Archive for the ‘Immigration, General’ Category.

An Arduous Success in Artesia

Artesia1Friends – I share the good news that Lisa Weinberg successfully has obtained parole for one of our clients, a mother with a very sick toddler who had stopped walking and eating solid food since arriving in Artesia. As far as I know, this is the first order allowing release on parole of a family detained at Artesia.

The sad reality is that this is a child who should have been released from Artesia weeks ago, who had been hospitalized with pneumonia upon arriving, and who has never recovered from various illnesses in Artesia.  The mom and child plan to leave as soon as travel may be arranged.

This case is yet another example of why family detention should not be the government’s default setting in response to the regional humanitarian crisis. These families are fleeing persecution and violence but instead of offering safety, we make them jump through legal hurdles to get a sick kid out of jail.

Of course, this doesn’t mean that the mother and child are entirely free to go, they will be required to fulfill their obligation to appear for the immigration court proceedings that their case warrants, but at least they will be out of this unsanitary facility in the middle of a desert. They will be able to be cared for by family here in the U.S. and God willing, the child will get better.

Don’t take my word for the unsanitary conditions, read the Department of Homeland Security’s own Inspector General’s report of August 28, 2014.  Pages 2 – 3, note the presence of communicable disease, unsanitary conditions in the bathrooms, inadequate cleaning services, and unpalatable food – conditions that anyone who has spent time at the Artesia center can verify.

I urge my colleagues, and the public, to be aggressive in seeking release from detention for these women who are bona fide asylum seekers with viable claims of relief.

One very gratifying thing is that this victory is the outcome of perseverance and attention by a relay team of lawyers and other legal volunteers who worked sequentially and together to achieve the clients’ parole.  The mom was first represented by attorneys from Portland and Denver, then by NYC counsel, then Columbus, OH counsel, then Montana and El Paso, and finally by Lisa and her colleague Karen from Cambridge, MA.

This is the most “team” of team efforts I’ve ever been a part of, and I will continue to fight with all of you to provide these women and children the due process they deserve but that our government is trying its best to withhold from them. Our in-the-trenches model is truly a remarkable means for providing legal services to detained people in a remote location.

I am so proud to work with all of you.

Written by Deborah S. Smith, AILA Member and Artesia Volunteer

Judge Us by our Treatment of Child Refugees

41-zLDRiMRL._SY344_BO1,204,203,200_Over the Labor Day weekend, I read the personal memoir of a World War II child refugee.  A Long Way Home, by Bob Golan was published in 2005, although it was written from the contemporaneous notes of a 12 year boy whose family was driven from their home in Poland at the outbreak of World War II.  In the genre of Holocaust literature, we expect to read stories of cruelty, starvation, depravation and danger, and the extraordinary manner in which the survivors overcame the odds and lived to tell the story.  Mr. Golan’s account differs from the experience of concentration camps and ghettos. and instead, he tells the story of a child refugee as his family seeks safety but instead finds anti-Semitism and prejudice wherever they go.   Although the family escaped deportation to the concentration camps, they spent the war years as refugees learning to avoid and ultimately cope with extreme anti-Semitism, persecution and starvation in the Soviet Union.

The book is a compelling read, a story of courage, perseverance and the overwhelming will to live when faced with incredible deprivation, starvation, and disease.  The reader experiences anger and frustration caused by the anti-Semitism endemic not only from the Nazis, but from the Polish community and the USSR.  The reader learns  of the horror of the refugee camps in Ukraine during the early war years, a harrowing exile to Siberia, and the trek Mr. Golan ultimately took from Siberia to Tashkent, Tehran, and ultimately to Israel, where he arrived in 1943.  I don’t think my reaction of anger differs from most  readers because the horrible conditions were both unnecessary and the result of cruel and misguided prejudice and indifference.

But Mr. Golan’s story wasn’t just a story from the history of World War II.   I couldn’t help think of the reports I have been reading from colleagues in Artesia, New Mexico, and the stories of the women and children refugees from Central America, facing the same prejudice, deprivation, and the same barriers to resettlement and safety imposed by our own government.  Our government, the home of the free and the land of the brave, is acting on the worst prejudice of the population rather than our best instincts.   We are not talking about the anti-Semitism of Ukraine or Poland during World War II, the tyrannical policies of Stalin or the primitive isolation of Siberia.  In 2014, it is the United States government responding to refugees from Central American, mostly women and children, by incarcerating them in a remote location and deporting them without a hearing or serious consideration of the consequences.  We take only modest comfort that at least starvation is not part of the regimen in Artesia, but the crowded conditions, the isolation, and the inability of the children to attend school in an orderly, safe environment bears too much resemblance to the experience of Bob Golan as a 12 year old refugee in 1939.

