused. CPB's refusal to vaccinate migrants rejected advice from the Center for Disease Control and Prevention that recommended migrants receive flu vaccinations at the earliest possible time.

According to KTAR News: On Feb. 19, a federal judge in Tucson determined that CBP facilities in southeastern Arizona violate the Constitution because the conditions are “presumptively punitive.” In fiscal year 2019, 12,030 individuals were kept longer than the 72-hour limit in that border sector.

"Noting that the migrants held in those facilities are civil detainees and not convicted criminals, Judge David Bury said conditions “are substantially worse than conditions afforded criminal detainees at the Santa Cruz County jail or other jail facilities, where detainees are medically screened by medical professionals; have a bed with cloth sheets, blankets, and pillows … have clean clothing … showers, toothbrushes and toothpaste, and warm meals.”

The organization One Hundred Angels in cooperation with the Mexican Red Cross, organized a clinic to vaccinate migrants who are waiting to enter the US but who remain on the Mexican side of the border.  Willing migrants received chickenpox, measles and flu vaccinations.  Vaccination of children was a priority since several have died while in US custody. 

BorderX

BorderX is a project that incorporates artists from around the world in documenting crisis around the world.  Artists are working at the southwest border documenting the plight of immigrants. The BorderX website says:

"The BORDERx Anthology Project has attracted artists from around the world. Argentina, Egypt, South Africa, The United Kingdom and of course the U.S.A. We are artists and writers united who are willing to stand in the face of oppression and to denounce it in words and pictures. We use comix as our medium and we have partnered with many other organizations to put the current policies on record. By diving deep into the details, we seek to bring context and depth beyond the headlines. The collected works will be assembled and published in both digital and paper volumes and are available through our crowdfunding initiative we are raising funds for the South Texas Human Rights Center who provide water stations, search and rescue as well as forensic recovery for migrants who take the treacherous journey to cross the border in search of a better life. We have also partnered with Project Amplify and Asylum Seekers Advocacy Program (ASAP) to bring sworn testimonies from migrants to the page."

Trump (Somewhat) Rolls Back on Eliminating Medical Deferrals

As reported on Monday,  the Trump Administration had announce in late August that it would suspend the policy of deferred deportation for undocumented immigrants who require life-saving medical treatment in the United States.  The same would apply to immigrants whose family members require treatment.  As reported, 127 Senators signed a letter criticizing the President's decision in addition to public outrage.

Now the Trump administration has reversed its position, at least in part.  The administration announced it would review the medical deferral requests on a case by case basis.  The government announced that it had not yet deported anyone who had received an August 7th letter informing applicants of the deferral's suspension.  Allegedly the applications received as of August 7th will still be reviewed on their merits. But no information was given as to whether the program will be reinstated for new applicants. 

 

Bias In The Digital Age

Previously this blog has addressed issues of human rights in the digital age.  In a recent article, Prof. Sherley Cruz addresses social justice access and biases in digital technology.  Coding for Cultural Competency: Expanding Access to Justice Through Technology.  Here is the abstract: 

Innovations in legal technology are revolutionizing access to justice for individuals who previously had little or no ability to obtain legal assistance. This Article explores how the lack of culturally competent designs within legal technology negatively impacts diverse communities, thereby hindering the ability to expand access to justice. An examination of the underlying theories of access to justice and cultural competency illustrates why it is necessary for legal professionals and technology designers to incorporate culturally competent designs when developing legal technology. In light of ongoing changes in United States’ demographics, and the heightened need to provide access to justice given the current political climate, this Article uses the example of the Latinx community to illustrate how culture impacts the effectiveness of legal technology. Applying cross- cultural competence theory to legal technology allows for the identification of potential risks and provides a critical point of view from which to generate design principles that will increase access to justice for all.

