Relief Under the Convention Against Torture

 

Last week I had a final hearing on an asylum claim for a client from Guatemala. He entered the United States in 2011 and had been waiting eight years for his claim to be heard. Some on the Right would say this is ridiculous however keep in mind that his wife and child remain in his home country under threat while his life in the United States is uncertain.

My client worked for a wealthy individual in Guatemala who owned a number of expensive luxury cars. My client kept some of these vehicles at his home. As a result members of a gang thought he too had money and began to leave notes at his home demanding a “war tax” on threat of violence including death. My client, Diego (not his actual name), refused to pay. After some time passed the gangsters came to his home. They were vicious. They raped his wife in front of him and then threatened to rape his eight year old daughter. When he protested they shot him a number of times. They left him for dead and stole all the money that they could find in his home.

Diego somehow survived the shooting. He went to the hospital under an assumed name and was treated. (X-rays taken in the United States show a number of bullets remain in his body.) His wife then went to the local police to report the incident however when she arrived at the station she recognized one of the police officers as one of the gang members that had raped her. She quickly turned and left the station.

Diego and his family relocated to another town but soon started receiving threatening notes again and eventually the gangsters shot up his car. He decided to leave Guatemala because relocating internally was not working. After he arrived in the United States his wife continued to receive threats stating that the gang had unfinished business with Diego.

After Diego testified in court at his hearing, the judge asked him if he had anything more to say about his case. Diego hesitated. He said he did but he requested the “other people in the court to leave.” Another attorney was sitting in the court room and the judge asked him to leave because Diego is entitled to a private hearing for his asylum claim. Diego, who is a stoic and a somewhat macho former soldier, than began to cry as he told the judge that when the gangsters threatened to rape his eight year old daughter and he asked them to stop they said that they would then have to rape him, which they then proceeded to do. He was sobbing and told the judge that he was ashamed and that “the tape of what happened plays over and over in his head.” The courtroom was then very quiet. Diego had never told anyone about this before. So what do you say after that? Well after the lump leaves your throat the first thing that comes to mind is F*ck Trump! But maybe more importantly I dare any of his supporters to sit through that hearing and still support this excuse for a president. I dare anyone to sit through that hearing and conclude that this was a hoax or scam. It’s a profound tragedy.

The judge too was shaken. It’s a powerful moment even for someone like him who’s no doubt “heard it all.” Ultimately the judge was unable to find a category of asylum that would fit Diego’s circumstance because asylum has very specific limitations. He did grant Diego relief under the Convention Against Torture (CAT) which will allow him to remain and work legally in the United States. So for now one immigrant received justice however the system that helped him must be protected as more and more Diegos desperately come to our border seeking protection.

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Stripping “Undesirables” of U.S. Citizenship

The Trump administration has drastically increased our nation’s efforts to strip folks of their citizenship. In the past denaturalization was limited to war criminals and human rights violators. Now we’re going after Latino grandmothers for making an error on their citizenship application. More on that later.

The Bush and Obama administration oversaw an investigation that arose after some 300,000 fingerprint results had been lost by immigration services. When these discovered fingerprints were found it revealed that a number of naturalized citizens had committed fraud on asylum applications filed long ago. That said between 1990 and 2017 the Department of Justice filed 300 some denaturalization petitions in court. Since January 2017, there have been 110 filed. ICE has submitted a budget request for over $200 million to investigate citizenship fraud and the US Citizenship and Immigration Service (USCIS) announced that in 2018 it referred over 1,600 cases for criminal denaturalization. Finally USCIS has opened a denatz unit staffed with attorneys.  The Trump administration has weaponized the process. The problem built into the system is that for criminal denaturalization there is a ten (10) years statute of limitations. There is no statute of limitations for civil denaturalization. Meaning you can lose your citizenship at any time.

The Latino grandmother in denatz proceedings has lived in the United States for over twenty (20) years. When she applied for citizenship she was working at a business that was being investigated for fraud. She was a secretary and was aware of the fraud but did not profit from it and was cooperating with authorities in their investigation at the time she had her citizenship interview. There is a very odd and ludicrous question ripe for abuse by authorities – have you ever committed a crime for which you were not arrested? She answered no.  After she became a citizen she pleaded guilty to a crime related to that investigation. Now the US government is attempting to deport her. War criminal, I think not.