Bob Golan’s hunger and fear was not relieved until he was identified by the Jewish Agency operating in Tehran in 1943, after which he was fed and clothed in safety for the first time in 4 years.   We are taught that the United States is a beacon of hope, that we have the resources, the compassion, and the means to provide safety and comfort for those who reach our shores as they flee from violence and fear.   I don’t understand how prejudice has permitted our government to define refugees as “illegal immigrants” in a misguided effort to deport them, and return them to violence and fear in the land they were forced to flee.  I am fearful that years from now, accounts of the way we are treating the refugees from Central America today will be compared to the treatment of Jewish refugees in 1939.   William Faulkner wrote that “The past is never dead. It’s not even past.”

But we really ought to be better than that past.

Written by Rob Cohen, Vice Chair, AILA’s USCIS Liaison Committee

Welcoming the Children to New York

photo 1On a hot, dusty summer day in the South Bronx, a small crowd gathered at a local church and community center, spilling into the street to escape the muggy air inside. By 8:30 AM, an hour and a half before our second Youth Assistance Fair of the summer was set to start, over a hundred recently arrived minors, mainly from Honduras, and their family members had already appeared. New York has received the second highest number of children from the surge at the border, with only Texas seeing more children being resettled within its boundaries. So far, we are over 4,000, all of whom have settled in NYC, the lower Hudson Valley, and Long Island. If predictions are accurate, we are on track to receive 8,000 or more total by the end of the year.

The Bronx event, the second in an ongoing series set to take place in and around New York City for at least the rest of the year, was conceived as a way to holistically address the needs of the unaccompanied children arriving here since the beginning of 2014.  In addition to a legal clinic, which offers free screenings to every child and family member who attend and who have not yet appeared in immigration court, attendees can meet with a variety of city, state, and non-profi t agencies and learn of the services available to them.

photo 2 The New York City Department of Education, the Administration for Children Services, the Human Resources Administration, and Healthy New York are some of the participating city agencies and are on hand to offer information on school enrollment, health insurance, public benefits families may qualify for. In addition, we have many community-based organizations and non-profits offer social services, including resources for victims of domestic violence, sexual abuse, and other, more typically child-appropriate issues.

At our first event, in downtown Manhattan in late July, information was handed out on a soccer league that welcomes unaccompanied minors every Saturday. At our Bronx event, Terra Firm, a medical-legal partnership at Montefiore Hospital geared towards unaccompanied minors, gave out information on where children could receive free mental health services. The initial event grew out of a planned DACA clinic, and was hastily transformed into the first Youth Assistance Fair in late July after the first set of released numbers revealed the impact of the surge on New York.

Future events have been designed to compliment the legal screenings set up in immigration court, where the five organizations who ha ve traditionally handled the juvenile dockets have worked to assure a presence in court at each priority docket – sometimes up to four dockets a day. Children screened in court do not receive a legal screening at the community events, although they are able to access all other information and services. Of the nearly 200 children who asked to speak to a lawyer in the Bronx, however, only one had already been screened in court. None of the children who sought legal services in Manhattan had been screened before.photo 3

Ultimately, nearly 350 people came to the Bronx event, and nearly 200 to the one in Manhattan.  Fairs are being scheduled in Brooklyn and Long Island in September, and plans are underway to return to the Bronx and schedule one in Queens and one in Westchester County in October. The strength of the community events, beyond the ability to bring a variety of services and information to compliment the legal screenings, is the sense of trust and comfort that is promoted by taking place in the community. Children played in the Bronx street, shut down for the day, while their parents dragged plastic chairs under the shade of the few trees.  A table with paper, crayons, and a few toys was set up for younger kids.  Church volunteers handed out sandwiches, watermelon slices, and cool water bottles to all who had come.

As the day’s activities wound down, they began making empanadas for everyone as well. And to volunteers, the experiences can be as meaningful as they are challenging. Far from the front lines at Artesia and the Southern Border, it is nonetheless rewarding to know that these children are not only armed with enough knowledge to speak up in court, but are also cared for in all other aspects of their lives.

Written by Camille Mackler, Co-Media Liaison, AILA New York City Chapter

What Does a Week in Artesia Look Like?

Artesia1AILA Member Megan Kludt headed down to Artesia to donate her time and knowledge, seeking to help the women and children jailed and facing an expedited deportation process. Here, in her own words, are a few snapshots from her days so far, for the full blog, see: http://immigrationartesia.blogspot.com/

Arrival

“I finally arrived in Artesia at 9pm today, after a couple of flights and a 4 hour drive through high plains and semi-desert. There is very little between Albuquerque and Artesia, aside from Roswell and some cows. Tomorrow morning at 6:45am, I’ll be meeting the other volunteer lawyers at the Federal Law Enforcement Training Center that since June has been serving as a “family” detention facility for 600 Central American moms and their children…

I have been hearing horror stories from the lawyers OTG (on the ground) before me. I’ve been hearing about flagrant violations of human rights and mistreatment of the children (the average age of the children at this facility is 6.5)… about loss of dignity, about women having to recount stories of violent domestic abuse and rape in front of their children, about lack of food, clothing, medicine and respect for the inmates and crowding in close quarters…

