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  1. Groups Ask Federal Court to Block Deportations of Children without Due Process

    by , 08-01-2014 at 09:13 AM (Matthew Kolken on Deportation And Removal)




    For Immediate Release

    Groups Ask Federal Court to Block Deportation Hearings for
    Children Without Legal Representation

    Move Comes as Immigration Courts are Speeding Up Deportation Hearings
    Against Children, Raising Serious Concerns

    August 1, 2014

    Washington D.C.
    Ė The American Immigration Council, American Civil Liberties Union, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates LLP have asked a federal court to immediately block the government from pursuing deportation proceedings against several children unless it ensures those youth have legal representation. The move comes as immigration courts are speeding up deportation hearings against children in an expedited process sometimes referred to as a "rocket docket."

    The groups filed a lawsuit last month on behalf of thousands of children challenging the federal government's failure to provide them with lawyers in their deportation hearings. The preliminary injunction motion filed late last night specifically asks that the fast-approaching deportation proceedings for several of the named plaintiffs be forestalled until those children are provided with attorneys. The groups also asked the court to hear their motion for class certification as soon as possible, so that other unrepresented children may be protected as well.

    "These children face an imminent threat of being deported, potentially to their death," said Ahilan Arulanantham, a senior staff attorney with the ACLU's Immigrants' Rights Project and the ACLU Foundation of Southern California. "To force them to defend themselves against a trained prosecutor, with their lives literally on the line, violates due process and runs counter to everything our country stands for."

    The plaintiffs cited in the motion are:


    • A 10-year-old boy, his 13-year-old brother, and 15-year-old sister from El Salvador, whose father was murdered in front of their eyes. The father was targeted because he and the mother ran a rehabilitation center for people trying to leave gangs.
    • A 14-year-old girl who had been living with her grandparents, but was forced to flee El Salvador after being threatened and then attacked by gang members.
    • A 15-year-old boy who was abandoned and abused in Guatemala, and came to the United States without any family or friends.
    • A 17-year-old boy who fled gang violence and recruitment in Guatemala and now lives with his lawful permanent-resident father in Los Angeles.


    "In the rush to schedule children's immigration court hearings immediately, we cannot lose sight of the government's obligation to ensure due process,Ē said Beth Werlin, deputy legal director of the American Immigration Council. "Many children are eligible to remain in the United States, but may be ordered deported simply because they do not understand our complex immigration laws and how to prove their claims."

    The government initiates immigration court proceedings against thousands of children each year. Some of these youth have lived in the U.S. for years, and many have fled violence and persecution in their home countries. President Obama recently stated that the government response to the influx of children coming across the Southern border will include "fulfilling our legal and moral obligation to make sure we appropriately care for unaccompanied children who are apprehended." And yet, thousands of children required to appear in immigration court must do so without an attorney.

    "We argue that these children need legal representation in order to ensure that their legal rights to a full and fair hearing are not violated," said Matt Adams, legal director of the Northwest Immigrant Rights Project. "Instead of protecting the children's legal rights, the government has turned around and implemented an expedited deportation process that further undermines the already meager protections that exist."

    The lawsuit, J.E.F.M. v. Holder, was filed in U.S. District Court in Seattle, Wash. It charges the U.S. Department of Justice, Department of Homeland Security, U.S. Immigration and Customs Enforcement, Department of Health and Human Services, Executive Office for Immigration Review, and Office of Refugee Resettlement with violating the U.S. Constitution's Fifth Amendment Due Process Clause and the Immigration and Nationality Act's provisions requiring a "full and fair hearing" before an immigration judge.

    Talia Inlender, staff attorney with Public Counsel, a not-for-profit law firm that works with immigrant children, said, "These children, like so many others who contact our office each day, live in fear of being sent back to the violent countries they fled but have no idea how to defend themselves in a courtroom. The governmentís rush to deport these children who stand alone and voiceless in court violates our laws and undermines our values as a nation."


    The preliminary injunction motion is available here.

    More information about this case is available here.


