New Articles
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July 19
Doctors Blow Whistle on Dangers Migrant Children Face in Detention

Miriam Jordan, NYT, July 18, 2018 - "The Trump administration, faced with a public outcry over the separation of migrant families at the Southwest border, has said it is exploring a major expansion of family detention centers. But two of the government’s own medical consultants said this week that they had identified a “high risk of harm” to migrant children housed at such facilities.

A series of 10 investigations over the past four years, conducted during both the Obama and Trump administrations, “frequently revealed serious compliance issues resulting in harm to children,” the two physicians, Scott Allen and Pamela McPherson, said in a letter to the Senate’s Whistleblower Protection Caucus.

The doctors said they had “watched in horror” as migrant children were separated from their families over the past several months in a bid to deter illegal border crossers. But they cautioned that the Trump administration’s fallback position may not be much better.

“The likely alternative — detention of children with a parent — also poses high risk of harm to children and their families,” said the doctors, who currently serve as “subject-matter experts” for the Department of Homeland Security’s Office for Civil Rights and Civil Liberties. “In our professional opinion, there is no amount of programming that can ameliorate the harms created by the very act of confining children to detention centers.”"

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July 18
America First: The Legacy of an Immigration Raid (Documentary)

Univision, The Intercept, The Knight Foundation, July 2018

BY ALICE SPERI (THE INTERCEPT)

"It doesn’t get more American than Postville, Iowa. The small rural community looks like countless others across the country: tidy lawns lining anonymous streets around the one big business that keeps the town employed, teenagers working shifts at the local YMCA, families sharing frosted cake in a church basement after service, dressed up kids dancing in front of their parents in a school gym.

Postville’s youth, too, is as American as it gets: Minority students, from about 14 different countries, make up well over half the local high school’s student body. When visitors come to the school and see Somali girls in their hijabs, “their heads turn so fast … I’m afraid they’re hurting their neck,” the principal said. “That doesn’t faze our kids.”

In Postville, as across America, a white girl from a conservative family can date a Guatemalan boy who was brought to the U.S. without documents, and he can hang out at her house and watch TV and laugh with her Trump-loving brother, who thinks the boyfriend’s “a great guy” but also that if “you’re here illegally…it’s still wrong.” And in Postville, as across America, mixed-status families are the norm. U.S. citizen children have undocumented parents; a young girl can go to school in Iowa by herself while the family she hasn’t seen in four years is back in Guatemala and can’t come to visit her.

These and other stories from Postville are explored in a new documentary from Univision, published in partnership with The Intercept, which tells the story of the small Iowa town a decade after a massive immigration raid on the local meatpacking plant. The diversity and resilience of Postville’s residents are a reflection of the country’s strengths, just as the deep-seated racism, both casual and systemic, that shaped the town’s story is a ubiquitous reality of American life.

The first wave of immigrants to move to this trading-post town came from Germany. When, in 1987, Hasidic Jews from New York bought the town’s meatpacking business and turned it into the largest kosher plant in the country, “a lot of people were afraid that the Jewish people would take over the town,” Postville’s mayor told Univision. Then came Russians, Mexicans, and Eastern Europeans, followed by Central Americans, mostly from Guatemala, all to work at the plant — a tiring, thankless job few others were willing to do. “We were aware that some of them were illegal, but nobody wanted to do anything about it,” said the mayor.

On May 12, 2008, hundreds of agents from U.S. Immigration and Customs Enforcement descended on Postville as part of the George W. Bush administration’s Operation Endgame, which aimed to remove all 11 million undocumented immigrants in the country within a decade. (A decade later, the number of undocumented immigrants living in the U.S. remains virtually unchanged.)

The raid was the largest ever at that time: Within hours, 389 people — nearly 20 percent of the town’s population — were detained. In the following days, almost half the town disappeared, as those who hadn’t been picked up by ICE fled in fear of more raids, or because they had lost their loved ones or their source of income. Overnight, the raid transformed a vibrant community into a traumatized ghost town, catapulting it out of anonymity and making its name a symbol of hardline immigration policies.

ICE came in with a full-scale paramilitary operation. Helicopters circled overhead for hours, as hundreds of armed agents swarmed the streets. Eyewitnesses said ICE agents drove after people who tried to escape, chased them into fields, and barged into their homes. Agents stormed the plant and threatened to shoot anyone who moved. Those who tried to hide were beaten, according to accounts from the day. Following the raid, workers were bused two hours to the National Cattle Congress, a facility normally used for livestock shows. There, a former dance hall was turned into a federal courthouse for expedited processing of the criminal charges brought against the workers. One lawyer represented 20 detainees at a time. They were taken to the bathroom with their hands and feet in shackles.

It was, in the words of a Jewish ex-employee of the plant, “the same as the Jewish people must have felt under Nazi Germany.” A decade later, as the administration of President Donald Trump accelerates similar immigration operations at the border and around the country, objecting to that comparison is becoming harder by the day.

