Insubordination at ICE

by Jason Dzubow

In a unanimous vote in June 2010, leaders of the Immigration and Customs Enforcement (ICE) Agents’ Union accused ICE Director John Morton of “gross mismanagement within the Agency as well as efforts within ICE to create backdoor amnesty through agency policy.”  Now, the union is again attacking its leadership. 

In a recent press release, available here, the Union refers to new policies that were crafted based on the “desires of foreign nationals illegally in the United States.”  The result of these policies, according to Union leader Chris Crane, is that “every person here illegally [can] avoid arrest or detention, as officers we will never know who we can or cannot arrest.”  It seems the focus of the agents’ complaint is a memo issued last month by the ICE Director entitled “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.”  A link to the memo is available here.  

Deport gang members, not grannies.

After reviewing the memo, it is difficult to understand the ICE agents’ concern.  Essentially, the memo states the obvious: ICE has limited resources for removing illegal aliens from the U.S.  Therefore, ICE should prioritize the removal of criminal aliens and people who endanger our national security.  The memo lists positive and negative factors that officers should consider when deciding how to prioritize cases.  In other words, the memo basically orders ICE agents to prioritize the removal of gang members over grandmas.  How this equates to a “backdoor amnesty” is a mystery. 

Another complaint mentioned in the Union press release is the way policies are implemented at ICE:

Agents claim that under Director John Morton the agency always presents written policies for public consumption, but then makes “secret changes” to the policies which ICE refuses to put in writing.

It is unclear how these “secret changes” are implemented in an organization with thousands of employees.  The press release continues:

The Union also alleges that ICE Field Office Directors (FODs) have confided in the Union that when the FODs raised questions about the effectiveness of the new policies, ICE Headquarters responded by telling the FODs to turn in their badges and file for retirement.

The press release ends with a plea for help from the public:

[We] are asking everyone to please email or call your Congressman and Senators immediately and ask them to help stop what’s happening at ICE, we desperately need your help.

I am an outsider and I have no idea about any “secret policies” at ICE.  However, I represent many foreigners in the U.S., and I am very well aware of the rates of detention and removal of illegal aliens.  In FY 2010 (the only year of the Obama Administration where statistics are available), we removed a record number of illegal aliens from the United States.  And it seems we will remove even more illegal aliens in FY 2011.  This hardly seems like a “backdoor amnesty.”  Given the number of aliens deported from the U.S., the ICE agents’ complaints seems unfounded and–frankly–out of touch with reality.  

Nevertheless, the allegations in the Union’s press release are serious and–considering the source–they must be taken seriously.  If the claims in the union’s press release are true, it would raise serious concerns about operations at ICE, and Director Morton should probably be removed.  On the other hand, if these allegations are exaggerations made for partisan political purposes, it is a clear case of insubordination and those responsible should be fired.

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Negative Judicial Metaphors Harm Immigrants

by Jason Dzubow

A recent article in the Fordham Law Review posits that negative metaphors used by judges to describe immigrants contribute to negative public perceptions of immigrants and lead to adverse judicial decisions. 

Before now, I never metaphor that I didn't like.

In Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, Keith Cunningham-Parmeter discusses different metaphors used in judicial decisions related to immigration.  The most common metaphors can be classified into three categories: (1) Immigrants are aliens; (2) Immigrants are a flood; and (3) Immigrants are invaders.  Each of these metaphors carries negative associations–for example, floods cause us to drown; invaders try to kill us.  Employing these metaphors, writes Mr. Cunningham-Parmeter, affects how we think about immigrants, which in turn affects judicial decisions.

One set of figures cited in the article struck me as particularly noteworthy—In examining 4,200 federal cases related to immigration, Mr. Cunningham-Parmeter found that the phrase most commonly used to describe immigrants was “illegal alien:”

“[I]llegal alien” was “by far the most common term, appearing in 69% of opinions (2905 cases).  No other term appeared in more than 10% of opinions, except “undocumented alien,” which accounted for 16% of the results in 670 cases.  

It seems likely that the overwhelming use of negative metaphors for immigrants would impact how judges think about people who are in the U.S. illegally.  This, of course, could result in more adverse decisions.  

To counter these negative metaphors, Mr. Cunningham-Parmeter proposes some positive metaphors; words that connote entrepreneurial economic migrants (i.e., people with the get-up-and-go necessary to cross borders and start new, productive lives):

[M]igrants are neither criminals nor invaders, but instead people who cross international borders in order to survive.  As such, the economic sanctuary metaphor brings focus to the human consequence of globalization.

