Archive for the ‘Border Enforcement’ Category.

Artesia Kaleidoscope

Artesia1The three weeks are a kaleidoscope of shifting images: visual, auditory, sensory, and emotional. From 90 degree heat to heavy, cold, rain and flash flooding. It hadn’t occurred to me to bring sweaters to the New Mexico desert. Apparently it hadn’t occurred to the U.S. government either, as many of the mothers and their children ‘detained’ in this hastily thrown together prison had only plastic sandals as footwear through the several-inches-deep puddles. And more than one woman was forced to duct tape her sandals together when they cracked nearly completely across, told that the commissary “didn’t have their size shoe.” Blankets were worn in lieu of jackets and children continued wearing shorts in wet, 65 degree weather because the government didn’t have long pants or jackets. All the while, just up the road, the local Chamber of Commerce was turning away donations of clothes and toys and toiletries, because the U.S. government would not allow them to be distributed to the detainees, and the Chamber no longer had space to store the items.

We still have not gotten a satisfactory answer to the question of why the donations could not be distributed. But apparently, like everything about this rapidly constructed change in national detention policy, it has something to do with our “national security.”

I’ve lost count of the women to whom I tried to explain:  “you and your children are in prison here because you happened to be part of a large number of vulnerable women and children fleeing Central America this year. . . and there were so many of you, that you terrified the United States, and putting you all in prison is their response.”

As an immigration attorney, an important part of my role is to interpret a foreign, terrifying, bureaucratic nightmare of contradictory forces full of traps for the unwary in a way that educates and hopefully empowers the client with whom I am speaking. Sometimes this interpretation is easier than others, but as current U.S. immigration policy is not typified by logic or reason, explanation is inevitably challenging, and interpretation in a way that educates and empowers often requires a crash course in current U.S. politics. Explaining how young women, with their infants and children, running for their lives from violence and threats against which they had no other protection, threatened the national security of the most powerful nation on the planet was particularly Kafkaesque.

Fortunately, there was rarely time for that level of interpretation. Most days we arrived at the facility before 7:00 a.m., we were rarely through with hearings and interviews before 6:00 p.m., and our daily staff meeting/case conference which began at 7:00 p.m. lasted until we were done. . . almost never before 10:00 p.m. It was a major concession on the government’s part when they agreed to stop holding interviews on week-ends. That meant that the project attorneys could now spend Saturdays and Sundays focused entirely on working directly with clients, and we could skip the staff meeting/case conference in favor of a night off one evening a week.

The faces, names, and stories run together. I was fortunate, because I was able to volunteer for nearly three full weeks, working consistently with a handful of clients woven through countless others with whom I only met once. Given that we are paying for this work out of our own pockets, with some expenses reimbursed by donations, and given that most of the attorneys are volunteering at the cost of their own employment, vacation time, or private practices, few of us are able to stay more than a week or two at a time. Most of us take at least one, if not two or more, cases home with us. And most of us who volunteer come home committed to returning, if at all possible.

The experience is intense, and embeds in us the faces and the stories, and moments of human connection. Singing Las Mañanitas and Happy Birthday to a beaming seven year old, her mother’s eyes echoing the tears in all of ours–the songs, a couple of hair bands and a page of stickers we hastily signed with our dreams and wishes for her were the only gifts we were allowed by the government to offer. (And even the stickers were proscribed shortly thereafter, as they allegedly became both litter and objects of conflict). It is impossible, although I tried a few times, to express my deep admiration for the strength and force of character of all these women. Most have endured one or more violent attacks–rape, kidnapping, extortion, sexual and physical assaults, all ending in social ostracization and isolation. Most of them only made the difficult choice to flee when their children became the targets of the violence with which they themselves had learned to exist.

On the scale of social vulnerability, women with young children are among the most vulnerable. In societies being torn apart by gang violence, where violence against women is both widely accepted and rarely punished, young mothers with no male protectors become easy pickings. No one becomes a refugee by choice, and mothers do not flee with their children unless they have no other alternatives. And yet our nation’s response to these refugees is to label them a national security threat and imprison them.

An important normative principle underlying international relations is that of the proportional response. At the same time, the inability to measure proportionality from any perspective other than its own sense of (in)security is an inherent weakness of the powerful—whether nation, party, corporation, group, or individual. Power almost inevitably over-reacts to perceived threat, sowing the seeds of its own eventual destruction. Women and children fleeing violence are refugees, not a national security threat. Imprisoning them is a deeply counter-productive response.

Over the three weeks, on my commute to and from Artesia, the only music I could stand to listen to was Ariel Ramirez’s Misa Criolla.  Ten Piedad de Nosotros will always remind me of the women I met. The humility of piedad in the face of their courage would be a far more appropriate national response.

One final iconic image from my last evening in Artesia: blowing in the wind against the grey clouded sky, a large, faded, very tattered, American flag.

Written by Marti L. Jones, AILA Member and Artesia Volunteer

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If you are an AILA member who wants to volunteer at Artesia or elsewhere, please see our Pro Bono page or feel free to contact Maheen Taqui at mtaqui@aila.org–we have volunteers scheduled through mid-October but are looking for more as the work continues and we could really use your help.

If you aren’t able to come help in person, consider donating at http://www.aila.org/helpthevolunteers. And thank you!

