Jewish Lawyers; Muslim Immigrants

There is a story told about a Jewish Holocaust survivor who was a prisoner at the Auschwitz death camp.  Every day, this man thanks G-d; each day more loudly and exuberantly than the day before.  Finally, the man’s fellow prisoners become annoyed with him: “How can you thank G-d,” they asked, “when we are in this place?  When the Nazis are daily murdering us and torturing us?”  The man replies: “I am thanking G-d because He did not make me like the Nazis.”

To me, this story represents a quintessential aspect of being Jewish.  Even in the face of the worst evil known to man, the Jew remains true to his values, to his morality, and to his faith.

Today we live in difficult, dangerous times.  The threat of terrorism looms ever present.  The most visible terrorists are Muslim extremists: Al Qaida, Hamas, Hezbollah, Al Shabaab.  They threaten America and the West.  They threaten Israel.

How, then, should American Jews–and specifically American Jewish lawyers–respond to Muslim immigrants and refugees coming to the United States?  This is an issue I face every day, as I represent many Muslims who are seeking political asylum from countries like Afghanistan, Pakistan, Iraq, and Iran.

Some Jewish lawyers have taken to attacking Islam and Muslims in the United States.  The most well-known example is probably David Yerushalmi, who is behind many state laws designed to protect our country from what he calls the infiltration of Sharia law.  Other Jews who are not lawyers (yes, I suppose this is to their credit) are also prominent in the anti-Islam movement in the United States.  Probably most well-known among them is Pam Geller, the blogger behind the “World Trade Center Mega Mosque” controversy.

I must admit that such people inspire in me strongly negative emotions.  But in the spirit of the season (and my rabbi’s Yom Kippur sermon), I will try to say my piece without criticizing them.  As the rabbi put it, I will try to tell  my truth with love.

First, I believe my fellow Jews’ opposition to Islam and Muslims is not consistent with Jewish values.  Our people have been on the receiving end of persecution for millennium.  We should not subject others to persecution, or even the implied threat of persecution, based on stereotypes.  Particularly since the Muslims who have come to the U.S. are often people who faced persecution or discrimination in their homelands (for this reason, they left).  As Rabbi Hillel famously said, “What is hateful to you, do not do to others.”

Second, I think such behavior is bad for the Jews and divisive for our community.  Like it or not, most Jews are liberals.  This stems from our religious teachings as well as our communal experience as a persecuted minority (for example, the Torah repeatedly reminds us to have one law for the alien and the native born, and not to mistreat the stranger, for we were strangers in Egypt).  We tend to sympathize with other minorities.  Hence, our disproportional representation in social justice movements.  The strident attacks on Muslims (a small minority in the U.S.) and the implication that Jews who disagree with such attacks are “self hating,” naive or traitorous is alienating to many Jews, and will ultimately weaken our community.

Finally, the attack on Islam and Muslims is a bad strategy.  Many Muslims look to the West and the United States as models for development.  The Arab Spring shows that many Muslims–perhaps a large majority–dream of democratic reforms, freedom, and free economies.  Closer to home, I represent many Muslims–journalists, human rights workers, advocates for women’s rights, people who worked with the U.S. military–who have risked their lives to help us in our fight against Islamic extremism.  By attacking all Muslims, we potentially alienate such people and lose valuable allies in our war on terror.

Jews are an argumentative, stubborn people.  There’s an old joke about a Jewish man who is stranded alone on a desert island.  When he is finally rescued after many years, his rescuers notice that he built two synagogues on the island.  When they ask him why, he points to one synagogue: “This is the synagogue where I worship.”  “And the other one?,” they ask.  “That one,” says the man,” I wouldn’t set foot in.”  In the new year, I hope we can be less divisive and more respectful of each other’s views.  I hope we can look for the good in others, and give people the benefit of the doubt, even people who disagree with us, or who are different from us.  L’Shana Tova.

Dear Client: I am Not Your Mommy

Some clients just don’t get it.  No matter how often you tell them what evidence they need for their case, they bring you bupkis.

Generally, when I start an asylum case, I ask the client to give me the general story about why he needs asylum.  I then prepare a detailed list of documents that he should get: letters from witnesses, school records, work records, medical reports, police reports, etc., etc.  I explain to the client why he needs to get these documents, and why, under the REAL ID Act, he should try to get the documents even when he thinks he will not be able to obtain them (for those of you lucky enough not to be familiar with the REAL ID Act, the Act requires an asylum seeker to obtain evidence that is reasonably available.  If the alien cannot obtain a particular piece of evidence, he must explain why he could not get it.  Thus, if the client tries to get all relevant evidence–even if he fails–at least he will be able to explain to the adjudicator what efforts he made to obtain the evidence and why he failed to get it).

I make analogies to help the client understand (evidence is like the foundation upon which a house, i.e., your case, is built).  I make them sign a document indicating that it is their responsibility to obtain the evidence on the list, and that if they don’t get the evidence, they could lose their case.