    ###
    For more information, contact:

    Wendy Feliz, American Immigration Council, 202-507-7524, wfeliz@immcouncil.org
    Inga Sarda-Sorensen, American Civil Liberties Union, 212-549-2666, media@aclu.org
    Matt Adams, Northwest Immigrant Rights Project, 206-501-6249, matt@nwirp.org
    Sandra Madera, Public Counsel, 213-637-3863, smadera@publiccounsel.org

    Updated 08-02-2014 at 10:25 AM by MKolken

  2. Sudanese "Apostate" Wife of Former Child Refugee Finds Refuge in US. By Roger Algase


    The Guardian reports that Meriam Ibrahim, a Sudanese woman who had been sentenced to death as an "apostate" from Islam because she married a Christian, and who had given birth in prison while in chains, arrived in the US on July 31 with her husband and their two children.

    http://www.theguardian.com/world/2014/aug/01/meriam-ibrahim-arrives-in-us

    The report mentions:

    "Sudan initially blocked Ibrahim from leaving the country even after its highest court overturned her death sentence in June. The family took refuge at the US embassy in Khartoum and after eventually leaving the country she met Pope [Francis] in the Vatican."

    This courageous woman, who was compared to Rosa Parks in a speech by the mayor of Philadelphia, will live in Manchester New Hampshire, which has a Sudanese community of about 500 people.

    Manchester itself has not been entirely free from the xenophobia and nativism toward refugees that is now creating conflict between hard right and even harder right representatives in the House over how many thousands of young people to deport, and how quickly. See POLITICO: House GOP in disarray. Border fight delays recess (July 31)

    Three years ago, the New York Times reported that resistance to accepting more refugees was growing in that city, which had taken in more than 2,000 from various countries in the past decade and that the mayor of that city was calling for a halt to allowing any more to settle there. See: After Taking In Refugees for Years, New Hampshire City Asks for a Pause (November 25, 2011).

    http://www.nytimes.com/2011/11/26/us...ttlement_html?

    It is reassuring to know that Manchester, and America, still have room for Meriam Ibrahim and her family despite the voices of intolerance that are seeking to take away the right of vulnerable Central American children to apply for asylum in the US from intolerable conditions in their own countries. It is all too easy to forget that Meriam Ibrahim's husband, Daniel Wani, was once a child refugee in America, having fled to this country to escape civil war and becoming a US citizen before returning to live in South Sudan, as The Guardian also reports.

    If Daniel Wani had not been granted refuge in the US as a child and become a US citizen, one has to wonder whether his wife would now be safely in America, free from the danger of being re-arrested and executed because of her religion.


    Updated 08-01-2014 at 05:56 PM by ImmigrationLawBlogs

  3. Can a Human Rights Lawyer Be Pro-Israel?

    If you talk to people working in the human rights field, many will tell you that they view their work as an expression of their political and moral beliefs. More often than not, those beliefs are grounded in religious faith.



    Dare to dream...

    That is true for me. I am Jewish and I am an asylum lawyer. I view my work as an expression of my Jewish values. These values are derived not just from our sacred texts--which encourage discussion, debate, and self reflection--but also from our experience as a people who lived in exile and faced centuries of persecution. For me, Jewish values include respecting the life and dignity of all people, trying to understand "the other," trying to understand myself, and sympathizing with the powerless. All this is a good fit with asylum law where I represent foreign people who face harm or death from governments or terrorist groups. But how do these values align with support for Israel?


    There was a time when I felt that my values were largely consistent with supporting Israel. After all, it is a small country, created by refugees and surrounded by enemies. But more recently, it has become harder for me to be "pro-Israel," as that term is generally understood. It's not that I don't support Israel and believe it should exist as a Jewish state. I do. But I have found that in recent years, it has become increasingly difficult to reconcile the values that guide my life and career with being "pro-Israel." There are several reasons for this.


    For one, it is difficult to accept the dishonesty of the pro-Israel side. Of course, this is not a problem confined to supporters of Israel. If anything, I see more dishonesty from opponents of Israel. But since I am Jewish and concerned about the behavior of my side, it is difficult to square my Jewish values with the pro-Israel propaganda that I daily see in the news. An example of this is how Israel's supporters consistently put forth a narrative that exonerates Israel for any blame in the current conflict. It is true that Hamas initiated the recent fighting, but that is hardly the beginning of the story. Israel seems always to have an excuse for failing to make concessions or reign in settlers. As a result, moderate Palestinians are undermined (since they cannot show progress to their constituents) and extremists are empowered. A more honest evaluation would include self criticism--what have Israel and its supporters done wrong? How have their actions contributed to the cycle of violence? How have Israeli policies encouraged Jewish extremism? This type of analysis, I have never heard from the pro-Israel camp.


