Saturday, October 31, 2015
Naturalization ceremony with costumes; via Daily Mail
Happy Halloween, y'all. We hope you're out on the town loading up on candy and merriment. But if you're at home, surfing the web, looking in the blog, we've got a holiday post for you.
Check out the the 6 Tasteful Halloween Costumes You Can Wear To Your U.S. Citizenship Naturalization Ceremony. I'd recommend "Dead Nun." That definitely says "I'm committed to becoming a U.S. citizen."
And file this under who knew? Last year the USCIS held a naturalization ceremony on Halloween just for kids, and they all wore costumes!
Have a great evening.
Reuters reports that nearly 30 women at an immigration detention facility in Texas have begun a hunger strike. In their letters, they highlight “grave injustices,” detentions of up to 18 months, inedible food, and “little or no security.”
“There are grave injustices being committed, detentions spanning eight months, 10 months, a year, a year and a half, so in the end we are being told we have no rights and will be deported, with offensive words and gestures that make us feel worthless,” Magdrola, from Guatemala, wrote in her letter, published by Grassroots Leadership along with 16 letters from other detainees.
According to the rights group, at least 27 women are hunger striking at the T Don Hutto residential center in Taylor, near Austin, asking for immediate release.
Friday, October 30, 2015
In a special report in the Los Angeles Times, Joseph Tanfani, Brian Bennett, and Matt Hansen report that, searching for a way to curb fatal border shootings, Border Patrol leaders decided in 2008 began to supply Tasers, a hand-held device that delivers a paralyzing electric charge, as a way to end confrontations quickly and safely. But in scores of cases, the Tasers became instruments of excessive force.
The Times examined 450 uses of Tasers from 2010 to 2013 that were documented by U.S. Customs and Border Protection agents. At least 70 times, agents fired the devices at people who were running away, even though there was no struggle or clear indication that agents were in danger, according to use-of-force reports. At least six times, agents used the weapons against people who were trying to climb over the border fence back into Mexico. Two people were shocked while they were handcuffed. Two were hit with five cycles of the weapon, even though the agency's policy says no one should receive more than three. Three people died after being hit by Tasers wielded by border agents or customs officers.
In one episode, 24-year-old Alex Martin, who had led agents on a car chase, burned to death after a border agent smashed his car window and fired a Taser inside. The device ignited an explosion and fireball. Others were seriously hurt.
Call for Papers: Symposium on Sanctuary, Detainers, Undocumented Crime and the Law: History, Contemporary Challenges and Possible Solutions
The University of St. Thomas Law Journal (Minneapolis) is calling for papers for the Sanctuary, Detainers, Undocumented Crime and the Law: History, Contemporary Challenges and Possible Solutions Symposium on March 18, 2016 in Minneapolis.
At present, we are thinking to organize interactive panels around the following topics:
1) Sanctuary Movements in History / Historical and Theological Roots.
2) Federal Immigration Enforcement and Relationships with Local Law Enforcement – Constitutionality of Detainers, the Demise of Secure Communities and the Rise of PEP
3) Sanctuary Ordinances and Efforts to Limit their Effect at the State and National Level.
4) Undocumented Crime – by and against undocumented immigrants.
We are pleased to issue this Call for Papers for the Symposium. Abstracts should be no more than 750 words and must include author(s), professional/academic affiliation, and email. Please indicate the thematic focus (1 – 4) of your paper (and you can suggest whether it would be appropriate for more than one panel).
We invite submissions not only from lawyers but other related fields as well (e.g. history, political science, theology).
Abstracts should be sent to: VOWIEBE@stthomas.edu
Dates to Remember:
Abstracts due: November 16, 2015, 5pm.
Admissions notification: December 1, 2015
Final Papers due: June 17, 2016
Symposium Sponsor: University of St. Thomas Law Journal
Travel support for presenters will be available.
The New York Times has a compelling story about unaccompanied minors coming from the Middle East to Germany. Estimates place the total number of unaccompanied minors in Germany at 30,000. To put that in context, the United States (with 27.53 times as much physical space and nearly 4 times the population as Germany) received roughly 68,500 unaccompanied minors in FY 2014 and 40,000 in FY 2015.
Germany is struggling to provide for these young arrivals. One city, Passau, has a "youth welfare office" with a budget of €2m and a staff of 25, who, in former times, protected "neglected and abused children from drug-addicted parents and domestic violence." Now, the staff works hard to find "foster families, homes, psychological support, legal guardians and schools for the young Syrian, Afghan and Somali arrivals."
Children as young as 8 are making the journey alone. More typically, Germany is seeing young boys aged 14-17. The few girls who arrive have been severely traumatized by sexual violence.
Immigration reporter Elise Foley has an update on the Central American Minors (CAM) program for the in-country refugee and parole processing of minors in Honduras, El Salvador and Guatemala. CAM was created to deter the flow of unauthorized entries by unaccompanied minors by giving parents a "safe, legal and orderly alternative to the dangerous journey" across the U.S.-Mexico border.
So far the United States has interviewed 90 out of nearly 4,000 applicants. Foley reports that while "most of those interviewed were found eligible for help, none of them have come to the U.S."
The problem is that applicants are using the program because their lives are being threatened. Yet the slow pace of the program requires them to stay where they are being threatened in order to remain eligible for eventual relief.