I certainly appreciate the effort to de-stigmatize immigrants (and in writing this blog post, I find myself avoiding the term “alien,” a term of art defined in the INA, but also a metaphor with negative connotations).  In the end, though, I am skeptical that we can replace existing metaphors with something more benign.  There is a tribal aspect to these metaphors that is deeply ingrained.  We do tend to view outsiders as “invaders” and as a threat.  Maybe that is just the way of human nature.  Or, hopefully, I am wrong, and Mr. Cunningham-Parmeter’s article will help plant a seed that will lead to a more positive—and constructive—view of people who immigrate to the United States.

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Doctors, Detention, and Dual Loyalty

by Jason Dzubow

A recent report by Physicians for Human Rights (“PHR”) articulates the difficult dilemma faced by physicians who serve detained immigrants.  Such physicians have a “dual loyalty” problem:

Health professionals working in detention facilities run directly under DHS oversight, report to the federal agency charged with managing health care for detainees, the ICE Health Service Corps (HSC).  Like ICE, HSC is a division of DHS, and therefore, has objectives that tend to focus on deportation and security, rather than on providing comprehensive health care to immigrants in detention.  Review of the HSC mission statement clearly demonstrates that its mandate is prone to conflict with health professionals’ obligation to provide their patients with the best possible care.  The HSC website proudly proclaims: “We protect America by providing health care and public health services in support of immigration law enforcement.”

Perhaps Janus, not Asclepius, is an appropriate patron deity for DHS Doctors.

A doctor’s first loyalty should be to her patient.  However, there are many examples of third parties infringing on the doctor-patient relationship: insurance companies and hospital administrators being two of the most common.  In the case of detained immigrants, a doctor’s loyalty to her patient may be compromised by her loyalty to her employer–in this case, the Department of Homeland Security.  The PHR report points out that this should not happen:

While the term “dual loyalty” may imply equivalence between a medical professional’s loyalty to the patient and loyalty to third party interests [such as DHS], no such equivalence exists.  Ethically, with very rare and well-circumscribed exceptions, a health professional is obligated to act in the interest of the patient above all other concerns.

Great in theory, but not always easy to implement in reality.  The report offers several recommendations, including the following:

  • Require that health care professionals working in detention centers report to health organizations, such as the Department of Health and Human Services, so that they may maintain clinical independence.  They should not report to the Department of Homeland Security or to for-profit private contractors.
  • Create an independent oversight organization to monitor provision of health care in all facilities that house immigration detainees.
  • Create an ombudsman office to which detainees may easily report grievances regarding access to medical care.
  • Make the Performance Based National Detentions Standards (PBNDS) legally enforceable in all facilities that house immigration detainees.  Failure to adhere should result in contract cancellation.

DHS detains about 400,000 people each year.  The recommendations in the PHR report would help to improve medical care for these people and would also help to mitigate the “dual loyalty” problem faced by physicians in the system.  Further, PHR’s recommendations do not seem particularly costly.  Indeed, the primary recommendation–that physicians working with detained immigrants report to HHS instead of DHS–should cost next to nothing.  The recommendations are worthy of consideration by DHS.

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BIA Makes It Easier to Deport 14 Year Olds

by Jason Dzubow

In a recent decision, the Board of Immigration Appeals held that service of a Notice to Appear (“NTA”) on an alien is effective, so long as the alien is at least 14 years old. See Matter of Cubor-Cruz, 25 I&N Dec. 470 (BIA April 29, 2011).  

Another child served with a Notice to Appear.

It may seem idiotic to expect a child still in the throws of puberty to respond to an NTA, but to be fair, the BIA was just following orders:

Section 239(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1) (2006), provides that the Notice to Appear is properly served if it is “given in person to the alien (or if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any).” See also 8 C.F.R. § 103.5a(c)(1) (2010) (providing for personal service of notice).  However, the regulations state that if the alien is a minor under 14 years of age, “service shall be made upon the person with whom the . . . minor resides; whenever possible, service shall also be made on the near relative, guardian, committee, or friend.” 8 C.F.R. § 103.5a(c)(2)(ii); see also 8 C.F.R. § 236.2(a) (2010).

So I suppose it really isn’t the BIA’s fault that the regulations allow for service of an NTA on a middle school student.  There are a few things that bother me about this decision.

For one, the regulation is ridiculous.  How can a 14 year old be expected to understand and respond to an NTA?  This is another example highlighting the need for court-appointed advocates in cases involving minors or people who are incapable of representing themselves.   

