Tuesday, August 23, 2022
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.
Wednesday, August 10, 2022
United States Signed Los Angeles Declaration on Migration and Protection, Joined Twenty Other Countries in Vowing Safer Migration
By Anezka Krobot, rising 2L at St. Louis University
Earlier this summer, the United States joined Argentina, Barbados, Belize, Brazil, Canada, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Panama, Paraguay, Peru, and Uruguay in Los Angeles to present and sign the new Declaration on Migration and Protection. The Declaration outlines four pillars that each government has committed to upholding: (1) stability and assistance for communities; (2) expansion of legal pathways; (3) humane migration management; and (4) coordinated emergency response.
Along with signing the Declaration, the U.S. has promised a set of concrete deliverables for each pillar. For the first pillar, stability and assistance for communities, the U.S. will announce $314 million in new PRM and USAID funding for stabilization efforts in the Americas, including support for socio-economic integration and humanitarian aid for Venezuelans in 17 countries of the region.
To support the second pillar, expansion of legal pathways, the U.S. will launch the development of a $65 million U.S. Department of Agriculture (USDA) pilot program to support U.S. farmers hiring agricultural workers under the H-2A program, provide 11,500 H-2B nonagricultural seasonal worker visas for nationals of Northern Central America and Haiti, roll out new Fair Recruitment Practices Guidance for Temporary Migrant Workers with the cooperation of major employers, including Walmart, and commit to resettle 20,000 refugees from the Americas during Fiscal Years 2023 to 2024. The U.S. will also resume and increase participation in the Haitian Family Reunification Parole Program and resume the Cuban Family Reunification Parole Program.
For the third pillar, humane migration management, the U.S. will announce a multilateral “Sting Operation” to disrupt human smuggling networks across the Americas and improve the efficiency and fairness of asylum at the border. As for the fourth pillar, coordinated emergency response, the U.S. will be involved in the early-warning system that will be implemented to alert the involved countries of large cross-border movements.
“The Americas region is facing a human mobility crisis that is unprecedented both in its complexity and scale. No country can address this situation on its own,” said UN High Commissioner for Refugees Filippo Grandi. “The Los Angeles Declaration builds upon existing frameworks and brings us closer to a continent-wide coordinated response based on the principles of international cooperation, solidarity and respect for human rights, as set out in the Global Compacts on refugees and on safe and orderly migration.”
Some organizations have been more wary of the Los Angeles Declaration. For example, the Los Angeles Declaration has been compared to the Valletta Action Plan signed in 2015 between European and African states, which the EU defines as “a set of political and operational measures to enhance cooperation between African and European countries with the aim to provide a framework for humane and sustainable management of migration on both sides of the Mediterranean”. In reality, the EU’s implementation of the Valletta Action Plan has focused on containment and securitization, instead. It’s unclear whether the Los Angeles Declaration will follow the same fate.
Monday, November 8, 2021
Event: 11/10 Webinar: Refugees and Asylum in USA: Review of Domestic Interpretations are at Odds with International Guidance
Wednesday November 10, 2021, at 12noon ET, the American Bar Association will host a webinar entitled Refugees and Asylum in the U.S. & Review of Domestic Interpretations at Odds with International Guidance. This webinar will review the differences between the Refugee and Asylum processes (which includes Withholding of Removal) in order to provide clarity to new practitioners about the start contrasts between the two USA refugee programs and to inform on international law compliance. This program’s speakers will focus on two topics:
Topic 1: The Hon. Paul Grussendorf
Paul Grussendorf has worked with both the refugee and asylum programs in the United States and abroad. He headed a law school legal clinic at the George Washington Law School representing asylum seekers, served as an Immigration Judge handling asylum cases, worked as a Supervisory Asylum Officer with the U.S. Department of Homeland Security Office of Citizenship and Immigration Services [CIS], as a refugee officer with Refugee Affairs Division of USCIS, and as a refugee officer and supervisor with the UN Refugee Agency (UNHCR).
Topic 2: The Hon. Jeffrey Chase
Jeffrey Chase is a retired Immigration judge for New York City. He has written extensively about the inter relationship of international law sources with the U.S. national law when administering cases involving asylum and refugee applications. He has a blog entitled Opnions/Analysis on Immigration Law. He coordinates The Round Table of Retired Immigration Judges, an informal group of Retired Immigration Judges from both the trial and appellate level, who weigh in on topics relating to the administration of justice by the Immigration Court. The Round Table files amici briefs, and has issued position papers and testimony on issues affecting due process and the administration of justice by the Immigration Courts.
