Lory D. Rosenberg on Appeal Matters
, 04-10-2015 at 03:53 PM (10159 Views)
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. 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. 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."
 http://www.aila.org/practice/pro-bon...%20Postings%20 Alert&utm_medium=Email&utm_campaign=RP%20Daily.