The Postville raid cost $5 million and tanked the town’s economy. As people vanished, so did the money they had spent on rent, groceries, and laundromats. Local stores and restaurants shut down. Immigrant and Jewish families alike who had worked at the plant now relied on the local church for help. The trauma was both immediate and lasting. Days after the raid, when a truck delivering ice drove through the town, people panicked, as they thought the word “ICE” painted on the truck meant that the immigration agents had returned. Years later, a study linked the raid to lower birth weights of babies born to Latina mothers in the months that followed.

Originally meant to be the first of many, the raid was met with such public outrage that it remained the last mass immigration enforcement operation at a workplace. Until Trump.

As The Intercept has reported, the current administration has promised more work-site immigration enforcement along the lines of what happened in Postville. In January, Thomas Homan, then ICE’s acting director, said these operations would increase by “400 percent” — and so far, that seems to be on track. Workplace raids this fiscal year doubled over the last. In April, 97 people were detained at a meatpacking plant in Morristown, Tennessee; in June, 114 at a gardening and landscaping business in Sandusky, Ohio, and nearby Castalia; days later, 146 at a meat supplier’s facilities in the cities of Canton, Massillon, and Salem in Ohio.

The administration touts these raids as successful law enforcement. Following the Tennessee raid, Attorney General Jeff Sessions said he was “not shedding tears” for the families torn apart by the raid. “You don’t get to get an advantage in this country by having large numbers of illegal workers working for you,” Sessions added, referring to the plant’s American owners. “You don’t get to benefit from being in this country and looking around the world for the cheapest worker you can find.”

But the truth is that these raids don’t work.

Immigrants keep coming, and Americans keep employing them to keep their businesses running. The owners of the Tennessee plant are under investigation, but have not yet been charged. The manager of the Postville plant was convicted of 86 counts of financial fraud, unrelated to immigration violations, and sentenced to 27 years in prison — but Trump commuted his sentence last December.

A decade after the raid, Postville’s economy has mostly recovered — but only thanks to the influx of new immigrants and refugees. The plant’s new owners had to recruit workers from across the country, bringing to town a new community of Somali refugees, while many Central American families came back. Postville is more diverse today than it ever has been.

“In a small town, if you’re not growing, you’re dying, and right now, there’s a massive fight in small towns and rural communities to keep the populations that they have and to recruit new ones,” Matt Hildreth, political director of the immigrant rights group America’s Voice, told The Intercept this spring.

Mark Grey, an anthropologist who has studied the raid, says in the documentary that it did not deter immigration in the long run. “You can plan and you can hope to achieve things through actions like this. But the immigration business and the presence of immigrant and refugee newcomers is so dynamic that all the long-term planning in the world can mean absolutely nothing,” he said. “Did it work? No. ‘Cause people kept coming.”

“I really don’t understand how you can live in this town and be against immigrants,” said the Guatemalan boy in the film, who has status in the U.S. now, thanks to the Obama-era program Deferred Action for Childhood Arrivals. “The older generation might not hang out with each other,” said a young Somali man who recently arrived in Postville. But, he continued, “our generation will be way different than our parents’.”

Proponents of draconian immigration restrictions often claim that they want America first — but they should come to terms with the fact that Postville is America. Opposing the country’s diversity is fighting a war that’s already lost."

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NY City Bar Issues Recommendations in Response to ICE Arrests in New York State Courthouses

NYCB, July 11, 2018 - "Calling the increasing number of Immigration and Customs Enforcement (ICE) civil arrests in and around New York State courthouses “a threat to the New York State court system’s ability to ensure access to justice and the state’s overall community-based public safety goals” and an undermining of  the “values of due process and federalism enshrined in the U.S. Constitution as well as the New York Constitution,” the New York City Bar Association has issued a report outlining recommendations to address the issue.

Acknowledging that the Office of Court Administration (OCA) has been closely monitoring the dramatic rise in courthouse arrests, as well as the new directive issued by ICE in January which purports to limit courthouse arrests, the report states that, “[d]espite these steps, ICE’s courthouse arrests continue to adversely impact the administration of justice and leave many individuals fearful of going to court. It is undeniable that as this situation intensifies, two things likely will happen: (1) immigrant litigants or witnesses will stop coming to court altogether, which would have the effect of creating a class of state residents who are denied access to the justice system; and (2) the exercise of federal interest in civil immigration enforcement will erode the effectiveness of the state’s justice and court system, hampering prosecutions and wasting court resources. Neither outcome is in the interest of public safety, the justice system, or the legal community.” 

Noting that achieving change on the federal level appears unlikely in the current environment, the report respectfully recommends that Chief Judge Janet DiFiore adopt the following administrative rules to address the harmful effects of ICE enforcement actions in and around courthouses:

require judicial, not administrative, warrants for civil arrests, including civil immigration arrests, conducted in New York State courthouses; require the presiding judicial officer to notify the targets of civil immigration enforcement actions of the presence of ICE agents who intend to detain them (which would give the individual an opportunity to consult with counsel in the sanctity of the courtroom); limit the cooperation and assistance of court personnel in civil immigration enforcement actions to those actions required by law and provide training to court personnel as to how ICE arrests differ from criminal arrests (and why that matters) and, second, what court personnel can and cannot do vis-à-vis ICE encounters; reduce the frequency with which parties need to appear in court; and make available for public review the information obtained and recorded by court personnel, pursuant to the April 2017 Protocol and the May 2018 Instructions, with respect to ICE enforcement activities in courthouses.