For more information and to register for this webinar, visit: https://americanbar.zoom.us/webinar/register/WN_72UYwCvkT8Cnih3XEaj-6Q.
Tuesday, September 21, 2021
On Thursday September 23, 2021, at 9am ET, the first day of the Annual Strategic Litigation Roundtable 2021 will take place virtually, co-hosted by UNHCR, HIAS, Asylum Access and, this year, the new Global Strategic Litigation Council for Refugee Rights.
The first panel will provide an opportunity to share insights on recent legal issues in different jurisdictions. In the second session, we are glad to introduce the Global Strategic Litigation Council for Refugee Rights which will serve as a hub for activists seeking to use strategic litigation and related legal advocacy to advance the protection of refugee rights and the consistent and progressive development of international law worldwide. The third panel will explore a few of the litigation challenges on COVID- 19 related border closures and ensuring the inclusion of refugees and asylum-seekers in COVID-19 relief grants.
Monday, September 20, 2021
Events on 9/21: ABA Listening Event on White House Gender Policy Council & Get to Know the ABA Commission on Immigration
Two ABA events are being held tomorrow that might be of interest.
First, the ABA Commission on Domestic & Sexual Violence and the White House Gender Policy Council are holding a listening event on the White House’s development of a National Action Plan to End Gender-Based Violence on Tuesday September 21, 2021, at 2:30pm ET.
- Vivian Huelgo (she/hers/ella), Chief Counsel, ABA Commission on Domestic & Sexual Violence
- Professor Andrew King-Ries (he/him), Chair, ABA Commission on Domestic & Sexual Violence
- Rosie Hidalgo (she/hers/ella), Senior Advisor on Gender-Based Violence and Special Assistant to the President, White House Gender Policy Council
- Carrie Bettinger-Lopez (she/hers/ella), Special Advisor, White House Gender Policy Council
To register and for more information on House Gender Policy Council's National Action Plan to End Gender-Based Violence, please visit https://americanbar.zoom.us/webinar/register/WN_FdBlLL-QTJ-KiwYuP7RKaA.
Second, the ABA Commission on Immigration is holding a webinar to present on the Commission’s work both nationally and locally in California and the Commission’s valuable resources available to practitioners on Tuesday September 21, 2021, at 3pm ET. Panelists include:
• Wafa Hoballah, WJH Law Group, APC
• Wendy Wayne, Commission on Immigration Advisory Committee and Director, CPCS Immigration Impact Unit
• Stephanie Baez, Pro Bono Counsel, ABA Commission on Immigration, ABA Commission on Immigration
• Adela Mason, Director, ABA Immigration Justice Project
To register and for more information on the ABA Commission on Immigration event, please visit: https://americanbar.zoom.us/webinar/register/WN_niTbTm-QQIit9RpXSVWD6A.
Monday, June 28, 2021
From July 23-25, 2021, a multi-faceted virtual conference will be held to bring together advocates, community organizers, academics, practicing lawyers, community leaders, and others to discuss the policing and criminalization of neighborhoods. The Conveners of the conference include =the Earl B. Gilliam Bar Association, Pillars of the Community, Community Advocates for Just and Moral Governance (MoGo), The UC Irvine Law School Criminal Justice Clinic, and Detours Mentoring Group, Inc., San Diegans for Justice, and the Peace and Justice Law Center.
Scheduled presenters include:
- Alex S. Vitale, Policing and Social Justice Project, Brooklyn College
- Alex Scott, University of California, Riverside
- Babe Howell, CUNY School of Law
- Blinky Rodriguez, Communities in Schools
- Dave Smith
- David Brotherton, John Jay College of Criminal Justice
- David Pyrooz, University of Colorado Boulder
- Fareed Hayat, CUNY School of Law
- Francisco Romero, CORE
- Gaby Hernandez, Chicanxs Unidxs
- James Nelson, Dignity and Power Now
- James Spady, Soka University of America
- Jose Valle, Silicon Valley De-Bug
- Kevin “Twin” Orange, Advocates for Peace & Urban Unity
- Kimberly Howard
- Lex Stepling, Dignity and Power Now
- Melvyn Hayward, Chicago CRED
- Meredith Manchester Esq.
