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Lory D. Rosenberg on Appeal Matters


  1. Notes from Dilley: sharing the blog of volunteer attorney B. John Ovink

    by Lory D. Rosenberg and B. John Ovink

    Amazing and outrageous developments keep occurring as the shameful family detention debacle continues at the jail called a “family residential center” in Dilley, Texas. In the past month, we have witnessed:

    • Two CARA pro bono attorneys being ousted and banned from Dilley by ICE for advocating zealously for their clients who were granted bond by Immigration Judges and should have been released
    • Judge Gee issuing a strongly worded Order requiring ICE to stop unlawfully detaining kids and their moms, in violation of the settlement order in the Flores case.
    • Two CARA volunteer attorney securing the release of a woman was detained in Dilley with her teen-age children, despite the fact she is a United States citizen

    These events and voluminous evidence of restrictions, intimidation, and deprivations of liberty make it impossible to accept, as the Obama administration insists, that Dilley is anything other than a jail, incarcerating families who have a legal right under the U.S. statutes to seek protection in the United States. The only distinction from any other prison in the U.S. is that this one holds babies and children.

    In this cruel and unconstitutional environment, the critical role of the dedicated volunteer immigration attorneys who are working pro bono in the CARA collaboration at Dilley is underscored by these on-the-ground blogs from my friend and colleague B. John Ovink who has been witnessing the heart wrenching and intolerable conditions while working at Dilley this week. Here are some lessons from the telling excerpts from John’s blog:

    Monday, day 1: This is not a benevolent family setting but an adversarial context in which DHS Immigration Customs and Enforcement (ICE) calls the shots from an enforcement persepctive. John writes:

    . . . saw a total of 11 people today in various stages between detention, waiting for their credible fear interview (CFI), and awaiting their bond hearing. We started 11 hours ago. Dilley is about waiting, rushing and more waiting . . . if you didn't know any better it looks like a first day of kindergarten, meeting, with the parents, their 2, 3 4 and 5 year old kids running around, sleeping on laps, and generally being kids. BUT WHAT KIND OF A COUNTRY IS THIS, WHERE WE ARE KEEPING A 3 YEAR OLD KID IN A JAIL?

    Tuesday, day 2: The continuing influx of detained women and children have no one but the volunteer immigration lawyers to help navigate a tedious, unforgiving system. John writes:

    Facts first: there are currently 1425 women and children here, a net increase of 403 in last ten days. There are 7 attorneys here, and 5 support staff. And this week we have a psychoanalyst here to document PTSD and trauma.

    The first 6 women are sitting in the chairs designated as waiting area, with their children, rubbing eyes because of sleep. They look at us full of hope, because the teams of volunteers who show up here are the only hope they have of ever getting out of here. . . I’ll be in court this morning, to see if the IJ will overturn a horrible negative CFI in which the transcript of the interview with the asylum officer contains statements like: "I find it incredibly unbelievable that you say this" and "I frankly don't believe you." And that's supposed to be non-adversarial.

    I’m back from court. Thank you Judge for reversing my client's negative CFI finding. . . that was the highlight of my day. Client cried and hugged. Now we need to get ICE to issue an NTA [a Notice To Appear that allows an inmate to have a bond hearing] and get it filed with the court. They could do that today. [But] ICE keeps "losing" files, and frustrating the process, procrastinating as long as they can.

    . . . It's 6:20 [PM], I’ve been going since 7AM this morning. The [second] highlight of my day today was getting a traumatized woman to talk about her trauma, and to find a basis in her story that qualifies her to stay. She’ll have her CFI tomorrow. I hope we win. I love this place. I finally feel I'm practicing law.

    There are still 5 women waiting to be seen. I'm amazed at their ability to understand my Spanish, and the effort they make to communicate. . . . Half the people here bring in sworn statements from border agents [Customs and Border Protection- CBP] that are completely made up. For instance, [the women] all say they weren't asked if they are afraid to return to their home country, but the sworn statements all say they are not afraid. Now, if that was one, I'd have doubts. but ALL?

    And that brings me to the kids they have with them. They are mighty intelligent. As an example, I read the sworn statement supposedly made by my client's 4 year old, who (without the use of a Spanish translator), was able to tell the CBP officer what time exactly and where she came in, she knew her date of birth, she understood that it was illegal to enter the USA without proper documents, and she also came to the USA to work. And on top of that, she did not have any fear that she would be persecuted if sent back to her own country. At least she refused to sign the statement (says the stamp by CBP at the bottom). For reasons of confidentiality, I can't print this statement. but I saw it with my own eyes today.