Trump Administration Found in Violation of Flores Settlement

The US Court of Appeals for the 9th Circuit has decided the case brought against the Trump Administration for human rights violations against the immigrant children being held in detention.  The lower court had found the administration in contempt of the 1997 Flores settlement which addressed specifically the treatment of migrant children.  The Court of Appeals affirmed that decision.   The settlement requires the administration to provide safe and sanitary conditions for the children held in detainment.   You may recall that the panel was astounded at the Justice Department's argument that the Flores agreement did not mandate permitting children to sleep or allowing them to wash.  

Judge Marsh Bezon authored the opinion, stating:  “Assuring that children eat enough edible food, drink clean water, are housed in hygienic facilities with sanitary bathrooms, have soap and toothpaste, and are not sleep-deprived are without doubt essential to the children’s safety.”  The lower court had found that the children were not receiving hot, edible or a sufficient number of meals during a given day; lacked clean drinking water, clean bedding, toothbrushes, soap and towels; and endured sleep deprivation as a result of cold temperatures, overcrowding, lack of proper bedding and constant lighting.

Convictions For Kindness

Earlier we reported on the trial of Scott Warren of No More Deaths who was on trial for providing humanitarian aid to migrants crossing the southwestern border.  His prosecution ended in a mistrial.  

Four women, all volunteers for No More Deaths, who left water and food for migrants in the summer of 2017 faced criminal trial this week.  Following a three-day bench trial, the four were found guilty.   The women were charged with misdemeanor crimes based upon their entering protected federal land without a permit and leaving food and water there.  The Washington Post reported: "Prosecutors said they (the women) violated federal law by entering Cabeza Prieta, a protected 860,000-acre refuge, without a permit and leaving water and food there."

Of course, the motivation for the prosecution was the women's aiding migrants, but the prosecution for impermissible entry into federal land is an easier prosecutorial "win" than prosecuting for providing humanitarian aid.  "Aid workers say their humanitarian efforts, motivated by a deep sense of right and wrong, have been criminalized during the Trump administration’s crackdown on illegal border crossings. Federal officials say they were simply enforcing the law. "  More accurately, just following orders.  

Notes From The Border

Prof. Hillary Farber is spending her sabbatical at the Southwest Border.  She sends us the first of her reflections on work with detained immigrants.

Just a bit of background: I have always thought of being a lawyer as a tool to help people. I went to law school to be a public defender and thought I would do that work for a very long time. Opportunities eventually took me in a different direction and, over the years of my teaching career, I have felt this tool becoming blunt. After this last presidential election, it became clear to me that my sabbatical was a moment in time to dive back into the fight for justice that motivated my whole legal career.

I was compelled to go where the need is great and the resources for legal assistance are scarce which led me to this fabulous organization – The Florence Immigrant Refugee and Representation Project. https://firrp.org. The Florence Project provides free legal and social services to detained adults and unaccompanied children facing removal proceedings in immigration court in Arizona. Here, smart and dedicated people are speaking truth to power, and pursuing every legal avenue to seek justice for their clients. They are on the front lines of the family separation crisis and provide legal orientations for thousands of men, women and kids in detention.

I am not an immigration lawyer, and before coming here I was not schooled in immigration law. What I often tell people is that I know how to argue to get people out of jail. I also feel very comfortable in a courtroom, and going in and out of jails and prisons to work with my clients. So there are some transferable skills but my learning curve is huge. It humbles me and reminds me daily of the path my students are on, learning the law and trying it out for the first time.

These past four weeks have exceeded my expectations. My commitment to bring humanity to this migration struggle has deepened, as has my admiration for all the people here and around the country doing this work every day. I am here bearing witness and diving in to advocate for those whose voices and stories need to be told. Whether it is the family waiting at the border in Mexico to come into the United States or the young man who heroically fled his native country from gang violence and extortion only to be detained by ICE and held in a detention facility without bond – these stories need to be told and people’s voices heard.

So I am not leaving here until my tools are sharpened and I have helped as many people as time will allow. My resolve is strong and the opportunities are abundant.