To watch videos of the volunteers sharing their experiences, go to this playlist on AILA National’s YouTube page.

Artesia Betrays America: Part II

Artesia1People didn’t seem to matter in Artesia, not their comfort, not their privacy, not the simple human dignity we all take for granted.

There was deep and profound soul shattering heartbreak, watching these vulnerable women and children who have come to this country seeking asylum being systematically crushed and broken.

Every child in this place was sick.  Every. Single.  One.  Coughs, flus, runny noses, watery eyes, losing weight, not sleeping, vomiting, diarrhea, not eating.  Ever single woman without exception when asked if they had seen a doctor said that the nurse they had seen gave them Tylenol and told them to drink water no matter what was wrong with the patient.

One of my clients, who had been denied credible fear as a victim of domestic violence, something that should have been granted at the interview, and was denied credible fear again in front of the immigration judge, spent an afternoon telling me about the horrific abuse she suffered at the hands of her ex husband during their marriage and then after their divorce.  This was a hard enough story to hear.  She then told me that she was about ready to give up and go back even though she thought he would probably kill her for taking their son to the US because she had been treated so badly and was feeling so hopeless there in Artesia.

Here is the story of her first week in Artesia:  they arrived and her son, who is 6 had a cut on his arm that looked infected.  She and the son were told they had to be put into isolation so the son could be given antibiotics for 24 hours so he wouldn’t be contagious.  They put her into a room with her son alone.  They were not allowed out to eat or to let the kid play or exercise.  There were no toys or TV in this room.  After about 18 hours the doctor finally came to give him medicine, thus starting the 24 hours countdown.  One of the guards tried to cheer her up saying the 24 hours were almost over.  She told them the doctor had just come and begged them to at least put them in a room with some toys or a TV.  They did move her and her son to a room with a TV.  But inexplicably the 24 hours turned into 5 days.   They weren’t told why.  They weren’t let out except to be escorted to the bathroom.

At day 4 the mom got sick herself and was vomiting and having diarrhea.    She called the guard to ask to take her to the bathroom.  They told her she would have to wait.  She said she couldn’t, that she was sick.  No one came to get her and she ended up defecating in her pants.  She was telling me this in a room full of people, because there is no such thing as confidentiality at Artesia, the attorney room has no way to meet privately with your clients. She was crying, I was crying.  She said it was the most humiliating experience in her life, more humiliating than being beaten by her husband.  When the guards came to get her they laughed at her.  She had to walk across the compound covered in her own feces to the bathroom to take a shower.  Then she had to walk back in a towel because she didn’t have any extra clothes.   She was humiliated.  Her son was terrified.  She said she wanted to give up even if it meant going home and being beaten or being killed.  She was being treated like an animal and a criminal.  Her son had lost 7 or 8 pounds in 3 weeks.  And this is just one of the stories that I heard of women and their children being treated like sub-humans.  My federal criminal clients are treated far better

Look for my final thoughts in a post tomorrow.

Written by Angela Williams, AILA Member and Artesia Volunteer

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If you are an AILA member who wants to volunteer at Artesia or elsewhere, please see our Pro Bono page or feel free to contact Maheen Taqui at mtaqui@aila.org–the end of September and early October are short on volunteers and we could really use your help.

If you aren’t able to come help in person, consider donating at http://www.aila.org/helpthevolunteers. And thank you!

Artesia Betrays America: Part I

Artesia1In June and July, the humanitarian crisis on the border lit up the news and it was all I could think about.  The headlines were full of unaccompanied minors, politicians and protesters; the front pages had pictures of children sleeping in warehouses that were too cold.  My practice started seeing an increase in minors who had been released to family in the area.  Their stories were harrowing: tales of coyotes and smugglers, of running through desserts, hiding from narcos, seeing children fall from moving trains. Those were the stuff of nightmares, and I started having them, thinking about the children every night when I went home.

I kept comparing the children fleeing to my nieces and nephews; I cannot imagine the conditions in their countries that would make the Guatemalan version of my sister decide that sending kids on a multi country trek to distant relatives in the United States is safer than allowing them to continue to live where they were.  No one can.  The more I thought about it the more I felt I had to do something.  I heard about a group of lawyers from Kansas City going to Artesia, New Mexico to help at one of the “family detention centers.”  I expected to go there and have a heartbreaking week, but I wasn’t truly prepared. What I experienced was worse than heartbreaking.  Going to Artesia was both the best and the worst thing I have ever done and it reminded me why I became a lawyer.

First, I was wrong about so many things.  Artesia has no unaccompanied minors; all of the children who are there are with their mothers, which I thought might make it better.  It doesn’t. Second, while I expected some level of poor treatment, I expected that a basic level of due process would be observed.  It is not.  Finally, while I expected to find some amount of institutional roadblocks and resistance to the lawyers there working on behalf of the women and against their right to seek asylum in general, I expected that it would be more along the line of snarky attitudes and semi-racist commentary.  In reality what is happening in Artesia is nothing less than a purposeful and systematic effort to deny these women and their children meaningful access, and in many cases access at all, to not just our asylum process but a very basic and simple level of due process.

This is the first of three blog posts about my time there, what I learned, and the outrage I felt there and still feel today. I know now that we must do everything we can to end the detention of families.