Day 1

I had my first meeting of the day at about 7:15am with a young girl from El Salvador accompanied by her 7-year old daughter. She was very pretty and in El Salvador had had the misfortune of attracting the attentions of a prominent member of the M18 gang. When she refused his advances, he showed up at her house with 6 of his cronies to beat and gang rape her. As she still wasn’t persuaded, he arranged for 3 more such visits over the next 6 months and began to make threats on her life. She finally fled to the United States. She was caught on entry and appeared for several hearings, before finally accepting an order of voluntary departure from the judge and returning willingly to her country. The process had taken 4 years and she felt safer. She was gang-raped again within a week of arriving home, and again a month later. As if this wasn’t enough, her daughter was kidnapped for ransom two weeks later (a common occurrence for people coming home from any amount of time in the U.S.). She sold everything she had to pay the $5000, and bought back her daughter. They soon wanted more money and went after her teenage brother, landing him in the emergency room. With nothing left and everything to fear, all three of them fled again, and mother and daughter have been languishing in Artesia since June. An officer initially tried to deport her saying she had no fear of going home, but a judge overruled it. My goal will be to try to secure a bond for her so she can be released and apply for asylum outside of jail.

The next mother I met (at about 10) had a 2-year old and was fleeing a particularly brutal domestic violence situation in Honduras. Her bond hearing is scheduled for tomorrow, so this took up a great portion of my day. I still have yet to fax to the court my bond motion, exhibits and memoranda for this case and the hearing is at 8am. The judges appear by video from HQ in VA so I have no choice but to fax. I’ve now been told this particular judge will refuse all of my documents and set the bond hearing out to a later day, because she is refusing faxes. I’m told to “get it on the record anyway” but it’s a little disheartening. These detainees are trapped in the middle of nowhere and the judges are hearing their cases over a video, so faxing seems reasonable. There are no overnight courier services in Artesia. The child is two and sick with a persistent cough, she barely took her head off her mom’s shoulder throughout our interview. Her mother was in tears through most of the interview…

Day 2

I spent most of today meeting people to get to know their stories and prepare them for their hearings tomorrow, where we will make a request for the judge to set a bond to release them. Every woman has a child with her at these meetings, often between the age of 2 and 5. Some of them are sullen and cling to their mothers, others are bright-eyed and playful. A great many are sick, as there seems to be some kind of virus going around with the kids here…

Two representatives from the United Nations High Commissioner for Refugees (UNHCR) toured the facility today…The prolonged detention policies in the United States have caught their attention; per UNHCR, detention should be avoided where possible and where necessary limited to a week or two in all cases due to the incredibly harmful psychological effects of detention. It should also not be discriminatory and should not inhibit refugees seeking political asylum. Almost all the women in the facility came to the United States seeking protection from severe physical harm or death. And then there are all the small children. Many of these children have been detained now for over a month, and some as much as two. Most have lost a lot of weight since arriving…

Day 3

Today, the presiding judge had hearings scheduled for about 15 women and their children. I was representing five of them and was hoping for a full bond hearing on three of them…At the start of the day, the judge (appearing by televideo from D.C. area in the court trailer) re-arranged the order of her cases for the day which created chaos for the guards who were trying to coordinate the transfer of women and toddlers to the court section of the facility…

One of my clients had a bond hearing; the other two were delayed until Wednesday for lack of time. The client who had a bond hearing came from Honduras with her 17 year old son, her 9 year old daughter and her 3-year old daughter. She was threatened at gunpoint by a gangster in her home town and left the country with her 3 children, fleeing the gangster, the increasing violence in Honduras, and crushing poverty. When the judge announced a bond amount of $22,000 for her to be released from Artesia, she disintegrated. I was at a complete loss as I saw my client burst into tears and collapse into the arms of her son. I sat with her in the next room afterwards as she wept, unable to look at me…

Day 5

…It’s impossible not to be moved by children. You smile at them instinctively. You want to protect them. But these children have been in jail for two months. Many of them don’t eat. They don’t like the food. They have diarrhea. Most of them have lost weight, some as much as 20% of their body weight. And above all else, these are bored little kids. They are now allowed crayons and coloring books in our waiting room, so they color for hours on end. There are few other toys…

One of my clients today asked me to arrange for her deportation. She was breastfeeding and said that her son will not consume anything at the facility and is sustained entirely on breast milk. He is constantly sick. She had her bond hearing and the Judge set a $20,000 bond for her and another $20,000 for the 1 1/2 year old. I’m concerned that returning to living in fear of her life in Honduras is preferable to her life in ICE custody. She cannot stay in Honduras; she is a refugee, but she will find another country to flee to next time.

…I’ve decided to extend my stay.

Day 6

This morning, I did bond preparation with the first client I met in Artesia (last week). Her bond hearing is Wednesday…I had to leave in the middle of the interview to get a hug from one of my colleagues.  I cannot imagine any worse suffering than what she has been through. If the bond on Wednesday is set high, I will truly lose all hope.

She gave me the government’s submission in opposition to her request for bond. The government is submitting identical 100+ page briefs in every bond case in Artesia. They argue that releasing the women and children detained in Artesia on a low bond would create a security risk for the United States because it would encourage further migration of central American women illegally across the border. In other words, we are detaining some Central American women and children as an example, to deter others from coming to the United States.

