The following letter is from Bill Ong Hing to President Obama. Professor Hing is a well known advocate for immigrants. He is currently a professor of law at the University of San Francisco. Prof. Hing writes about the Dream 30 credible fear cases that were rejected (about eight cases have been rejected so far; one person was deported). He is concerned that the cases have been rejected based on an unfair and incorrect legal standard. He puts the Dream 30 cases into historical perspective and argues that the rejection of these credible fear applicants is reminiscent of previous failures by our government to protect refugees.

I am not fully convinced by his conclusions, as I discussed in my last blog entry (in short, I think there are–or at least, may be–legitimate reasons why the Dreamers’ credible fear applications would be denied at a higher than average rate). However, his analysis is important and deserves attention, especially since we would not want to repeat the tragic history that he recounts.  His letter is kind of long (he is a law professor), but well worth a read if you are following this debate. Enjoy:

November 4, 2013 

President Barack Obama

The White House

Washington, DC

Re: Dream 30 and Credible Fear 

Dear President Obama:

I write to you today with grave concern for the “Dream 30”, young people who arrived at the Laredo Port of Entry on September 30^th and requested both humanitarian parole and asylum. Twenty-six of these young people are currently detained at the El Paso Processing Center, and all have received credible fear interviews after expressing fear of returning to Mexico (or, in one case, Peru). However, seven have received negative determinations of credible fear and may now be subject to removal, and I am concerned that an unreasonable standard for credible fear has been imposed. I urge you to intervene in the credible fear screenings to ensure that the proper, more generous credible fear standard be followed. 

The immigration system allows for those who express a fear of return at our borders to receive a credible fear interview, rather than being summarily deported. This is essential to protecting those who may face danger abroad, but have little understanding of our legal system and few resources with which to prove their case. And it is essential to maintaining the United States as a safe haven for those who have been persecuted at home.  The credible fear concept functions as a pre-screening standard that is broader and less rigorous than the “well-founded fear of persecution” standard that is required for an actual asylum application. A finding of credible fear merely gives the prospective immigrant the opportunity to apply for asylum in removal proceedings. Without this more generous screening standard, the nation risks returning immigrants to grave dangers, including situations involving political violence, police corruption, gang violence, and torture. For this very reason, the denial rate for credible fear interviews was less than 9 percent. 

The negative credible fear findings thus far in the seven Dream 30 cases are worrisome. The apparent cursory fashion in which these negative decisions were made are reminiscent of  three tragic procedural eras in the asylum history related to Central America refugees, Haitian refugees, and Jewish refugees from Europe during World War II. 

            Treatment of Central American Refugees

The Ninth Circuit opinion in Orantes-Hernandez v. Smith, 919 F.2d 549 (9^th Cir. 1990), reveals that immigration officials engaged in a strategy that foreclosed the opportunity to apply for asylum for Salvadorans during the 1980s.

Generally, after aliens were apprehended, either border patrol agents or INS officers processed them. INS processing of detained aliens consisted of an interrogation combined with the completion of various forms, including form I-213, “Record of Deportable Alien,” and the presentation of form I-274 “Request for Voluntary Departure.” Although the arrested Salvadorans were eligible to apply for political asylum and to request a deportation hearing prior to their departure from the United States, the vast majority of Salvadorans apprehended signed voluntary departure agreements that commenced a summary removal process. Once a person signed for voluntary departure in the course of INS processing, he or she was subject to removal from the United States as soon as transportation could be arranged. A person given administrative voluntary departure in this manner never had a deportation hearing, the only forum before which the detained person could seek political asylum and mandatory withholding of deportation.

The Smith court found that the widespread acceptance of voluntary departure was due in large part to the coercive effects of the practices and procedures employed by INS and the unfamiliarity of most Salvadorans with their rights under United States immigration laws. INS agents directed, intimidated, or coerced Salvadorans in custody who had no expressed desire to return to El Salvador, to sign form I-274 for voluntary departure. INS agents used a variety of techniques to procure voluntary departure, ranging from subtle persuasion to outright threats and misrepresentations. Many Salvadorans were intimidated or coerced to accept voluntary departure even when they had unequivocally expressed a fear of returning to El Salvador. Even when an individual refused to sign form I-214, “Waiver of Rights,” INS officers felt that they could present the person with the voluntary departure form.

The court also found that INS processing officers engaged in a pattern and practice of misrepresenting the meaning of political asylum and of giving improper and incomplete legal advice, which denied arrested Salvadorans meaningful understanding of the options presented and discouraged them from exercising available rights. INS officers and agents routinely advised Salvadorans of the negative aspects of choosing a deportation hearing without informing them of the positive options that were available. Without informing them that voluntary departure could be requested at a deportation hearing, INS officers advised detainees that if they did not sign for voluntary departure they could be formally deported from the United States, and that such a deportation would preclude their legal re-entry without the pardon of the Attorney General.

