Detention and Removal

Search by a particular word or phrase.
Search by a particular blog tag.

CARA Assists Families Targeted in May Enforcement Actions and Thwarts New Family Detention Efforts

In late May- early June, the CARA Pro Bono Project assisted 21 families who were picked up by DHS in the latest round of enforcement actions targeting Central American women the children. The stories of the 21 families and the due process obstacles they have encountered were captured in a report produced by the CARA project. The report documents inappropriate enforcement conduct and due process concerns that the families endured. Since the publication of the report, several families have been released and no new families have been identified by CARA at the family detention facilities.

Despite constant pressure from advocates, DHS continues to double down on its support of family detention. This effort includes searching for new prospective family detention facility locations in Texas. Two recent efforts by Immigration and Customs Enforcement to reach an agreement for a new family detention facility have been stymied in part by the assistance of the local community and by the dioceses of Corpus Christi and Laredo. In both public hearings, the Bishops’ statements along with critiques by community leaders, lead to local government leaders voting to not move forward with plans for the facilities.

As DHS continues to look for new communities to detain immigrant families, we urge you to contact us if you hear any information about your community engaging DHS to do so.

Programs: 

One year of CARA Pro Bono Project, thousands helped

“Women have suffered through so much but still smile. If you show them love, they show it back.”

Volunteer, CARA Family Detention Pro Bono Project

 

Spring 2016 marked the one-year anniversary of the CARA Family Detention Pro Bono Project with some impressive data to add a bit of hope to the still steady flow of immigrants across the border.

The project’s one-year statistics paint a powerful picture of the work being done by volunteers and the limited formal staff at CARA.

As the U.S. enters its third summer in which unusually high numbers of Central American families are crossing the border in search of safety, here are some stats that show how CARA has made a difference:

  • More than 8,000 families received help from a CARA volunteer attorney in starting the process of seeking asylum.
  • Of the families seen by CARA volunteers at the South Texas Family Detention Center at Dilley, Texas, 99 percent were released to their loved ones, while their cases work through the asylum process.
  • More than 700 lawyers, paralegals, translators, clergy, teachers, nurses and social workers volunteered their time at Dilley.

The project was born in response to a growing humanitarian crisis that erupted in 2014.

Amid a dramatic increase in the number of women and children arriving at the border from El Salvador, Honduras and Guatemala in 2014, Immigration and Customs Enforcement began putting families into detention centers located far from their U.S.-based families and far from towns where they might find lawyers to help.

In a little more than a year, hundreds of volunteers – attorneys, translators, teachers, social workers, medical professionals and others – have helped thousands of families begin the process of seeking asylum. The CARA staff and volunteers have also formally challenged the conditions at the detention centers, from inadequate medical care to coercion and lack of appropriate language services.

In addition, CARA staff and volunteers taught thousands of women about their legal rights and obligations, empowering them to advocate on their own behalf. In collaboration with the sponsoring organizations, CARA kept up public pressure against family detention. Regular news coverage about the families and events such as an Easter Monday prayer rally at the White House helped ensure the families in detention are not forgotten.

Volunteers are always needed to continue CARA’s work. To learn more, to find out how to donate or to make arrangements to volunteer, visit cliniclegal.org/CARA.

 

CARA is a joint project of CLINIC, the American Immigration Council, the Refugee and Immigrant Center for Education and Legal Services and the American Immigration Lawyers Association.

Resources by type: 

Family Detention

March marked the one year anniversary of the CARA Pro Bono Representation Family Detention Project, which focuses on ending family detention and ensuring representation for immigrant families who are processed through the family detention facilities.

Nearly 8,000 families had a CARA volunteer attorney help them start the process of seeking asylum. More than 700 volunteers from all over the country -- lawyers, paralegals, translators, social workers, medical professionals, teachers and more -- put their lives on hold for a week or more and traveled to Texas to help protect families. Combined, they contributed more than $6.75 million in volunteer hours.

To mark the anniversary week, CLINIC worked with its CARA Partners to:

  • Organize and lead an interfaith peaceful demonstration against family detention on Easter Monday in front of the White House.
  • Organize and participate in congressional briefings about the importance of access to counsel for unaccompanied children and immigrant families
  • Submit a complaint to the DHS Office of Civil Rights and Civil Liberties about the continued trauma that families face in detention. 
Programs: 

President’s enforcement actions against immigrant families and children

In early January, the Department of Homeland Security began targeting for removal Central American families and unaccompanied children who had turned 18. CLINIC engaged in extensive national and local advocacy, with staff from the Advocacy and TLS offices participating in national webinars about the actions.