I struggled all week while I was there to put a word to what I was feeling.  There was the feeling of being emotionally assaulted by the horrible stories of these women.  The abuse they suffered in their countries, the terror they suffered at the hands of the gangs, their domestic partners, their husbands, their fathers, their fathers-in-law.  The abuse suffered by their children at the hands of family members, gang members, other children at school.  As a lawyer in a particularly emotional area of law, (I only practice family based immigration focusing on removal defense, waivers, and humanitarian cases like U visas for crime victims, or political asylum, and criminal defense) I have heard my share of horrible stories.  But I don’t usually have to hear them every day, much less 7 or 8 of them in one day, in horrible conditions where the client tells me the horrible reason she had to flee her country, then the horrible story of her journey to the US, then the horrible treatment she endured in the 5 detention centers she was at prior to Artesia, and finally the horrible treatment she has suffered since arriving.

There was the feeling of helplessness.  Every day was some fresh hell.  Some new petty bullshit that was meant to do nothing more than hinder the women’s access to the attorneys and break their spirits.  Women told us they were called dogs and pigs by the agents as they were given food.  One day the agent in charge decided no one could sit on the floor and no one could sleep in the chairs in the room where the women were waiting to meet with the attorneys.  Not even the children.  There was nothing for the children to do other than watch a TV that had a continuous loop of one of 6 DVD’s in English.  No toys, no coloring books, no paper or crayons to draw, no books, no magazines.  We brought coloring books and crayons.  The guard took them and told us they were contraband.  We brought magazines of cars and motorcycles.  The guards took them and said they were contraband.  We brought markers and gave them our copy paper to draw on.  The guards took them and said they were contraband.  The moms had to discuss their very traumatic stories, in rooms that offered no chance of confidentiality in front of their kids, because the kids had to be in the same room as the mother and there was nothing else to do in the room except watch DVDs in English.  That is not to say that every agent was mean and hateful, some were, in fact very kind and did much to try to make the women and kids try not to feel so sad.  Most were simply ambivalent and saw watching them as part of their job and nothing more.  But there were a few that seemed to take pleasure in harassing the women and children and trying to break their spirits.

There was extreme frustration.  The asylum officers would come in and call a client for an interview we had been told was later in the day.  The attorney that had prepped the client was in another hearing so someone unfamiliar had to go.  The guard would call a client for a hearing in front of the immigration judge, who was in Virginia and appearing by video the size of a laptop, 2 hours early because the time was told to us in Eastern time rather than mountain time.  We would meet with clients who would hand us small pieces of paper written by other women who had been asking for weeks to see us and who had never been allowed by the guards and who had to resort to writing a note, giving it to another woman who had an appointment and would slip it to us.  The notes would say their names and identifying “Alien” number and ask if we could request to see them because the guards wouldn’t let the woman come in herself.

We read many credible fear interviews that were denied that should not have been, where the interviewer just failed to follow the law and chose to ignore it.  We read interviews where the interviewer clearly did not care to ask anything but cursory questions, over and over.  We met with women that were forced to give their interview in Spanish when their native language was an indigenous dialect and were denied credible fear.   We read interviews that were denied and then spoke to the woman only to find out that she was afraid to discuss the details of her abuse, sexual assault, rape, stalking, extortion, threats, etc in front of her minor child who was present in the room at the time of the interview.  We talked to women whose families had hired private lawyers but who had not been able to speak to these lawyers because there was little to no access to phones.  Women were given one phone call a day that usually lasted 3-5 minutes.  They could sometimes earn additional phone calls if they cleaned the bathroom.  If they called someone and that person did not answer they did not get to call anyone else.  They were often not allowed to use the phones during business hours.  Their attorneys would ask them to fax documents to them and agents told the women that they could not fax without money in their accounts, but families were not allowed to put money into any account.

What else did I see? More to come tomorrow.

Written by Angela Williams, AILA Member and Artesia Volunteer

Let’s Dance

Leslie DanceThis blog post is adapted from the speech I gave when I was installed as AILA’s President for the 2014-15 term. I was thrilled to be able to reflect at the Annual Conference hosted by my home chapter, the New England Chapter of AILA.

New England is where I found immigration and, if I hadn’t found immigration I don’t think that I would be practicing law. I started my legal career in New York as a commercial litigator, but I found my calling after moving to Vermont. I found it in immigration law through dance in Vermont – African dance in Vermont.

While I have always loved to dance, I’m not the most adept at it, but that never stopped me from enjoying all forms of dance in all its facets. So it was that in 1998 I began attending African dance classes in Burlington. Several members of the National Ballet of Guinea as well as Senegal and the Ivory Coast lived and worked in Burlington and after class they would ask me questions about their immigration status (P-3s). However, I knew nothing about immigration whatsoever and referred them to a terrific immigration attorney instead.

I am a first generation American (my mother was born in and escaped from Hungary) and between my history and my involvement with foreign dancers I made a life altering decision by deciding to concentrate only on immigration.  I distinctly remember my first task. I needed to determine whether a client had been admitted to the U.S. Admitted? They were here weren’t they?  – Of course they were admitted.  It took 16 hours of research before I realized that I had entered a world where nothing was as it seemed: the world of immigration law.

Five years ago I started on my way to the AILA presidency, working my way up from Secretary through all the roles and responsibilities until this year. Looking back at those years, I reviewed the goals I had set out each year for myself and the organization. I took a look at what had been resolved and accomplished, what issues recurred over and over again, what issues still remain, and which of my goals have not yet been reached.