    Wednesday, day 3: Vigilance under extremely adverse conditions is essential so that the facts of a client’s heart wrenching persecution are told, clients receive needed health care, and are timely released. John writes:

    Good morning, friends and followers on the start of day three in Dilley . . .it's 7:20 AM here and we are getting set up for the day. The first women are filing in, dressed in pink, yellow or green tee shirts. I heard yesterday two 4 year olds argue: 'my dad paid our bond before your dad so we get out!' Somehow, I don’t think that's normal behavior for 4 year olds. Of course this is a privately run prison, and our government is paying something like $400 per person per day to be housed here. . . . ICE delaying the detainees release brings a huge profit to someone, and it's paid from your taxes.

    Great start . . . My first client was continuously raped by her cousin from ages 7 - 9. Ouch. She’s been here for 10 days without anything happening, and ICE hasn’t issued any documentation to start the process. Welcome to the Dilley “family residence.” And the 2 or 3 year old hysterically wailing in the background got to me. Pushing back tears. This work is very emotional, but satisfying.

    The children have to stay with their mothers while we are interviewing them, and they talk about rape, molestation, murder, etc. NO child should be allowed to hear this. We give them a coloring book to distract them. But we’re not allowed to bring any in, and must only use “official supplies.” It’s very distracting for us and the mothers to do 2 hours prep for possibly the most important interview in their lives while their kids are here. It’s like working in a kindergarten.

    The good news is my traumatized client passed her CFI today. . . .

    A note about healthcare. Client statement: last Sunday her daughter was sick and now limps, She has had a fever since Sunday, but the doctors don’t want to see people on Sunday so they gave her water. Then Monday, she went back, waited 5 hours in hot sun to be attended to. The Dr. said she had a throat infection and they would do some tests and come back later. The Dr. later gave her penicillin. When the daughter cried, the nurse told her don't cry because we don’t give medicine to everybody, and you should feel lucky you get medication. She was given an injection was in her hip. It's been hurting for 3 days, and has not alleviated the symptoms, and now she limps.

    John notes that his week at Dilley has not been without its rewards. He has improved his Spanish, deepened his appreciation of children, and participated in one of the most satisfying experiences a lawyer can have: providing the representation and advocacy his clients need to obtain justice.

    Stay tuned for more Notes from Dilley, chronicling John’s pro bono experience at Dilley this week. In the meantime, the CARA pro bono effort needs more attorneys, paralegals and equipment to support the women and children at Dilley. You can help by:

    Contacting Maheen Taqui at AILA [], one of the CARA partners, if you want to:

    • Volunteer to go to Dilley as an attorney or paralegal
    • Donate a reliable scanner
    • Provide printer ink or another printer and more ink supplies
    • Volunteer to help the women and children with their asylum claims when they post bond and are released to various locations across the country

    In addition, John notes that the CARA team on the ground could use help from those outside the facility, who would receive the bond instructions, name of detainee, A# and the name and phone number of their sponsor. Attorneys and legal assistant would then call the sponsor, explain what is needed using sample letters of support, and make sure that they get faxed back quickly. To participate, contact Maheen Taqui at AILA [] who will connect you.

    © 2015. All rights reserved Lory D. Rosenberg IDEAS Consultation and Coaching.
  2. Shameful Admissions Call for Powerful Pro Bono Response

    I’ve noticed recently that some immigration lawyers, myself included, have become so used to having our removal and asylum seeker clients jailed for months at a time, that it’s becoming difficult to grasp the horrendous impact on an individual client of having to endure even one more day of confinement. No matter that they have not been accused or convicted of any crime and that they have no criminal background. It’s such a common situation that representing clients who are routinely deprived of their liberty for weeks, or even months and years, is almost the norm.

    We are at risk of losing our sense of justifiable outrage. Not to mention a big chunk of our humanity. And it’s sickening. We’re talking about hard working taxpaying members of our communities, innocent visitors with valid visas, parents, and spouses separated from their families. Denied their freedom, robbed of their dignity. In civil proceedings? In this country?

    Although that is bad enough, we almost take it for granted. After all, Congress provided for detention in the statute. At least some of it is constitutional.

    Reading the shameful admissions of DHS spokespeople about their treatment of the mothers and children held in the Karnes and Dilley detention centers, however, should be enough to make anyone cringe. See New York Times, “A Federal Judge and a Hunger Strike Take on the Government’s Immigrant Detention Facilities,” by Wil S. Hylton, April 10, 2015.[1] We're not that jaded.