Is all this excessive?  You would think so.  You would think that a person who fears persecution in her homeland and who shells out a pretty penny for attorney’s fees would be motivated to do everything possible to win her case.

Many clients do, in fact, make diligent efforts to get evidence in their cases.  It is surprising, however, the number of asylum seekers who do nothing or very little to help themselves.  Such clients greatly reduce their chances for a successful outcome.

So what can be done about these slacker-clients?  One possibility, of course, is to do nothing.  If the client does not care enough about his case to collect evidence, maybe it is best to prepare the case with the available evidence and let the chips fall where they may.  This does not seem like a very satisfactory solution, though.  For one thing, there may be a legitimate reason why the client is not cooperating.  Perhaps he does not understand what is needed or why such evidence is important.  Maybe he is afraid or embarrassed to ask friends or relatives to help him with his case.  Maybe he fears that the people sending evidence will be endangered.  Some of these problems might be offset by carefully explaining why documents are needed and that all such communications are confidential.  For obvious reasons, however, many asylum seekers are mistrustful of government workers (and lawyers, who often seem like government workers), and getting them to trust you–and getting them to trust “the system”–requires patience.

Another way to encourage clients to gather evidence is to nag them.  “Nagging” or, more politely, “repeatedly reminding” clients to get evidence may work, but it takes time to stay on top of each client’s case.  In my practice, I don’t have a lot of extra time to chase after my clients.  I do, however, try to remind them once or twice about the need for evidence.

I find that giving the client a check list of needed documents is helpful.  When it comes time to remind them about gathering evidence, I always refer them to the check list.  It helps me remember their case as well.  A check list signed by the client has an added benefit–if the case is unsuccessful, the client cannot complain that you failed to advise her about the need for evidence.

Asylum seekers are not always the easiest clients.  As lawyers, we need to use our limited time efficiently.  That means informing the clients about the need for documents, and periodically reminding them about what is needed.  For those clients who don’t make an effort to get documents, a bit of cajoling, threatening, and/or nagging from the attorney might encourage them to gather needed evidence.  And that could make the difference between a successful case and a denial.

Telephonic Interpreters

Without interpreters, the asylum system could not function. 

For interviews at the asylum office, applicants must provide their own interpreter, either a friend, a volunteer, or a paid professional.  To ensure that the interpretation is accurate (and that there is no funny business going on in the translation), USCIS requires that a professional interpreter monitors the interview by phone.  Who are these mysterious monitors?

One is Maria McFadden, interpreter extraordinaire, who works in the Washington, DC area and beyond.  Here are her thoughts on telephonic interpretation:

One of the most challenging tasks for an interpreter is telephonic interpretation.  While court interpreters aspire to be unobtrusive in order to allow each party to have their say, being able to observe or signal the speakers can make communication flow much more easily.

When using a telephonic interpreter, be sure to speak loudly into the phone.

During interviews at the asylum office, telephonic interpreters are rarely used to interpret the actual proceedings; rather, they serve as monitors.  The role of these monitor interpreters is to ensure the quality and accuracy of the on-site interpreter.  Oftentimes, the person brought to the interview to serve as an interpreter is not a professional.  While such a person might be aware of and adhere to the interpreter code of ethics, their ability to interpret is sometimes not sufficient to ensure an accurate translation.  This could damage the credibility of the asylum applicant and deprive her of the chance to tell her story.

At times, the monitor might “challenge” the interpretation.  This could cause the on-site interpreter to become flustered and become defensive.  If he/she feels that their interpretation is correct, they should state so to the officer and not directly to the monitor.  Each interpreter has the right to stand by their interpretation and it is up to the officer to settle the matter.

Being a monitor is not an easy task and most interpreter’s take the job seriously.  If you feel that the monitor is being unnecessarily disruptive and combative, this issue should be addressed to the asylum officer.  There is no need to talk to the monitor interpreter.

If you have a telephonic interpreter, please keep the following points in mind:

1. Keep your voice loud and clear.  While this is important when working with an on-site interpreters as well, it is even more important over the phone.
2. Don’t shuffle papers as you speak; you might as well stop talking because the interpreter will not be able to hear you.
3. Try not to talk over other people.  The interpreter can only translate for one person at a time.  Over the phone, it will be impossible for the interpreter to understand what is being said if people talk over each other.  This could result in a statement by the applicant going unheard by the asylum officer–with potentially disastrous consequences.
4. Wait for the interpreter to finish interpreting before making another statement or asking a question.
5.If you don’t hear or can’t understand the interpreter, speak up!

By keeping this short list of pointers in mind, the process will go more smoothly for all involved. 

New BIA Decision Will Harm Asylum Seekers

I periodically complain about the ongoing failure of the Board of Immigration Appeals to provide guidance to Immigration Judges.  But the Board’s latest decision makes me think I should be more careful what I wish for.

In Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the BIA held that, until an arrested alien is formally placed into removal proceedings by service of a Notice to Appear, immigration officers are not required to inform the alien of his right to counsel (at the alien’s own expense) or that his statements might be used against him.  Statements made by the alien after the arrest but before the alien is told of his right to counsel may be used against him in immigration court.

Not surprisingly, this decision has been roundly condemned by immigration advocates.  The American Immigration Counsel had this to say:

For decades, immigrants placed under arrest have been entitled to these critical advisals. Like “Miranda” warnings for criminal suspects, such notifications help to ensure that statements made during questioning are not the product of coercion. As a result of last week’s ruling, noncitizens under arrest will now be even more vulnerable to pressure from interrogating officers, and immigration judges will face greater difficulty determining whether statements made during questioning were truly voluntary.

Since this decision is bad for all noncitizens, it is–ipso facto–bad for asylum seekers and people with asylum.  In some ways, though, this decision might impact asylum seekers more severely than other immigrants.

I'd hate to see what the BIA would say about this interrogation.

For one thing, asylum cases often depend on an alien’s credibility.  If an alien makes a statement to an immigration officer, that statement might later be used to impeach the alien’s testimony.  I’ve seen this happen to some of my clients.  They speak to an ICE officer (sometimes through another detained alien acting as an interpreter) and say something that is inaccurate and that might later be construed as an inconsistency.  I’m not talking here about lies to gain asylum; I’m talking about non-material points, like whether the alien entered the U.S. in the day time or the night time, or what countries she traveled through to get to the United States.  Such inconsistencies are almost certainly honest mistakes, but since non-material inconsistencies can support an adverse credibility finding, such statements can destroy the asylum claim for a legitimate asylum seeker.  The E-R-M-F- decision will only exacerbate this problem.

Further, asylum seekers tend to be vulnerable people.  Many have been through traumas, often at the hands of officials from their home governments, and they have a particular fear of law enforcement officers.  Such people are susceptible to manipulation and will sometimes make false statements in order to please (or placate) an interrogating officer.  For these reasons, asylum seekers–more than most–need to be protected when they interact with immigration officers.  Again, the Board’s new decision is the exact opposite of what these people need.

My fear is that ICE officers will take advantage of the new ruling to question aliens before they serve the Notice to Appear, and that such statements will be unfairly used to damage asylum seekers’ credibility.  My hope is that the Ninth Circuit (which will likely review this matter) will see fit to overturn the Board’s decision.

ICE Should Fire Insubordinate Agents

I wrote recently about the ongoing insubordination at ICE.  The most recent flare up involves a dispute over a new memo, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.  The memo basically prioritizes who should be deported and directs ICE to target criminals and people who pose a security threat over aliens with equities in the U.S.  I read the memo, and it is pretty non-controversial.

Where's Trump when we need him?

The ICE Union disagreed and posited that the memo was a backdoor amnesty (this despite the fact that the Obama Administration has been deporting record numbers of illegal aliens and, as these statistics show, has re-prioritized deportations to focus on criminal aliens).  Chris Crane, President of the National ICE Counsel, had this to say about the memo and the Obama Administration:

Any American concerned about immigration needs to brace themselves for what’s coming… this is just one of many new ICE policies in queue aimed at stopping the enforcement of U.S. immigration laws in the United States. Unable to pass its immigration agenda through legislation, the Administration is now implementing it through agency policy.

In my prior post, I tried to give the Union the benefit of the doubt, even though their claim seemed unfounded.  Now, several immigration experts, including a former general counsel of INS under President George W. Bush, have reviewed the controversial memo.  They conclude that the memo is “perfectly consistent with existing law on the use of prosecutorial discretion and serve[s] to guide its sound exercise in immigration law enforcement decisions.”

The experts’ conclusion–and a plain reading of the controversial memo–makes it painfully obvious that the Union’s complaints are baseless.  Worse, the attacks, such as the quote from Mr. Crane above, seem blatantly partisan in nature.  

It is frankly shocking that ICE and DHS would tolerate this type of insubordination.  My guess is that the Administration is too cowed by right wing bullies to do anything about the problem (witness the Shirley Sherrod fiasco).  It’s past time for the Obama administration to stand up to this sort of nonsense.  ICE should fire the insubordinate agents immediately.

Insubordination at ICE

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.

Negative Judicial Metaphors Harm Immigrants

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.

Doctors, Detention, and Dual Loyalty

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.

BIA Makes It Easier to Deport 14 Year Olds

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. 

DHS Protects Women and Girls, but More Can Be Done

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.

Migration Policy Institute Conference

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). 

Help Save Detroit’s Freedom House

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.

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

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.

Remembering the Triangle Shirtwaist Factory Fire – 100 Years Later

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

DHS Plans Crackdown Against Smugglers in Central American

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.