Second, why did the Board bother to publish this decision?  It does nothing except re-state the regulation.  Given that the BIA publishes decisions so rarely (only about 1 case in 1,000 is published), it is disappointing that they would “waste” a published decision on a case that does nothing to clarify the law or set a precedent.

Finally, why didn’t the Board take this opportunity to criticize the regulation and/or call for court appointed advocates in cases involving minor children?  The BIA likes to tell us that it has no authority to rule on the validity of the regulations that govern it.  Maybe so, but it does have the expertise and the moral authority to criticize those regulations where they are unfair.  There is a long tradition in the American legal system of courts criticizing laws, even when they cannot invalidate those laws.  Sometimes, a well-written criticism helps change an unjust law.  Also, there is a tradition of courts asserting their authority even when the other branches of government question that authority (think Justice Marshall in Marbury v. Madison). 

In Matter of Cubor-Cruz, the BIA missed an opportunity to criticize an unjust regulation.  It also missed a chance to assert its (moral) authority in order to bring about a positive change in the law. 

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DHS Protects Women and Girls, but More Can Be Done

by Jason Dzubow

In a recent posting on the Department of Homeland Security blog, January Contreras, the DHS Ombudsman, describes the Department’s efforts to help protect women and girls.  Some highlights:

In 2010, U.S. Citizenship and Immigration Services (USCIS) administered the full statutory allotment of 10,000 visas for victims of domestic crimes who participated in the investigation and prosecution of their perpetrators – for the first time.

Through U.S. Immigration and Customs Enforcement (ICE)’s Victim Assistance Program, 18 new full-time victim assistance specialists have been deployed to 17 ICE offices, in addition to 250 collateral duty Victim Assistance Coordinators, to provide continued guidance and support for victims of violent crimes.

The Federal Law Enforcement Training Center has deployed programs that train officers on protecting women and girls, including a web-based human trafficking training course and training on violence against women.

January Contreras: DHS Ombudsman

Ms. Contreras concludes, “While we are extremely proud of our accomplishments in the protection of women and girls, we know there is always the opportunity to do more.”  “As a Department, we are committed to dedicating even more of our efforts to the security of women and girls in the years to come.”

DHS should be commended for its efforts and accomplishments to protect women and girls.  As Ms. Contreras notes, there is more to be done.  Some suggestions:

DHS recently expanded the unit that adjudicates VAWA, T and U visas (victims of domestic violence, victims of human trafficking and victims of certain crimes, respectively) to approximately 100 officers.  Previously, officers elected to join the “VAWA unit,” but it seems this practice has changed and officers are often rotated through the unit.  The results of this change have been mixed.  On the one hand, processing times have been reduced, which is certainly good news.  But on the other hand, expertise has gone down and the number of RFEs (Requests for Evidence) issued by the unit has increased as new officers learn the new areas of law.  These superfluous RFEs cause delay and reflect the lack of specialization of officers rotated through the unit.  One solution would be to go back to the previous model where the staff of the VAWA unit were permanent, chose to be in the unit, and were well-trained prior to starting in domestic violence and VAWA.  Such officers would be more specialized and would increase the quality of the work product.  

The Victims Assistance Program is an excellent program that assists victims, including victims of human trafficking many of whom are eligible for T and/or U visas.  However, very few U visas certifications seem to be signed by ICE agents.  DHS needs to do a better job of informing ICE agents about their ability to sign U visa certifications and the process for doing so.  DHS should do more to help ICE agents understand their role in the certification process.

Also, on the subject of U visas and certification, many local law enforcement officers do not understand the visa and how it was designed to help them investigate crimes.  DHS should do more to inform local law enforcement about U visa certifications and how to assist crime victims with their U visa applications.

Finally, with the rise of ICE detention in the United States, it is important that DHS put in place a framework to identify victims of domestic violence, sexual assault, human trafficking, and other violent crimes who may be eligible for immigration relief.  A system should exist so that such people can be connected with appropriate resources.  Ideally, this screening would occur prior to the issuance of an ICE detainer

While DHS’s efforts to assist women and girls has been laudable, there are estimated to be about 100,000 children (under age 18) in the sex trade each year in the United States (it is not known how many are immigrants and how many are U.S. citizens).  In addition, there are likely several hundred thousand adults.  All of these people may not be victims of human trafficking, but many are.  Others may be victims of domestic violence, sexual assault, and other violent crimes for which there may be immigration relief available.  Given the large numbers of victims, DHS and Congress should devote more resources to helping those in need.