Fox News picked up on this story. Accusing the Border Patrol of “unjust killings, …. racial profiling, use of force, and unjust violence,” protesters at University of California, Irvine succeeded in stopping the Border Patrol from taking part in an Oct. 22 career fair.
"We regret to inform the community that out of concern for the safety of CBP Recruitment Officers, U.S. Customs & Border Protection will no longer be participating in the UCI Fall Career Fair,” a U.S. Customs and Border Protection spokesman told FoxNews.com, instead referring students to the agency’s recruitment website.
The move followed a Change.org petition drive. The petition claimed “having Border Patrol agents on campus is a blatant disregard to undocumented students’ safety and well-being” and is insulting to “mixed-status families.” The petition claimed the mere presence of Border Patrol representatives could prove traumatic for students.
UCI’s administration was “prepared to take every step necessary to ensure their safety and the safety of the attendees,” said a university spokeswoman, adding that the university never received any threats to safety.
U.S. Department of State Takes Small but Important Step to Protect Spouses of Same-Sex Asylum Seekers
The U.S. Department of State’s recent change to the guidelines that inform refugee admissions makes it easier for lesbian, gay, bisexual, and transgender, or LGBT, refugees and asylees to have their partners join them in the United States. The State Department officially changed the interpretation of the term spouse under the Process Priorities, or P-3, family reunification program in order to allow same-sex partners of qualified refugees and asylees in the United States to file an affidavit of relationship in order to join their partners in the United States—even if they are not legally married. Many LGBT asylum seekers in the United States are fleeing persecution from their home countries because they are LGBT and unable to marry.
“The State Department has made a small but important change to its regulations, which will allow for more LGBT asylum seekers to reunite with their families in the United States,” said Sharita Gruberg, Center for American Progress Senior Policy Analyst and author of a column released today on the department’s change in policy. “Given that so few countries recognize same-sex marriages, the State Department’s former requirement of marriage documents meant that LGBT refugees had to choose between safety and living with the ones they love. Though the policy change is an important step toward equality within the refugee system, it must be expanded from the limited number of countries recognized in the P-3 program.”
Due to logistical hurdles, the P-3 program only recognizes a small pool of countries and leaves out some of the countries that are the most blatantly hostile to LGBT people. The column calls for the establishment of universal P-3 status, which will open family reunification to all refugees and asylees regardless of country of origin. Short of this measure, the column suggests the use of humanitarian parole—which would allow partners of asylees and refugees to enter the country for enough time to marry in the United States and extend protected status to their partners.
Click here to read the column.
University of Louisville President Ramsey is at the lower right, in the multicolored poncho.
The University of Louisville has apologized after its president, James R. Ramsey, and other university officials drew sharp criticism for appearing in a photograph in stereotypical Mexican costumes, complete with sombreros, reports The Courier-Journal, a newspaper in Louisville, Ky.
Abstract: This article originated as part of a symposium at the University of Oklahoma College of Law held on the occasion of the 125th anniversary of the Supreme Court’s decision in Chae Chan Ping v. United States, often called The Chinese Exclusion Case. Immigration law’s plenary power doctrine, traditionally traced to that decision, has persisted despite a steady and vigorous stream of scholarly criticism; its vitality is reflected in the Court’s 2015 decision in Kerry v. Din. This essay undertakes to explain why.
Contrary to some accounts, the Court’s strong deference to the political branches does not derive from the concept of sovereignty. Justice Field’s opinion for the Chae Chan Ping Court invoked sovereignty not to trump rights claims but to solve a federalism problem – structural reasoning that locates the immigration control power squarely in the federal government rather than the states, even though that power is not explicitly enumerated in the Constitution. In any event, that a power is labeled sovereign does not necessarily entail that it lies beyond judicial review or deserves extraordinary deference.
The Chae Chan Ping Court’s deference to the political branches instead rested primarily on the close linkage between foreign affairs and immigration control decisions. This essay illustrates why such linkage is more significant than is often appreciated, even today, as the federal government seeks to work in a complex and uncertain global context, where many powers and enforcement tools taken for granted in the domestic arena simply are not reliably available. The Court implicitly remains willing to give the political branches leeway to use immigration authorities in rough-hewn ways, even though deference does mean that some governmental acts deriving from illicit motives rather than genuine foreign affairs considerations may go unremedied in court. The Court adheres to a strong deference doctrine out of concern that lower courts, if given wider authority to review, will overvalue individual interests and undervalue governmental interests. In an increasingly dangerous world, the Supreme Court is unlikely to overrule the plenary power doctrine. Academics and activists should respond by focusing more attention on policy analysis and advocacy addressed to the political branches, forums where constitutional values can be pursued and successfully – if unevenly – vindicated, as Justice Field recognized.
Listen to this heartwarming Capital Public Radio report on an undocumented immigrant who received relief under President Obama's Deferred Action for Childhood Arrivals program. Laura Aguilar wasone of an estimated 11 million people who live the United States without authorization. As a child she did not have a choice about whether she wanted to move to California from Mexico. After nearly 20 years here, Laura says she’s an American and she intends to make her life in the United States and give back to her community.
On September 18, 2015, Laura Aguilar Sanchez received a white clinical coat as one of 89 students welcomed to UC San Francisco's School of Dentistry. She is one of three undocumented students accepted to the Class of 2019.