The CLINIC advocacy team conducted webinars for the Archdiocese of Cincinnati, Ohio, and the Diocese of Charlotte, North Carolina, and provided advocacy support for communities in Arkansas, California, Ohio and Virginia. DHS continues to target immigrant families and unaccompanied children who have turned 18 while in the United States.

In early March, DHS Secretary Jeh Johnson announced that the agency had taken 336 individuals into custody through its Operation Border Guardian. CLINIC has voiced its concern with these actions and will continue to advocate for the end of such practices.

As the enforcement actions continue, serious questions remain related to whether ICE can conduct activities in certain sensitive locations such as places of worship, schools and hospitals. While there is an existing policy memo, it is long, technical and in English only.

In an effort to help CLINIC affiliates engage with communities better as to what constitutes a sensitive location, CLINIC Advocacy and Communications created a graphic of the memo in both English and Spanish. The graphic has been well received in immigrant communities and by the government. CLINIC Advocacy shared the memo with the Department of Education, DHS and the White House Office of Faith-Based and Neighborhood Partnerships. CLINIC is working with DHS on updates to the sensitive locations memo.

Programs: 

Family Detention

Family Detention

CLINIC continues to fight against the government’s practice of detaining immigrant mothers and their children. CLINIC, through its work in the CARA Family Detention Pro Bono Project has been especially active in the national fight to eliminate large scale family detention centers. CLINIC and CARA have been leading advocacy efforts to challenge unlawful asylum, detention, and deportation policies of DHS. Such advocacy activities have included submitting a complaint to the DHS Office of Civil Rights and Civil Liberties (CRCL) regarding inadequate language access for indigenous language speakers and filing a letter to high-level DHS officials about glaring due process violations that have occurred since the court order of October 23rd.

 

Hearing on the Licensing of Family Detention Facilities in Texas

On December 9th, the Commissioner of the Texas Department of Family and Protective Services (DFPS) held a hearing in Austin, Texas regarding emergency licensing provisions for the family detention facilities in Dilley and Karnes, Texas. The hearing was in response to a temporary injunction filed to prevent the state from licensing the family detention facilities under emergency provisions. In addition to the hearing, the DFPS gave opportunity for formal comments on the licensing until December 14th. CLINIC, the only Catholic and faith-based partner in the CARA Pro Bono Detention Project, was instrumental in organizing advocacy efforts around the hearing and the licensing effort.  CLINIC worked with the Texas Catholic Conference to draft a statement for the hearing. The Texas Catholic Conference also testified at the hearing. In addition, CLINIC drafted letters for Texas women and men religious to submit in objection to the licensing. Over 100 letters were submitted by Catholic partners and three women religious were able to testify at the December 9th hearing as well. The Commissioner has not issued a ruling at this time.

 

Family Case Management Program

In late September 2015, DHS announced that the alternative to detention pilot program contract, the Family Case Management Pilot Program (FCMP) had been won by GEO Cares, a subsidiary of the GEO Corporation, the private for-profit company that runs many of the federal immigration detention facilities nationally.  In an effort to oversee GEO Cares work with the FCMP and demand greater accountability of DHS and GEO Cares in its administration of this program, CLINIC has accepted a seat on the GEO Care Community Resource Committee (CRC). The CRC is to provide guidance and technical expertise to GEO Cares. Executive Director Jeanne Atkinson spoke to GEO Cares management in Boca Raton in November 2015 about the need for legal services for the formerly detained women and children that will be enrolled in the FCMP pilot program. CLINIC also participated in the first meeting of the CRC which was convened in January 2015. Going forward, we will work to ensure maximum accountability of GEO Cares and meaningful access to legal services for the families enrolled in the program.

The family detention landscape continues to change. Moving forward, CLINIC will continue to work to end family detention and see immigrant women and children receive meaningful access to justice. Part of this work on the ground will largely be through our partnership in the CARA Pro Bono Project. For more information about CLINIC’s Family Detention Project, please see new resources posted at cliniclegal.org/CARA. Please consider volunteering your time or other resources to the CARA Pro Bono Project. For more information about volunteering please visit cliniclegal.org/CARA .