While many of my priorities changed from year to year one issue remained constant – ironically it was the lack of consistency and predictability in adjudications, determinations, rulings, and admissions – and the need to fix this through, among other things, interagency engagement. Our world requires that we typically deal with not just one agency, but at least two, and generally three.

When I meet with new clients, I along with other immigration attorneys, often find myself saying something akin to the following during our initial consultation:  “Before we proceed it is imperative that you understand that, even if your petition is approved by the USCIS, you are not home free. You also need approval from the Department of State and then, even if you pass that hurdle, you still must obtain permission from U.S. Customs and Border Protection to actually enter the U.S.”

This situation is unfortunately a constant in all areas of our practice whether it is business, family, or removal. Think of H-1B visas denied after petition approval for critical employees, approved fiancées who never get here, or as we call it in our office, “love’s labors lost,” or waiver applicants with provisional grants denied on other grounds not previously believed to make one inadmissible. The interagency disconnect is not limited to the petition, visa, and subsequent admission situation. It is also at the heart of so many of the procedural issues that we face.

Thus, it makes sense that my primary long-term goal relates to AILA’s liaison work. One of the many benefits of living in Vermont is that I learned to practice immigration in a place where I truly had access to government officials and was able to work with them to address some of the issues that came up as a result of interagency miscommunication.

Having learned to practice where openness and accessibility continue to be the standard has guided my vision. Those of you who have sat in meetings with me likely have heard two recurrent themes. The first is that my local CBP, USCIS, and ICE offices are the exemplar. I have never felt that I could not approach them and they have always been willing to talk and listen. The second is a request I make, at each and every meeting: whether the agency would be open to a multi-agency dialogue at a later date.

I believe that many of our adjudication and process problems stem from the fact that two or more agencies have conflicting interpretations of the law or regulations and that they do not actually know the effect that their actions have on the applicant when that applicant must next deal with another agency. They may not know what switching to an automated form might mean for another agency which still requires a hardcopy. I believe that we could solve so many issues if we were just permitted to sit down together and explain the problems that crop up.

Interagency engagement is not the only way to attain more consistency and predictability in what we do. Another aspect is the need to locate, isolate, and change the negative policy that seems to be driving so many adjudications, decisions, and admissions. In our area of practice, I think more than in any other, discretion abounds. But it seems that more often than not the trend is toward denial rather than acceptance.

Earlier I told you that I found immigration through African Dance. However, not only did African Dance lead me to immigration, it taught me immigration. In representing my dance community I encountered early on in my career almost every immigration situation there is. The good news is that I was able to help them, at least until fairly recently.

Almost three years ago, one of my clients returned home to Guinea to visit his family and bring back new and current dance and drum rhythms. He had an approved P-3 and had never been in trouble with the law or violated his status. However despite that, his visa was denied for immigrant intent. He had returned to Guinea because of his strong family ties, yet he was denied. That sort of denial would not have happened just a few years ago.

Through all the ups and downs of immigration law practice, one thing has been constant – AILA. AILA is a community where people who perform the same work can obtain from it the tools they need to practice their profession. I truly believe that with just the InfoNet and AILAlink immigration attorneys have all the tools they need to practice immigration and, practice it well. But by also offering accessibility to mentors, practice management help, ethics guidance, media training, advocacy, and liaison assistance, immigration attorneys get all that they need to become well rounded and truly excellent in their field.

More than that though, I believe AILA goes far beyond just a professional community. It is also a fellowship. I practiced law for 11 years before joining AILA. I never experienced elsewhere the support, camaraderie and professional generosity with my peers that I found here. I ask that all of you continue to engage, to care deeply about AILA and its governance, and to share your thoughts and insights.

I am looking forward to this year. To liaising with the government and you. To working together to make positive changes in immigration, to make things better for our clients, to making AILA the best it can be.

Almost every Monday, Wednesday and Saturday I wake up with a feeling that something is special. They are dance days. I hope that every day this coming year is a dance day. If that happens I know that we can accomplish our goals and make a difference, as, in the words of the Hopi who steadfastly believed that through dance they would influence the Gods and accomplish their goals,  – To watch us dance is to hear our hearts speak. So, let’s dance!

Written by Leslie A. Holman, AILA President

To watch Leslie’s full speech, including a performance by her friends from the African dance and drumming community Jeh Kulu, watch here: Video: Leslie Holman Installation Speech

Getting a Little Serious about the Need for Immigration Reform

shutterstock_197321441This is a post adapted from my speech last week in accepting an award from AILA for outstanding contributions made as a young lawyer in the field of immigration and nationality law. While the occasion was a happy one and I was honored to receive that award, I took the opportunity, as I do here, to emphasize what is wrong with our current system and that we desperately need to fix it.  I hope you find it of interest:

As I think about the great migrations of people, I’m reminded of my own “gringa” migration from the heartland of Iowa to Washington, D.C. While my own journey was not nearly as harrowing an experience, it is that journey that led me to practice immigration law, to AILA, and to the work that I’m so passionate about.