“Paramount among these recommendations is to require ICE to show judicial warrants for civil immigration enforcement actions in courthouses. ICE arrests may appear similar to state or federal criminal arrests and they have similarly dire consequences of detention and deprivation of liberties, but in contrast to state or federal criminal arrests, ICE agents do not need probable cause to initiate civil enforcement actions.”

The report acknowledges that “some of the recommendations may raise concerns on the part of those who think they improperly interfere with enforcement of federal law and may involve further consultation to work out the best solutions and mechanisms for implementation,” the report notes. To that end, we recommend that OCA convene a working group of stakeholders – including defense lawyers, immigration lawyers, prosecutors, court representatives and others – tasked with considering how to best address the concerns and implement the recommendations raised herein. In addition, the working group could develop a mechanism to (1) ensure that the April 2017 Protocol  - as well as any enhancements - are fully understood and being adhered to, and (2) consider enforcement mechanisms to address instances when they are not.

“Ultimately, the bar and bench have shared goals when it comes to preserving safety and decorum in the courthouse, providing unfettered access to justice, and protecting due process for all individuals regardless of immigration status,” the report concludes. “To that end, the New York City Bar Association urges the due consideration of these recommendations and stands ready to assist the Office of Court Administration as it continues to tackle these difficult issues.”

Read the report here."

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Judge: Feds Must Treat Separated Migrant Kids for PTSD

Rosa Ferneuax, Mother Jones, July 17, 2018 - "Two immigrant children who were separated from their parents at the southern border have had their constitutional rights violated, a federal judge in Connecticut ruled late last week in yet another blow to the Trump administration’s draconian immigration agenda. Judge Victor Bolden also ordered on Friday that the federal government produce the children’s parents in court this week and present a plan for addressing how to treat the children’s post-traumatic stress disorder brought on by the separation.

Connecticut Legal Services, who represented the children alongside the Worker and Immigrant Rights Advocacy Clinic at Yale Law School, said it was the first case in the county brought on behalf of separated children, rather than parents, to challenge the Trump administration’s policy on forcible family separation. Judge Bolden’s decision is also believed to be the first to find that the government’s policy violates the constitutional rights specifically of the separated children, not just the parents. While the ruling applies only to the two children named in the lawsuit, experts say it could be used as a template for other actions on behalf of separated children, or for judges facing similar legal challenges across the country.

Significantly, the ruling shows that “all parties” agreed that the children’s rights had been violated. The government conceded that the children’s “separation from their parents was, and remains, traumatic,” though it argued that they were receiving “excellent care” at a residential children’s home in Connecticut.

On Friday, Bolden said the court concurred that the children’s constitutional rights had been violated, ruling that “[t]he government failed to provide the children with notice or a hearing, instead taking their parents, while distracting the children.” Bolden also noted that “[e]ven now, the government has not established a compelling reason for depriving the children of their family integrity.”

Bolden’s decision follows a ruling by Judge Dana Sabraw in California on June 26, which found that parents’ constitutional rights were violated when they were separated from their children after crossing the US southern border. As a class-action lawsuit, that decision has affected thousands of  children who must now be reunited with their parents by July 26, though it’s still unclear if the government will meet the deadline.

Geoffrey Hoffman, director of the University of Houston Law Center Immigration Clinic, said the government’s concession to violating the children’s constitutional rights was “striking.” In contrast, during the California case, the government argued that “separation of plaintiffs [the immigrant parents] from their children does not violate the Fifth Amendment.” This time it appears the government has not contested that claim.

While the Connecticut ruling officially affects only the two children, identified in court documents as “J.S.R” and “V.F.B.,” Hoffman says it has the potential to inspire more groups to file challenges on behalf of children—and provide a template for other judges to get children the constitutional protections and care they think they need. “I’ve seen it here in Houston, and I’m sure in other cities attorneys are getting together and considering these types of individual actions,” he said."

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New Lawsuit Seeks Due Process for Detained Kids

NYCL, June 29, 2018 - "Today, five immigrant children in federal custody filed a complaint in federal court challenging the government’s cruel policies and practices that unlawfully prolong their detention and delay their reunification with their families. In violation of the Flores Settlement Agreement, which established a policy favoring the release of minors and requires the least restrictive environment for children in federal custody, the government is cruelly inflicting trauma on children by subjecting them to jail-like conditions for prolonged periods, drugging them with powerful psychotropic medication without oversight or consent, and arbitrarily denying them release to family members.

The children in this case are represented by the National Center for Youth Law (NCYL) and the Center for Human Rights and Constitutional Law (CHRCL), the same co-counsel that filed the 1985 complaint that led to the original Flores Settlement Agreement, and also by the UC Davis School of Law Immigration Law Clinic and UC Davis Civil Rights Clinic, and Cooley LLP.