All of the folks being pursued for denaturalization are from Pakistan, Bangladesh, Haiti, South America or Africa. What would our president think of that list? The current campaign of denaturalization has two (2) goals. First to manufacture a crisis of rampant fraud in the citizenship process and second to frighten immigrants by taking away the assumption of permanence and creating an underclass of citizenship. Another sad echo from the past is the fact that the last time the United States had a denatz unit was during the McCarthy era. McCarthy’s attorney was Roy Cohn coincidentally our current president’s mentor.

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2018 In Review

Much happened in immigration law during 2018. It has become a very hot topic in a world struggling with globalization.

The most egregious behavior by the current administration was their willingness to separate children from their parents at our southern border. This, thankfully, resulted in an outcry across the political spectrum and a lawsuit that resulted in a court order to reunify parents and children. There has been progress on this front however poor record keeping and general passive aggressiveness has stymied the process.  I think history will remember this as a very dark time in our nation’s history.

The Dreamers, undocumented folks who came to the United States with their parents as children, are still struggling with the current administration. Despite early support from our current president he terminated DACA by executive order. As a result a number of lawsuits arose that are still pending.  The primary actions are in New York, California and Texas. They all enjoined the government from terminating DACA and renewals are still permitted. The government’s effort to leapfrog over the court hierarchy and appeal directly to the United States Supreme Court seems to have been thwarted for the moment as the court has refused to put the matter on their calendar for their upcoming term.

The current administration continues to demonize migrants at our southern border with evil mischaracterizations. They have also attempted to prohibit asylum applications for individuals who cross the border between checkpoints. The courts have blocked his rightly as a violation of the spirit and letter of asylum law. The former Attorney General also has attempted to re-write asylum law prohibiting asylum for victims of Domestic Violence and gang violence.  Again this will be addressed by appellate courts in due time. The former AG has also surgically taken apart the workings of immigration court taking away Immigration Judges administrative powers and creating a quota system in an effort to ram cases through an overburdened system. He is threatening the livelihood of judges who do not bend to his will. This is a result of the lack of independence of the immigration court system which is part of the Department of Justice, the same branch of government that is prosecuting cases the judges preside over – a blatant conflict of interest – especially in an anti-immigrant administration.

In another passive aggressive move the administration has tasked immigration officers with more work – interviews for employment based green cards and a deeper dive into applicants’ immigration history – without hiring more employees. This has resulted in the doubling of processing times for an already overburdened process.

The administration also cancelled Temporary Protected Status for many folks from various countries. Although this status is temporary, it has been in place for many, many years and there are equities that arise and issued or fairness for folks that have been here legally for decades.

On a positive note, anecdotally, the asylum office in Los Angeles is still applying the law as written and with compassion.  Last year we say a grant of asylum for a gay young man from Guatemala, a Huiger woman from China and a Sri Lankan journalist.

The fight for fairness and compassion continues as immigration remains the flash point issue of our time.

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The Caravan Visit

Last Friday I went to Tijuana to work with the migrants who are part of the “caravan.” We left Los Angeles at 5 am and arrived in San Ysidro about 7:30 am. We parked and walked across the El Chaparral pedestrian bridge to Tijuana. It was very quiet with a handful folks headed to the USA, probably for work, and Dennis, my paralegal, and I the only folks headed to Mexico.

After crossing the bridge the first thing we see is a parking lot with a big colorful block sign announcing we’re in Tijuana. In the far corner of lot there are a couple of pop-up tents and folding tables and an orderly line of people waiting. The man sitting at table has a ledger book – this book is La Lista. This is the list of folks waiting to turn themselves into US border patrol to request asylum. Border patrol only interviews about 40 people a day and there are some five thousand migrants in Mexico waiting for their turn. The list is not organized by the US government or the Mexican government although there is some question about this – but by the migrants themselves. Asylum-seekers are given a number. Each number represents 10 people. On this morning the list had reached 1695 (or 16,950 people) and border patrol was due to start at 1170 later that day. This puts the number of folks waiting to present themselves to border patrol at approximately 5,250. If border patrol keeps up their current pace of 40 folks a day – folks at the end of the line will be waiting approximately 4 1/2 months. Keep in mind they’re not waiting at the Sheraton Hotel.

Dennis and I leave the border and head to Enclave Caracol – a restaurant that also serves as the offices for Al Otro Lado – the nonprofit run by US immigration attorney Nora Phillips – that’s spearheading the legal assistance for the migrants.  There are about 30-40 volunteer legal representatives from all over the USA at the meeting. We talk about know your rights presentations, consultations and legal observing. After the meeting Dennis and I head over to Campo Unidad Benito Juarez soccer field where many of the refugees are camped out. The field is a muddy mess scattered with soggy sleeping mats and clothing. Children are  being children. Adults are talking, making food and waiting. The Mexican Federal police are in numbers but are only observing. There is no visible conflict. In fact on that day buses had arrived to move folks to shelters because the field was such a mess of mud and water. There were media a plenty on hand which creates gaze and representation issues. I’m aware of my role as well – knowing full well that at the end of the day I’ll be at home in my comfortable house in the USA.