Days 7 & 8

We were scheduled for several bond hearings today. In the regular world, “bond hearings” in the immigration court last 10-30 minutes. In Artesia, they take almost 2 hours apiece. DHS has developed a theory that the Artesia children and their mothers pose a threat to national security if released on bond, because it will effectively encourage mass migration of more children and their mothers to the United States. We respond that these families are fleeing their lives in response to violence and persecution, rather than pursuant to a detailed understanding of the detention/bond process in the United States. Laura had some luck with her judge, earning a $5,000 bond for her family to get her out of Artesia. The hearing had to be stopped in middle so that our client could breastfeed…

Tomorrow, we will have our first “merits” hearing in Artesia. This means that the individual has not been able to post bond and is pursuing a request for asylum in the immigration court in Artesia at trial. Everyone will be watching tomorrow, including some news outlets. We have another hearing on Friday and on Monday.

…We are all still running on junk food, coffee and little sleep, but somehow it doesn’t seem to matter right now.”

Written by Megan Kludt, Artesia Volunteer

Let These Women Go

Artesia1There is a town in El Salvador where a woman named M-C- lived. In 2003, her husband beat her face until the purple welts glowed.  Your bloody face means you are mine, he said. He hit her for asking why he hit her. An open palm. A closed fist. On her arms. On her face. Beginning in 2004 and for the next ten years, he serially raped her. If you leave me, I will kill you, he said. And I will kill your father. To prove his point, he beat their daughter in front of her.

In this town in El Salvador, the people knew this woman was dying, but did not intervene. The police knew because she had the courage to call them. This is your life, they said. It is not our concern.  In 2011, 647 Salvadoran women were killed in femicide cases.

The U.S. Department of State reported the 2012 conviction rate for domestic or intrafamilial violence as 1.5% in El Salvador (3,367 cases and 51 convictions).

Leaving him risked death, but so did staying. In 2014, she came to the United States with her daughter to seek asylum. Customs and Border Patrol (CBP) arrested her in June 2014 when she crossed the Southern Border.

Let us pause this story for a moment because, as you will see, there is no ending yet. After she was arrested, she was transported to the remote desert immigration detention center in Artesia, New Mexico. She is held in captivity with her child in Artesia, where the proper administration of justice has been so greatly expedited that due process no longer matters.

M-C- like many before her, came to the United States because we have laws that protect persons fleeing persecution. The Refugee Act of 1980 protects those who have been persecuted in the past or have a well-founded fear of persecution on account of race, nationality, political opinion, religion or membership in a particular social group. This law is rooted in moral codes and customs as old as the Bible.

There is no doubt M-C- qualifies for asylum in the United States. This week, the Board of Immigration Appeals, our country’s highest immigration court, published a landmark decision confirming that women in abusive domestic relationships whose own country cannot or will not protect them are eligible for asylum if they make their individual case. The decision leaves no doubt that traumatized women pursuing these meritorious asylum claims need access to counsel so they can gather and present evidence. No one should be deported from Artesia without having legal representation.

But because M-C- is held at Artesia, this decision may not protect her. In Artesia, the rule of law has been suspended. A major federal lawsuit filed last week by a coalition of immigrant rights’ organizations challenges Artesia as a “deportation mill” designed to coerce women and children in danger of persecution into abandoning their rights.

Where do I come in? On August 3, 2014, I arrived in Artesia, New Mexico as a volunteer lawyer associated with the American Immigration Lawyers Association. I was one lawyer among a dozen from Oregon and elsewhere who had come to Artesia to defend women and children, like M-C-, who fled to save their lives. Since August 3, volunteer attorneys have screened or represented more than 400 women and children. We have conducted approximately 800 interviews of the women and children detained there, appeared in numerous court proceedings, and attended scores of credible fear interviews. By representing so many, we have amassed a large amount of data about Artesia.

The data shows that the White House designed Artesia to be an exception to the rule of law. Artesia is a White House experiment to engage in politically expedient deportations – a deportation machine.

What do I mean? Our law strikes a balance between the fundamental human right to liberty and the need for assurance that, if released to await a removal hearing, a noncitizen will not endanger the community and will show up to the hearing. It requires Immigration and Customs Enforcement (ICE) to decide on a case-by-case basis whether that particular noncitizen should be detained or released.

The Artesian reality is that for every woman and child screened in our program who was eligible for release, ICE denied release as a blanket policy—without conducting any individualized determination. The ICE policy is based on a political message sent through women like M-C-. In Secretary Jeh Johnson’s words, “We will send you back.”

To me, Secretary Johnson’s meaning is clear: We will send you back to your country because President Obama must be seen to be tough on immigration.

Two million deportations are enough to qualify President Obama as the “deporter-in-chief” but, apparently, it is not enough to qualify him as tough on immigration. For that, he must deport women and children from collapsing countries who are fleeing to save their lives.