The complaint charges the government with inappropriately detaining children in unnecessarily restrictive detention centers without fair process, unlawfully medicating children without parental or other appropriate authorization, and failing to promptly release children to family members in the United States.  It also alleges that the government is violating the Fifth Amendment of the U.S. Constitution by obstructing detained children from accessing lawyers and failing to provide due process.  In particular, the complaint alleges:

The government regularly confines juveniles in unnecessarily restrictive detention centers on unsubstantiated allegations they are dangerous or constitute a flight risk, without affording them a meaningful or timely opportunity to be heard regarding the reasons for subjecting them to secure or medium-secure confinement. The government regularly prolongs children’s detention on the ground that their parents or other available custodians are allegedly unfit, yet denies children and their proposed sponsors a meaningful or timely opportunity to be heard on the matter. The government regularly places minors in detention facilities where they are administered powerful psychotropic medications for weeks, months, or years, without procedural safeguards and without providing notice to or obtaining the consent of their parents, even when those parents are present in the United States and readily available to grant or withhold consent. The government blocks lawyers from representing detained children with respect to placement, administration of psychotropic medications, or release to available family members, even though Congress has allocated funds specifically to provide lawyers to represent children who are or have been in federal custody, including for issues related to release and least-restrictive placement.

The 1997 settlement agreement in Flores v. Reno set national standards for the placement of minors in the custody of what was then Immigration and Naturalization Service (INS) and, importantly, imposed obligations on INS with respect to the treatment of such minors. INS’s obligations under the agreement are now the responsibility of the Department of Homeland Security (DHS) and the Department of Health and Human Services’ Office of Refugee Resettlement (ORR). The agreement requires the federal government to “treat minors with dignity, respect, and special concern for their particular vulnerability.” It compels the government to safely place children with a relative or family friend “without unnecessary delay” and to keep children who are in custody in the least restrictive conditions possible.

The children named in the lawsuit have been in federal custody for up to a year and a half, been administered psychotropic medications without consent, and been denied release to family members for manufactured reasons or without any reason provided at all, and with no opportunity to even review, much less appeal, the government’s decisions.  Full details of their situations and the trauma they are experiencing as a result are set forth in the full complaint, here [hyperlink].

“The children in immigration detention centers appreciate the international outcry of support, and today use their own voice to demand their freedom. Invoking constitutional protections, today they fight for the foundational principles of our democracy—liberty and justice for all,” said Holly S. Cooper, Co-Director of the University of California Davis School of Law Immigration Law Clinic.

“For the past two decades since the Flores agreement, and throughout three presidential administrations, there has been broad consensus that these children do not belong in detention because the government is ill-equipped to parent them and because detention inflicts irreparable trauma on innocent kids,” said Carlos Holguin, CHRCL’s General Counsel.  “The experiences of these children in custody show the wisdom of this stance.  This lawsuit asks the court to affirm the constitutional rights of these children at a time when the government is deliberately acting against their best interests.”

“The government’s tactics inflict trauma on the very children they are supposed to be protecting. Flying dazed, shackled children across the country in the middle of the night, jailing them like criminals, drugging them without parental or judicial authorization, and needlessly keeping them from family members who are able and willing to care for them is resulting in extreme deterioration of their mental health and causing lasting emotional harm,” said NCYL Senior Attorney Leecia Welch.  “We are asking the court to demand that the government provide these children with the due process they are entitled to under the law and to provide compassionate, rather than trauma-inducing, care.”

In response to the allegations in this lawsuit, the Nobel-Prize winning organization Physicians for Human Rights announced it will open an independent investigation into the treatment of these children.  “Physicians for Human Rights is deeply concerned about the allegations of abuse and unethical treatment of minors detailed in this lawsuit,” said Homer Venters, MD, director of programs at Physicians for Human Rights. “As we have done in Rwanda, Yugoslavia, Myanmar, and elsewhere, PHR will now bring its medical and scientific resources to bear and initiate an independent investigation of the care received by these vulnerable minors.”

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The Center for Human Rights & Constitutional Law is a non-profit, public interest legal foundation dedicated to furthering and protecting the civil, constitutional, and human rights of immigrants, refugees, children, prisoners, and the poor.

The National Center for Youth Law is a non-profit law firm that helps marginalized children achieve their potential by transforming the public agencies that serve them. For more information, please visit www.youthlaw.org.

The Immigration Law Clinic at the University of California Davis is one of the few clinics in the nation devoted to representing detained immigrants before the immigration court — challenging conditions of confinement and contesting their confinement in federal court.

About Cooley LLP – Clients partner with Cooley on transformative deals, complex IP and regulatory matters, and high-stakes litigation, where innovation meets the law. Cooley has 900+ lawyers across 13 offices in the United States, China and Europe.