One man we met on the soccer pitch distills the current dilemma with his question to me. “Why is Trump doing this to us?” Why is Trump – and many of his supporters – sending troops and tear gas – costing millions of dollars- to meet poor suffering refugees rather than sending asylum officers and immigration judges?

After our visit to the Benito Juarez soccer pitch we head back to Al Otro Lado to do consultations. We met with a Honduran man – traveling with 16 relatives – whose family is being terrorized because of a vendetta from a neighboring family. The real injustice was that this individual was granted asylum in the US in 1998 but was deported in 2005 for simple possession of marijuana. That said this is a problem that might be fixable. I gave him my contact info to follow up.

After this consultation, which lasted nearly 3 hours, it was time to head back to the USA. Upon entering the USA, I was screamed at multiple times by a border patrol officer who was angry because I didn’t obey his commands to stop immediately. He was loud and disrespectful. I was reminded that if this is how they treat a US citizen Anglo male how do the migrants from Central America stand a chance? He was just doing his job? Fat chance. We hear stories of border patrol officers telling migrants that the USA no longer grants asylum. Officers coercing folks to sign documents in English that forfeit custody of their children and their right to apply for asylum. My blood was boiling but I calmed down and left. For now.

The trip reminded me of the starfish parable.

One day, an old man was walking along a beach that was littered with thousands of starfish that had been washed ashore by the high tide. As he walked he came upon a young boy who was eagerly throwing the starfish back into the ocean, one by one. Puzzled, the man looked at the boy and asked what he was doing. Without looking up from his task, the boy simply replied, “I’m saving these starfish, Sir”. The old man chuckled aloud, “Son, there are thousands of starfish and only one of you. What difference can you make?” The boy picked up a starfish, gently tossed it into the water and turning to the man, said, “I made a difference to that one!”

Until we can make macro changes to our immigration policies we can all do our part and do what we can.

 

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Changing Asylum Law

Changing Asylum Law

Our current president has issued a proclamation changing U.S. asylum law. What’s the difference between a proclamation and an executive order? They’re pretty much the same thing although I surmise the president likes the sound of the word proclamation because it sounds more like something a king would issue.

Prior to the issuance of this order by the president, any person present in the United States could apply for asylum as long as they did so within one (1) year of arriving, with some exceptions to the one year requirement for extraordinary circumstances. This regulation is based on international law and is in place because of the extremely important nature of asylum protection. Folks must be forgiven for not entering at a border checkpoint if their lives are in danger.  There is too much at stake. The president wants to bar asylum protection for those who enter at our southern border between border checkpoints.

Does the president have the authority to change the law sans congress? He does have a great deal of authority with regard to immigration law if there’s a “national security issue” at stake. This is the basis of the recent travel bans. Of course national security is our president’s highest and virtually only consideration when he analyzes our immigration policies and laws.  Unfortunately, this reflects the attitude of his political base despite how much it contradicts our countries guiding principles.

Fortunately our president is not a king, despite his fantasies to the contrary, and we have co-equal branches of government. To that end the ACLU in conjunction with other immigrant rights groups filed a law suit to enjoin the proclamation. “The asylum ban is flatly unlawful and will put people’s lives in danger. The President has no authority to simply discard a law Congress passed,” ACLU lead attorney Lee Gelernt told CNN.

The founders of our country were wise enough to create safeguards to protect us from our lesser angels and so far the American Dream still stands a fighting chance.

 

 

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Immigrant Hordes

The evil immigrant! This is a trope that unfortunately has been used for years. Why is it working now, when in fact the truth is that many of those arriving have a right to seek asylum, unauthorized migration is near historic lows, border communities have among the lowest crime rates and there are CERTAINLY no “middle easterners “ (aka terrorists)  in the caravan. In addition, unauthorized migrants commit crime at a lower rate than lawful residents and United States citizens.

So what can be done? Surely when presented with the facts folks will see the truth? Unfortunately our current political climate is detached from the truth. There is a daily onslaught of lies from our president along with his attacks on the media’s effort to correct his untruths. We can’t reason folks out of beliefs that they were not reasoned into.  As Jennifer Rubin wrote in the Washington Post, “…logic and facts are no match for irrational resentment.”