The political decision to detain is apparent from ICE’s own evidence. In court filings, lawyers for ICE argue that these women and children are national security threats because they are not actually bona fide refugees. Two high-ranking immigration officials have signed declarations explaining that “active migration networks” must be stopped through a one-jail-fits-all policy of no release. Without looking at her individual case, DHS has jailed M-C- and her daughter to thwart a nebulous “active migration network.”

The officers base their conclusions on a single report issued by Vanderbilt University. But the report actually shows the opposite.  The data published in the report explain that these very women and children in Artesia are not part of an “active migration network.” The report says they migrated to the United States because they were afraid for their lives.

The data also suggests that the White House has politically tampered with the administrative quasi-judicial review process in Artesia. The judges assigned to Artesia to review the government’s blanket no-bond policy, come from the EOIR headquarters. You can see their names here. Three of these judges have higher than average asylum denial rates across all immigration judges in the United States.

The data we on the ground in Artesia have collected tells an even darker story. To obtain release from immigrant detention, a noncitizen must demonstrate that she is not flight risk or a danger to the community. An immigration judge can require a monetary bond to mitigate flight risk and insure court appearances. The nationwide average for appearance bonds is approximately $5,200. A recent BIA decision stated that $5,000 was appropriate for a woman in exactly M-C-‘s shoes. Yet three of the headquarters judges for Artesia have denied bond unilaterally or required bond amounts five to six times the national average (i.e., $30,000). This high bond policy, which is really a no bond policy for refugees fleeing violence, is all the more striking given that these women and children have no criminal records. In comparison, at a family detention center in Berks County, Pennsylvania, a woman who passes a credible fear interview is released on her own recognizance to await a hearing on the merits of her case.

Soon, M-C- and her daughter will appear before a judge thousands of miles away, speaking into a video camera connected to a video screen slightly larger than a laptop. The headquarters judge will sit in a courtroom that the public is not allowed to access. No dockets are posted like other courts. Everything is secret.

This real woman, M-C-, will sit on a small chair in a barren room inside a FEMA trailer set down in the middle of the desert with her daughter beside her. She will tell her story once again. The question is, will we listen?

Stephen W. Manning, Member of the AILA Board of Governors and Artesia Volunteer

Action on Immigration is Long Overdue

shutterstock_106049372Over the past week I spent some time considering the pros and cons of President Obama taking executive action on immigration. Is this really the right approach to handling our mounting immigration problem? Should we wait on Congress to finally get a bill passed? If we wait on Congress will our current batch of Deferred Action for Childhood Arrivals (DACA) recipients be at retirement age when that happens? I finally came to the conclusion that executive action is the appropriate step and it should not wait until after the November elections. A couple of interactions finally convinced me that unilateral action is the right move from the President:

Last Monday morning I received a call from a man who was frantically trying to stop the removal of his wife, Maria, by Immigration and Customs Enforcement (ICE). This is not an isolated occurrence, by the way. The call came in at around 11:00 a.m. and ICE already was in the process of executing the removal. They said she would be on her way to Mexico at 2 p.m. The removal was being expedited because the women had been previously deported by the border patrol without a judicial hearing over a decade ago. Therefore, she was subject to reinstatement of removal.

I rushed down to the ICE Enforcement and Removal Office in south Tucson. There I met her husband where he provided me with a small file folder filled with random documents. He explained to me that she suffered from seizures since the age of 3 years old and needs to consistently take an anti-seizure drug and receive medical care. He also explained that he himself suffers from numerous ailments including diabetes, hypertension and a chronic shoulder problem. Maria cares for him and he could not envision her being sent to Mexico with a high probability of not getting back to the United States. Maria has a U.S. citizen child, a child with DACA and she also is the primary caregiver to her 72-year-old mother.

ICE accepted the form but only gave Maria a temporary Order of Supervision requiring her to report again in 30 days while they review the request. Will they grant the stay of removal? It is difficult to say, but ICE denies a significant number of these requests.  Maria and her husband asked, “What else we can do?” What could I say? I responded with, “Pray that the President will announce something soon.” It is the same line I have told hundreds of people looking for options to fix their immigration dilemma: “Hopefully reforms will come soon.”

The next day I consulted with a surgeon from India. After several years of being on both J-1 and H-1B visas, he was hoping to become a permanent resident of the United States. I explained to him that there is currently a backlog for most highly skilled immigrants from India that could cause the process to take between 5-15 years. He was perplexed by the wait time and told me that he was already considering a move to either Canada or some other developed country that may appreciate his skills more.

For over a decade, I have been saying the system is broken. The U.S. government has failed on immigration, and in the meantime millions have been deported and families have been torn apart. Businesses have to wait each year for a random lottery to determine whether they will even be eligible to pay, on average, over $2,000 in filing fees just for the government to determine if they can hire a foreign worker with specialized skills. Businesses have been forced to outsource their labor or set up operations outside the United States due to this mounting problem as well as other immigration obstacles.  Aspiring immigrants are stuck waiting for several years and oftentimes decades to become permanent residents.