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CA1 on Asylum, Mexico; Faults DOJ for 'a Profound Misunderstanding of the Law' - Rosales Justo v. Sessions

Rosales Justo v. Sessions - "Petitioner Javier Rosales Justo ("Rosales"), a citizen of Mexico, claims that the Board of Immigration Appeals ("BIA") erred when it reversed an immigration judge's order granting him asylum. The immigration judge ("IJ") concluded that Rosales met his burden of proving he was entitled to asylum based, inter alia, on a finding that the police in Mexico would be unable to protect him from members of organized crime who had murdered his son and continued to target him and the rest of his nuclear family. The BIA rejected that finding, concluding that it was clearly erroneous. We agree with Rosales that the BIA's conclusion that the IJ's finding was clearly erroneous is unfounded because the BIA committed several errors in its review of the IJ's decision. Most importantly, the BIA failed to examine separately the evidence of the government's willingness to protect Rosales from persecution and the evidence of its ability to do so. Instead, the Board cited evidence only of the willingness of local authorities to promptly investigate the murder of Rosales's son as support for its conclusion that the IJ's finding of inability was clearly erroneous. Because of the BIA's flawed analysis of the IJ's decision, we grant Rosales's petition and remand the case to the BIA for reconsideration of Rosales's eligibility for asylum.

... In an effort to avoid de novo review of the decision of the BIA, the government tries to transform the BIA's decision into something it is not -- a factual finding by the BIA that Rosales failed to show that the Mexican government was either unwilling or unable to protect him, and therefore a finding that we must review under the deferential substantial evidence standard. ... Without acknowledging Rosales's argument that the BIA committed a legal error, the government contends that we must therefore affirm the BIA's decision unless the evidence in the record compels a contrary conclusion. That approach reflects a profound misunderstanding of the law.

... In sum, the BIA's justifications for its holding that it was clearly erroneous for the IJ to find that the Mexican government is unable to protect Rosales reflect multiple errors. The BIA failed to consider evidence of the Mexican government's inability to protect Rosales and his nuclear family, as distinct from evidence of the willingness of the police to investigate the murder of Rosales's son. That error in conflating unwillingness and inability was compounded when the BIA discounted country condition reports which, when combined with Rosales's testimony about the particular circumstances of his case, were sufficient to support the IJ's finding that the police in Guerrero would be unable to protect Rosales from persecution by organized crime. The BIA committed further error by concluding that the IJ's finding that Rosales did not report threats by organized crime to the police refuted the IJ's ultimate finding of inability. The BIA both ignored our precedent stating that a failure to report a crime does not undermine an assertion of inability if a report would have been futile, and failed to consider evidence in the record that would support a finding of futility, thereby misapplying the clear error standard. Moreover, in another misapplication of the clear error standard, the BIA incorrectly concluded that the IJ's inability finding was clearly erroneous because the Mexican government's failure to protect Rosales was indistinguishable from the struggles of any government to combat crime, when the record before the IJ supported a finding that it was distinguishable. Because of these errors, we grant Rosales's petition and remand to the BIA for further proceedings consistent with this opinion."

[Hats off to Talia Barrales!]

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'Child Kidnapping, Plain and Simple...Utter Depravity' - Strong Words for DHS in Resignation Letters

July 18, 2018 - Four members of the DHS Homeland Security Advisory Council, Richard J. Danzig, Elizabeth Holtzman, David A. Martin and Matthew G. Olsen, tendered their joint resignation letter to Sec. Nielsen on July 16, 2018.

David Martin and Elizabeth Holtzman filed additional letters, here and here.

Martin noted: "[T]he family separation policy crystallized for many HSAC members profound doubts about the administration's commitment to the rule of law. These doubts were sown, for example, when the president pardoned Sheriff Joe Arpaio, who had been found in criminal contempt of court for willfully violating a civil-rights-based injunction. That pardon was issued less than two weeks after the President refused to condemn the violent massing of Nazi and KKK sympathizers in Charlottesville. Our doubts have then been nurtured regularly by tweets and statements falsely impugning the integrity of the FBI, the Justice Department, the intelligence community, and various federal courts."

Holtzman was even more blunt: "As an author of the Refugee Act of 1980, along with Senator Ted Kennedy, I believe the treatment of refugees by you and President Trump violates that law and our treaty obligations to refugees. The 1980 Act created a framework for the admission of refugees, which it viewed as an integral and important part of US policy. The Act was adopted against the background of the Holocaust, in which the US took only a tiny handful of refugees from the Nazis, leaving untold numbers to perish at their hands. The Act was intended to prevent any repetition of that. It was also passed in response to the massive exodus of boat people from Vietnam. There was a time that the US welcomed refugees. We readily accepted and absorbed more than 600,000 refugees from Cuba, 750,000 refugees from Vietnam and more than 100,000 Jews from the Soviet Union. Considering that history, the thought that the US government is afraid today of 2,000 children and their parents is both laughable and appalling.

Under your administration and that of Donald Trump's, DHS has been transformed into an agency that is making war on immigrants and refugees. The ethnically and religiously motivated travel ban, the refusal to provide relief to the Dreamers and the new mass deportation program that does not prioritize the removal of undocumented aliens with serious criminal records (thereby harming American citizen children and spouses by removing a parent and a breadwinner from the family and hurting the country by removing productive people who have been living here for decades) are malign and ultimately self-destructive policies.

The final straw has been the separation of children from their parents at the Southwest border. This is child kidnapping, plain and simple. Seizing children from their parents in violation of the constitutional rights of both is bad enough (mentally harmful to the children and infinitely painful to both the parents and children), but doing so without creating proper records to enable family reunification shows utter depravity on the part of the government officials involved. 