A U.S. citizen is seeking asylum in Canada because he says he’s afraid of being killed by police in this country because he is black. Kyle Lydell Canty argued his case at an Oct. 23 hearing before Canada’s Immigration and Refugee Board.
“I’m in fear of my life because I’m black,” Canty told IRB member Ron Yamauchi. “This is a well-founded fear.”
Canty, who crossed the Canadian border in early September, argued that black people in the U.S. are “being exterminated at an alarming rate.” He cited the police shooting of Michael Brown in Ferguson, Missouri, and the death of Eric Garner at the hands of police in New York City last year. .
Canty, who was born in New York, has lived in six different states. He said police have harassedhim for being black in every place he has lived.
Thursday, October 29, 2015
The following is a summary, from the perspective of two practitioner and immigration law professors, of a few of the highlights of the National Immigration Project membership and litigation meetings held last week on October 22 and 23. The membership meeting addressed topics such as implementation of the Priority Enforcement Program (PEP), detention, strategies for those who would have qualified for DAPA, retaliation by DHS, U non-immigrant status, criminal-immigration issues, and asylum developments. (For the agenda, see here.) The litigation meeting covered ISAP-related litigation, 8 CFR 103.5 motions challenging DHS-issued orders, circuit court jurisdiction over reasonable fear denials, the Luna-Torres v. Lynch litigation, and other topics. (These notes will not address the all-day continuing legal education seminar the day prior.) Our discussion focuses on problems observed, more than potential solutions so as not to reveal potential future litigation strategies, though there were many productive and inspiring conversations regarding strategy.
One issue that stood out was the numerous and varied reports of rights violations in several contexts including Immigration and Customs Enforcement (ICE) and collaboration with sub-federal authorities, retaliation against those in custody including use of solitary confinement and denials of access to counsel, ICE arrests of noncitizens with criminal convictions from probation meetings, traffic courts, as well as home arrests/invasions involving the use of elaborate schemes and trickery that appear to be unofficially or perhaps even officially sanctioned.
While NIP does a fantastic job of creating a for advocates nationwide to share stories and pursue collaboration, the seeming increase in stories regarding the volume and nature of rights violations, suggests the need for even more collaboration, and if possible, investment in more national efforts to pursue unified strategies, or strategies that are locally tailored, but informed by experiences of advocates around the country. On a more positive note, the increase in attendance, and the increase in capacity that represents are what will continue to make NIP and its member agencies, students, and individual advocates forces to be reckoned with in the struggle for immigrant rights.
Before getting into our synopsis of some of the high points of the meetings, as an emerging scholar, I (Carrie) was reminded of the importance and value of being a practitioner, law teacher, and scholar, simultaneously. The ability to relate the stories of other advocates to my scholarship and that of my peers, and then take the theories of scholars and litigation experts to the classroom, and the practice of law, is invaluable. At the same time, I would like to see even more cross-pollination of those working in the trenches and scholars so that our work can be even more mutually reinforcing than it already is. Also, my observations at the meetings reminded me that, as I have explored in my scholarship, the remedies that currently exist in the law intended to prevent or deter law enforcement misconduct are inherently flawed, inadequate, and will continue to fall short in protecting and remedying rights.
Carrie has consciously chosen to use the term “prisons” instead of “detention centers” and “incarceration” instead of “detention” because these terms are more accurate because conditions of confinement have been described by those imprisoned, and human rights organizations as akin to criminal incarceration. In some respects it is even more punitive because those incarcerated may have never violated any U.S. law, particularly those reaching the border and requesting asylum. The government has chosen the term “detention center,” which while accurate because they are technically civil centers, misrepresents their true nature. In line with advocates at the meeting, we use the term “shackles” instead of “ankle bracelet.” The government and their corporate contractors use the term “bracelet,” which similarly downplays and minimizes the true confining nature of this form of custody. We encourage others to similarly adopt these terms.
And now, some of the high points of the meetings:
Stories Related to the Priority Enforcement Program (PEP)
Advocates are seeing widespread problems across the country with ICE’s latest misguided enforcement effort, the priority enforcement program (PEP). Some of the questionable tactics reported include arresting low-priority people who happen to be with the person that the fugitive team is looking for, ICE officers being present at traffic court or other courts to arrest people while attending hearings, and illegal home raids. In California, there are statewide reports of violations of the TRUST Act. Speakers from the Immigrant Legal Resource Center, ACLU, and the New Orleans Worker Center for Racial Justice highlighted some of the problems in their areas.
It appears that because of recent policy-based limitations on ICE collaboration with local law enforcement, instead of local sheriffs holding an individual for 48 hours after their criminal sentence is complete, during which time ICE may make a transfer to ICE custody, they are pursuing potentially illegal or problematic alternative tactics. While under PEP, ICE is supposed to be able to obtain “notification” of pending release of someone who may be a priority for immigration apprehension and removal, ICE is interpreting the term “notification” beyond its literal meaning by seeking active collaboration from local police to arrange for in-custody transfers to ICE custody. Thus apparently ICE is treating in-custody transfers as equivalent to “notification.”
Another example of an alternative tactic to ensure ICE obtains custody of an individual who completed a criminal sentence was an instance where local jailers indicated that a former prisoner was free to leave, yet withheld his personal clothing and shoes while ICE happened to show up to arrest the individual. Advocates discussed measures police departments could implement to ensure that ICE and sub-federal law enforcement agents are complying with PEP as well as state and federal law.