INS officers and agents routinely told Salvadoran detainees that if they applied for asylum they would remain in detention for a long time, without mentioning the possibility of release on bond. Similarly, without advising that an immigration judge could lower the bond amount and that there were bond agencies that could provide assistance, INS agents regularly told detainees that if they did not sign for voluntary departure they would remain detained until bond was posted. Some agents told individuals the monetary bond amount they could expect or the bond amount given to other Salvadorans, without telling them that the bond amount ultimately depended upon the circumstances of the individual. 

INS officers commonly told detainees that if they applied for asylum, the application would be denied, or that Salvadorans did not get asylum. INS officers and agents represented that Salvadorans ultimately would be deported regardless of the asylum application. INS officers and agents misrepresented the eligibility for asylum by saying that it was only given to guerillas or to soldiers. INS processing agents or officers further discouraged Salvadorans from applying for asylum by telling them that the information on the application would be sent to El Salvador, and stating that asylum applicants would never be able to return to El Salvador. INS processing officers also used the threat of transfer to remote locations as a means of discouraging detained Salvadorans from exercising their rights to a hearing and to pursuing asylum claims.

Furthermore, INS agents often did not allow Salvadorans to consult with counsel prior to signing the voluntary departure forms, although they acknowledged that aliens had this right. Even those Salvadorans fortunate enough to secure legal representation were often unable to avoid voluntary departure, as INS’ practice was to refuse to recognize the authority of counsel until a formal notice of representation (Form G-28) was filed. Due to the rapid processing of Salvadoran detainees, it was often physically impossible for counsel to locate their clients and file Form G-28 before the client was removed from the country.

In conclusion, the Smith court noted: 

The record before this Court establishes that INS engages in a pattern and practice of pressuring or intimidating Salvadorans who remain detained after the issuance of an OSC to request voluntary departure or voluntary deportation to El Salvador. There is substantial evidence of INS detention officers urging, cajoling, and using friendly persuasion to pressure Salvadorans to recant their requests for a hearing and to return voluntarily to El Salvador. That this conduct is officially condoned, even in the face of complaints, demonstrates that it is a de facto policy. The existence of a policy of making daily announcements about the availability of voluntary departure, coupled with the acknowledgement that the policy is designed to free-up scarce detention space, supports the conclusion that INS detention officers make a practice of pressuring detained Salvadorans to return to El Salvador. This conduct is not the result of isolated transgressions by a few overzealous officers, but, in fact, is a widespread and pervasive practice akin to a policy. . . .
This pattern of misconduct flows directly from the attitudes and misconceptions of INS officers and their superiors as to the merits of Salvadoran asylum claims and the motives of class members who flee El Salvador and enter this country.

Thus, the court entered the following order:

1. [INS and border patrol agents] shall not employ threats, misrepresentation, subterfuge or other forms of coercion, or in any other way attempt to persuade or dissuade class members when informing them of the availability of voluntary departure pursuant to 8 U.S.C. § 1252(b). The prohibited acts include, but are not limited to:

(a) Misrepresenting the meaning of political asylum and giving improper and incomplete legal advice to detained class members;

(b) Telling class members that if they apply for asylum they will remain in detention for a long period of time, without mentioning the possibility of release on bond or indicating that bond can be lowered by an immigration judge and that there are bond agencies which can provide assistance;

(c) Telling Salvadoran detainees the amount of bond given to other class members, without indicating that the bond amount ultimately depends upon the circumstances of the individual class member;

(d) Telling class members that their asylum applications will be denied, that Salvadorans do not get asylum, or that asylum is only available to guerillas or soldiers;

(e) Representing to class members that the information on the asylum application will be sent to El Salvador;

(f) Representing to class members that asylum applicants will never be able to return to El Salvador;

(g) Indicating that Salvadoran detainees will be transferred to remote locations if they do not elect voluntary departure;

(h) Advising Salvadorans of the negative aspects of choosing a deportation hearing without informing them of the positive options that are available;

(i) Refusing to allow class members to contact an attorney; and

(j) Making daily announcements at detention facilities of the availability of voluntary departure. 

The bias that INS officials and asylum corps officers exhibited toward both Guatemalan and Salvadoran asylum applicants was further exposed in American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D. Cal. 1991).  As the New York Times reported on the case:

Such applications have long presented the Government with an embarrassing choice. The United States supports the Governments of El Salvador and Guatemala, and at the same time it is asked by asylum applicants to find that they have a “well-founded fear of persecution” if they are returned home. Every approval of an application for political asylum thus amounts to an admission that the United States is aiding governments that violate the civil rights of their own citizens.