I have been incredibly lucky to have several amazing people guiding me throughout my journey. My parents who taught me that everyone no matter their background deserves the chance to pursue their dreams. My wonderful husband Justin, whose constant love and support sustains me. Michelle Mendez, my friend and co-professor in the Catholic University immigration clinic who is the most selfless, passionate advocate that I know. The dedicated staff of Benach Ragland, and my partners who I deeply respect and admire; there is no one else I would rather work with in pursuit of our shared mission. Finally my mentor, the late great Michael Maggio: despite his busy immigration practice, he always found time to contribute to our field as a policy advocate, a pro bono champion and a mentor. I have strived to use Michael’s well-rounded approach to our work as a model in contributing through my own practice, especially as I’ve observed the developments in our field over the last few years.

We’re going to get a little serious now.

We are now faced with a humanitarian crisis at our borders.  CBP and ICE officers are using excessive force, inhumane detention conditions, and “no process” removals. We are faced with immigration courts fighting against insufficient resources, overcrowded dockets and cabined legal discretion. And we are faced with a renewed assault on our asylum system by Congress and the agencies themselves.

Yet, no actions are taken by those in power to fix our system. Instead we have a Congress that points fingers and strikes a pose in Capitol Hill hearings and an Administration which, on the back of an immigration reform-focused campaign, has taken to putting Band-Aids on gashes rather than treating the underlying wounds.

Until we have leaders who are going to work together to solve real problems that affect real people, American businesses, and separated families, it is up to us. It is for these reasons that this award is only the beginning of my journey.

Thank you so much for this honor and I hope you will join me in restoring due process and humanity in our immigration system.

Written by Dree Collopy, 2014 Joseph Minsky Young Lawyer Award Winner

 

Responding to the Increase in Child Migrants: We’ve Managed These Crises Before

shutterstock_199198397In my first week as an immigration lawyer, 286 Chinese migrants waded ashore in Queens, and a significant number were detained at a county prison near me in York, Pennsylvania.  In 1993, there was no significant infrastructure for handling those hundreds of cases in the Northeast – no detention facilities to hold them, government lawyers to prosecute them, judges to decide their cases, or immigration lawyers in York to volunteer to represent them. Everyone involved with the process felt overwhelmed, and many expressed the fear that thousands more Chinese migrants would undertake the dangerous ocean journey if the Golden Venture passengers were granted the ability to stay in the United States.

In spite of feeling overwhelmed, the government provided the resources to detain these migrants and to process their applications for relief.  The community rallied to help reunite the children among the migrants with their families, or to find foster homes for them if they had none; to train lawyers in asylum law and other humanitarian forms of relief, and to find volunteers to visit the detainees and help them communicate with their families.  The answer to the influx, ultimately, was improved economic growth in China that provided employment opportunities in the country to prospective migrants, which lessened the demand for migration from China to the United States.

On our southern border today, everyone is feeling overwhelmed by a humanitarian crisis: the detention of 200-250 child migrants each day along the US border with Mexico.   These children are unaccompanied by parents or relatives – while some are coming to try and reunite with relatives in the United States, many more are simply fleeing intolerable conditions in their home countries.  The majority of these children come from three countries: Honduras, Guatemala and El Salvador.  In these three countries, murder rates have skyrocketed in the past five years – Honduras has the highest murder rate in the world – and other forms of criminal violence have also risen.  Children interviewed by the United Nations High Commissioner for Refugees (UNHCR) have reported fleeing forced recruitment into gangs, much as “child soldiers” were recruited in African civil wars over the past decade.

While some elected leaders opposed to comprehensive immigration reform are claiming that children are coming to the United States because they believe they will be eligible for some form of legal status, that claim flies in the face of the fact that the U.S. is not the only country receiving displaced children and other individuals fleeing from these countries.  UNHCR reports that since 2009, the number of asylum applications from citizens of El Salvador, Guatemala and Honduras received by the surrounding countries of Belize, Nicaragua, Costa Rica, Panama and Mexico combined has increased by 712 percent.

What is to be done with these children?  As the United States has done in response to each of the large migration flows caused by political turmoil or natural disaster in the last twenty years – from the Cubans fleeing to Florida by boat in the mid-1990s to the survivors of the earthquake in Haiti – the children have been detained for removal proceedings in which it will be determined by a judge as to whether they have any claim to be able to stay in the United States.  They will be detained unless or until they can be reunited with a family member, either inside the United States or in their home country.  If they are reunited with a family member in the U.S., they will remain in removal proceedings until a judge decides their fate.  While the number of these children has risen in the past year, the administration has already been making plans to deal with it – witness their budget request for additional funding to detain and process these children, which demonstrates their planning for the eventuality that rates of arrival may continue to climb.

As many commentators have noted, however, the answer to the bigger question of how to prevent these children from coming to the United States does not lie at the US-Mexico border.  Rather, the United States must continue to engage with the governments in El Salvador, Honduras and Guatemala to build capacity for dealing with the violent criminals who are causing the conditions these children are fleeing.  Just as disaster aid to Haiti and a migration agreement with Cuba reduced the number of illegal migrant from those countries, the best answer to this newest wave of migrants will be assistance to the countries from which they are fleeing.

Solving the migration problem from those countries cannot happen overnight – and in the meantime, the United States must continue to treat these children humanely, to reunite them with families wherever they may be, and to grant them asylum if they are eligible for it.  If they are found to have no relief from deportation, they should be returned to their home country in as humane and safe a way as possible.  These children have already been traumatized at the hands of criminals – the U.S. immigration system should not traumatize them further.