Another example of misconduct reported was within the context of home raids and checkpoints. In one city, after a local jail stopped doing ICE holds, ICE field officers began collaborating with local police to set up checkpoints for vehicles. Local police would decide whom to stop, potentially ask questions about national origin, and ICE field officers would do biometrics/fingerprinting in the field. Based on the description of the tactics, it sounded like officers may have lacked reasonable suspicion or probable cause to make the stop and instead relied impermissibly on racial profiling. This sounds similar to what transpired in a town in Arizona in 1997 in what became known as the “Chandler Roundup,” which resulted in equal protection and Fourth Amendment challenges, and later, Chandler became a sanctuary city. In another instance, local police asked individuals on the street to prove they were in the U.S. lawfully, brought them to jail, and then called CBP who transferred them to ICE custody. All of this happened without a detainer, or any process. This sounds eerily like what the Supreme Court rejected in Arizona’s attempt at regulating immigration law pursuant to S.B. 1070.
In yet another variation on questionable enforcement practices, ICE agents have been reported to impersonate another agency (e.g. representing themselves as local police) taking advantage of people’s trust in other government agencies, and then arresting suspected noncitizens. For example, ICE agents knock on a door and pretend to be the local police, inform the person opening the door that they are concerned that someone living there was the victim of identity theft, and when people presents themselves, ICE arrests them. Many of these practices are directly related to the larger discussions happening nationally concerning racial profiling and police misconduct.
Also addressed were the long delays in obtaining an initial hearing pertaining to custody in immigration court. Some advocates are pursuing litigation arguing that the rights to presentment and a speedy trial apply in immigration court. This is a separate issue from what was addressed in Demore v. Kim and the Rodriguez litigation, which did not focus on long delays before the first appearance in immigration court. Please note that the discussion took place before the amazing October 28th Ninth Circuit victory in Rodriguez v. Robbins.
Other detention issues
Advocates from the Transgender Law Center addressed the treatment of LGBTQ individuals in detention, especially focusing on the inadequacy of the new ICE protocols. In California, there is apparently one “detention” center with a housing unit for transgender women and a separate unit for gay and bi-sexual men. There are approximately 40-50 trans-women and 60 gay or bi-sexual men housed there. They may have strong asylum claims but experience significant issues accessing counsel – some had been incarcerated for years and had never met a lawyer. While DHS issued a new memo this past June addressing policies concerning these communities, the policies are problematic because in part they ask individuals to make themselves vulnerable by identifying themselves publicly. The memo creates an illusion of safety. This section also covered campaigns, like the Shut Down Etowah campaign run by NDLON, which combines organizing efforts of grassroots organizations with a legal strategy. Specifically, these campaigns seek to heighten the visibility of horrific conditions within detention centers through local campaigns, but also through the testimony of people who might be released through habeas petitions.
ICE Retaliation Against Those in Immigration Prisons
Advocates discussed an alarming array of actions by DHS to retaliate against detainees, immigrants, and advocates for speaking out about government misconduct, including such things as truthful blog posts by advocates about conditions of confinement in immigration prisons. A common theme is to try to stop the flow of information about what really is happening in detention centers. For example, if a community advocate finds out about misconduct by detention officials and reveals this through filing a complaint, many times the detention center or ICE will then cut off cooperation with a program to allow them to meet detainees.
Sometimes it is clear that ending access to detainees is retaliation but ICE will not reveal who is behind the act of blocking access – ICE, others in DHS, or the private company that runs a detention center. Detention centers even undermine CRCL investigations and retaliate against detainees who file truthful CRCL complaints. For example, two detainees filed CRCL complaints and when CRCL indicated it wanted to interview the detainees, ICE and the detention center immediately started an extraordinary series of transfers that moved the detainees to a few locations, which made it very difficult for the detainees’ lawyers to meet them and explain why that they might consider cooperating with the CRCL interviewer. ICE is using solitary confinement in dark cells to punish hunger strikers. In some instances, advocacy has produced positive results thanks to the hard work of groups like the ACLU, CIVIC, Adelante Workers Center in Alabama, NIPNLG and the Southern Poverty Law Center.
ISAP and Alternative Detention
Advocates discussed disturbing violations of civil rights by ISAP staff and ICE. Examples include coercing or tricking detainees to sign up for ISAP, improperly blocking access to counsel when detainees are forced to decide whether to sign up for ISAP, and improperly imposing ISAP restrictions when an IJ ordered release without imposing any ISAP conditions. Advocates addressed likely legal error by immigration courts that reject motions to ameliorate detention conditions that are not filed within seven days of being released on ISAP and discussed possible legal theories.
Other advocates see an unfair delay in motions to ameliorate to be heard – during the long delay for the court to hear and rule on the motion, the unfair ISAP conditions continue. One advocate saw a shocking imposition of ISAP not on the immigrant but on the immigrant’s relative on the purported basis that the immigrant was not able to talk due to a medical condition so ICE felt it justified shackling someone else in the United States.
Ankle shackles interfere so much with daily living that it would be logical for courts to grant a Rodriguez hearing to people confined by an ankle shackle for six months. Ankle shackles interfere with daily living, such as interfering with possible job opportunities and not being able to perform ordinary daily activities, spend a night at a family member’s home, etc. ICE has also been reported to have improperly forced someone to have an ankle shackle without analyzing whether it is appropriate and also refusing to refund the bond money that was posted under the judge’s promise that if the bond was posted, the person would be freed – and the judge never mentioned any possibility of suffering an ankle shackle if bond is posted.