    One senior DHS official candidly admitted that “The decision to establish family detention facilities was in large part driven by the need to create a deterrent effect.” When journalist Wil S. Hylton inquired as to the legal rationale justifying the punishment of one group of people to affect the future behavior of another group of people, none was offered.

    Thankfully, as the article describes, on February 20, 2015, Judge James E. Boasberg of the District Court for the District of Columbia, invalidated that aspect of the administration’s strategy to curb illegal immigration across the Southwest border, by issuing a preliminary injunction in the class action lawsuit filed by the American Civil Liberties Union and the University of Texas law school immigration clinic.

    The lawsuit specifically challenged the government’s contention that locking up women and babies fleeing to the United States in fear for their lives was necessary to protect national security. In his order, Judge Boasberg ruled that the conditions in which the women and children were detained was causing them irreparable harm and the detention seemed out of line with Supreme Court decisions.

    Nonetheless, that hasn’t stopped DHS. It has only forced them to drop that argument as a basis for jailing infants, children as young as 2 and 3 year old, their preteen and teenage siblings, and their mothers, who all are fleeing horrific domestic violence, targeted gang violence and retribution, and other forms of persecution in El Salvador, Guatemala and Honduras. It hasn’t stopped them from demanding bonds of $7500-15,000, far above the women’s ability to pay for their release and conspicuously over the national average of $5,000. And it hasn’t stopped DHS Director Jeh Johnson from persisting in his determination to send a clear message to Central Americans coming without documents: “You will be sent home.”

    Notably, the same statute that provides for detention of persons who are a flight risk or a danger to the community provides that a person may apply for asylum without regard to his or her status and may do so at a port of entry or land border of the United States. This includes the very southwest land border from which the DHS Director threatens to send home all comers. Even more notably, access to high quality pro bono representation has resulted in an inordinately high percentage of these individuals’ asylum claims being granted. Moreover, asylum seekers as a group are reliably compliant with the terms of release from custody while their cases are pending.

    It's important to understand that the women and children detained in these facilities and discussed in this blog all have demonstrated to U.S. government officials that they have a credible fear of persecution in their home countries. For this reason, they have not been sent back home under the "expedited removal" process used in cases where a border crosser has no "credible fear." Instead they are specifically entitled by statute to release on bond, and they are all diligently pursuing their asylum claims.

    In the first week of April, facing continued indignities, continued harm to their children, and continued deprivation of their liberty, over 70 women jailed at the Karnes detention center carried out a hunger strike. The Refugee and Immigrant Center for Education and Legal Services (RAICES) reported that the mothers were told that if they refused to eat they could be declared unfit guardians for their children because they would have reduced brain functioning, and their children would be taken away.

    According to the New York Times article, DHS shamelessly acknowledged that, “ICE has been in constant communication with the residents at the facility. This communication has included discussing the negative health effects of not eating and how the decision of parents to stop eating may affect the care of their children.” In addition, some women were removed from the general population and placed in isolation in the medical infirmary where they were held in darkness at all times except when their meals were brought to them.

    This mistreatment and manipulation is utterly disgraceful. The administration’s entire premise for detaining Central American women and children seeking protection at the border in order to deter others from coming is shameful. The ICE practice of setting bonds far higher than needed to secure the women's appearance and beyond the women’s ability to pay – as a means of keeping them detained – is shameful.

    The ongoing DHS practice of standing by as the detained children lose weight, become ill, and exhibit signs of failure to thrive is shameful. Keeping these women and children detained when they are neither a flight risk nor a danger to the community is shameful. Forcing these women and children to remain detained for more than six months, the period which the Supreme Court determined would be unconstitutional without a (reasonable) individualized determination is shameful.

    These are human beings seeking the protections that we, as a country, are bound to provide under domestic and international law. Instead of treating them humanely while they go through the process of seeking asylum, our government is demeaning them, threatening them with loss of their children, and depriving them of their freedom. This calls for a response, and indeed, the word is that the women are planning a second hunger strike. But that’s not enough.

    This calls for a powerful pro bono response. Providing pro bono representation has debunked early administration predictions that none of these women had substantive, winning asylum claims. Providing pro bono representation has allowed these women a modicum of the dignity to which they are entitled. It has insured that these women are able to present their cases in a system that they do not understand, in a language that they do not speak, in a complex process with which they cannot comply without competent, high-quality legal representation that they cannot afford. Pro bono representation has enabled them to obtain the protection we have promised in our laws.