Programs: 

Discussion of Enforcement Actions

From January 2nd- 4th, the Department of Homeland Security (DHS) conducted enforcement actions targeting immigrants who arrived to the United States after January 1, 2014, and had final orders of removal. DHS picked up 121 individuals in local communities in Georgia, North Carolina, and Texas. The individuals were identified by DHS as removal priorities according to the new Priority Enforcement Program, which was initiated by DHS Secretary Johnson’s November 20, 2014 memorandum.

While the individuals picked up by DHS had deportation orders, serious due process concerns have been expressed about these cases. CLINIC, through its partnership with the CARA Family Detention Pro Bono Project, was able to help receive stays of deportation from the Board of Immigration Appeals in twelve cases, affecting thirty-three women and children. The work of the CARA Family Detention Pro Bono Project has provided nationally recognized data and advocacy demonstrating the access to justice and process issues.

In response to the actions, CLINIC and USCCB wrote a letter to DHS Secretary Jeh Johnson, condemning the targeting of Central American women and children and urging an end to the practice. CLINIC staff attended meetings with DHS Secretary Johnson, DHS Deputy Secretary Alejandro Mayorkas, and Melissa Rogers, Executive Director of the White House Office of Faith-based and Neighborhood Partnerships to advocate against future enforcement actions. There is concern and fear in communities about this enforcement action and future actions. CLINIC has put together a backgrounder explaining the recent actions and what to do in your community.

Please contact us with stories of local advocacy on this issue or stories of individuals affected by these actions in your community.

Resources by type: 
Programs: 

8 Ways You Can Help Central American Women and Children

Cover of 8 Ways You Can Help Central American Women and Children

CLINIC advocates for the end of the U.S. policy of detaining families who arrive in the U.S. seeking protection from crime and violence in their home countries. It also participates in the CARA Family Detention Pro Bono Representation and Advocacy Project, working to provide legal representation to these families. Use our Use our new resource, "8 Ways You Can Help Central American Women and Children" to brainstorm how you and your organization can provide assistance. 

Learn more about this issue and let us know what you are doing to help end family detention at cliniclegal.org/cara. We will gather and organize your responses to help in our efforts to mobilize supporters around the nation.

Additional Resources:

By reading "8 Ways You Can Help Central American Women and Children," you will find that one way you can help is by assiting the women with change of addresses and pro se changes of venue. Here are some documents you may find useful:

Pro se change of venue information (you can get a copies of some of the forms referenced in this document from EOIR)

Biligual English/Spanish translation of pro se motion to change venue

 

 

 

Texas Licensing of Detention Facilities Sign On Letter

On October 16th, 2015, CLINIC along with more than 140 organizations and individuals, sent a letter to Texas state officials urging them to deny child care licenses to private prison companies operating two family detention camps in South Texas. The letter sent to Texas Governor Greg Abbott and Texas Department of Family and Protective Services Commissioner John Specia argued that the family detention facilities, by their nature, do not foster child welfare. Additionally, the letter explains that granting childcare licenses under reduced standards is contrary to child welfare principles and wastes limited state resources to cover federal responsibilities. CLINIC, through its partnership in the CARA Pro Bono Project and its national advocacy efforts, continues to work to end family detention and to ensure that immigrant women and children who are detained receive access to justice and humane treatment. 

The End of Family Detention or Another Rabbit Hole of Litigation?

Michelle Mendez

On July 24, 2015, Judge Dolly Gee of the United States District Court for the Central District of California issued a long-awaited decision applying the Flores Settlement Agreement of 1997 to the minors currently detained in Dilley and Karnes City, Texas, and in Leesport, Pennsylvania.

The Flores Settlement Agreement of 1997 set the standards for the detention, release, and treatment of minors.  It resulted from a class action lawsuit challenging the way the Immigration Service processed, apprehended, detained, and released minors in its custody. The agreement required that the agency hold minors in the least restrictive setting appropriate to their age and special needs in order to ensure their protection.  It also required the agency to release them from custody without unnecessary delay to a parent, legal guardian, adult relative, or other proper adult. See 8 CFR §§ 236.3, 1236.3. The Flores Agreement made no distinction between minors accompanied or unaccompanied by a parent.