These are only a couple of examples of the damage our messed up immigration system has had on our economy and our community.  It is time for drastic changes to take place.  Maria, her husband and family need immediate relief.  The President taking action is long overdue. If Congress won’t do their job, I believe the President should do it for them. Go big Mr. President!

Written by Mo Goldman, Chair, AILA Media Advocacy Committee

The United States Must Do Better for Same-Sex Partners of Asylum Grantees

shutterstock_164979410Through established asylum and refugee laws, the United States offers protection to individuals who have been persecuted or who have a well-founded fear of persecution based on their sexual orientation, gender identity or because they are perceived to be part of those communities. It is clearly documented by the Department of State (DOS) that over 70 countries around the world actively criminalize homosexuality and target lesbian, gay, bisexual or transgender (LGBT) persons with hate and life-threatening violence. Just last year Russia passed new laws to criminalize homosexual “propaganda” and the India Supreme Court recriminalized homosexuality, overturning a lower court’s previous decriminalization decision. Multiple Middle Eastern countries continue to impose severe jail and death sentences in condemnation against LGBT individuals or those perceived as such.

By the very nature of these regressive laws, being lesbian, gay, bisexual or transgender is held illegal and immoral. There is no concept of equal treatment under the law in these homophobic countries nor any legal recognition whatsoever of same-sex relationships. Herein lies the conundrum for partners of LGBT asylees: only legally-married spouses are able to follow-to-join an asylum grantee to the United States. While same-sex marriage in the United States is now legally recognized for immigration benefits thanks to the June 2013 Windsor case, LGBT individuals who flee their home countries may leave behind a same-sex partner who cannot become a spouse, as same-sex marriage is not legal in the asylee’s home country. Without a legal spousal relationship, the same-sex partner of an asylee does not qualify to follow-to-join under U.S. immigration law.

The above is the general rule, so one would assume that there must be an exception to protect these vulnerable minorities. Yet, there is no clear policy or easily-accessible path for same-sex partners of asylees. A fair process for these same-sex partners would be consistent with the Obama administration’s policy for equality on LGBT rights and immigration’s historical pro-family unity polices, former Secretary Clinton’s statements on International Human Rights Day in 2011 that “gay rights are human rights, and human rights are gay rights,”[1] and the fact that the Department of State ostensibly allows a change in venue in LGBT immigrant visa processing when the safety of an LGBT applicant may be an issue.[2]

The harsh reality, however, is that both DOS and the Department of Homeland Security (DHS), up until now, are ignoring the very urgent need of same-sex partners and are denying tourist visas and humanitarian parole in even the most compelling of cases. A policy change on this issue is needed from each agency that adjudicates cases involving LGBT applicants, including DOS and DHS. Until the United States addresses this issue, there are untold LGBT individuals who are subjected to the fear of harm or actual violence because of who they are. This hole in the law, while probably unintended, continues to do nothing more than support the forced separation of families.

The only current legal options that exist for same-sex partners of asylees are through either a tourist visa or humanitarian parole. A tourist visa through DOS would allow a same-sex partner to marry in the United States, facilitating the pursuit of an immigrant visa once the asylee becomes a permanent resident. Even then, no immediate immigrant visa would be available to the partner due to visa retrogression, further complicating the goal of family unification. However, anecdotal reports suggest that tourist visas to the United States are being denied citing INA § 214(b), which may be proper under the law but seemingly unfair under the circumstances.

Another viable option is for the same-sex partner to seek humanitarian parole through DHS. With § 214(b) in mind, this may be a more appropriate route. Yet, DHS has denied such requests by same-sex partners of asylees, closing the door of legal possibilities for those couples. Humanitarian parole, while discretionary, should be a suitable option in these cases, especially since the law limits the use of follow-to-join to married spouses, not partners, and tourist visas raise immigrant intent issues for the same-sex partners of asylees.

Finally, the President and DOS should make every effort to make the resettlement process easier for same-sex partners of asylees through the United States Refugee Admissions Program (USRAP). While most refugees need to be outside their country of origin to process, the President may authorize some individuals to process in their home countries.

If the United States truly believes there is a special humanitarian concern for LGBT individuals and their partners in countries that seek to persecute them, our government must step up to create and implement clear policies that provide a path forward. Only then will we actually protect LGBT individuals abroad by reuniting same-sex partners with their families in the United States.

Written by Michael R. Jarecki, AILA Chicago Chapter Treasurer and Member, AILA Media Advocacy Committee

[1] http://translations.state.gov/st/english/texttrans/2011/12/20111206180616su0.4842885.html#axzz3BhhXJ5LF

[2] AILA InfoNet Doc. No. 14020741

Ignoring the Economics of Immigration

shutterstock_188334569Jeffrey Dorfman’s recent opinion piece in Forbes purporting to make the economic case against comprehensive immigration reform doesn’t stand up once his underlying data and unstated premise are examined.  With regard to the data, his piece relies almost entirely on a Heritage Foundation report released last year which attempted to assess the possible fiscal costs that might come from legalizing 11 million undocumented immigrants living in the United States. The report (a retread of a 2007 study by the same authors), was widely rejected by conservatives for shoddy methodology.