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Migration Policy Institute Conference

by Jason Dzubow

The Migration Policy Institute, Catholic Legal Immigration Network, Inc. (CLINIC) and Georgetown University Law Center will be hosting the 8th Annual Immigration Law and Policy Conference on April 26, 2011 in Washington, DC.  The topics include the following:

Devolution of Immigration Authority: The Role of States in Immigration Enforcement and Policymaking

The Final Arbiters: When Immigration Policies Come Before the Courts – The panel will examine and debate the prospects and possible outcomes of litigation involving some critical issues in the current political debate: challenges to the Fourteenth Amendment’s guarantee of birthright citizenship, right of basic public education under Plyler v Doe, and the extent to which states and localities can enact laws affecting the foreign born.

State and Local Agencies & Immigration Enforcement: Growing Role, Growing Questions – This panel will examine the federal/state partnerships related to immigration enforcement, including a discussion of 287(g) agreements and Secure Communities, the increasing role played by state and local law enforcement, and the impact of these federal and state immigration measures, including local community perspective.

Detention Reform:  Standards, Alternatives, and Vulnerable Populations –
This session will discuss DHS detention reform efforts, challenges to reform, civil detention standards, alternative detention models, alternatives “to” and alternative “forms” of detention, the treatment of particularly vulnerable populations, and legal challenges to the US detention regime.

Right to Counsel: New Ideas and Opportunities for Indigent Defense – This panel will examine whether there is meaningful opportunity to expand legal counsel for indigent persons in removal proceedings, and what those vehicles may be.  It will also discuss recommendations to law and policymakers set forth by different groups for ensuring access to counsel.

I have attended several of these conferences in years past, and they are always very worthwhile, not just for the topics and the speakers (all of whom are top notch), but also for the opportunity to meet many interesting people in the field.  If you can come to DC to attend this conference, I highly recommend it.  To register, visit the MPI website, here (by the way, registration is $50 before April 22; on-site registration is $60). 

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Help Save Detroit’s Freedom House

by Jason Dzubow
They may take our lives, but they will never take our Freedom (House)!

People seeking asylum in the United States often wait many months for their cases to be adjudicated.  They usually have limited resources or connections in the U.S., many do not speak English, and they often have trouble finding work, even if they are lucky enough to obtain a work permit.  One organization that has been helping asylum seekers for almost 30 years is Freedom House in Detroit.  Now, the Detroit Metro Times reports that Freedom House is facing a severe financial crisis that could cause it to shut its doors:

[Freedom House] unexpectedly lost a major grant, and Deborah Drennan, the executive director, is worried they may have to close. “I’ve laid off six of my eight staff members, and both myself and the other two are working without a paycheck,” Drennan told [the Metro Times] last weekend.  “As you know, sending people away from Freedom House is in many cases a death sentence. I can’t let this happen,” she said.

If Freedom House did close, it would be a mini-global tragedy. People come here, somehow, from all over the world. Rwanda, Cameroon, Libya, Russia. When they arrive at this century-old, redbrick house (a former convent)… they are often a malnourished, dehydrated mess. Most have been tortured, physically and psychologically; many have been raped

Freedom House provides them with shelter, food, social and legal service, job placement, ESL, and safety.  The comprehensive nature of its services makes Freedom House unique.  Freedom House can accommodate 35 people at a time, but because they do not turn anyone away, they are often above capacity.  Over the last three decades, the organization has helped hundreds–maybe thousands–of asylum seekers establish new lives in the United States. 

Given the current financial crisis, the future of Freedom House seems uncertain.  The loss of this organization would be a great misfortune for asylum seekers in Michigan.  If you would like to send a donation, please visit their website here.  Even a modest contribution of $25 will pay for meals for all the home’s residents for one day.  Hopefully, with contributions from friends and some new grant money, Freedom House will be able to continue its works for many years to come.

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Legal Briefs on Immigration Reform from 25 of the Top Legal Minds in the Country

by Jason Dzubow

I am pleased to let you know about a new book, Legal Briefs on Immigration Reform from 25 of the Top Legal Minds in the Country.  For the book, editors Deborah Robinson and Mona Parsa asked 25 of The Top Legal Minds in the Country this question:  If you were called upon by the President of the United States to recommend a piece of immigration legislation that could pass the legal test of the U.S. Constitution and both houses of Congress, what would it include?   This book is their answer.