Written by Bill Stock, AILA First Vice President

The Revised Credible Fear Lesson Plan: Enough is Enough!

ENOUGH2This is not just a blog post, but a call to action.  Over the past six months, we have seen dog-and-pony hearings by Congress and a series of administrative changes to our asylum system that have deviated from the United States’ longstanding obligations under domestic and international law to the detriment of bona fide refugees.  The most recent of these deviations is the U.S. Citizenship and Immigration Services (USCIS) Asylum Division’s revisions to its Lesson Plan on Credible Fear of Persecution and Torture Determinations.

Implicit in the core humanitarian purpose of U.S. asylum law is the requirement that it be as effective as possible in offering reliable protection to bona fide refugees.  While effectively protecting refugees may seem like a simple concept, the human rights considerations involved in U.S. asylum law often collide with the challenges involved in maintaining the integrity of the application process.  It is this collision that led to the development and implementation of the expedited removal and credible fear provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), which took effect on April 1, 1997.

Expedited removal was a direct result of the Congressional perception that individuals arriving at ports of entry with false or no documentation were abusing the asylum system.  Nonetheless, under U.S. asylum law – which was derived directly from international law – the government is prohibited from returning refugees to countries where they would face persecution.  In an attempt to address the potential for violations of this obligation of nonrefoulement through the implementation of the expedited removal process, the credible fear provisions were also enacted.  Under these provisions, rather than being subjected to immediate removal, an individual arriving at a port of entry who expresses a fear of persecution or torture will be referred to an asylum officer for a “credible fear” interview.  If the individual substantiates a “significant possibility” she could establish eligibility for asylum under INA § 208, the asylum officer will find her to have a credible fear of persecution.  Such a finding grants the individual her rightful day in court, allowing her to present a full asylum claim before an immigration judge in INA § 240 proceedings.

For those who have been following recent developments in U.S. asylum law and procedure, the rhetoric surrounding – largely unsubstantiated – claims that our asylum system is under attack by abuse and calling for sweeping changes that threaten the core humanitarian purpose of U.S. asylum law sounds all too familiar.  With a significant and steady influx of refugees fleeing the violence and turmoil stemming from the entrenchment of gangs and drug cartels in Central America, the human rights considerations involved in U.S. asylum law are once again colliding with the challenges involved in maintaining the integrity of our asylum system.  Unfortunately, this collision has resulted in a series of changes that have deviated from the United States’ longstanding obligations under domestic and international law to the detriment of bona fide refugees.

Over the past six months, we have seen border officers overzealously using expedited removal to deny individuals fleeing real persecution and torture the opportunity to seek asylum.  We have seen Congress focus its attention on a series of hearings entitled “Asylum Laws and Abuse,” designed to attack those seeking protection rather than the faulty implementation of the expedited removal and credible fear provisions by Customs and Border Protection and Immigration and Customs Enforcement.  We have seen the Board of Immigration Appeals, in Matter of M-E-V-G- and Matter of W-G-R-, dramatically increase the evidentiary burden on asylum-seekers while seeking to rationalize a legal test that is irreconcilable with U.S. obligations under domestic and international law.  And just last week, we saw the USCIS Asylum Division join in the backlash against the influx of refugees at our borders with a notable narrowing of the “significant possibility” standard for credible fear determinations made by its asylum officers.  Is anyone else out there thinking, “Enough is enough!?”

In this most recent development, USCIS revised its April 14, 2006 Lesson Plan on Credible Fear of Persecution and Torture Determinations, which it uses to train asylum officers.  In releasing the revised Lesson Plan, USCIS issued a memorandum describing the changes and the reasons for these changes (see AILA InfoNet Doc. No. 14041845).  In explaining the need for these revisions, USCIS notes the significant increase in credible fear referrals to the Asylum Division and its need to allocate more resources to credible fear adjudications than ever before.  Instead of recognizing that this increase in resources devoted to credible fear adjudications may be due to the overall increase in individuals seeking protection at our borders, however, USCIS seemingly attributes this increase to its concern that “the application of the ‘significant possibility’ standard has lately been interpreted to require only a minimal or mere possibility of success.”  Although USCIS claims that “these modifications…do not change the ‘significant possibility’ standard or alter the screening function of the credible fear process,” in practice these revisions will considerably narrow the longstanding “significant possibility” standard.

The main problems with the 2014 Lesson Plan stem from deviations that thwart the legislative intent behind the expedited removal and credible fear provisions.  The legislative history of IIRAIRA indicates that Congress intended the credible fear provisions to be a safety net and the “significant possibility” standard to be a low standard that would catch any potential refugees in that net.  The 2006 Lesson Plan previously included several explicit references to this intent, but in the 2014 Lesson Plan, all such references have been removed.

Moreover, Congress intended the credible fear process to serve as a threshold screening mechanism for protection claims to ensure that, in its implementation of the expedited removal provisions, the United States was still abiding by its longstanding obligation under domestic and international law not to return an individual fleeing persecution to his or her persecutor.  The credible fear process was not intended to be a full assessment or adjudication of an asylum claim, but rather, a gateway to the full assessment and adjudication process.