While ankle shackles may be preferable over actual complete, physical incarceration, advocates, scholars, and others should be aware of the rights and other violations occurring in the context of these alternative forms of custody. In part, there seems to be some similarity in the kinds of problems in both contexts, where private corporations are subcontracted to run immigration prisons (“detention” centers) and ankle shacking administration, including a trouble lack of accountability.
Advocates reported a long list of ISAP problems, including: keeping ankle shackles on someone for 1-2 years for no apparent reason and no review of whether continued shackling was lawful or appropriate, putting shackles where there is no apparent reason for doing so other than to accrue reimbursement from the federal government for using more shackles, unreasonably short intervals before demanding those on ISAP meet with ISAP officers. Advocates are concerned about the possibility that ISAP could be using ankle shackles to eavesdrop shackle wearers and those around them, including, attorney-client and doctor-patient confidential discussions. Additionally, ICE has entered contracts with ISAP companies that ICE claims do not allow them to permit attorney representation at ISAP meetings.
Advocates should share stories about outrageous or improper ISAP conditions to the American Civil Liberties Union.
Rule of Lenity Litigation
The rule of lenity is fully briefed in Luna-Torres, a case soon to be argued before the Supreme Court. The argument in part suggests that the rule of lenity should be applied in immigration court when the statute being interpreted also has been, is going to be, or may in the future be interpreted in criminal court proceedings, such as when an immigration court analyzes whether an arson is an aggravated felony in deciding whether someone is deportable, and a criminal court in the future may analyze whether an arson is an aggravated felony to decide whether to apply a sentence enhancement for those with aggravated felonies. It would be improper to have a harsh interpretation in immigration court and a lenient interpretation in criminal court about the same person, same crime, same conviction, and same legal topic of whether the offense is an aggravated felony. Advocates are advised to argue for the rule of lenity even if the client has never been in criminal proceedings because one day in the future the client might be in criminal proceedings and the rule of lenity would be applied at that point.
This only partly summarizes some of the dozens of topics raised during the NIP meetings. We thank everyone who planned, moderated, and participated in the productive discussions. The wide range of resistance against improper and illegal government conduct was inspiring and similar to law school National Lawyers Guild discussions about the importance of employing creative strategies to fight for justice, within, and outside the law. The camaraderie in beautiful Oakland made up for the secondary trauma we suffered while listening to the horrifying updates.
Welcome to Throwback Thursday, a new series in which we profile previously-published scholarship. Our goal is to highlight excellent work that may not be on the radar of new scholars.
In 1990, economist David Card published a groundbreaking article entitled The Impact of the Mariel Boatlift on the Miami Labor Market.
Card studied the effect that the large influx of Cuban workers (125,000 arrived between May and September of 1980) had on the Miami labor market. He found that the labor force grew by 7%, with a greater increase in less-skilled occupations and industries. But he found no effect on the wages or unemployment rates of non-Cuban workers nor non-boatlift Cuban workers. There was, in fact, "rapid absorption" of the Mariel immigrants into the Miami workforce.
Card attributed the success of Mariel migrants in Miami to the unique industry structure of the city and the city's already high concentration of Spanish-speaking natives. He also concluded that the increase in Mariel migrants may have deterred internal migration to Miami.
Card's findings have led scholars like immprof Howard Chang to conclude that there is no empirical support for protectionist immigration laws.
The United Nations High Commissioner for Refugees has released a report, “Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador, Guatemala, Honduras and Mexico.” The report is based on interviews with more than 160 refugee mothers and children detained by DHS, highlights the gender-based violence the interviewees faced in El Salvador, Honduras, Guatemala, and Mexico, and offers recommendations to the region.
The Recommendations include the following:
- Make Saving Lives the Top Priority UNHCR calls on governments in the region to:
- Ensure that all steps taken to manage this situation are in strict accordance with refugee law, including the fundamental principle of non-refoulement.
- Ensure that all migration policies protect people’s legal right to seek asylum, and refrain from using detention as a deterrent.
- Provide safe and legal avenues to asylum so that individuals fleeing their countries do not have to turn to people smugglers.
- Reinforce Host Country Capacity to Provide Refuge UNHCR calls on governments in the region to:
- Set in place or reinforce individualized screening procedures to identify the specific protection needs of all those arriving.
- Ensure that individuals in need of refugee protection can access adequate and humane reception conditions, including by:
- Reinforcing shelter availability appropriate for particularly vulnerable groups, including transgender women and unaccompanied children.
- Strengthening alternatives to detention, including various forms of reporting requirements, community and supervision schemes, and accommodation in designated reception centers with guaranteed freedom of movement. Such alternatives have proven to be far more cost-effective than detention.
- Avoiding the use of unnecessary immigration detention and other punitive measures. Deprivation of liberty must be a last resort used only after individualized determination, and the best interests of the child must guide all actions taken in regard to children.
- Bolster efforts to ensure access to fair and efficient asylum procedures, including by:
- Ensuring asylum-seekers, and in particular unaccompanied children, have access to legal assistance and information on the right to seek asylum.
- Providing the necessary resources for domestic adjudication processes to resolve cases in a timely manner.
- Allowing for deportation of those who are not found to be in need of protection in a manner that ensures the return is carried out with safety and dignity.