I am also pleased to let you know that your humble blogger is one of the “Legal Minds.”  In fact, I am the number one legal mind!  The contributors are:

Jason A. Dzubow, Esq.
Gary E. Endelman, Esq., Ph.D.
Michael Fix, Esq.,
Austin T. Fragomen, Esq.
Chris E. Gafner, Esq.
Regina Germain, Esq.
Bill Ong Hing, Esq.
Mark Krikorian
Ira J. Kurzban, Esq.
Heather Mac Donald, Esq.
Daniel J. McNeil, Esq.
Cyrus D. Mehta, Esq.
Victoria F. Neilson, Esq.
Nancy A. Noonan, Esq.
Julie A. Pace, Esq.
Renée M. Saucedo, Esq.
David A. Selden, Esq.
Patrick Shen, Esq.
Gregory Siskind, Esq.
Rita Sostrin, Esq.
Nicomedes E. Suriel, Esq.
Carol M. Swain, Ph.D., M.L.S.
Jennifer Van Hook, Ph.D.
Michael Wildes, Esq.
Stephen Yale-Loehr, Esq.

Now, some nattering nabobs might point out that the list of legal minds is alphabetical, and my name happens to be first because it comes earliest in the alphabet.  Don’t believe it!  As far as I can tell, I am numero uno (take that Kurzban, with your obnoxious “K” and Germain with your sad little “G”!).   

The book actually looks to be a great resource for people interested in immigration reform.  I have not yet read the contributions by other authors, but they seem intriguing.  Here are some that caught my eye:  Regina Germain writes about Restoring Dignity to the Asylum Process; Victoria Neilson writes about immigration and LGBT issues, which happens to be a very timely topic; and Michael Wildes, a former mayor, writes about the effects of immigration on our economy.  Other authors write about the current effort to repeal birthright citizenship, and the book includes at least a few authors who are generally considered anti-immigration, such as Mark Krikorian from the Center for Immigration Studies.

All in all, it looks to be a valuable source of information for policy makers and others interested in immigration issues.  To learn more, and to buy the book, visit the website.

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Remembering the Triangle Shirtwaist Factory Fire – 100 Years Later

by Jason Dzubow

On March 25, 1911, fire broke out in the Triangle Shirtwaist Factory building at 29 Washington Place in New York City.  Less than 20 minutes later, 146 people were dead, mostly young immigrant women.  The fire was one of the worst industrial disasters in U.S. history, and had a major impact on work place safety, the labor movement, journalism, and many other areas of American life.  One hundred years later, the lessons of the fire are still relevant and the victims are still remembered.

Cornell University has a great website exploring the history and significance of the fire.  Particularly moving is a list of the victims that gives some information about each one (the last several victims were only positively identified this year).  Most were recent Jewish or Italian immigrant women in their late teens or early twenties.  From the introduction on the Cornell website:  

This [fire] has had great significance to this day because it highlights the inhumane working conditions to which industrial workers can be subjected. To many, its horrors epitomize the extremes of industrialism.  The tragedy still dwells in the collective memory of the nation and of the international labor movement. The victims of the tragedy are still celebrated as martyrs at the hands of industrial greed.

The family of each victim received $75 in compensation for their loss (!), and the owners of the factory were tried and acquitted of criminal charges (many victims died because doors in the building were locked to prevent theft and because there was not adequate safety equipment).  Out of this tragedy, the union movement–and in particular, the International Ladies’ Garment Workers’ Union–was strengthened and labor laws in New York were improved. 

There are many commemorations of the event in New York City and around the country.  One website that has excellent coverage of the 100 year anniversary is the Jewish Daily Forward.  The Forward is a labor newspaper that has been around since 1897, and that covered the fire extensively in 1911.  For information on commemorations, including a poetry contest, the Forward can’t be beat.  Below is the winning entry in the Forward’s poetry contest:

Reckoning

She was a woman worth a certain amount

to her family: a pension or lump sum.

All I could say was this is human

when I saw her on the street, red

gathered at what must have been her neck. Count

the holes in my body — she faced me: I retched — some

of which I made when jumping. What man

reckons what the living owe the dead?

I didn’t kill you. My every liberal part

aches for the laborer, the immigrant,

the seamstress whose callused finger bled.

I’m killed and rise up daily. My scalded heart

fibrillates, a sack of worker ants.

My words in your mouth are beit-din’s lead.