Although it is I who am resigning in protest against these policies, it is you who should be tendering your resignation instead."

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July 17
Kansas City's ‘Top-Notch’ Immigration Lawyer Rekha Sharma-Crawford on Her Immigrant Roots and Supreme Court Win

Rick Montgomery, Kansas City Star, July 17, 2018 - "Sharma-Crawford this year has waged deportation battles drawing national, even global, notice. One case alone — the detention and near-deportation of Lawrence chemist Syed A. Jamal — prompted calls to her desk from CNN, The Washington Post and BBC News. Her victories include a case she brought three years ago to the U.S. Supreme Court. She fights alongside husband Michael Sharma-Crawford, an ex-cop and partner at their practice (though he usually stays away from the cameras). Together, “they’re among a handful of people in the heartland who rank with the top-notch litigators in the immigration world,” said Charles Roth, director of litigation at the Chicago-based National Immigrant Justice Center, a nonprofit advocate for immigrant rights. ... Whether or not the process is fair for deportees, few lawyers looking to get rich would choose the oft-aggravating practice of defending migrants in trouble — a legal realm rivaled in its complexity only by tax law. For the information-sharing cadre of Kansas City attorneys specializing in immigration, “anger fuels a lot of it,” Rekha said. One of those other attorneys, Jessica Piedra, has a small office upstairs from Southwest Boulevard, a few blocks west of the Sharma-Crawford firm. Piedra mostly works with immigrants seeking work permits, green cards or citizenship, and she calls Rekha Sharma-Crawford “my hero.” “I tell people all the time to definitely get a final opinion from the Sharma-Crawford law firm.” The Kansas Bar Association this spring honored Rekha Sharma-Crawford with its Courageous Attorney Award, given to lawyers who the associations said “displayed exceptional courage in the face of diversity.” In 2015 she won a case before the U.S. Supreme Court. Her client, a legal green-card holder, was facing deportation after being pulled over and found to be possessing in his sock four Adderall pills, a controlled substance. Under an agreement, a felony drug charge was dropped and her client pleaded guilty to a misdemeanor count of possessing drug paraphernalia (the sock, Rekha argued). ICE and lower courts weren’t amused. At the time Rekha called the high court’s 7-2 ruling, which spared the man from removal, a sign of the “promising trend (to) protect the due process rights of immigrants and protect them from the often harsh punishments” for those who come under ICE’s radar. For the government to spirit detainees away without notifying attorneys or family is “cheating,” she says. “It’s cheating. ICE holds all the high cards in these cases. Why do they have to cheat, too?” "

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Heightened Ethical and Strategic Considerations for Business Immigration Attorneys Under USCIS’s New Removal Policy - Cyrus D. Mehta

Cyrus D. Mehta, July 16, 2018 - "U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on July 5, 2018, PM-602-0050.1,  that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security (DHS).

A Notice to Appear (NTA) instructs a person to appear before an immigration judge on a certain date. The issuance of an NTA starts removal proceedings against the person. Under the new guidance, USCIS notes  that its officers will now issue NTAs “for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

Although it has always been possible for the USCIS to issue an NTA when an applicant is denied a benefit, it has generally not done so in the past for a number of sensible and practical reasons. Many applicants choose to leave the United States on their own upon the denial of the benefit, or delay their departure, if they legitimately seek to appeal the denial or seek reconsideration. It therefore makes no sense to further burden the already overburdened immigration courts with new cases, especially involving people who may already be departing on their own volition.

While David Isaacson’s  excellent blog “Another Brick in the (Virtual) Wall: Implications of USCIS’s Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not Lawfully Present” gets into the implications behind the new policy, including its malicious intent, as “the new guidance implies that it will not matter if the person issued the NTA was lawfully present until just prior to the unfavorable decision,”  I highlight some of the ethical considerations for attorneys arising under the new NTA policy.

As denials of H-1B extension requests have been happening more frequently under the Trump administration, I will use the H-1B to illustrate some of the ethical conundrums that may arise. Routine requests that were previously approved for H-1B occupations such as systems analyst or financial analyst are now frequently being denied. The new policy exacerbates this problem by now requiring that an NTA be issued upon the denial of such a request and the prior H-1B status has expired.  Sure enough, the USCIS policy does not change any law. Prior to the issuance of the policy, attorneys representing an employer and an employee in a request for an extension of H-1B status were mindful of the consequences when an H-1B extension request was denied. The issuance of an NTA has always been factored in as a worst case scenario in the event of a denial.  But now this will become a new reality and no longer a theoretical possibility. Petitioners should consider filing extension requests on behalf of the beneficiary well in advance of the expiration date of the underlying status – the law allows one to so up to six months prior- and should also consider doing so via premium processing.  In the event that the extension request is denied, it will happen while the beneficiary is still in status thus obviating the NTA.