- Training adjudicators on the application of refugee law to people fleeing the NTCA and parts of Mexico, with particular focus on profiles of individuals at heightened risk of persecution such as women subject to gender-based violence, transgender women, and unaccompanied children.
- Promote durable solutions and collaborate to share responsibility for refugee protection in the region, including through refugee resettlement as a strategic and/or emergency protection tool for refugees at a heightened risk.
- Address Root Causes of Displacement UNHCR calls on governments in the region to:
- Redouble efforts to formulate political solutions that address “push factors” and the root causes of refugee flows.
- Expand efforts to prosecute traffickers and smugglers while fully respecting the rights of victims.
See my take on the discussion on immigration at the CNBC Republican debate at the University of Colorado in Boulder, Colo., on Wednesday night saw relatively few immigration fireworks. This is presidential primary season that has been filled with talk of border fences, more enforcement, deportation campaigns and anti-Latino comments. So it’s a good sign that the immigration discussion was relatively tame.
Innovations in Immigration Law Teaching and Lawyering (Series): Nora Phillips and Post-Removal Legal Services
The next series post on innovations in immigration law teaching/lawyering features Nora Phillips, an immigration attorney in Los Angeles and Al Otro Lado, a non-profit legal services organization that works with deportees, migrants and refugees on the other side of the US-Mexico border. Many immigration advocates know Ms. Phillips – now in private immigration practice –through her leadership in the nonprofit sector on U visas and Deferred Action for Childhood Arrivals (DACA).
Al Otro Lado (“On The Other Side,” a colloquial phrase used to refer to the US if one is in Mexico and vice versa) illustrates the potential for US immigration law to provide remedies to individuals both after removal and prior to entry and adds to the area of post-removal legal practice, the development of which has been led by immigration advocates such as Professor Daniel Kanstroom, Professor Rachel Rosenbloom, and the Post-Deportation Human Rights Project at Boston College Law School.
1. What is Al Otro Lado?
Al Otro Lado is a 501(c)(3) non-profit organization incorporated in California. We are a bi-national, direct legal services organization serving indigent deportees, migrants, and refugees in Tijuana, Mexico. The bulk of our services are immigration-related. However, the needs of the people we serve are diverse, so we also coordinate with attorneys and non-legal professionals in a range of areas such as family law, labor law, criminal law (particularly post-conviction relief), and employment law. We also handle family reunification in Mexico, which is not technically “immigration law” but is certainly related to immigration. The most common scenario is when a single mother is deported from the US, leaving her young, US citizen children in the US foster care system. We assist with social workers and dependency attorneys in the US to return the child to live with the deported parent when it is what the child and parent desire. Alternatively, we can file a request under the ICE Parental Interests Directive (Facilitation of Return) to bring the parent to the US to attempt to preserve their parental rights.
2. What led you to start providing legal services to individuals in Tijuana?
Al Otro Lado started as a very informal "social justice hobby" (really nothing else to call it) between me and one of my best friends, Esmeralda Flores ("Esme"). Esme and I met about four years ago. At the time, I was a Staff Attorney at CARECEN (Central American Resource Center) and Esme was an attorney for PDIB (Programa de Defensa e Incidencia Binacional), a human rights organization along the US-Mexico border (Esme now is the binational outreach coordinator with ACLU of San Diego & Imperial Counties for the Lopez-Venegas settlement). Esme was in Tijuana, housed at the Casa del Migrante, a large migrant shelter in Tijuana. She screened deportees and migrants for violations of civil and human rights by Mexican and US law enforcement authorities. Esme was in Los Angeles for a training and we met in person and hit it off instantly. Our knowledge and expertise were extremely complementary and we had shared goals. We started coordinating - she would email me about certain cases she encountered and I would screen for immigration relief. It was a completely unfunded, informal alliance between two close friends who were committed to the same thing but on different sides of the border. We have collaborated on countless cases since and have been able to get several people back to the US after they were deported, via mechanisms such as the U Visa and Humanitarian Parole. We have conducted periodic screening clinics at Casa del Migrante staffed by volunteer immigration attorneys from Los Angeles and Orange County. So far, we have screened several hundred people for relief.
When we realized how novel our idea was and how good we were at it because our clients were getting reunified with the families, we decided to take our work to the next level, a formal non-profit organization. The University of Southern California (USC) Small Business Clinic took us on as clients and did an amazing job setting up our 501(c)(3) (they also set up my private firm’s LLP, so I am forever grateful to Professor Michael Chasalow and his amazing students). Esme and I are on the board of Al Otro Lado, as well as Gabriela Morales, a venerated human rights attorney in Mexico City focusing on the southern (Mexico) border. Currently we have no paid staff and operate on a very grassroots level. However, we have an incredible law student extern (Jessica Hanson, UCLA Law). She and I work diligently – lots of legal research and lots of client interviewing, while keeping “big picture” policy and litigation in mind – in our current "office," which is actually in my basement. There's not too much of a need to have a physical office in Los Angeles, since our work is basically done once our client arrives in the US. However, we are looking at options for donated office space in Los Angeles since the current "Wayne's World" setup presents some challenges, such as when my wonderful toddler runs downstairs to show me drawings while I'm on the phone screening a torture victim.