Kesha Ram, a class mate of Stephen Miller (Trumps immigration adviser) at SAMO High School in Los Angeles, has sage advice. “If we write everyone off who is part of the alt-right as a sociopath, then we’ll probably miss something really critical in our effort to stop it.” This is the way out of our bubble.  These folks exist in numbers and must be taken seriously despite our anger and frustration with their perceived ignorance.

Jennifer Rubin goes on to say, “One can understand why logic and facts are no match for irrational resentment. Trump captured, stirred and magnified the animosity these voters feel about their laundry list of villains (immigrants, elites, urbanites, the media or any other sources of information that undercut their irrational views, etc.) As a political matter, it is hard to figure out how to wean people from the grip of an irrational sense of persecution and racial resentment. They are unmoved by data showing that immigrants are not harming them.”

These folks conflate our countries values – freedom, individual rights and democracy – with the white race and Christianity. Our values are available to people of all races and religion. Until the folks who are under the spell of resentment and rage come to their senses what can be done? VOTE. Outvote Trump’s hyper-powerful base, thanks to the Electoral College and the senate’s imbalance, out of office. There’s a lot at stake.

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The Invisible Wall

The invisible wall is up and running. The Trump administration has not needed funding for a border wall to effectively turn the USA in an anti-immigrant nation. They have some very well informed folks cranking up the enforcement of current rules and taking current regulations to an extreme.

Very publicly the enforcement machine has run rampant. ICE officers are at schools, in court houses and knocking on doors in the community. Not to mention Legal Opinions by the AG limiting asylum for refugees from Central America and abusive and criminal behavior by Customs and Border Patrol at our southern border.

Less publicly the Department of Homeland Security has made it much more difficult for legal immigration. In the past folks applying for a green card through employment didn’t have an interview at Citizenship and Immigration Service because such an interview serves no useful purpose. Interviews were reserved for family based immigration where fraud is often a problem. Now all green card applicants are interviewed. As a result of the increase in green card interviews the work load for immigration officers has increased exponentially however there have been no staffing increases. This has caused processing times to double and almost triple; a passive aggressive approach to limiting immigration reform. As a result the spouse of a United States Citizen will wait 1 -2 years for a green card up from 6-8 months 2 years ago.

In addition, in the past applicants who submitted an incomplete visa application package would receive a request for further evidence. Now the Department of Homeland Security has implemented a new policy that mandates that officers to deny incomplete applications outright with no request for further evidence. There is now a push to disqualify folks from citizenship if they or family members ever received any kind of government support – including subsidies for Obama care. This ban will also extend to United States Citizen family members who received such benefits. The current administration has also beefed up the de-naturalization unit – another attempt to remove immigrants from our country.

There’s a coordinated and systematic effort to keep people out by abusing the regulations this country has in place to let folks in. Sad.

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TPS

What don’t you understand about the word Temporary? Temporary Protected Status is an immigration protection that has been extended to folks from various countries over the years. The reason is typically unsafe conditions in the individuals home country resulting from a natural disaster or civil unrest. Recently protection was extended to folks from Syria, because of the ongoing conflict, and Haiti as a result of the 2010 earthquake. El Salvadorans were granted TPS in 2001 and Hondurans 1998 due to natural disasters in their home country. These folks have now resided legally in the United States for two decades or more.

Most of those opposed to ongoing TPS emphasize the word temporary. “The people who accepted our offer of TPS did so with the full understanding that the benefit was a temporary one and that, at some point, they would be required to leave.” Says Ira Mehlman, media director at the Federation for American Immigration Reform (FAIR). (The Hill, 10/26/2017) He goes on to say that return to their home countries might be “inconvenient.” This lack of empathy and even understanding of our basic values and the underlying principles of fairness is unfortunately emblematic of our current social and political climate.

Putting aside the simple humanitarian disaster that results from ripping people from what is now, for all practical purposes, their home country not to mention separating them from their United States citizen children there are real legal principals at hand. First is the notion of a waiver of remedy or rights. At some point in the TPS process, one that requires a renewal by Congress every eighteen (18) months, the United States government waived their right to suddenly enforce the notion that this relief or benefit was temporary. Second, Western jurisprudence also allows for a statute of limitations on virtually all law enforcement actions. The only criminal acts that are an exception to this legal principle are murder and related charges. Is living in the United States as a non-citizen the equivalent of murder? Keep in mind that TPS is terminated for the commission of relatively minor crimes accordingly TPS is not a shield for wrongdoers.