    Your pro bono efforts are needed to counter the shameful government mistreatment and resulting miscarriage of justice described in this blog! Whether or not you have provided pro bono services before, and whether or not you have expertise in this area as an immigration lawyer, you will find collegial support as a pro bono volunteer at both the Karnes and Dilley detention facilities. What is more, you will benefit as much as the client you represent.

    The Catholic Legal Immigration Network, the American Immigration Council, the Refugee and Immigrant Center for Education and Legal Services, and the American Immigration Lawyers Association, or CARA, recently joined forces in an effort to respond to the expansion of DHS enforcement against the Central American women and children in the Karnes and Dilley detention facilities in Texas. See AILA Doc No. 14100656, Dated March 31, 2015.[2] CARA is committed to ensuring that detained children and their mothers receive competent, pro bono representation, and developing aggressive, effective advocacy and litigation strategies to end the practice of family detention.

    RAICES, the University of Texas law school immigration clinic, Akin Gump, and the Tahirih Justice Center are providing support at Karnes, and CLINIC, AILA and AIC are leading the pro bono effort in Dilley. The Dilley Pro Bono effort is employing a non-traditional week long model, requesting interested volunteers to commit to a full week on the ground (Sunday to Friday), and to arrive in San Antonio by Sunday afternoon for a mandatory on the ground orientation session. CARA currently is recruiting volunteers through September 2015.

    The detention of children and their mothers is not only inhumane, but incompatible with a fair legal process. As AILA President Leslie Holman has stated, “You can call it a 'Family Residential Center' but it is a prison…That's not what these women and children deserve."


    [2] Alert&utm_medium=Email&utm_campaign=RP%20Daily.

    Updated 04-10-2015 at 10:56 PM by Lrosenberg

  3. Sock it to me, Supreme Court![1]

    What's up with the categorical approach?

    What’s up with the Solicitor General’s insistence that -- even after Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) – the categorical approach, as clearly articulated by the Supreme Court, is not to be followed in construing a state drug paraphernalia conviction? Historically, and as undeniably revitalized by the Court’s 2013 opinions in Moncrieffe v. Holder, supra. and Descamps v. United States, 133 S.Ct. 2276, 2285 (2013), the controlling premise that in construing a conviction, it “is not what the offender actually did, but the crime of which he has been convicted,” enjoys wide acceptance.

    The decision in Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013), issued on October 28, 2013 by the United States Court of Appeals for the Eighth Circuit, stands in stark contrast to the Supreme Court’s recent clarifications in Moncrieffe and Descamps. Rather, the Eighth Circuit did its best to sidestep the categorical approach altogether and diverted a good portion of its decision to the “special circumstances” exception to the categorical approach. Cf. Nijahwan v. Holder, 557 U.S. 29, (2009). Relying onpre-Moncrieffe BIA precedent, Matter of Martinez Espinoza, 25 I. & N. Dec. 118 (BIA 2009), the Eighth Circuit simply deferred to the BIA’s pre-Moncrieffe dismissal of Mellouli’s appeal, and held that Mellouli's “conviction for possession of drug paraphernalia involves drug trade in general and, thus, is covered under [8 U.S.C. § 1227(a)(2)(B)(i).”

    This is a legally untenable position. Yet, it is the one that the Solicitor General will be arguing on Wednesday, January 14, 2015 when Mellouli’s petition is heard by the Supreme Court.

    Enough with the “crime as defined,” what actually happened?

    After Mr. Mellouli was arrested for DUI, deputies at the detention center discovered in Mellouli’s sock, four orange tablets bearing the inscription, “M Aphet Salts 30 mg.” The drug was Adderall, which is listed on both the Kansas and federal controlled substance schedules, and Mellouli had 4 tablets of it hidden in his sock when he was arrested.

    Mellouli was charged with a level 6 felony of “trafficking in contraband in a jail,” but he did not plead guilty to this offense. The offense to which he actually pled guilty was misdemeanor possession of drug paraphernalia, in violation of Kan. Stat. Ann. § 21–36a09(b)(recodified at § 21–5709(b)), as charged in an amended complaint. The amended complaint did not identify the controlled substance Mellouli stored in his sock, which was deemed to be the “paraphernalia.”