3. How has doing this worked changed your perception of the role of US immigration lawyers?
It's complicated. I come from a solid non-profit background and am now in private practice having recently co-founded a private immigration law firm, Phillips & Urias, LLP, in Los Angeles, with my amazing law partner, Laura Urias, who also worked exclusively in the non-profit sector prior to us setting up shop. Our firm is a full-scope immigration law practice and we handle everything from family-based petitions to U Visas and VAWA, DACA, residency, naturalization, and representation of individuals in removal proceedings and ICE custody. Based on my experience, I understand both the public and private sector side and the need to charge for services. However, I think that many attorneys consider the case finished once the client is removed. We pick up where those attorneys left off. One of our goals is for Al Otro Lado to be able to help with this challenge soon by developing helpful materials for US attorneys to share with clients who are being removed. It's also psychologically complicated for attorneys here because a client's deportation feels like (and is) defeat.
On the other hand, I am amazed at how many immigration attorneys are willing to caravan down to Tijuana on a weekday to get slammed with up to 15 clients to screen. These cases are intellectually and emotionally challenging. Clients often break down crying in the middle of the clinic recounting horrific trauma or when they are given news that there is no way to come back to the US because of how terribly inhumane and nonsensical our immigration laws are. The last clinic we did (in March 2015), we had 25 attorneys drive down from Los Angeles. I was running around Casa del Migrante getting everything ready for the clinic and, when I went into the room where Father Pat (a wonderful priest at Casa del Migrante) was speaking to all the volunteers, tears started rolling down my cheeks when I saw a room packed with lawyers ready to help. It was beautiful thing. There are many people who contact me on a weekly basis to find out when Al Otro Lado is heading down next to do another clinic, as well as people who can't make the trip but want to volunteer their time analyzing complex cases we encounter at the clinics. As with many things, beautiful and not-so-beautiful aspects of humanity come out often in this work.
Two things that have really struck me about this work are the undeniable connection between Los Angeles and Tijuana and also how counterintuitive your advice can be once you’re on the other side of the border. As far as the former, I recall a time when I was giving a talk before one of our clinics to clinic attendees, many of whom were deportees. We got into a friendly “argument” about which was better, Boyle Heights or East LA (two adjoining neighborhoods in Los Angeles - my law firm is in Boyle Heights). And I was silent for a moment (rare for me) thinking about how there is this huge community of deportees from Los Angeles living in Tijuana, a city that the vast majority are not natives of; they are in Tijuana because that’s the closest they can get to their families in Los Angeles. I know plenty of families who cross on a weekly basis to visit relatives in Tijuana. Later that day, I met a man who, prior to his deportation, had lived for close to 40 years about 7 blocks from where I live now. He had 6 US citizen kids who he was desperate to get back to. He was so kind. As a parent, I couldn’t even imagine what he was going through. On this side (in Los Angeles), I know a huge number of people with deported family members living in Tijuana.
As to the latter, as a US immigration attorney, it's very difficult at first to flip your brain to the Mexico side. By that, I mean that here, in the US, your main goal is to keep your clients OUT of the hands of ICE and CBP. When clients are in Mexico and are fleeing persecution, their only option is to turn themselves IN to CBP to request Credible/Reasonable Fear screening. It feels very, very strange and takes a while to get used to. You have to prep them that they WILL be detained, for possibly 6 months or more, and the lack of predictability is really hard in terms of managing client expectations, because everything is so utterly unpredictable, especially with adult male clients. Unaccompanied minors, women, and women with minor children are more predictable in terms of how long they will expect to be in custody and where they will be detained.
4. What are your goals for the short-term?
We have seen hundreds of clients but until we are able to establish more capacity and infrastructure, and maybe sleep once in awhile, we absolutely have to focus on resources right now so that we can continue to grow. We are so overwhelmed with cases right now that we are not taking any new clients, even for emergency persecution/torture cases (however, we are working very closely with our Tijuana Al Otro Lado family to disseminate pro se guides for Central American and Mexican refugees seeking to turn themselves in at the border and request Credible/Reasonable Fear screening).
That is heartbreaking since there are many lives at stake, but we need to do this so that we are able to help the largest number of people possible. I have a team of incredible, development-savvy women who are helping me with these aspects of the organization.
5. How does your work on behalf of Al Otro Lado interact with the private immigration law firm that you co-own? How do you manage to do all of this?
I work all the time. I have 2 full-time jobs, in addition to being a mom. I have a very patient law partner that not only tolerates my pro bono-itis but also serves as an incredible pro bono attorney on immigration and family law cases for Al Otro Lado. My extern is a godsend, and I am so grateful to UCLA and USC Law Schools for taking a chance on a brand new non-profit. I have amazing support from my board members and the Los Angeles immigration attorney and immigrant rights activist communities. My own non-profit background has given me a huge, national (and international) network of incredible, brilliant advocates and that is extremely helpful. And my husband is pretty fantastic, too.
Clearly, the status quo is unsustainable, which is why we are exploring long-term funding options to take everything to the next level. This is sort of par for the course for grassroots organizations. It's very exhausting but very exciting at the same time. When I get to walk a single mom and domestic violence survivor back over the border and fly her home to her teenage sons, it makes all the exhaustion and tears totally worth it.