- Michael Saavedra, Youth Justice Coalition
- MK Kaishian, Brooklyn Defender Services
- Nalya Rodriguez, University of California, Irvine
- Robert Weide, Cal State Univ. Los Angeles
- Sean Garcia-Leys, Peace and Justice Law Center
- Skipp Townsend, 2nd Call
- Taylonn Murphy Sr., Tashana Chicken Murphy Foundation
- Tina Padilla, Breaking Through Barriers to Success
- Urban Peace Institute
For more information and to register for this conference, visit https://decriminalizingneighborhoods.org/
The early bird conference pricing ends July 5th.
Tuesday, June 22, 2021
By Chris Hegwood, Rising 2L at St. Louis University School of Law
On June 21, 2021, Robert F. Kennedy Human Rights (RFK), Immigration Services and Legal Advocacy (ISLA), and a coalition of fifteen immigrant rights organizations submitted a complaint to the Inspector General of the U.S. Department of Homeland Security requesting an investigation into the human rights violations at the for-profit run Pine Prairie ICE Processing Center, located two hours northeast of Baton Rouge, Louisiana.
The thirty-one-page complaint, found here, details systemic human rights violations, including violations of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, which the United States has ratified; the First, Fifth, and Fourteenth Amendments to the United States Constitution; and ICE’s own policies within the Performance Based National Standards 2011 (PBNDS 2011), all discovered through a joint investigation of the facility by RFK and ISLA.
During interviews, detainees described conditions that include lack of access to safe food and potable water – being served expired milk, moldy bread, and discolored water with visible debris; unsanitary conditions – cells and showers with ant infestations and no toilet paper; lack of protection against COVID-19 – inability to social distance, no personal protective equipment and failure to follow CDC’s COVID-19 guidance.
The complaint outlines recommendations and requested a response from the Department of Homeland Security by July 21, 2021.
Tuesday, June 15, 2021
Event: 6/16 ABA Webinar on Feminist Perspectives on the US Response to the Crisis at the Southern Border
Tomorrow, June 16, 2021, from 12:00 – 1:30pm ET, join the American Bar Association Group on International Law for a webinar on the intersection of immigration, human rights, and inequality. The distinguished webinar panelists are: Deborah Anker, Blaine Bookey, Devon Cone, and Bardis Vakili. More information on tomorrow’s presentation is available here.
As part of the ABA’s three-session Global Women Series taking place this week, tomorrow's panelists will discuss the humanitarian crisis at the southern border of the United States, the disproportionate impact on women and children seeking refuge in the US, and ways that a feminist policy agenda can support the Biden-Harris administration’s response.
To register for this free event, click here.
Thursday, May 27, 2021
Forced sterilizations and other non-consensual gynecological procedures performed on migrant women detained at Georgia’s Irwin County Detention Center
By Hugh Fitzgibbon, Som-Mai Nguyen, and Catalina Ramirez Palau, Law Student Representatives, Transnational Legal Clinic, University of Pennsylvania Carey Law School
On May 20, 2021, Secretary of Homeland Security Alejandro Mayorkas directed ICE to sever its contract with the Irwin County Detention Center (ICDC). This announcement followed a public whistleblower complaint filed September 14, 2020 against U.S. immigration authorities and ICDC detailing human rights violations committed against immigrant women held at ICDC, including nonconsensual hysterectomies performed by a government-contracted doctor. The complaint sent shockwaves through the media. 42 U.S. senators immediately called on the DHS Inspector General to investigate, and in January 2021, the UN Special Rapporteur on Migrants, together with 8 other human rights bodies, responded with a communication to the U.S. outlining their grave concerns. As of May 2021, all women at ICDC had been deported, released, or transferred, However, the government’s systemic failure to prevent abuse in its detention centers does not end with the closing of ICDC. While a hard-won victory resulting from years of organizing and advocacy, the post hoc termination of individual facilities cannot undo the harms inflicted upon these women — nor, as we know from history, will it stop the same from happening again. Nothing short of ending immigration detention will.