The H-1B worker is considered unlawfully present when the request for an H-1B extension is denied, and the prior H-1B status has already expired. The issuance of an NTA does not stop the accrual of unlawful presence, and it is now important to deal with unlawful presence in the context of a removal proceeding.  Any accrual of unlawful presence that exceeds 180 days will trigger a 3 year inadmissibility bar under INA 212(a)(9)(B)(i)(I) once the individual departs the United States prior to the commencement of removal proceedings. If this individual accrues one or more than one year of unlawful presence and then departs the United States, she or she will be inadmissible for 10 years. Attorneys have been mindful of this eventuality especially when the employer chooses to appeal the decision or file a motion to reopen or reconsider. In the event that the decision is not rendered prior to the accrual of 180 days of unlawful presence, and the foreign national still remains in the United States beyond 180 days and then departs, in the event of an unfavorable decision, he or she will be precluded from reentering the United States for a 3 year period.

A business immigration attorney who may understandably not be knowledgeable about the ins and outs of a removal proceeding will need to come up to speed. After all, one of the cardinal ethical obligations of an attorney is to competently represent the client. Under ABA Model Rule 1.1 “a lawyer shall provide competent representation to a client.” The model rule goes on to state, “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” [While this blog will refer to ABA Model Rules,  attorneys must refer to their own state bar rules of ethical conduct that are analogous to the ABA Model Rules].  One way for an attorney to become competent is to associate with a lawyer who is competent in the removal matters. Alternatively, the lawyer who chooses to restrict her expertise to business immigration, thus limiting the scope of representation under ABA Model Rule 1.2(c), may refer the matter out to another competent lawyer who knows removal proceedings when the NTA is issued.

Once removal proceedings have been instituted, the foreign national may no longer leave even if he wants to. Moreover, the first master calendar hearing is scheduled after several weeks or months.  Indeed, it is becoming more obvious that the goal of this Trump Administration is to harass non-citizens in light of yet another more recent policy that gives authority to USCIS officials to deny applications based on lack of “sufficient initial evidence” without a request for evidence or notice of intent to deny. This could be viewed subjectively resulting in more denials followed by NTAs. If the foreign national leaves in the middle of the proceeding, it would trigger a new ground of inadmissibility under INA 212(a)(6)(B), which provides that “Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien’s subsequent departure or removal is inadmissible.”

If the foreign national remains in the US and receives a removal order, it would trigger a ten year bar to inadmissibility under INA 212(a)(9)(A) after the individual leaves pursuant to this order. It may be worthwhile for the attorney to stave off a removal order, and instead try to get the Immigration Judge (IJ) to issue a voluntary departure order. If voluntary departure is issued prior to the accrual of unlawful presence of one year or more, then under INA 212(a)(9)(B)(i)(I), the 3 year bar does not apply to those who departed after the commencement of proceedings and before the accrual of 1 year of unlawful presence. If the voluntary departure order is not issued prior to the 1 year period then the ten-year bar for one year of unlawful presence under INA 212(a)(9)(B)(i)(II) would apply. Due to immense backlogs in the immigration courts, there is a good likelihood that an IJ may not be able to get to the matter timely and could end up issuing a voluntary departure order after the accrual of one year of unlawful presence. Thus, an attorney representing such an individual in removal must creatively strategize to ensure that a voluntary departure order is rendered before the 1 year mark.

While the lawyer has been used to contesting the denial of an H-1B, it now has to also be done in the context of a removal proceeding. An IJ has no jurisdiction to hear an H-1B petition denial in a removal proceeding, and the denial must still be appealed to the AAO or through a motion to reopen or reconsider or potentially even challenged in federal court. While the denial is being appealed, it is important to try to seek a continuances in the event of another meritorious pending benefits application under Matter of Hashmi and Matter of Rajah.  In the event that the denial is overturned, and the foreign national is still in removal proceedings, one can seek to terminate removal proceedings. Under Matter of Castro-Tum recently decided by AG Sessions, an IJ can no longer administratively close a case thus overruling Matter of Avetisyan. However, it may still be possible to terminate based on a joint motion with the government’s attorney, but the ability to for the government attorney to exercise such discretion has also been limited.  Note that Attorney General Sessions is also seeking to overturn Hashmi and Rajah, but until that happens one can seek a continuance for good cause based on a pending meritorious application at the USCIS.    If the foreign national has already left, presumably under a voluntary departure order and has not triggered any ground of inadmissibility, he or she may be able to return if the denial is overturned, or if the appeal is not pursued or is unsuccessful, it may be prudent to re-file the H-1B petition, and have the individual return on a visa pursuant to the approval of the new petition.

All this raises another important ethical consideration – conflicts of interest. Most immigration attorneys represent both the employer and the employee as there is always a common goal, which is to obtain the visa benefit.  Still, there is always potential for a conflict of interest in the event that the employer wishes to terminate the employment or the employee wishes to quit and seek greener pastures elsewhere.  Under ABA Model Rule 1.7(b), notwithstanding the possibility of a conflict of interest, a lawyer may represent both clients if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and the clients have provided informed consent, confirmed in writing. The possibility of the foreign national being placed in removal proceedings heightens the potential for a conflict of interest. Will the employer client still be willing to hold out the job offer for the employee during a long drawn out removal hearing? In the event that the employer pulls out, then will the attorney be able to continue to represent the employee who is in removal proceedings or would this matter need to be referred out to another attorney and thus limit the scope of the representation under ABA Model Rule 1.2(c)? All these considerations need to be discussed preferably in advance between the employer and the employee. It may be possible to craft conflict waivers and get informed consent that would allow the attorney to deal with all these contingencies, including representation in removal proceedings.