Since 1980 the Government has denied 97 percent of applications for political asylum by El Salvadorans and 99 percent of those by Guatemalans. During the same time, applications for political asylum by Eastern Europeans, Nicaraguans and residents of other countries have a high percentage of approval. For example, 76 percent of applications by residents of the Soviet Union were approved, as were 64 percent of those by residents of China.

A settlement was reached requiring the INS to readjudicate the asylum claims of certain Salvadorans and Guatemalans who were present in the United States as of 1990, and who had sought immigration benefits. The case, known as the “ABC litigation” began in 1985 as a nationwide class action on behalf of Salvadorans and Guatemalans.  The plaintiffs alleged that the INS and the Executive Office of Immigration Review were biased in their asylum adjudication process for those two nationalities.  Under the settlement, these Central Americans were eligible for new asylum interviews.

            Unfair Treatment of Haitian Asylum Applicants 

In Haitian Refugee Center v. Smith, 676 F.2d 1023 (5^th Cir. 1982), the Fifth Circuit chastised the federal government for unfair processes that were imposed on Haitian asylum applicants. In response to the repressive Duvalier regime that caused political and economic havoc in Haiti in the 1970s, many Haitians fled to the United States seeking refuge.  Large numbers sought asylum once they reached the shores of Florida.  A backlog developed, so INS officials implemented an accelerated program to deal with the situation.  The program of accelerated processing to which the Haitians were subjected by the INS-termed the “Haitian Program”- embodied the government’s response to the tremendous backlog of Haitian deportation cases that had accumulated in the INS Miami district office by the summer of 1978. By June of that year between six and seven thousand unprocessed Haitian deportation cases were pending in the Miami office. These staggering numbers were not the result of a massive influx of Haitians to south Florida over a short period. Although significant numbers of Haitians had entered the United States from Haiti and the Bahamas in the spring of 1978, the backlog was primarily attributable to a slow trickle of Haitians over a ten-year period and to the confessed inaction of the INS in dealing with these aliens.

Many officials provided input in the planning process of the Haitian project.  Assigned by the Deputy Commissioner of the INS with the task of assessing the Haitian situation in Miami, INS Regional Commissioner Armand J. Salturelli submitted the recommendation, among others, that processing could be expedited by ceasing the practice of suspending deportation hearings upon the making of an asylum claim. Salturelli acknowledged that this would contravene internal operations procedures, but suggested that those procedures should be cancelled or “at least be suspended insofar as Haitians are concerned.”  One July 1978 report from the Intelligence Division of INS to the Associate Director of Enforcement advised in absolute terms that the Haitians were “economic” and not political refugees and, in belated recognition of the obvious, warned the Enforcement Division that favorable treatment of these Haitians would encourage further immigration. Associate Director of Enforcement, Charles Sava, later visited Miami to find space for holding an increased number of deportation hearings and to discuss with Miami personnel the processing of Haitians. Out of those discussions arose recommended deterrence measures, which Sava outlined in a letter to Deputy Commissioner Noto. These included detention of arriving Haitians likely to abscond, blanket denials of work permits for Haitians, swift expulsion of Haitians from the United States, and enforcement actions against smugglers. 

Planning of the Haitian program culminated in a memorandum sent on August 20, 1978 by Deputy Commissioner Noto to INS Commissioner Leonel J. Castillo. The memo explained the basic mechanics of the accelerated processing already being implemented in the Miami district office. Among the specifics set forth were the assignment of additional immigration judges to Miami, the instructions to immigration judges to effect a three-fold increase in productivity, and orders for the blanket issuance of show cause orders in all pending Haitian deportation cases.

In accordance with the goal of high productivity demanded of the Miami office, Acting District Director Gullage issued a memorandum to all personnel in the office, stating “processing of these cases cannot be delayed in any manner or in any way. All supervisory personnel are hereby ordered to take whatever action they deem necessary to keep these cases moving through the system.” The Haitian cases were processed at an unprecedented rate. Prior to the Haitian program only between one and ten deportation hearings were conducted each day. During the program, immigration judges held fifty-five hearings per day, or approximately eighteen per judge. At the program’s peak the schedule of deportation hearings increased to as many as eighty per day.

At the show cause or deportation hearing, the immigration judges refused to suspend the hearing when an asylum claim was advanced, requiring the Haitians instead to respond to the pleadings in the show cause order and proceed to a finding of deportability. The order entered by the judge allowed the Haitian ten days for filing an asylum claim with the district director, then ten days to request withholding of deportation from the immigration judge if the asylum deadline was not met. Failure to seek withholding in a timely manner effected automatic entry of a deportation order.