    Incidentally, if we are so interested in what Mr. Mellouli actually did, we should ask who puts 4 Adderall pills in his sock, gets drunk and then drives drunk in an effort to get arrested so he can engage in drug trafficking in jail? Plainly, Mellouli did not set out to engage in drug trafficking, as he initially was charged; what Mellouli actually did was to possess 4 Adderall tablets. If the categorical approach sometimes seems convoluted, just think about the criminal charges routinely lodged by law enforcement in relation to what happened. So much for dealing in actualities.

    Ill-advised interpretations cannot stand

    The crux of the matter is section 237(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(B)(i), which lists as deportable and subject to removal,

    Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable. Id. (emphasis added).

    Mellouli’s position consistently has been that he is not removable under § 1227(a)(2)(B)(i) because the record of conviction does not identify the substance underlying his state paraphernalia conviction, making it impossible for the government to establish that the conviction is one relating to a controlled substance as defined in 21 U.S.C. § 802 As in Matter of Paulus, 11 I. & N. Dec. 274, 276 (BIA 1965), where the BIA concluded that Paulus was not deportable because his conviction could have involved a substance that was not a narcotic drug under federal laws, the substance involved in Mellouli’s paraphernalia conviction may not be a controlled substance under federal laws.

    The Supreme Court has declared that the role of a court in determining the nature of a conviction for purposes of deciding whether it amounts to an immigration violation, is to construe the statute of conviction with respect to “what the state conviction necessarily involved.” Moncrieffe v. Holder, supra. This is a technical exercise that relies on the “categorical approach,” in which a court looks first to the statutory language in the statute of conviction to determine the minimum conduct that would support a conviction. Only “when a statute lists multiple, alternative elements, and so effectively creates ‘several different crimes,’” should a court look beyond the statute to the record of conviction. Descamps v. United States, 133 S.Ct. at 2285, quoting Nijahwan v. Holder, supra.

    The ground of deportability involving offenses “relating-to” a federal controlled substance calls for differentiating those state controlled substance convictions that are less serious than those defined in 21 U.S.C. section 802, or that may not come within the precise language of the statute. When the record of conviction contains no information indicating the crime of which the offender was convicted, there is no basis on which to conclude that it was one relating to a controlled substance.

    Timing may be everything

    Timing should make a difference in assessing Mr. Mellouli’s arguments, as well as the disposition of his appeal to the BIA. In particular, the BIA decision under review by the Eighth Circuit was issued prior to the Supreme Court’s clarifying discussion of the categorical approach in Moncrieffe v. Holder, supra. The Supreme Court’s decisive opinion in Moncrieffe should have given the Eighth Circuit pause in reviewing Mellouli’s petition in 2013, but there is no indication that it did.

    Rather than following the categorical approach outlined in Moncrieffe, the Eighth Circuit ruled that it would adopt BIA’s categorical reading of the “relating to” provision in § 1227(a)(2)(B)(i). The Eighth Circuit thus adopted the BIA’s rejection of the well-established premise that a drug paraphernalia conviction is not “relating to” a federal controlled substance within the meaning of § 1227(a)(2)(B)(i) unless the conviction identifies a particular controlled substance with which the paraphernalia was used. Moreover, the Eighth Circuit rejected Mellouli’s Paulus argument, contriving an unfounded rationale to explain why the BIA failed to follow or distinguish Paulus in Mellouli’s appeal. The circuit court’s deference to the BIA’s reading of the statute is inappropriate when the BIA’s interpretation on its face fails to give meaning to the careful distinctions drawn by Congress in defining federal controlled substance offenses.

    Clinging to 2009 agency decisions that misconstrue the statutory language in adjudicating Mellouli’s petition for review, is ill-advised. Ignoring the categorical approach in the aftermath of the Supreme Court’s 2013 Moncrieffe and Descamps opinions cannot be justified.

    Enough already

    Under the rubric of adhering to the reasonable interpretation of the BIA in Matter of Martinez Espinoza, supra, the circuit court endorsed an overbroad approach that encompasses all crimes involving paraphernalia as being “related to” a federal controlled substance without regard to whether it is so classified. Id. (“we have affirmed the BIA's categorical determination that Mellouli's drug paraphernalia conviction was within § 1227(a)(2)(B)(i), without regard to whether the paraphernalia was used in connection with a federally scheduled drug.”)