Fast forward to February 2015 following the closure of the temporary family detention in Artesia, New Mexico, the continuation of the Berks Family Residential Center in Leesport, Pennsylvania, and the designation of two new family detention centers in Texas: South Texas Family Residential Center and Karnes Country Residential Center. Flores counsel sought enforcement of the 1997 Settlement Agreement arguing that ICE had violated the agreement by detaining minors and their mothers in secure facilities that were not the least restrictive setting. They also argued that ICE had not complied with the minimum standards for short-term custody by subjecting them to cold temperatures in the CPB holding facilities (nicknamed “hieleras”). Government counsel argued that the Flores Settlement Agreement of 1997 only applied to unaccompanied minors and did not apply to minors accompanied by their parents or legal guardians.

Judge Gee agreed with Flores counsel that the Flores Settlement Agreement of 1997 applied to all children in ICE custody, even those accompanied by parents or legal guardians. Judge Gee, a 2009 Obama appointee who is the daughter of Cantonese immigrants, reasoned that because Flores requires release of a minor to a parent when a parent is available, that the parents and their children should be released together.  Immigrant rights advocates welcomed this decision as possibly the end to family detention. The government has 90 days to respond to Judge Gee’s decision explaining why her order should not be implemented. In the meantime, CLINIC’s contract attorneys based in Dilley, Texas, who are part of a four-agency CARA Pro Bono Project, report that hundreds of new mothers and their children continue to be detained and deported.

At the core of this legal battle was the difference between accompanied and unaccompanied minors – a topic that continues to mystify even the most seasoned immigration practitioners. The term “unaccompanied alien child” (UAC) means one who has no lawful immigration status in the United States, has not attained 18 years of age, and either has no parent or legal guardian in the United States or has no parent or legal guardian in the United States who is available to provide care and physical custody. See Homeland Security Act of 2002 § 462(g), 6 USC § 276(g), adopted by TVPRA § 235(g). Either ICE or CBP determines whether a minor is accompanied or unaccompanied at the time the minor is apprehended at the border. Once the UAC determination is made, only an affirmative act by the Department of Health and Human Services, ICE, or CBP can terminate a UAC finding. Releasing a minor from DHHS custody to a parent is not an act that affirmatively terminates UAC status. A parent or a third party obtaining a state custody order does not terminate UAC status. Nor does the minor’s turning 18. Practitioners should know the definition of a UAC because of the benefits this determination offers. For example, Asylum Offices have initial jurisdiction over asylum applications filed by UACs, even those currently in removal proceedings. This provides an additional opportunity to prove asylum eligibility, since the one-year filing deadline applicable to asylum applicants does not apply to UACs. See TVPRA § 235(d)(7)(A) and (B).

The Flores order is available at https://www.documentcloud.org/documents/2179157-flores-order.html. For more information on the CARA Project, go to https://cliniclegal.org/CARA

Resources by type: 

Supreme Court Holds Drug Paraphernalia Offenses Do Not Always Trigger Removal

By Bradley Jenkins

On June 1, 2015, the Supreme Court ruled on a case relating to a state court conviction for drug paraphernalia – in this case a sock containing Adderall tablets – and whether that was sufficient to remove a lawful permanent resident. Mellouli v. Lynch, available at http://www.supremecourt.gov/opinions/14pdf/13-1034_3dq4.pdfThe Department of Homeland Security issued a Notice to Appear (NTA) charging that Moones Mellouli was removable because he had been “convicted of a violation of…any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21).”  INA § 237(a)(2)(B)(i). Mellouli argued that DHS could not prove the charge because the relevant documents did not show that he was convicted of any offense related to a federally controlled substance. He was able to make this argument because Kansas’s list of illegal drugs includes more substances than the federal list.  DHS argued that paraphernalia (which means items like needles, pipes, or containers that are used in connection with drugs) relates to all drugs in general, and that they did not need to prove whether the conviction involved a substance on the federal list. 