Deportation hearings were not the only matter handled during the Haitian program. Asylum interviews also were scheduled at the rate of forty per day. Immigration officers who formerly had worked at the airport were enlisted as hearing officers for these interviews. Prior to the program such interviews had lasted an hour and a half; during the program the officer devoted approximately one-half hour to each Haitian. In light of the time-consuming process of communication through interpreters, the court concluded that only fifteen minutes of substantive dialogue took place. Consistent with the result-oriented program designed to achieve numerical goals in processing, the Travel Control section in the Miami office recorded the daily totals of asylum applications processed. The tally sheet contained space only for the total number of denials; there was no column for recording grants of asylum. 

Hearings on requests for withholding deportation also were being conducted simultaneously with asylum and deportation hearings, at several different locations. It was not unusual for an attorney representing Haitians to have three hearings at the same hour in different buildings; this kind of scheduling conflict was a daily occurrence for attorneys throughout the Haitian program. The INS was fully aware that only approximately twelve attorneys were available to represent the thousands of Haitians being processed, and that scheduling made it impossible for counsel to attend the hearings. It anticipated the scheduling conflicts that in fact occurred. Nevertheless the INS decided that resolving the conflicts was “too cumbersome for us to handle” and adopted the attitude that everything would simply work out.

Under these circumstances, the court concluded that the INS had knowingly made it impossible for Haitians and their attorneys to prepare and file asylum applications in a timely manner. The court found that adequate preparation of an asylum application required between ten and forty hours of an attorney’s time. The court further estimated that if each of the attorneys available to represent the Haitians “did nothing during a 40 hour week except prepare [asylum applications], they would have been able to devote only about 2 hours to each client.” 

The results of the accelerated program adopted by INS are revealing. None of the over 4,000 Haitians processed during this program were granted asylum.

In the end, the federal court of appeals struck down the accelerated program as a violation of procedural due process. The government was forced to submit a procedurally fair plan for the orderly reprocessing of the asylum applications of the Haitian applicants who had not been deported. 

            Turning Away Jewish Refugees During World War II

In the 1930s, for example, the United States turned away thousands of Jews fleeing Nazi persecution (e.g., SS St. Louis), in large part because of powerful restrictionist views against certain ethnic, religious, and racial groups. Congress and U.S. consular officers consistently resisted Jewish efforts to emigrate and impeded any significant emergency relaxation of limitations on quotas. 

The plight of European Jews fleeing Nazi Germany aboard the ship SS St. Louis in 1939 is a horrific example of how restrictionist views were manifested toward refugees at the time. In a diabolical propaganda ploy in the Spring of 1939, the Nazis had allowed this ship carrying destitute European Jewish refugees to leave Hamburg bound for Cuba, but had arranged for corrupt Cuban officials to deny them entry even after they had been granted visas.  It was the objective of Nazi propaganda minister Joseph Goebbels to prove that no country wanted the Jews.  The St. Louis was not allowed to discharge its passengers and was ordered out of Havana harbor.  As it sailed North, it neared United States territorial waters.  The U.S. Coast Guard warned it away.  President Franklin D. Roosevelt had said that the United States could not accept any more European refugees because of immigration quotas, as untold thousands had already fled Nazi terror in Central Europe and many had come to the depression-racked United States.

Nearly two months after leaving Hamburg, and due to the efforts of U.S. Jewish refugee assistance groups, the ship was allowed to land in Holland.  Four nations agreed to accept the refugees—Great Britain, Holland, Belgium and France.  Two months later, the Nazis invaded Poland and the Second World War began.  Over 600 of the 937 passengers on the St. Louis were killed by the Nazis before the war was over.  When the United States refused the St. Louis permission to land, many Americans were embarrassed; when the country found out after the war what happened to the refugees, they were ashamed. 

            Closing

Recognizing credible fear is not a grant of asylum. It merely recognizes that the person has shown a significant possibility that that the applicant can meet the standard for asylum before an immigration judge. It simply gives the person a chance for a fair hearing in an immigration court.

The standard for credible fear is not meant to be high. In a case that I litigated, NS v Cardosa-Fonseca, 480 U.S. 421 (1987), the Supreme Court recognized that the “well-founded fear” standard for asylum can be met even when a 10 percent chance of persecution is established. And the credible fear standard is meant to be an even lower burden than well-founded fear.

The Dream 30 are young people that deserve fair treatment. Your administration should not be associated with the tragic asylum eras of the past that I have outlined above. Politics should not get in the way. I urge you to treat them fairly in their bid for refuge in this country and to give their cases due consideration. If they have a credible fear, they should be allowed to make a case for asylum in front of an immigration judge, rather than be subject to expedited removal. I urge you to protect the integrity of the asylum system that has been designed to be symbol of hope and freedom throughout the world.

Sincerely,

Bill Ong Hing

Professor of Law, University of San Francisco

Professor of Law Emeritus, University of California, Davis