— ZACKARY SHOLEM BERGER

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DHS Plans Crackdown Against Smugglers in Central American

by Jason Dzubow

Many African asylum seekers enter the United States at the Mexican border.  Their journey to the U.S. is long and circuitous.  In East Africa (where some of my clients come from), people travel from Ethiopia, Eritrea or Somalia to Kenya.  From there, they go to South Africa and Brazil using false passports, and then through South America (sometimes by boat up the Amazon River!), to Central America, and then Mexico and the U.S.  Along the route, they are passed from one smuggler to the next.  Its big business for the smugglers: I’ve heard the trip costs between $10,000.00 and $15,000.00, and sometimes more.

A smuggler guides a couple illegal aliens across the border.

Last year, Abrahaley Fessahazion, an Eritrean based in Guatemala pleaded guilty to helping smuggle illegal aliens to the United States for financial gain.  Mr. Fessahazion was caught after he came to the U.S. and filed a false claim for political asylum.  He faces up to 10 years in prison.

Now, if the rumor mill is to be believed, DHS and at least one Latin American government are planning to arrest some additional smugglers in Central America.  DHS investigators have been interviewing smuggled aliens in the United States.  They have asked the aliens to identify photos of several smugglers based in Central American.  While most of the smugglers are from Latin America, at least one is African.  

It seems that DHS’s central concern involves the Somalis, who have long been viewed as a potential threat to national security (I’ve blogged about this issue here), and apparently DHS’s interrogation of the smuggled aliens has focused on Somali migrants.   

If the rumors are true, and certain Latin American governments are cooperating in the crackdown, life might be about to become difficult for the smugglers. 

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Deportation Leads to Abortion

by Jason Dzubow

For many immigration attorneys, the people we can’t help are the ones we remember the best.  I received a sad call last week and there was little I could do to assist.

Apparently, the caller’s husband had applied for asylum prior to the marriage.  He was denied and then failed to leave.  Later, he met the caller, they fell in love, and married.  Whether she knew about his immigration problems prior to the marriage, I do not know.  In any case, she got pregnant. 

Two months into the pregnancy, the husband was detained by ICE (Immigration and Customs Enforcement), and quickly returned to his home country in West Africa, leaving his wife alone in the United States.

The wife called me to ask about the possibilities for him to return, based on the marriage.  She told me that she was working seven days a week to support herself.  She felt that without her husband’s help, she was incapable of taking care of a child.  She told me that since she was separated from her husband, she would probably not keep the baby.

I advised her of the legal consequences of the husband’s overstay and removal (he is barred from returning for 10 years), and discussed the possibility of him returning based on the marriage.  Although the couple could apply for a waiver to allow the husband to return to the U.S. in less than 10 years, I doubt he will return quickly–certainly not in time for the baby.

I understand that the husband is likely to blame for his family’s predicament, and I am not sure what, if anything, “the system” did wrong.  Maybe I am also being sensitive, having recently become a father myself.  Nevertheless, the caller’s story is a sad example of an unintended consequence of the immigration system.

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KIND Helps Unaccompanied Children, but Are There Unintended Consequences?

by Jason Dzubow

Every year, about 8,000 unaccompanied children enter the United States and are placed in removal proceedings.  Many of those children are helped by KIND–Kids in Need of Defense, a non-profit organization begun in January 2009 with a $3 million grant from Microsoft (and help from refugee maven Angelina Jolie).  Pleased with the success of the organization, which has offices in eight cities, Microsoft last month committed to another $3 million over the next three years.

According to a press release:

Since KIND became operational in January 2009, almost 1,900 children have been referred to KIND for help finding a pro bono attorney; the children range in age from two to 18 years old, and come from more than 35 countries.  KIND’s model is an innovative public-private partnership in which lawyers from firms, corporations, or private practice volunteer to represent children in immigration proceedings.

According to KIND Executive Director Wendy Young:

Many of these children are escaping severe abuse or persecution; others have been abandoned or have been trafficked to the United States.  Some are hoping to reunite with their parents.  They need and deserve representation to help them make their claim for U.S. protection.  Without representation, children with viable claims are often unable to make them and can be sent back to their home countries, where their well-being, or even their lives, may be in danger.

There is an argument to be made that granting benefits to children who cross the border illegally creates an incentive for others to follow them and make the risky journey to the United States.  And it is a dangerous trip–a group that tracks border deaths, No More Deaths, reports that over 250 people have died along the Arizona border during the last year.  Hundreds more have died trying to enter through New Mexico, Texas, and California, or at other locations on the refugee route from Central America.  I knew a prominent DHS attorney who routinely (and passionately) opposed relief for children who crossed the border illegally because he did not want to create incentives for other children.