    Also, I have great difficulty accepting the alliance of pro-Israel Jews with Neo-Conservatives and Christian Zionists. I find the Neo-Conservative's view on the use of force to be immoral and anti-Jewish, not to mention cynical, short-sighted, and ineffective. Exhibit No. 1 in that regard is our war in Iraq. As for the Christian Zionists--people like John Hagee of Christians United for Israel--their purported love of Israel seems a thinly veiled proxy for hating Muslims. If there ever came a time when Israel was actually able to make peace with the Arabs, the Christian Zionists would be opposed: Peace with Muslims is not compatible with their world view. The values of Neo-Conservatives and Christian Zionists are profoundly contrary to my own. And while I understand that the enemy of my enemy is sometimes my friend, for me, certain alliances are beyond the pale.


    I also have trouble with the knee-jerk defensiveness of the pro-Israel camp, which is eager to label any expression of anti-Zionism as Antisemitism. Sometimes anti-Zionism is Antisemitism, and sometimes it is not. But there is a flip side to that coin: For many years, Jews have made the State of Israel an integral part of our religion. Synagogues have Israeli flags and signs supporting Israel, we celebrate Israeli Independence Day, we send our young people to Israel to study, we raise money for Israel. In other words, we have made Judaism and Zionism synonymous. In that case, it is hard to fault our enemies for confusing the two concepts. Frankly, I think our attachment to Israel is a good thing. What I oppose is the assumption that all criticism of Israel is made in bad faith, which allows us to avoid the difficult task of self examination.


    Linked to the issue of defensiveness is the on-going effort by Israel supporters to stifle speech that they view as anti-Israel. They threaten funding sources, ban (or attempt to ban) disfavored speakers from Jewish events, label leftist Jewish groups "traitors," and they rejected the dovish J Street's attempt to join the Presidents Conference, an umbrella organization of Jewish-American agencies. If the pro-Israel camp sought to counter the ideas they find offensive, that would be one thing. But instead, they seek to eliminate those ideas. I am a believer in free speech and in the (very Jewish) idea of debating issues. To me, these efforts to squelch speech and avoid engagement on difficult issues is offensive.


    Finally, I do not appreciate the effort of Israel supporters to deflect attention from Gaza by comparing it to the much more deadly situations in Syria or Iraq. While I think it is legitimate to ask non-Jews and non-Palestinians why they are more concerned about Gaza than Syria, I do not think that question is appropriate for Jews (or--obviously--Palestinians). As Jews, we should be concerned about the behavior of other Jews. We should question Israel's policies that we disagree with. The fact that others are behaving worse than us does not seem a valid justification for our own actions.


    I remember an incident from when I lived in Israel--way back in 1990. I was visiting the Jewish settlers in Hebron, a large Arab town in the West Bank. We went to the Tomb of the Patriarchs, which is considered the burial place of Abraham, Isaac, and Jacob. It is a holy place for Jews and Muslims. We were in the Jewish section when the settlers started singing "Jerusalem! Jerusalem!" and dancing. They danced into the Muslim part and interrupted a dozen old Muslim men who were praying. At the moment, I felt I had to choose sides--with the settlers or with the Muslims. I am sorry to say that I chose to dance and sing with my fellow Jews. The old Muslim men stopped their prayers and watched us quietly, humiliated.


