Lory D. Rosenberg on Appeal Matters
, 09-30-2014 at 03:18 AM (6087 Views)
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.  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, 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.”
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.
 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"), http://www.vanderbilt.edu/lapop/insights/IO901en.pdf
 See Julia Edwards, In Shift, U.S. Officials Fight Release on Bond of Migrants: Lawyers, Reuters, Sept. 19, 2014. http://www.reuters.com/article/2014/...0HE0DE20140919
(c) 2014. All rights reserved. Lory D. Rosenberg