After pedaling for many days, a border crosser gets ready to jump the fence.

While I agree that we don’t want to create incentives for children to risk their lives by crossing illegally into the United States, I doubt that assisting children with their cases does much to create such an incentive.  For one thing, many of the children are leaving pretty awful circumstances–if they were safe and happy, they would stay home.  In this context, the border crossing may be one of the least dangerous things they have to do to survive.  Also, given the large flow of people across the border (in both directions), it seems unlikely that allowing those with meritorious cases to remain here would do much to incentivize people outside the U.S.  Finally, young people are less likely to know about or be influenced by government policies.  Even if we were deported all children who enter the U.S. without inspection, I think it would do little to dissuade others who are fleeing abuse or persecution in their homelands.

If children with legitimate claims are denied–perhaps because they are unrepresented and cannot present their cases effectively–it would mean returning them to dangerous circumstances in their home countries.  Unaccompanied children who have fled to the U.S. seeking safety need help from KIND and other similar organizations.  Without KIND’s help, many of those with legitimate claims would be sent back to their countries, where they would face abuse or worse. 

With the most recent grant from Microsoft, it seems KIND will continue its life-saving work for some time to come.

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Amicus Brief on Protecting Mentally Disabled Respondents

by Jason Dzubow

Human Rights Watch and Patterson Belknap Webb & Tyler LLP recently filed an amicus brief with the Board of Immigration Appeals in the case of an alien with a mental disability.  The brief is based on a year-long, joint investigation by HRW and the American Civil Liberties Union concerning violations of the rights of people with mental disabilities in the U.S. immigration system.  The report is called Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System.

Our view of the mentally ill continues to evlove, but we've still got a way to go.

In the amicus brief, HRW argues that all respondents in immigration and removal proceedings, including those with mental disabilities, are entitled to a fair hearing and a chance to defend their rights.  From the brief: 

“‘The [incompetency] doctrine [where a defendant can not stand trial if he can’t comprehend the charges against him, can’t effectively consult with counsel, and can’t assist in his defense] . . . has been characterized by the Supreme Court as ‘fundamental to an adversary system of justice.'”  Removal proceedings must respect human rights, honor U.S. human rights commitments, and ensure fair and accurate decision-making.  A fair hearing is central to the protection of a person’s rights and is the hallmark of a functioning justice system. 

To meet the right to a fair hearing guaranteed under international human rights law, meaningful safeguards are necessary to ensure such a fair hearing and protect the rights of individuals with mental disabilities.  Among these safeguards are (1) the respondent’s right to counsel, (2) the Immigration Judge’s (“IJ”) ability to terminate proceedings, (3) the IJ’s power to order a competency hearing, and (4) the right to be free from arbitrary and prolonged detention. 

In order to comply with international human rights obligations, individuals with mental disabilities must be guaranteed the right to counsel in removal proceedings.  Even then, in certain circumstances, if the IJ determines that a respondent with a mental disability cannot explain the reasons against expulsion, even with counsel, the IJ must be empowered to terminate proceedings. 

U.S. immigration law currently provides no right to appointed counsel for individuals with mental disabilities and remains confusingly unclear as to whether and under what circumstances an IJ may terminate proceedings or order a competency evaluation.  Moreover, in the absence of these important safeguards to ensure a fair hearing, many immigration detainees with mental disabilities remain in prolonged detention during their immigration hearings.  Accordingly, U.S. immigration law currently violates international human rights standards. 

If this case is anything like the cases I’ve litigated in the BIA, we won’t have an answer until late 2012, but it will be interesting to see whether the BIA responds in a positive way to the brief.  The power of the BIA is limited, but at a minimum, it could issue guidance about terminating cases where a respondent is unable to defend himself due to a mental disability.  However, my guess is that the laudable goals set out in the brief are above the pay grade of the BIA. 

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Full Disclosure: What Your Lawyer Doesn’t Know Can Hurt You

by Jason Dzubow

My friend, who is a keen observer of the Immigration Court and USCIS (and who wishes to remain anonymous), has noticed that clients often hide or forget information that effects their cases:

There are surprises in life we all wish we could avoid. Finding a hair in your meal at your favorite restaurant comes to mind, but for lawyers there is an even worse scenario: Showing up to court (or an immigration interview) only to find out that YOU (the client) have failed to tell the lawyer the most important information about your case. Imagine being “surprised” by the government’s trial attorney or an immigration officer with (for example) the revelation that his/her clients has an aggravated felony conviction and is not eligible for the relief sought.