    I still believe that there is a choice to make, but it is not a choice between Jews and Muslims or Israelis and Palestinians. It is a choice between right and wrong. I am pro-Israel in that I believe Israel should exist as a Jewish democratic state and that it has the right to defend itself from terrorists' missiles and tunnels. But if "pro-Israel" means persecuting, humiliating, and de-humanizing Palestinians, refusing to make concessions for peace, demonizing opponents, stifling speech, and making alliances with morally bankrupt groups, you can count me out.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: israel, palestine Add / Edit Tags
  4. Another Pillar of Asylum Law Comes Under Attack. By Roger Algase


    In my July 29 post, I showed that an overly restrictive interpretation of one of the most often used grounds for claiming asylum in the United States - showing that fear of persecution is based on membership in a particular social group (PSG) - has been regularly used by the Board of Immigration Appeals (BIA) to deny asylum claims based on fear of gang violence in Central America over the past 30 years. As I also mentioned, the alleged difficulty of overturning these decisions is now being used by immigration opponents as an excuse for advocating a change in the current law (TVPRA) guaranteeing an asylum hearing before an immigration judge to unaccompanied children (UAC's) from every country in the world (except for Mexico and, for some reason, Canada) who arrive at the US border and can show a credible fear of persecution in their home countries at their initial screening by a DHS officer.

    The argument for changing the law in order to turn UAC's away without a hearing is based on the theory that almost all of them would lose at their asylum hearings and ultimately be deported anyway for the above reason.

    However, some immigration opponents are apparently not satisfied with attempting to change the law in order to take away the right to an automatic removal hearing for UAC children from countries such as Guatemala, Honduras and El Salvador, with their powerful gangs and high homicide rates, who pass the initial screening.

    Even if the BIA or the federal appellate courts (which in some cases are showing more openness than the BIA to claims that refusal to join or remain in a gang is a valid basis for PSG membership - at least if the gang is located in East Africa rather than Central America - see my July 29 post), were to abandon the restrictive approach to the PSG issue, these same immigration opponents apparently want to make sure that fewer Central American children will pass the initial screening required by the TVPRA.

    Accordingly, with some signs of support from the Obama administration itself, immigration opponents in the House are trying to weaken another pillar of asylum law - namely the "credible fear" doctrine. See POLITICO: Johnson said to favor asylum law change (July 30).

    Evidently, House Judiciary Committee Chairman Bob Goodlatte (R-VA), whom some immigration supporters had hoped (without much basis) would turn out to be a Knight in Shining Armor riding to the rescue of immigration reform less than a year ago, is worried that even the BIA's long standing unreasonably narrow PSG standard (which my colleague Nolan Rappaport thinks may take many years to change - I respectfully disagree with him, as I will discuss in an upcoming post) will not be enough to stop as many Central American border children (UAC's) from being granted asylum as Goodlatte would like to see sent home.

    POLITICO reports that Goodlatte and Rep. Jason Chaffetz (R-Utah) have introduced a bill that seeks to tighten the credible fear standard by requiring UAC's to show that they have a credible fear of persecution according to a preponderance of the evidence in the initial screening, not just before an immigration judge.

    This would make it harder, if not impossible, for Central American border children to pass the initial screening test for asylum hearings.

    POLITICO quotes Goodlatte as sayibng that 92 per cent of asylum applicant are clearing the initial screening hurdle and gaining the right to asylum hearings before an immigration judge. If his proposed change goes into effect, the number may rapidly drop toward zero, because immigration judges are trained to determine whether someone has meet this strict legal standard. DHS border screening officers have no such expertise.

    Therefore, Goodlatte's proposal amounts to another way of abolishing the TVPRA's guarantee of a full asylum hearing to Central American border children who can show a credible fear of persecution.

    The even bigger danger in Goodlatte's proposal is that it could spill over into the way credible fear is interpreted in all asylum cases, not just the ones involving Central American children seeking refuge from gang violence.

    POLITICO quotes Eleanor Acer of Human Right First as saying:

    "A statutory change to the credible fear standard would undermine this country's global commitment to the persecuted and put lives at risk..."

    And the same report quotes Law Professor Bill Ong Hing of the University of San Francisco as follows:

    "You don't want to make a mistake when it comes to asylum...To me it's really disappointing to talok about setting up in a way that you don't find credible fear in so many cases."

    He added:

    "I'm very disappointed in the Obama administration. They're buying into the rhetoric of the critics of the border [children] that these kids couldn't possibly have valid claims for asylum..."

    Even for those who (unlike myself) believe that most of these these children will be ultimately unsuccessful in showing that they have a credible fear of persecution or that they are members of a PSG, letting them have their day in court as provided for in our current law is the best way to uphold the values of America's justice system and its commitment to protecting people from every part of the world who are in danger of persecution in their own countries.