Contradicting this Congressional intent, the 2014 Lesson Plan: (1) directs officers to apply the significant possibility standard through the lens of a full adjudication, (2) emphasizes that a claim that has only a minimal or mere possibility does not meet the “significant possibility” standard, (3) creates a three-prong test that did not exist in the previous 2006 Lesson Plan standard, requiring the asylum-seeker’s testimony to be “credible, persuasive, and…specific”, and (4) includes extensive statements of the current regulations and case law, similar to those discussions included in the Lesson Plans on full asylum assessments and adjudications.  These changes seem to require an asylum officer to complete a full assessment of the asylum-seeker’s potential asylum or Convention Against Torture (CAT) claim, rather than a safety net preliminary screening for a potential refugee.

These changes are likely to yield confusion among asylum officers, as well as a blending of the credible fear standard with the full asylum and CAT standards.  Furthermore, they will likely lead to officers applying prohibitively high standards during credible fear interviews, creating yet another source for the increasing number of bona fide refugees who are denied the opportunity to seek asylum in the United States.  Finally, since these changes are likely to generate assessments that are closer to full asylum and CAT adjudications than screenings for potentially successful claims, these changes are ironically likely to cost USCIS even more time, money, and resources.  Notably, USCIS did not consult key non-governmental organizations or non-governmental stakeholders during its revision process.

Although these Lesson Plan revisions may seem minor in the grand scheme of our broken, punitive, and increasingly unworkable immigration system, to me, they signify another drastic deviation from our system’s founding principles and legal obligations.  I don’t know about you all, but for me, “Enough is enough!”  As another AILA year concludes and a new AILA year begins in June in Boston, let us re-commit ourselves to working together on all fronts.  Only together can we fill the next six months with developments that restore protection for bona fide refugees and renew our obligations under domestic and international law, while still maintaining the integrity of our asylum system.  This is not just a blog post, but a call to action.

Written by Dree Collopy, AILA Refugee & Asylum Liaison Committee Chair

No, It’s Not Over

shutterstock_147492446Last week I came to Washington and met with House leaders about immigration reform.  I heard a lot of pessimism and I certainly understand where it’s coming from.  After the high of the Senate bill passage, during AILA’s Annual Conference of course, we’ve descended into the lows of inaction.

There was a glimmer when the House Republican leadership released their standards for immigration reform but then the appearance of backtracking immediately thereafter resulted in a fizzle, rather than an explosion of forward momentum.

But let’s be honest, it was never going to be easy.  But we’ve kept up the fight.

And what’s impressive to me, and keeps me optimistic about our chances, is the fact that immigration reform is turning into an issue that is uniting more and more Americans rather than pulling them apart.

What do I mean?  Well, we’ve got poll after poll that points to an acceptance of the need for reform that helps the undocumented get on the road to citizenship.  We’ve got poll after poll that emphasizes the acceptance of DREAMers as the incredibly deserving group of kids that they are.  We’ve seen a shift in public perception from an emphasis on security and enforcement at all costs towards welcoming and understanding and wanting to DO something about our broken immigration system.

So while Washington, DC may be at a standstill, while Capitol Hill may not be moving, the rest of the country is.

And what that means is that we need to keep up the advocacy, keep up the push, and keep up the hard work in our communities, in our states, and in DC.

Which is why I’m asking you for your time.  Make a visit in February or March to your senator or representative.  Talk to them or their staff about why immigration reform is important.  Offer yourself as a resource, a person they can turn to for solid information about what bills have been brought up in committee, what they would mean for your community, and why this issue is so important.

Tell them about what you’ve witnessed.  Bring along a client and their family if they’re willing.  Share the impact that reform would have on a family facing deportation, local businesses, agriculture, high-tech, what have you.

And then commit to doing the visits again, in DC, as part of AILA’s National Day of Action on April 10.

I’m not giving up.  I’m going to keep meeting, educating, and sharing.  I’m going to keep my voice loud but respectful.  I’m going to make sure that both sides of the aisle know where I stand, and I encourage all of you to do the same.

You can sign up for the National Day of Action online.  It’s free, it’s important, and I hope to see you there.

Written by Doug Stump, AILA President

GOP’s Principles on Immigration Reform: A Welcome Sign, So Let’s Steer Forward

shutterstock_153955259House GOP leaders on Thursday released their standards for immigration reform.  With these principles, they renewed their position that reform of our broken system can only be attained “through a step-by-step, common-sense approach that starts with securing our country’s borders, enforcing our laws, and implementing robust enforcement measures.”  They made clear that they will not go to a conference with the Senate’s immigration bill.

Sen. Charles E. Schumer (D-NY) noted that “While these standards are certainly not everything we would agree with, they leave a real possibility that Democrats and Republicans, in both the House and Senate, can in some way come together and pass immigration reform that both sides can accept. It is a long, hard road but the door is open.”

Sen. Patrick Leahy (D-VT) tweeted that “Today’s House #GOP #immigration proposal falls short of the bipartisan #CIR we passed last year in the Senate…but I welcome any movement that leads to Congress finally fixing our broken immigration system.”

The first priority towards reform according to the GOP principles is the “fundamental duty of any government to secure its borders”, and so these principles prioritize securing and verifying the security of our Borders before tackling other aspects of our system.  Although this concept of “securing borders” is not new to the GOP rhetoric, one wonders if members of the House GOP have read the statistics that show deportations were at a record high in 2012 with 409,849 total deportations – the highest they’ve ever been.