Both reports rely on faulty assumptions to inflate apparent costs, including unrealistic projections of how many immigrants could become legalized; double counting categories of immigrants (counting temporary workers as immigrants when they arrive, for example, and then again when they are allowed to stay permanently); and  assuming that nearly all immigrants would bring extended family to the United States.  The study also fails to account for the economic benefits of a growing, legal workforce, highlighted by both the Congressional Budget Office and conservative writers.

The Congressional Budget Office looked at the economic benefits of immigration reform in a comprehensive way and you know what they found?  That the benefits of an increase in legal residents from immigration legislation (S. 744) – which includes a pathway to citizenship – would far outweigh the costs. The findings in their report give proof that implementing smart immigration reform will strengthen the U.S economy. Creating an immigration system that puts immigrants on a path to citizenship will not only boost wages and entrepreneurship, but will also bring more tax contributions and spending in local economies. The report estimates that in the first decade after enactment, the immigration bill’s net effect of adding millions of additional taxpayers would decrease the federal budget deficit by $197 billion, even with higher spending on border security and government benefits. Over the next decade, the report found, the deficit reduction would be even greater – an estimated $700 billion, from 2024 to 2033.

So much for the data.  But what about the unstated premise of Dorfman’s argument?  Assuming the data is correct that anyone in the United States – from illegal immigrant to US citizens—receives more in government transfer payments than in taxes they pay, he argues that immigrants who are already here should not be granted a path to legal status.  If his argument is correct, however, why stop there?  If US citizens are a drain on government coffers if they lack a college degree, should they be removed as well?  And why stop at individuals?  According to a study from the Federal Reserve Bank of San Francisco, Mississippi, West Virginia and North Dakota all receive more per person from the federal government than they pay per person in taxes, so perhaps Dorfman would prefer that those states be removed from the Union?

Dorfman’s argument against legalizing lower-skilled immigrants ignores the important role that those immigrants play by increasing the productivity of the economy as a whole.  These immigrants work in more strenuous occupations than Americans, on average.  The ability of college-educated Americans to subcontract the work of food preparation, domestic chores and child-rearing to Americans and immigrants without a college degree is a win-win: complementing each other’s skills makes both groups more productive.  And finally, as Dorfman himself said in another context, “this win-win idea is not just in terms of income. In a capitalist society, people get rich by making somebody else better off.”  The economy will prosper when we make our currently-illegal workforce better off by legalizing their status, allowing them to raise the price of their labor in the market, thereby increasing the share of taxes they pay and their purchasing power.

Dorfman frames the choice on comprehensive immigration reform as being a “balance of compassion versus cost.”  Legalizing immigrants may be compassionate, but Dorfman ignores the substantial evidence that it will be an economic benefit as well.

Written by Bill Stock, AILA First Vice President

After a Month in Artesia

Artesia1I left Artesia on Saturday morning after about a month of volunteering. In that month, the days were approximately 16-19 hours long and full of horrific stories and circumstances that attorneys outside of Artesia can barely begin to imagine. So it’s not surprising I’m sure, to those who have volunteered in Artesia and have returned home, that I am struggling to process the emotional toll that this work has taken.

Every day, I think about how this system is broken, and about how shocking it is that people outside of Artesia don’t seem to know or care. I think about the flagrant violations of the rights of these women, on top of everything else they have endured, and how much of a betrayal that must be to those who thought the United States would help them escape these desperate situations in their home countries.

As an attorney, justice and the rule of law are two things that are so important to the foundation of my career that it hurts me deeply when I see the mockery of U.S. law that this system embodies. As an attorney, I usually trust judges to have an even deeper appreciation of our legal system, and to that end, I feel that we are on the same side in many ways. In Artesia, all of these ideas and beliefs are suspended, and any belief I had in the legal system in the United States crushed.

This is politics, pure and simple. It’s disgusting that the matters of life and death these women face are purely political in the eyes of people I normally trust to uphold the laws of the United States. It’s disgusting that the government argues against bond for these women without having stepped foot into the hellhole that they now call home. It’s disgusting that they would send women and children to their deaths, without affording them their rights under the law to have their cases heard, just to make an example of them.

I am so hurt, offended, disillusioned, and panic-stricken by the events unfolding in Artesia. All I can do as an individual is try my best to contribute my time in any way I can, whether that be coordinating volunteers, taking on individual cases, or helping people argue for bond. My grief and anxiety are paralyzing, and it is all I can do to focus on the underlying feelings of determination and strength that these women show me on a daily basis so that I can continue to move forward.

I appreciate the work of everyone in Artesia currently, as well as the work of those who have returned home. All of us together are giving these women something, even if it’s not all that we would like to give in the end. They are being shown that there are people who care about them, who are willing to fight for them, and who are willing to accept them here in the United States. We will do what we can, together, to give them a fighting chance. I love you all. I wish you all the best of luck, and I look forward to seeing all of you again this fall.

