ACLU Letter: J.E.F.M. v. Holder Status Update (Mar. 27, 2015)

"We write to update you on the status of J.E.F.M. v. Holder, 14-cv-01026-TSZ (W.D. Wash.), our case seeking legal representation for children in immigration proceedings, and to inform you of developments in the case that may be helpful to children who are currently unrepresented in immigration court.

On March 6, 2015, the district court held a hearing on the government’s motion to dismiss the case. The judge had tough questions for both sides, addressing jurisdiction over the case under certain jurisdiction stripping provisions of the Immigration and Nationality Act, ripeness, and the merits of our appointed counsel claims. A full transcript of the hearing will be made public within the next week, provided that the government does not seek to redact information from it. We will forward it to the people on this list as soon as we have it. We will keep you updated with any additional news, including of course any ruling from the judge.

We also want to make you aware of claims made by the government during the hearing about the treatment of unaccompanied children who have a fear of returning to their home countries. As part of its description of the immigration courts as relatively child-friendly environments, the government attorney repeatedly asserted that if a child makes a simple assertion of fear of return in response to an immigration judge’s question, that child will face “no more threat for removal” unless the asylum office denies her asylum claim. According to U.S. Department of Justice attorney Leon Fresco, if children “just say, ‘I have a fear of persecution,’ there is a significant likelihood that their proceeding will be administratively closed.” He suggested that the following exchange was indicative of immigration courts’ treatment of unaccompanied children with asylum claims:

The judge asks, ‘Are you scared to go home?’ ‘Yes, I'm scared to go home.’ That's a very simple question . . . . ‘Why are you scared to go home?’ ‘Because I will be injured.’ ‘Okay. I'm administratively closing your case, and I am moving it to USCIS under the provisions of the TVPRA . . . .’ There's no removal proceedings. The child is done with their threat of removal. And if the child wins, they have asylum; if not, then they come back, and they get to have a second shot in front of an immigration judge.

In other words, according to these representations, immigration judges will administratively close unaccompanied children’s cases to permit those children to file asylum applications with USCIS, as long as the child expresses a fear. Additionally, the government’s representations indicate that every immigration judge should be affirmatively questioning every child about her fear of return, and that if the child expresses such a fear, the immigration judge can and should administratively close her case.

We hope that this language may be helpful to you if you serve as a friend of the court in front of immigration judges who go beyond these simple questions – such as by questioning a child about the nexus between harm and a protected ground or by requiring proof that an asylum application has been filed with USCIS – before closing a child’s case.

Additionally, during the hearing, the government made claims that may be of interest to legal service providers in Los Angeles and Seattle. According to the government’s statements, in these two courts, “every immigration court proceeding with kids has what's called a friend of the court in it.”

Finally, we wish once again to thank you for your assistance in ensuring that the district court is aware of the treatment of unrepresented children. Throughout this litigation, we have relied upon information from legal service providers and court observers to provide the court as clear a picture as possible of what is happening to children in immigration courts nationwide. As you can see, that has at times been an uphill task, but we hope that you will continue to keep us informed, especially if the government attorney’s statements set forth above do not accurately describe how children with asylum claims are treated in your immigration court.

If you recently have observed an immigration court proceeding against an unrepresented child and are willing to share your observations, please contact Kristin Macleod-Ball, our litigation team’s point person for information on the juvenile dockets, at kmacleod-ball@immcouncil.org or 202-507-7520." - ACLU Immigrants’ Rights Project / ACLU of Southern California, Mar. 27, 2015.