The very issuance of the NTA will cause other problems. At the denial of the H-1B request, the USCIS could potentially serve the NTA on the attorney who is the attorney of record on the notice of entry of appearance that was submitted with the H-1B request. If the attorney represents both the employer and the foreign national employee in the H-1B matter, the attorney must at least notify the employee, although the attorney has no obligation to appear at the master calendar hearing. The attorney may need to explain what the master calendar hearing is, though.  This is akin to being counsel in a lower court and receiving an appealable unfavorable decision: the existing counsel may not have to do the appeal, but would have to advise the client of the possibility so they can retain someone else to do the appeal if they want. In a case where the attorney only represents the employer, but receives the NTA on behalf of the foreign national employee, it would still be prudent to inform the employee.  Of course, if the NTA is served on an attorney who has not yet made an appearance on behalf of the respondent in immigration court and not the respondent, that would be a basis to terminate a removal proceeding or to vacate an in absentia order. However, the attorney handling the H-1B matter musts till advise the beneficiary upon receipt of an NTA and forward the NTA to the beneficiary and advise her to seek independent counsel if the H-1B attorney will not represent the beneficiary in the removal proceeding or may be conflicted from doing so.

In the event that the H-1B worker has already departed the United States prior to the issuance of the NTA, it can be clearly argued that jurisdiction does not vest when an NTA is issued when the foreign national is not present in the United States. INA 240(c)(3)(a) provides that “the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable.” INA  237(a) refers to “[a]ny alien (including an alien crewman) in and admitted to the United States may be removed.” Since the former H-1B worker is not in, and admitted to, the United States, she cannot fall under the literal text of the‎ statute and, thus, is not deportable.

It remains to be seen whether the USCIS will be able to fully implement the NTA policy or whether this is just a wish list of the Trump administration. If the new policy is implemented as intended, an already overburdened immigration court system will face even further backlogs. Attorneys must be aware of the various heightened ethical and strategic considerations in representing a client who has received an NTA after a denial and this blog is an attempt to provide a preliminary overview."

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ICE Proposes to Raise Student Visa Fees

Federal Register / Vol. 83, No. 137 / Tuesday, July 17, 2018 - "The Department of Homeland Security (DHS) proposes to adjust fees charged by the Student and Exchange Visitor Program (SEVP) to individuals and organizations. DHS proposes to raise the fee for Student and Exchange Visitor Information System (SEVIS) Form I–901, Fee Remittance for Certain F, J, and M Nonimmigrants, for nonimmigrants seeking to become academic (F visa) or vocational (M visa) students from $200 to $350. For most categories of individuals seeking to become exchange (J visa) visitors, DHS proposes to increase the fee from $180 to $220. For those seeking admission as J exchange visitors in the au pair, camp counselor, and summer work or travel program participant categories, DHS proposes to maintain the fee at $35. In addition to raising the student and exchange visitor fees, DHS proposes to increase the fee for submitting a school certification petition from $1,700 to $3,000. DHS proposes to maintain the fee for an initial school site visit at the current level of $655, but clarify that, with the effective date of the rule, DHS would exercise its current regulatory authority to charge the site visit fee not only when a certified school changes its physical location, but also when it adds a new physical location or campus. DHS proposes to establish and clarify two new fees: a $1,250 fee to submit a school recertification petition and a $675 fee to submit an appeal or motion following a denial or withdrawal of a school petition. Adjusting fees would ensure fee levels are sufficient to recover the full cost of activities of the program and would establish a fairer balance of the recovery of SEVP operational costs between beneficiary classes. DATES: Send comments by September 17, 2018"

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Army Admits Discharge of MAVNI Soldier Illegal

Alex Horton, Washington Post, July 17, 2018 - "The Army has reversed its widely covered decision to discharge a citizenship-seeking immigrant soldier, in what his lawyer called an acknowledgment that the move was “improper.” Lucas Calixto, a 28-year-old reservist from Brazil, had faced an uncertain future in the United States before the reversal, which was reported by the Associated Press. An abrupt discharge was likely to knock him off his path to citizenship, which the military promises in exchange for the skills of immigrants who enlist. The reversal, revealed in a federal court filing Monday, comes as the Army and the Pentagon have defended tightening regulations for a program that has historically traded expedited citizenship for badly needed language and medical skills from foreign recruits. ... Margaret Stock, a retired Army officer who designed the MAVNI program and is now a practicing immigration lawyer, said she estimates that “dozens” are in the same position as Calixto — discharged with no explanation or recourse. It was telling that the Army reversed its decision instead of opposing the injunction, she told The Post. “It’s disturbing you have to file a lawsuit to get the Army to follow its own regulations,” Stock said."

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Sincerely,
Daniel M. Kowalski
Editor
dkowalski@david-ware.com

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