    If there was any legitimate basis, prior to 2013, to question the applicability of the categorical approach, it no longer exists. The Supreme Court’s emphasis on the minimum conduct necessary to support a conviction being dispositive of its nature has laid to rest any argument limiting the applicability of the categorical approach to cases such as Mr. Mellouli’s, Moncrieffe v Holder, supra. The minimum conduct necessary cannot be determined by abandoning the categorical approach and embracing an unauthorized, catch-all “drug trade” classification. Notwithstanding the BIA’s ill-conceived 2009 decision, the categorical approach may not be ignored when the question is whether a conviction relates to or does not relate to a federal controlled substance as defined by 8 U.S.C. § 1227(a)(2)(B)(i).

    Indeed, as Jennifer Lee Koh states so succinctly: “[t]he Eighth Circuit’s exasperation with the categorical approach does not justify its flawed interpretation of the law.” Koh, J, Rethinking Removability for Possession of Drug Paraphernalia (aka a sock), Let's hope the Supreme Court agrees.

    [1]A Nixon-era, late 60’s expression used in different contexts to mean give it to me, let me have it, e.g. Goldie Hawn would say "Sock it to me," on the TV show, Rowan and Martin's Laugh-inThe Isely Brothers sang, "I can't tell you who to sock it to." Urban Dictionary, One of the lines in the Otis Redding song “Respect” as sung by Aretha Franklin who added the line, “Sock it to me, sock it to me” to the song.

    (c) 2015. All rights reserved. Lory D. Rosenberg

    Updated 01-14-2015 at 07:20 PM by Lrosenberg

  4. Too Little, Too Late

    The Obama Administration's September 30, 2014 announcement that refugee protection for certain minors fleeing Honduras, El Salvador, and Guatemala will be provided via in-country processing may be a welcome acknowledgement that these Central American countries belong on the United States refugee resettlement list, but it will do little for most of today's refugees.

    In-country (as opposed to third-country) processing is not a preferred method for adjudicating refugee status. This is particularly true when the "persecutors" are playing quasi-governmental roles, and/or are insurgents who have invaded or taken over the government.

    When I was in Haiti in 1993 and observed the start of U.S. in-country processing in that country, applicants were required to walk into the downtown Port au Prince building in broad daylight for their appointments with U.S. officials. Inside the offices, multiple interviews were conducted simultaneously in a large conference room. To say the least, the process lacked confidentiality protections, a serious flaw in an environment riddled with spies and informants (and gangs, and paid-off police).

    Although recognition of the need to allocate refugee resettlement numbers to Central American countries is important, it will not end flight to the United States from conditions of persecution. Moreover, contrary to what many appear to believe, coming to the US and seeking asylum upon arrival is not the "wrong way," as opposed to the "right way" of applying through an in-country process. Our statute expressly contemplates that asylum seekers in flight from persecution may arrive at a port of entry or border crossing and apply for asylum. That is consistent with the United Nations Refugee Convention and Protocol, with which the U.S. is expected to be in compliance (and is in compliance, with some exceptions, including the U.S.-added obstacle requiring asylum seekers arriving at our borders to first pass a credible fear test before being allowed to apply for asylum).

    As for the 4,000 refugee slots provided, it is grossly inadequate and ultimately unlikely to benefit more than approximately 250 children. It certainly will not stop children from fleeing to the U.S. and cannot justify their repatriation. To make refugee protection through in-country processing a meaningful alternative to asylum requests at the border, the number would have to be increased dramatically.

    Another flaw is in the apparent requirement that the child must have a "lawful" relative in the United States. The definition to be applied to this relationship requirement is unknown at this time, but is likely to be the accepted “qualifying family member” term applicable to visa petitions and waivers. Although it is understandable that the U.S. is interested in reunifying these children with their families, many of the parents of minors now facing persecution in their home countries entered the U.S. without papers and are not lawfully in the U.S., foreclosing reunification for the vast majority of children, if this requirement is enforced.

    Parents who are lawfully present in the U.S., may have included their child as a derivative on their own immigrant visa application, or petitioned for him/her, so that the small number of refugee spots may be distributed to children of lawful permanent residents holding not-yet-current priority dates after February 2013. While it might be possible to argue for an expansion of the definition of "lawful" to include children of parents who have been granted asylum (asylees), or parents who have TPS, the number of available spots is so small that (unless it is significantly increased) the numbers will be exhausted quickly.

    I support designating as refugees the children who are fleeing the rampant violence, danger, corruption and outright persecution perpetrated by the gang insurgencies in Honduras, El Salvador and Guatemala. Much as I dislike being a naysayer, this gesture is not a panacea for any of it.