 

ICE Raises the Same Old "Consent" Defense to Claim of Sexual Assaults of Detainees

Sexual abuse of those detained in ICE centers is no secret.  Statistics show that there were 1448 complaints of sexual assault in just over five years with 237 assaults in 2017 alone.  Some of the assaults were on children.  Several employees have been arrested.  This with only 40% of sexual assaults in detention centers being reported by administrators.

Yet in a civil suit filed on behalf of assault victims, ICE  has raised the centuries old defense that the detainee, who was assaulted when detained with her three year old son, consented to the assault.  In this context, however, consent (even if it did exist) is irrelevant because in the detention setting, any sexual contact between an employee ad a detainee is a criminal offense. 

In E.D. v. Sharkey a detainee filed suit because she was assaulted while detained with her three year old son.  Among the defendants are those employees who stood by while the assault occurred and failed to protect E.D. The institutional defendant claims that it should not be liable to the Plaintiff because they are a detention center and not a prison or jail and therefore should not be accountable under the Prison Rape Elimination Act.  

The ACLU has filed an Amicus brief in support of E. D.

 

Government Abuse of Power

by Prof. Dina Haynes, New England School of Law

In October of 2018, the Department of Homeland Security sent a “subpoena/summons” to an immigration attorney. The document stated: “You are requested not to disclose the existence of this summons for an indefinite period of time. The government works for, and at the behest of, the people.” The “subpoena/summons” requested the private attorney to supply “All information related to the Immigration and Customs Enforcement (ICE) memorandum with the subject title of “Litigating Domestic Violence-Based Persecution Claims Following Matter of a A-B-“ dated July 11, 2018; including, but not limited to: (1) date of receipt, (2) method of receipt, (3) source of document, and (4) contact information for the source of the document.” The document was sent by the Special Agent in Charge within the Office of Professional Responsibility at DHS. The Summons cited 19 U.S.C. § 1509, which is a section of the US Code giving authority to Customs Agents to seek records pertaining to improper import or export of goods to or from the United States. The attorney so summoned also happens to be the private attorney who has for decades compiled the daily deluge of laws, cases, regulations, memos and practice changes within government necessary for immigration lawyers to review to stay current on immigration law and policy. He is a lawyer and a journalist.

DHS appeared to be attempting to use authority conferred to it for the purpose of preventing smuggled, untaxed or counterfeit goods into the United States, to force a private attorney, who also happens to be a journalist, to provide information they sought on an internal “leak.”

Every person in the United States should take heed. This blatant misuse of the law, abuse of a position of authority, warrantless subpoenas and use of administrative “summons” to threaten private attorneys is authoritarian in nature and warns of worse erosion of rights to come. How does the Special Agent in Charge of Professional Responsibility within DHS not know that his fishing attempt vastly exceeds his authority? How does he not know that this warrantless “summons” is being gravely misused as applied?   The answer is that he does know, and he doesn’t care. His superiors have consistently demonstrated growing disregard for the rule of law, and for private immigration attorneys.   The Attorney General of the United States has called immigration lawyers “dirty” and stated that we work to undermine the law, when speaking before federal employees; his subordinates.

This culture of impunity, this emboldening of federal employees to make hash of the rule of law, is exceedingly troubling.  

When officers of the federal government feel unfettered by constitutional restrictions placed upon them, we all lose. When lawyers are collectively maligned and undermined and threatened and called names by the “highest lawyer in the land,” the very foundations of the rule of law are destabilized. When individual lawyers are threatened with malicious prosecution or fake subpoenas by federal employees, the will of all lawyers to continue to fight on behalf of the rights of others is diminished. We are being threatened so that we will exercise prior restraint on ourselves. Our speech is being chilled. The Founding Fathers understood that those two principles were central to the effectiveness of constitutional democracy, free from the tyranny of the majority. If we continue to sit back and let federal employees act in this disgraceful manner, we will have no rule of law left when we need it the most.