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.