Tell your lawyer everything and you will increase your chances of success.

Though the above example above might seem extreme, it never ceases to amaze me the information that clients seem to “forget” to share with their lawyer: from the fact that they are awaiting trial for two or three misdemeanors (which occurred within three months of the client’s immigration hearing) to changes in domicile that can cause the case to change venue (move to
another location) at the last minute.

The failure to share crucial information with your lawyer is akin to not telling your doctor you have clotting problems as he prepares to do surgery on you. Imagine the complications that would arise in the operating room!

Not having all the facts of the case could be worse than being lied to, (which most seasoned professionals can spot a mile away) since it makes the lawyer look unprepared and negates all the work and effort he/she might have put into the case! As the saying goes, “Forewarned is forearmed”: If a lawyer knows what the issues are, he/she can prepare accordingly and present the best possible case.

Perhaps what’s even more shocking is the fact that clients often “forget” to mention facts that can help their attorney build a stronger case and present a more convincing argument. There are even times when information not shared might have opened the door to more options when it comes to relief before the court or CIS. When presented too late, this information is of no help to the applicant.

Some information you should always share with your attorney (but that routinely seems to be overlooked) is:

– Arrest: No matter when or where they took place. Whether you live on the East or West Coast. Arrest that happened ANYWHERE in or outside the country do count!!! DUI and DWI should always be mentioned! Even if you were not convicted and someone told you the case would be purged.

– Convictions: Once again, no matter when or where these happened. All of the above information regarding arrests applies here.

– Stays in a third country (a country that is not your home country and that is not the United States) no matter what the length.

– Previous applications that you might have filed before USCIS (including INS), the Asylum Office or the Immigration Court.

– Witnesses: The availability or absence of witnesses might be crucial to a case.

– Medical Conditions: Whether they are yours, a family member’s or a witness’s.

– The number of ALL people living in your house and their relationship to you.

– The immigration status of all your relatives living in the United States. If you have relatives who previously lived here and left, you should tell your attorney about them as well.

In short, the more you tell your lawyer, the more he/she can help you with your case. Finally, remember that everything you tell your attorney is confidential—the attorney is not allowed to reveal this information to anyone.  By giving your attorney all the information, you increase your chance for a successful outcome in your case.

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Refugee Success Stories

by Jason Dzubow

The largest group of asylum seekers in the Washington, DC area–and the majority of my asylum cases–are from Ethiopia, so a recent story in the Washington Post caught my attention (ok, it actually caught my wife’s attention and she emailed it to me, so she gets credit for this one).  Henok Tesfaye is an Ethiopian immigrant who started his own very-successful parking business, U Street Parking.  In some ways, Mr. Henok’s story is typical of Ethiopian immigrants and asylees that I see my daily work.  Also, his story points to some universal lessons in refugee (and immigrant) resettlement and integration.

Mr. Henok’s story is typical because he came here at a young age with little money and few contacts, but with a strong desire to achieve success.  Many of the refugees I have met (and represented) have suffered severe traumas.  Nonetheless, they are optimistic people.  They have left the past behind and have come to the United States to build their future.  They come here with the same attitude as their predecessors, be they Puritans in search of religious liberty, Russian Jews fleeing the Cossacks, or Vietnamese boat people escaping a Communist regime.  Of course they sometimes carry with them baggage from the old country–traditions that don’t always square with American values can be a problem–and they usually don’t speak fluent English.  But the refugees I have known generally contributed greatly to our community.  It is impressive that such people, who arrive here with so little, are able to accomplish so much.

Mr. Henok’s story also points to some of the challenges faced by refugees (and immigrants) in the United States.  He was struggling until he finally obtained a loan from the Ethiopian Community Development Counsel, an organization that assists new Ethiopian arrivals in the Washington, DC area:

ECDC serves as a welcoming presence as well as a bridge for dialogue and education. Through our programs, ECDC seeks to empower African newcomers; giving hope for their future and helping them quickly become self-sufficient, productive members of their communities in their new homeland.

Groups like ECDC make it possible for refugees and immigrants to adjust more quickly to the United States.  Not all refugees have community-based groups they can turn to, but there are resources available, such as the Catholic Legal Immigration Network and the Hebrew Immigration Aid Society.

Our country has a generous policy towards refugees and asylum seekers.  We should be proud that we help people fleeing persecution.  At the same time, however, we should remember that the refugees and immigrants who come here have helped enrich our nation.  Mr. Henok reminds us that this is true.

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