Written by Christina Brown, AILA Member and Artesia Volunteer

When Justice Isn’t Allowed to be Blind

shutterstock_142037272When I saw the name “Tabaddor” in this article, it grabbed my attention. As soon as I read it, my jaw dropped. Judge Tabaddor, one of the most impartial and brilliant judges that I have encountered in my 18-year career as an immigration attorney, was actually ordered by the Department of Justice (DOJ) to recuse herself from all Iranian cases due to her ethnicity!

As a disclaimer, I must say that I am also a proud Iranian-American and active in many social causes – mostly having to do with my LGBT community. The first thought that ran through my mind was what if a gay judge was told not to decide any gay cases….or a Latino judge was told the same regarding south of the border cases. I was infuriated.

I then remembered an immigration case many years ago – when I was still a law student – involving Jordanian/Palestinian Respondents – informally called the “LA 8” in the court room of another highly respected – now retired – immigration judge, Bruce Einhorn, a proud Jewish-American – also socially active in his Jewish community.

I contacted Judge Einhorn wanting to gauge his reaction to the DOJ recusal order. Not surprisingly – the good judge gave me a piece of his mind! Below I recount part of my exchange with him about this incredibly important issue:

Bolour: Judge – have you heard about this DOJ order re Judge Tabaddor?

Einhorn: Yes. It’s very disturbing.

Bolour: How well do you know IJ Tabaddor?

Einhorn: I have known her for more years than either of us cares to admit. As a law student, she served as my summer intern. She then served as my judicial law clerk and thereafter my attorney-advisor before being justifiably appropriated to the legal staff of then Chief Immigration Judge Michael Creppy. Judge Tabaddor then served with distinction as an attorney with the U.S. Justice Department’s Office of Immigration Litigation in Washington, D.C., and later as an Assistant United States Attorney back in L.A. We even served together as immigration judges in Los Angeles. She was the first of my former law clerks to become my colleague. She is also my friend.

Bolour: Do you think there is any basis for the DOJ order?

Einhorn: I know Judge Tabaddor well enough to know how fundamentally unfair it is for the Executive Office for Immigration Review to disqualify her from hearing any removal/relief cases involving Iranian nationals. Ashley Tabaddor is a proud Iranian-American, and justifiably so: her ethnic community, composed of several faiths, is one of the most successful and contributive in recent U.S. history. Judge Tabaddor is an active leader in the Iranian-American bar, a status encouraged by Justice Department regulations that support the community service work of DOJ employees, including IJs. Also, Ashley Tabaddor was afforded the honor of attending an August 2012, White House meeting to discuss federal government initiatives involving the Iranian-American community. EOIR had advance notice of Judge Tabaddor’s attendance at that meeting.

Bolour: I remember that you were also once involved in somewhat of a similar situation, Palestinian Respondents. Can you please share your own experience?

Einhorn: When I was an immigration judge, I handled, and ultimately dismissed with prejudice, the deportation cases against two Palestinian-Jordanians who were accused of assisting in terrorist activities. Defense counsel moved me to recuse myself from the proceedings because of my role as an American Jewish community leader. With EOIR’s support, I denied the motion because there was no convincing evidence of actual or apparent partiality on my part in the adjudication of respondents’ cases. In my dismissal of the motion, I noted that if I were to recuse myself from the actions at bar, then by the same reasoning, actively and traditionally Catholic judges and women judges should not be allowed to hear abortion rights cases, Arab-American judges should not be allowed to hear the asylum cases of Jewish respondents, African-American judges should not be allowed to hear civil rights cases, and so forth. We would be left only with white Anglo-Saxon male judges from Nebraska – unless, of course, they were active in inter-faith, inter-racial, or inter-ethnic fraternity groups.

Bolour: Judges are expected to be impartial. How did you balance your own social activism with your time on the bench?

Einhorn: Judges are not monks, nor should they be. They are in and part of the American community. As long as they scrupulously avoid actions that cast doubt on their fairness as jurists, they should be allowed without retribution to show their love of country by serving it off the bench as they do on it. Judges and their legal advisors should park their politics at the courthouse door – and that is exactly what Ashley Tabaddor has always done. I should know. Ask her colleagues on the bench and the attorneys for both the government and respondents who have appeared before her. They will agree with me.

Bolour: Any final thoughts on Tabaddor v. Holder?

Einhorn: We cannot afford to lose a judge of Ashley Tabaddor’s experience, intelligence, and integrity in the adjudication of all removal cases. The correctness or not of her decisions should be left for appellate review. EOIR should afford her the same fairness and presumption of innocence that respondents receive. She is one gallant woman.

Once again, Judge Einhorn, as he did many years ago when he let me visit his chambers as a law student, reaffirmed my belief in our justice system. I am confident that IJ Tabaddor will prevail in her quest to reaffirm her rights both under the First Amendment and Title VII of the Civil Rights Act of 1964.

Written by Ally Bolour, Member, AILA Media-Advocacy Committee