Based on the detailed account of a nurse employed at the center and the testimonies of several victims, the September 2020 complaint included credible and substantiated allegations of nonconsensual sterilizations and other invasive unnecessary gynecological procedures performed on women detained at ICDC, as well as general abuse and medical neglect.. At least 57 women treated by the same doctor between 2018 and 2020 underwent or were pressured to undergo unnecessary treatments without informed consent. The nurses allegedly communicated with non-English speaking patients by Googling translations, flagrantly undermining the women’s ability to give informed consent. “Everybody he sees has a hysterectomy – just about everybody,” the whistleblower claimed. A 29-year-old victim reported that she agreed to a dilation and curettage procedure to remove an ovarian cyst, but when she woke up from surgery, she discovered that one of her fallopian tubes had been removed — a procedure for which she never gave consent. Another woman reported undergoing a hysterectomy without being given the opportunity to decline or to consult with her family beforehand. One woman reported hearing from other detainees: “He just empties you all out.” These accounts are only several of many harrowing allegations from women held at ICDC.
These forced hysterectomies are not an aberration in the United States’ cruel history of sterilization abuse, both in detention settings and otherwise, and particularly as a means of racist, ableist, and socioeconomic oppression. In Buck v. Bell (1927), the Supreme Court upheld a Virginia law allowing the compulsory, eugenic sterilization of institutionalized people if the state determined it would benefit the “health of the patient and the welfare of society.” Infamy notwithstanding, Buck has not been overturned. Roe v. Wade (1973) cites it as an example of how the Court has not recognized an “unlimited right to do with one's body as one pleases.” In 2001, the Eighth Circuit cited Buck to argue that “involuntary sterilization is not always unconstitutional.” Legitimized, sterilization without consent continued and continues to be used to regulate reproductive freedom. Throughout the 1960s and 1970s, federally funded programs were used to coercively sterilize thousands of Black women by threatening termination of welfare benefits or denial of medical care; Indian Health Services sterilized at least 25% of Indigenous women between the ages of 15 and 44 without consent; and Los Angeles County U.S.C. Medical Center systematically performed tubal ligations on Spanish-speaking women without consent. The trial judge in Madrigal v. Qulligan (1978) wrote: “One can sympathize with [the women] for their inability to communicate clearly, but one can hardly blame the doctors for relying on these indicia of consent which appeared to be unequivocal on their face.”
Reproductive justice concerns not only barriers to abortion, but all aspects of economic, social, and political power relating to decisions about conceiving, delivering, and rearing children. Such justice is fundamentally incompatible with carcerality. As another example, many prison officials have used restraints on pregnant people. In Villegas v. Metropolitan Govt of Nashville (2013), Juana Villegas was arrested during a traffic stop when she was 9 months pregnant and held in custody for ICE after she was determined to be undocumented. When her water broke, she was taken in handcuffs and leg restraints to a hospital, where she delivered her baby while shackled to the birthing bed. The Sixth Circuit found “the right to be free from shackling during labor . . . not unqualified” because a woman in labor could nevertheless be a flight risk. Despite attempted changes in federal policy, as well as Georgia’s 2019 Dignity Act, which prohibits the shackling of pregnant people for six weeks after giving birth, the Southern Center for Human Rights reported in April 2021 that women at Lee Arrendale State Prison were shackled and/or placed in solitary confinement during their immediate postpartum period.
The reproductive injustice of non-consensual sterilizations and other unnecessary gynecological procedures performed on migrant women in ICE custody at ICDC is part of a much broader and deeper story of migrant dehumanization in the U.S. In immigration detention, people face medical mistreatment, poor sanitation, overcrowding, physical and psychological abuse, poor nutrition, and sexual violence – all laid bare by the COVID-19 pandemic. The system is designed to be punitive and to deter immigration, which is fundamentally antithetical to the protection of migrants’ health. Detention is part of the overly securitized response to immigration which facilitates the erosion of human rights, as are ICE’s co-optively named “Alternatives to Detention,” which expand surveillance but have not decreased the number of people in detention (unlike true, community-based alternatives to detention). This violative environment is compounded by the increased privatization of migrant detention in recent years: 81 percent of people detained in ICE custody are in private facilities. Privatization invariably compromises care due to profit-making motives, and the necessary desecuritization and deprivatization of the immigration system should be our takeaway from this case. The experiences of migrant women in ICDC further demonstrate why immigration detention must end. As a first step, the Biden administration’s plan to phase out the use of private prisons must extend to the immigration detention system.