The termination of TPS is another example of how the values and aspirations of the American experiment are being degraded by our current administration.

END

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AILA National Day of Action

I recently attended the AILA National Day of Action in Washington DC. We were tasked with meeting our representatives to motivate and educate them about immigration issues.

Or first stop was the office of Congressman Brad Sherman. We met with one of his staffers in their crammed office. There was no indication that money was being wasted on space as a number of folks were squeezed into a pretty small space.

We were assured that the congressman, “my boss” as all staffers refer to their representative , was on board with all the immigration reforms we were championing – first and foremost a fix for DACA. The staffer echoed the news of the last year and a half – telling us that with the Republicans in power his boss wasn’t able to move anything forward on immigration.

Next stop was the office of Senator Diane Feinstein. The offices were much more spacious and less cramped. It’s good to be a senator! We also met in a conference room rather than a crammed table near the front door of the congressman’s office.  Her staffer, Senior Counsel Jennifer Piatt, was very informed on the machinations of immigration in the United States in fact I believe she may have been a former immigration lawyer herself. Her boss, like Congressman Sherman, was also very much stymied by the current balance of power. That said, the day before our meeting the Attorney General “temporarily” terminated the Legal Orientation Program for detainees. Senator Feinstein’s office characterized this as a bipartisan affront because the program was created by congress and the Attorney General did not have the authority to terminate it. Feinstein’s staff felt they would have a good chance at pushing back against Mr. Sessions. Overall it was a good meeting and we all came away impressed with Senator Feinstein’s knowledge and efforts. Sorry Kevin.

What became clear very early on in our day is that not much would happen until the midterm elections because immigration is such a third rail across the aisle. This became abundantly clear at our next stop.

We met with a staffer from the office of Republican Congressman Cook. Cook is a very conservative representative from the Adelanto, California region – the site of our private prison immigration detention center. The staffer we met seemed to have been tapped moments before we arrived and had virtually no knowledge of immigration issues and quite honestly evoked sympathy from us because of his deer in the headlights appearance. This should have been a hot meeting considering all of the issues surrounding the use of private prisons to profit from illegal immigration as well as the many failings reported at the Adelanto facility. In the end, the staffer repeatedly stated he was “not familiar with that” and would “tell his boss.” Frustrating.

After lunch we met with Congressman Schiff’s staffer who echoed the refrain that the mid-terms are key. He also inferred that his boss was more concerned about other overarching issues – possible Mueller firing and the continued threats to the institutions of our government. Indeed it echoed my desire to ask what their bosses were doing about the worrisome creep toward an authoritarian regime.

Next was the office of Senator Harris. Her staff too was frustrated however they were very concerned about whistle blowers in the immigration machinery and what if any knowledge or experience we had with that.

Our final stop was the office of Congressman Gomez. He is the son of Latino immigrants and is solidly on the side of justice of the community. Unfortunately his staff repeated the refrain that the mid-terms were the only hope in the near future.

So the take away is to go out and vote and canvas for a Democrat – preferably a Democrat in a Purple district.

END

 

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U-Visa for victims of crime

A U-Visa is available to folks that are victims of certain crimes in the United States. The reason that U-Visas exits is to encourage folks to report crimes to the police. If you are undocumented and you are the victim of a violent crime and you reported the crime to the police you may be able to obtain a work permit and ultimately a green card.

The crimes that qualify are domestic violence, robbery, assault and battery and kidnapping among others. If you’ve been the victim of one of these crimes and did report it to the police you have a tremendous opportunity to help yourself and your family members. Not only is the U-Visa available to the victim of the crime but also to his minor children and spouse.

The first step is to obtain a copy of the police report. Contact the relevant department and ask them what the procedure is to obtain the report. They may allow you to pick it up in person or they may require a written mail request. Once you have the report check to see if the crime noted is one that qualifies for a U-Visa. If so you will need to have the police certify your application stating that you were indeed a victim of that crime and that you cooperated with them. There is no need for a conviction or even arrest of the perpetrator.

Once the police have certified the form you will need to complete the remainder of the application and apply for any waivers you may need. If the police have certified your application there is a very high chance the U-Visa will be approved. The only real barrier is if the applicant him or herself has been convicted of a dangerous crime. Keep in mind that drug trafficking is considered a dangerous crime.

Because the u-Visa program is so effective there is a backlog of about three and a half years for an approval. While this may seem like a long time it’s a very important investment in your future. Indeed after an applicant has been in U-Visa status for three years he or she can then apply for a green card. This is a fantastic silver lining for a non-citizen who has suffered at the hands of a criminal.

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