    (c). 2014. All rights reserved, Lory D. Rosenberg

    Updated 10-03-2014 at 03:05 PM by Lrosenberg

  5. The Relevance of Outrageous Conditions, Part II

    Part II. No Place for Families

    Day to day egregious detention conditions aside, the IJs very likely have no idea what it is like for a mother and child who are living in a jail rather than at liberty, to appear before the IJ in a trailer rather than in a real courtroom. They can have no idea of what it involves for respondents in “family detention” to prepare their cases for a bond hearing, or a “master calendar” hearing that amounts to the first step in their removal proceedings, or for their ultimate hearing on the merits.

    These mothers are young women, alone in a remote, regimented facility with their children; they do not speak or understand English; they are not free to move around; they have no clothes or possessions of their own; they cannot go to the bathroom without prior permission, even if it means soiling themselves. They are unable to take their sick children to a doctor or hospital. They cannot feed their kids when they are hungry or put them down for a nap when they are tired; they cannot send their kids to school, allow their kids to play, or ask other mothers to babysit while they take a break or meet with their lawyers.

    The level of stress and uncertainty this creates is pervasive and exhausting. Their child or children must be with them at all times. That means their children must “behave” while the their mothers are interviewed by their lawyer, sometimes many times over, concerning the often gruesome details of the violence and danger they face, as well as the abuse and harm they already may have suffered. Sometimes, the danger back home involves threats to kill the very same child or children listening to their mother’s interview or testimony.

    Access to competent counsel at Artesia, once nonexistent, now is by triage, thanks to AILA’s Pro Bono Project, which stepped in and organized immigration lawyers from all over the United States to donate their expertise and compassion to these cases. The mothers are fortunate to have a pro bono lawyer on the ground, even if they must reveal intimate and painful facts about their lives with their children listening. Sometimes, there is no time to assign the mother and her child to a lawyer, or no lawyer is available, and the mother has to be coached at the last minute to represent herself. On a few devastating occasions a mother and child in Artesia did not show up for a scheduled attorney appointment, because overnight, they were taken away by ICE and deported.

    These cases involve sensitive issues and traumatic factors. Often, a mother in detention who needs to reach her out-of-state lawyer by phone to prepare for a hearing or provide information for an application is not allowed to make the call at the appointed time and the lawyer must wait for hours to hear from her client. Many times, a guard interrupts or cuts off the interview after 10 or 15 minutes, standing close to the mother during the call and taking the phone out of her hand. Sometimes, an assigned lawyer must leave Artesia before a case concludes, and another lawyer whom the mother does not know rotates in to take over the case and must rebuild the attorney-client relationship.

    The pro bono volunteers go to great lengths for their clients, working collaboratively both on the ground and out of state, doing whatever needs to be done to present the highest quality, most effective legal representation on behalf of these mothers and children. Several attorneys have worked on their clients’ cases through times of personal family loss and during maternity leave. Many pro bono lawyers have driven hundreds of miles from out of state to return to the facility in order to be present with their clients at the time of their video hearing before the IJ.

    First and foremost for the mothers and their children is their bond hearing, which represents the possibility they may be able to leave Artesia and reside with family or friends while their cases are pending. Release from detention allows a respondent to get needed medical care for herself and her children, place her kids in school, and meet freely with her legal counsel and fully assist in preparing her request for asylum. In contrast, conditions in Artesia deprive the children of needed health care, education, and an environment that nurtures their development, and these conditions deprive the mothers of their dignity, perpetuating the debilitating stress and trauma they already have experienced, and at a minimum, endangering their psychological health and well-being. These conditions are crushing the spirit of mothers and children alike.

    At the appointed time, the mother and children are seated at a table in a trailer semi-converted into a “courtroom.” Often, a uniformed guard walks back and forth across the trailer. Maintaining order.

    The children must sit still and stay quiet during the hearing before the IJ, but sometimes a child is irrepressible and runs around the room, posturing and waving before the video camera. Given the persistent colds, bronchitis and illnesses the children are suffering, sometimes a feverish child crawls up into his mother’s lap and falls asleep in his mother’s arms. If there is an infant, the baby is likely to struggle and fuss or cry during the hearing; the toddlers often become restless, distracting their mothers, who may already be preoccupied with worry.

    There is no one in the trailer “courtroom” other than the mother, her child, and if she has one, her pro bono attorney, sometimes accompanied by another legal volunteer who observes the proceedings and takes notes. The proceedings are conducted by video, in English, with no interpreter to translate the full hearing discourse for the respondent. Only the questions the mother is asked are translated into her native language, and her responses are translated into English.