Editors' Note: This post is cross-posted on the Reproductive Rights Prof Blog
Tuesday, April 27, 2021
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
Wednesday, March 17, 2021
New Article: Family in the Balance: Barton v. Barr and the Systematic Violation of the Right to Family Life in U.S. Immigration Enforcement
David Baluarte, Family in the Balance: Barton v. Barr and the Systematic Violation of the Right to Family Life in U.S. Immigration Enforcement, 27 Wm. & Mary J. Women & L. 33 (2020). Abstract below.
The United States systematically violates the international human right to family life in its system of removal of noncitizens. Cancellation of removal provides a means for noncitizens to challenge their removal based on family ties in the United States, but Congress has placed draconian limits on the discretion of immigration courts to cancel removal where noncitizens have committed certain crimes. The recently issued U.S. Supreme Court decision in Barton v. Barr illustrates the troubling trend of affording less discretion for immigration courts to balance family life in removal decisions that involve underlying criminal conduct. At issue was the “stop-time rule” for measuring the requisite seven years of continuous residence for LPR cancellation of removal. A sharply divided court read the relevant statute very differently, and a five-justice majority interpreted the stop-time rule to further limit the discretion of immigration judges to consider noncitizens’ family ties as a defense against removal. However, modern international law doctrine suggests that customary international law is the law of the United States and should be applied to resolve questions of statutory meaning under the Charming Betsy rule of statutory interpretation. This Article lays plain the systematic nature of the violations of the human right to family life in the U.S. system of removal and argues that the U.S. Supreme Court erred when it failed to mitigate this harm in Barton v. Barr.
Tuesday, December 8, 2020
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
Friday, March 20, 2020
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 (7th 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?
Sunday, March 1, 2020
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.
Monday, February 17, 2020
Writing in The Hill, Dree K. Collopy(adjunct professor at American University's Washington College of Law) reminds us of the promises we made to children under the Declaration of the Rights of the Child, adopted by the UN sixty years ago. " Among other rights, children must be given the means for normal development; hungry children must be fed; sick children must be nursed; orphaned children must be sheltered; children must be put in a position to earn a livelihood; children must not be exploited; children must be the first to receive relief in times of distress. Children in need must be helped. "
Collopy notes that thirty years later the UN adopted the Convention on the Rights of the Child. The best interest of the child standard was adopted at that time. The author notes that despite these commitments today we have the highest rates of displaced children, estimated to be over 35 million. Noting the US maltreatment of refugee children the author notes "As families and children have fled to the United States in search of safety, they have been denied universally recognized rights, and the U.S. government is erecting every potential barrier to keep them from accessing protection."
To read the full op-ed click here.
Monday, September 30, 2019
Judge Dolly Gee of Los Angeles blocked permanently the Trump administration's plan to detain children indefinitely. The administration's proposal, which the judge referred to as "Kafkaesque" in parts, would violate the Flores agreement. Under Flores, children are to be released within twenty days of the initial detainment. The judge ruled that only Congress can change the terms of the Flores Agreement.
The New York Times reported "Administration officials said that the effort to allow families to be detained indefinitely was an attempt to avoid having to either separate families or release them while they waited for their cases to be heard. " Opponents say that the administration's proposal is part of a plan to stop immigration by separating children and treating them cruelly.
This policy has been unsuccessful to date and has done nothing but cause anguish among families and create a generation of children who are traumatized by the loss of their parents and kept in cages that do not permit any significant play and deprive the children of the sensory comforts they need to feel safe and to flourish.
Wednesday, September 4, 2019
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.
Sunday, February 17, 2019
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.
Tuesday, November 6, 2018
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.
Wednesday, October 31, 2018
President Trump is sending troops to the US – Mexico border. The announcement attempts to resuscitate republican candidates, and stir up his base to vote. Trump once again is focusing on immigration and immigrants as the source of all troubles for the alienated (or alienating) voter.
Part of his plan is to send 5200 troops to the Mexican border. By current estimates that is two plus soldiers for each member of the immigrant “caravan”. And what are the troops to do? Simply stand in a line so that refugees cannot pass? Not assist as children become dehydrated? Watch the travelers starve? Are trained soldiers expected to use violence if any of the migrants attempt to breach the border? What is our action plan if that should happen?
If we had a President looking for solutions, not drama, why not send the troops to Honduras where they could restore safe living conditions and people would not need to leave their home country. But it is the drama our President seeks.
Then the President announced that he will eliminate birthright citizenship by executive order. Experts cite a long line of constitutional cases that prohibit such an action. But as we have learned, we can no longer rely upon traditional avenues to protect us from radicalism.