    These protections need to be made stronger, not weaker.


    Updated 07-31-2014 at 07:38 AM by ImmigrationLawBlogs

  5. Redefining "Social Group" to Uphold Border Children's Asylum Rights. By Roger Algase


    Almost on a daily basis, new reports are coming out emphasizing the gravity of the humanitarian crisis caused in large part by uncontrolled gang violence in Central America's "Northern Triangle" (Guatemala, Honduras and El Salvador) which is causing thousands of unaccompanied children, many under the age of 12, to flee their homes and seek asylum, not only in the US, but in other Central and Latin American countries as well. My colleague Nolan Rappaport, who is an expert in asylum and refugee law and worked for the Board of Immigration Appeals for many years, has forwarded a report to me from the Center for American Progress dated July 24, 2014 discussing the root causes of the humanitarian crisis at the US border involving these children. See The Surge of Unaccompanied Children from Central America: Root Causes and Policy Solutions

    (As a disclaimer on Nolan's behalf, I wish to make clear that his forwarding articles on this or any other subject does not necessarily imply that he endorses or agrees with their content.)

    The above report states that because of high rates of homicide and violence in the above countries and lack of economic opportunity the number of children expected to reach the US/Mexican border by the end of the current fiscal year in September, 2014, is as high as 90,000. The report is valuable for its detailed analysis of the reasons for the mass exodus of children from these countries, especially gang violence and the activities of drug cartels. It also makes many recommendations for action by the US and other counties on the international scale to deal with this problem. However, the report also states:

    "This brief, however, does not delve into the needed policy changes in the areas of immigration and refugee law."

    Nolan is pessimistic about the possibilities for change in internal US policies, especially relating to asylum law, because of political factors. He therefore recommends changing current law in order to deny entry to all children at the Southern border seeking asylum in the US (not only those from Mexico), and to process them through the UN for refugee status outside the US. In his view, at least some of the children would eventually qualify for admission to the US as refugees.

    ilw.com is not a political discussion site, but is devoted to immigration law only, so I will not discuss the political factors. I will only discuss one of the most important legal issues which Nolan correctly identifies as a major barrier to asylum claims in the US, including claims based on fear of gang violence. This obstacle to asylum is the definition of a "particular social group" ("PSG").

    The definition of a PSG by the Board of Immigration Appeals and the federal courts has a history going back three decades, beginning with the decision in Matter of Acosta, 19 I&N Dec., 211 (BIA, 1985). From the time of that decision up to now, the BIA has (more or less) stuck to a narrow definition of this term which, if applied consistently across the board, could make asylum impossible for almost anyone to obtain.

    However, the BIA has been far from consistent in applying its definition and has often contradicted itself, used circular reasoning, and been forced to change its rationales for upholding to its narrow definition of the sbove term. It has also run into some harsh criticism from the federal courts.

    In a recent 7th Circuit Court of Appeals decision
    , Gatimi v Holder, 578 F. 3rd 611, 616 (2009), Judge Richard Posner, one of the most highly respected judges in America, wrote:

    "The only way, in the Board's view, that the Mungiki [a violent Kenyan organization] defectors can qualify as members to a particular social group is by pinning a target to their backs with the legend 'I am a Mungiki defector'".
    (Emphasis added.)

    A detailed analysis, including withering criticism of the BIA's lack of internal logic or consistency in its application of the PSG standard is contained in the Chicago-based National Immigrant Justice Center's February 2014 study, Particular Social Group Practice Advisory: "Applying for Asylum After Matter of M-E-V-G- and Matter of W-G-R-"

    In my opinion, no one who has not read and absorbed this study thoroughly can claim to be truly knowledgeable about the current state of asylum law.

    However, even Judge Posner, in his above decision stated: "We have no quarrel" with a 9th Circuit case in which young Honduran men who resisted being recruited into into gangs were denied asylum for failing to qualify as member of a PSG. See Ramos-Lopez v Holder, 563 F. 3rd, 855, 869-861 (2009).

    Therefore, a more careful look at the above two cases, as well as other related decisions, is in order.

    To be continued.

    Updated 07-29-2014 at 09:59 AM by ImmigrationLawBlogs

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