    The Immigration Judge is not in the trailer, but in a government courtroom in a distant state. He or she is visible only on a small, 20 inch laptop-size television screen that makes him or her appear small and far away. Mothers and their lawyers alike must sit directly in front of the small screen in order to see the IJ. The IJ speaks to the respondent but she cannot understand what he says until an interpreter whom she cannot see repeats the words in Spanish or a dialect she understands. There is no official translation of anything that is said by the ICE attorney who is in the IJ’s courtroom and opposes release on bond, claiming there is a mass migration from Central America.

    It is scary and surrealistic.

    The mothers, once again, must “speak up” with their children present, and testify under oath before the IJ to relate the credible details of the violent events and terrifying fears that motivated their flight, of what happened along the way, of why they pose no danger to the U.S., and of the guarantees they can offer to show that they are not a flight risk. In light of the enforcement policy adopted by the Obama administration and the “no-bond” position taken by ICE, the mother must establish that her flight was motivated by individual circumstances of persecution, and not, as ICE mistakenly claims, due to being part of some sort of migration movement. [1] This is not an ordinary bond hearing.

    Ironically, in these difficult, challenging conditions, mothers in Artesia are winning their asylum cases on the merits. Repeatedly winning. Proving under the law that they have been persecuted on the basis of their social group or political opinion by persons that their countries cannot or will not control. Yet, their success on the merits of their cases has not caused the Obama Administration or ICE to pause and consider the impropriety of their enforcement strategy.

    Instead, the government continues to fast-track these “family” refugee cases and insists that this population remain detained until the last possible moment, when the rule of law absolutely precludes custody because asylum has been granted and appeal waived. Likewise, the IJs have failed to give sufficient weight to the likelihood that many of these mothers will win their asylum cases on the merits, despite it being a relevant bond factor acknowledged in controlling BIA precedent.

    Although Department of Homeland Security (DHS) Deputy Secretary Alejandro Mayorkas claims the department is reviewing its approach and denies that DHS is uniformly opposed to the release of Artesia detainees,[2] the realities indicate otherwise. Despite Majorkas’s contentions, as of September 25, 2014, it appears that ICE has filed appeals to the BIA in every bond redetermination case in which an IJ ordered a bond of less than $25,000.00. These ICE appeals were filed whether or not the mother and her children had posted bond and left the facility or remained detained due to inability to pay. And, the problem with the bonds set by most of the IJs hearing bond cases to date is not that they are too low, but that they are far too high and tantamount to no bond at all.

    As AILA Past President Laura Lichter said succinctly of the detention and bond situation at Artesia, "This is unconscionable.”[3]
    The determination to release these mothers and children on bond is a discretionary one. Certainly, deleterious conditions of confinement warrant consideration by IJs in determining release from custody. Case after case proves that these mothers and children came to the U.S. as refugees, fleeing genuine threats to their lives and safety, and their custody is not authorized either as a punishment or a deterrent to others. Prior recommendations uniformly favor releasing asylum seekers who have established a "credible fear" as these mothers have. The egregious conditions in Artesia combined with the factors invalidating ICE’s mass migration claims militate for sympathy and leniency, for a fair bond hearing, reasonable terms of custody, and a meaningful opportunity to prepare to demonstrate their eligibility for asylum.

    Knowledge is power, they say. Will educating the IJs to the unreasonable deprivations faced by the mothers and children at Artesia and the errors made by ICE empower them to make the right call and err on the side of compassion rather than confinement? Perhaps, as my colleague urges, we need to file a massive exhibit presenting uncontroverted evidence documenting the lasting, adverse personal, psychological, medical, developmental and educational conditions that mothers and their children are experiencing in ICE jails, so that this evidence is a part of every bond hearing and puts this unconscionable situation in proper prospective.

    [1] Declaration of Professor Jonathan Hiskey, Sept.22, 2014, on file with blog author (refuting ICE’s erroneous reliance in support of its detention practices on "Americas Barometer Insights: 2014, Violence and Migration in Central America" ("2014 Americas Barometer Report"),

    [2] See Julia Edwards, In Shift, U.S. Officials Fight Release on Bond of Migrants: Lawyers, Reuters, Sept. 19, 2014.

    [3] Id.

    (c) 2014. All rights reserved. Lory D. Rosenberg

    Updated 10-03-2014 at 03:04 PM by Lrosenberg

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