Furthermore, at its peak, U.S. Border Patrol data show that apprehensions of undocumented immigrants nationwide and along the Southwest border routinely topped 1 million.  In 2004, the Border Patrol counted nearly 1.2 million apprehensions along the Southwestern border.  In 2012, the Border Patrol apprehended 364,768 individuals nationwide, 98 percent of whom were caught on the Southwestern border.  If these figures are not enough to signal a secure border, since FY 2001, the U.S. Border Patrol has steadily increased its number of agents from 9,821 agents nationwide to more than double today at 21,395 agents.

House Republicans make it clear that reform will include a “zero tolerance” for those who cross the border illegally or overstay their visas in the future, irrespective of the driving forces to do so, yet hopefully with a more robust legal immigration system and reduction in backlogs, the need for many to cross without documentation or overstay a visa will be minimal at best.  The principles also call for a robust visa tracking system and further require the full implementation a workable electronic employment verification system.

For a party that has long cherished and respected family values, it seems the principles frown at immigration through family members and “pure luck” – presumably referring to our current Diversity Visa Program.  It is true that at the crux of any developed Country is its ability to remain competitive in this global economy and attracting the brightest talent is a key component of this competitiveness.

A robust legal immigration system that includes visas and green cards for individuals seeking to contribute to not only the economic but social fabric of our nation is important, yet let’s not forget that these talented individuals have also left family behind.  Extended family such as parents, siblings, nieces, nephews, and grandparents are part of what fosters the entrepreneurial spirit, the researching drive, and the thrill at discovery that leads to excellence in many fields.  To say that family is not part of the success of a developed country is to fall short on the American dream.

It is promising to find the House principles recognize the committed spirit of the DREAMers, the young and talented aspiring Americans who are ingrained not only in our social fabric, but are a key part of our economic growth and development.

At the end of the line, we find those who have endured years of agony in taking steps to reunite with family and loved ones, who have lived in fear of deportation, abuse, and indifference; the 11 million individuals who have contributed to our economy and our neighborhoods.  Individuals, who despite living outside the “rule of law” have also risked it all in search of a better life, and along the way have contributed and improved our great Country.

To them, these principles offer a way to live legally and without fear in the U.S. if they were willing to admit their culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families.   The principles recognize what these individuals are already doing and remove the yoke of fear and insecurity.  Without a defined roadmap to full integration however, we will have to wait for further details to see the prospects of these individual becoming full-fledged Americans.

What this all means is yet to be seen.  These principles will serve as the House’s foundation for the immigration bills to be introduced, and as we all know, “the devil is in the details”.  The announcement from House leadership is encouraging following President Obama’s call to make this a “year of action” and pass immigration reform.

The balancing act will come when the parties sit down and hammer out the details of a series of bills addressing each aspect in these principles.  Critical to this balance is the understanding that our system must be completely revamped if not in one full sweep then with concise bills that address all areas of our system.  The American people are ready for it, the DREAMers are ready for it, the 11 million are ready for it, so let’s steer these principles forward for the future of our Country.

Written by Annaluisa Padilla, AILA Treasurer

Representative Goodlatte and Immigration Reform

shutterstock_86506957 (1)In an interview with Telemundo’s Jose Diaz Balart that will air this weekend, House Judiciary Committee Chairman Bob Goodlatte (R-VA) discussed prospects for immigration reform.  What he reportedly said made me cautiously hopeful. But it also showed me that we all have some work to do to get to smart reform.

According to a transcript of the interview, he talked about the progress that the committee had made last year by passing four bills out of committee.  Now, none of those four bills was anything that I’d want to see become law in their current forms, and at least one of the bills is quite troubling.  A couple of the others have some elements worth using, but need more work.

He didn’t share much about the principles that Speaker Boehner says are forthcoming from House, but he did say that they hoped those principles might galvanize support for immigration reform.  He emphasized the need for interior enforcement and the fact that a large proportion of immigrants who are here unlawfully are actually overstays.  That all seemed reasonable.

I am heartened that he was talking about achieving a legal status “for people who are not lawfully here.”  It is important for any immigration reform to recognize that legality, not mass deportations, is the answer for most of the people here without status.  And he is right that they should be “able to live here, work here, travel to and from their home country.  Be able to– own a business, pay their taxes.”

But stopping there would be a mistake.  The problems that some European and Middle Eastern countries have faced by having people present with no hope of ultimate integration—essentially  a permanent second-class status—have created undue pain for those countries.  Unless we fix the legal immigration system, and make sure that the people whose statuses are regularized now can participate fully in a robust legal immigration system, with an opportunity for naturalization for those who seek it, we will not have lasting reform.

I’m an immigration attorney and after decades in practice, I want change.  I would love to see the day when our system is more than just a cracked and broken set of policies.  I would embrace a new, straightforward immigration system that was clear with lines for people to get into without putting them into decades of limbo.  I want our businesses to get the best and the brightest as employees, and be able to keep them on.  I am eager for the entrepreneurs to feel welcome here in the U.S. and use their talents to drive our economy.  I dearly wish for a day when families are no longer torn apart but instead valued for what they are: the cornerstone of our nation.

I believe that this interview is a thawing of Mr. Goodlatte’s views on immigration and I feel cautiously hopeful that he is committed to really trying to pass meaningful legislation. I, for one, stand ready to help.