Immigration Article of the Day: Credibility. Trauma, and the Adversarial Adjudication of Claims for Asylum by Stephen Paskey
Credibility. Trauma, and the Adversarial Adjudication of Claims for Asylum by Stephen Paskey, State University of New York (SUNY) at Buffalo, Law School, October 21, 2015 Santa Clara Law Review, Forthcoming
Abstract: When trauma survivors seek asylum in the United States, the deck is stacked against them. In most cases, the applicant’s story is the only direct evidence of the applicant’s claim, and asylum is certain to be denied if a judge finds the applicant not credible. But the stories told by trauma survivors defy cultural norms for a credible story: they are often inconsistent, vague, and both logically and chronologically disjointed. As a result, asylum may be wrongly denied. The problem is inherent in our asylum adjudication system, which subjects most applicants to an adversarial hearing. This article uses scholarship on trauma and narrative theory to examine the challenges faced by survivors who seek asylum – and the ways a lawyer might inadvertently increase the odds of an adverse decision while drafting a declaration. The article also details original empirical research on 369 appellate cases in which immigration judges found an asylum applicant to be not credible. Overwhelmingly, judges cited inconsistencies in the applicant’s story as grounds for that conclusion – yet research among survivors proves that such discrepancies cannot be taken as evidence of falsehood. As a result, the article recommends that the adjudication of asylum claims should be removed from U.S. immigration courts, and that existing procedures be replaced with a single non-adversarial adjudication for all asylum applicants.
Inter-American Commission on Human Rights report on family detention and treatment of unaccompanied minors
Last week, the Inter-American Commission on Human Rights released a report on family detention and treatment of unaccompanied minors. The report found numerous human rights violations in current U.S. practice. The report also offers specific recommendations for change.
The Executive Summary outlines the focus of the report:
"This report addresses the situation of migrant and refugee families and unaccompanied children arriving to the southern border of the United States of America. It analyzes the context of humanitarian crises that have been taking place over the past several years in the countries of the Northern Triangle in Central America - El Salvador, Guatemala, and Honduras – as well as in Mexico. These crises have been generating increased migration northward, principally to the United States, and to a lesser extent Mexico and Canada. This report offers recommendations geared towards assisting the United States in strengthening its efforts to protect and guarantee the rights of the diverse group of persons in these mixed migratory movements – among them, migrants, asylum-seekers and refugees, women, children, families, and other vulnerable persons and groups in the context of human mobility."
As Denise Gilman summarized on the Immprof listserve:
Some key conclusions and recommendations are identified here –
1. The “drastic uptick in the number of arrivals [from Central America and Mexico in the summer of 2014] signals a worsening human rights situation in the principal countries of origin.”
2. “[F]amilies for whom there is capacity at an immigration detention center are automatically and arbitrarily being detained.”
3. “No substantive criteria are used, nor is an individualized assessment conducted…to determine which families will be detained.”
4. “[T]he Commission highlights its observation that immigration detention served as an obstacle to detainees’ access to mechanisms of international protection as well as to obtaining legal representation.”
5. The Commission “highlights the importance of the State desisting from placing families into expedited removal proceedings.”
6. At the family detention centers, specifically at Karnes, the “Commission observed inadequate and disproportionately restrictive conditions, akin to a penal incarceration center.”
7. The Commission highlights that the Inter-American Court of Human Rights has established in the migration context that “when the child’s best interest requires keeping the family together, the imperative requirement not to deprive the child of liberty extends to her or his parents and obliges the authorities to choose alternative measures to detention for the family, which are appropriate to the needs of the children.”
8. “The Commission reiterates that deprivation of liberty should not be the presumption – rather the presumption should be of liberty. The Commission maintains that detention is a disproportionate measure in the majority of these cases.”
9. The Commission urges the government “to desist from creating any new family immigration detention facilities” and “to desist from detaining families at all, unless it is an exceptional case – following an individualized analysis with a corresponding written decision.”
10. “The Commission considers that the conditions of detention at the [border] holding facilities are inappropriate and unacceptable for detention beyond a few hours.”
11. The Commission recommends that the government “invest more in immigration courts – hiring more judges and court administrative support, to start – so that judges can have manageable dockets and provide the necessary time and focus on the cases before them.”
12. The Commission urges the government
a. “to end its practice of automatic and arbitrary immigration detention of families;”
b. “to treat Mexican unaccompanied children with the same safeguards and procedures applicable to unaccompanied children from non-contiguous countries;”
c. “to investigate claims of abuses and mistreatment committed by U.S. border agents and to prosecute and punish, where necessary, the agents responsible;”
d. “to ensure that the best interests of the child principle is the guiding principle in all decisions taken with respect to children, including in immigration proceedings;” and
e. “to ensure migrant and refugee children and families enjoy due process guarantees and are provided with a lawyer, if needed, at no cost to them if they cannot cover the costs on their own.”
Wednesday, October 28, 2015
UC Davis immprofs Rose Cuison Villazor and Jack Chin have authored a post for HuffPo regarding the Immigration Act of 1965, which celebrates its 50th anniversary this month.
The two start by acknowledging that the 1965 law was "groundbreaking for ending race discrimination in immigration law." This, they note, must be commended. The law well and truly "ended racist preferences for white immigrants that dated back to the 18th century," no small achievement. And the result has been a "demographic revolution" in the wake of a more diverse immigrant stream.
But the law is not without problems. It strengthened prohibitions against immigration by gays and lesbians. And it restricted refugees to those fleeing communist countries or the middle east.
Most important, by restricting lawful temporary Mexican migration, the law helped to create the large undocumented population that the United States has today.