The Board of Immigration Appeals (BIA) ordered Mellouli’s removal based on its precedent in Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009). Martinez-Espinoza was a previous BIA case that agreed that paraphernalia “relates to” all controlled substances with which the object can be used. Therefore, the Board held, DHS need not prove that any individual paraphernalia conviction relates to a federally controlled substance. The Supreme Court disagreed and found that Mellouli should not have been deported and that Matter of Martinez-Espinoza must be overruled.  In its decision, the Supreme Court emphasized that the INA specifically references the federal drug schedule. The Court held that the BIA was not free to ignore such a clear reference to federally controlled drugs.

The main lesson of Mellouli v. Lynch is that if a state punishes people for more types of drugs than federal law, then a drug paraphernalia conviction does not automatically trigger removal. Rather, DHS must prove, using the “record of conviction” only, that the paraphernalia conviction relates to a federally controlled substance. It should be noted, however, that if the noncitizen bears the burden of proof, Mellouli may not apply in the same way. Applicants for any immigration benefit, as well as anyone seeking re-entry into the United States, should not necessarily rely on Mellouli as a guarantee that their applications will be approved if they have a paraphernalia conviction.

Resources by type: 

Advocates’ Letter to President Obama Calling For an End to Family Detention

March 17, 2015

 

President Barack Obama The White House

1600 Pennsylvania Avenue, N.W. Washington, DC  20500

 

Dear Mr. President,

We, the undersigned organizations, thank you for your leadership in protecting undocumented migrants from the fear of imminent deportation through your Executive Actions. You are building a robust immigration legacy with your November 20, 2014 executive actions on immigration.  We fully support those actions, both as lawful exercises of your authority and as long overdue reforms that will keep families together, businesses robust, and our economy thriving.  Your administration’s massive expansion of family detention and its treatment of vulnerable refugee children and mothers from Central America, however, threatens to severely blemish that legacy.  Federal courts, Members of Congress, and the national media are united in calling for you to adjust this policy and align it with our national values and reputation as a protector of basic human rights.

As more and more of these families are given the opportunity to tell the story of what drove them to the United States, it has become clear that mothers and children who have fled extreme violence, death threats, rape, and persecution in Central America, seeking only safety, are instead being held in detention. According to data from the Department of Homeland Security (DHS), approximately 70 percent of the women and children in family detention are able to demonstrate a credible fear of returning to their country of origin.  The vast majority of families represented by the American Immigration Lawyers Association – American Immigration Council Artesia Pro Bono Project who have had final hearings have been granted asylum or related humanitarian relief by an immigration judge.

These detainees include:

  • Sofia, who fled from her home after a gang murdered her brother, shot her husband and then kidnapped and raped her 14-year-old stepdaughter.
  • Kira, who fled when a gang targeted her family over their involvement in a nonviolence movement at their church. When Kira’s husband went into hiding, the gang subjected her to repeated sexual assaults and threatened to cut her unborn baby from her womb.
  • Marisol who crossed the United States border in June 2014 after a gang in Honduras murdered the father of her 3-year-old twins and then turned its attention to her.

Not only are these stories appalling, heartbreaking, and too common in the Northern Triangle, they have also drawn the attention of the federal courts.  As you know, a D.C. District Court recently granted a preliminary injunction putting an immediate halt to the administration’s policy of locking up asylum-seeking mothers and children as a way to deter others from coming to the United States.1   The American Civil Liberties Union filed the case on behalf of mothers and children who have fled extreme violence, death threats, rape, and persecution in Central America and come to the U.S. for safety and demonstrated a credible fear of return to their home countries.  In rejecting the U.S. government's argument that detention of these women and children was necessary to prevent a mass influx that would threaten national security, the court held that it was illegal to detain families based on deterrence.  It made clear that the government cannot continue to lock up families without an individualized determination that they pose a danger or flight risk that requires their detention.  This ruling is consistent with the United States’ obligations under international refugee law and its long-standing global leadership in protecting the persecuted.

In addition to the recent injunction, in a separate case, the Center for Human Rights and Constitutional Law, the University of Texas Civil Rights Clinic and others, filed a motion to enforce the Flores Settlement Agreement, which establishes a general policy of release and minimum standards of treatment for all children in immigration custody.2   The Plaintiffs argued that DHS is violating the Agreement by implementing a no-release policy in family detention, by holding these children in secure lock-down facilities that are not licensed to take care of dependent children, and by subjecting these children to unduly harsh conditions in Customs and Border Protection (CBP) short term detention facilities near the border. We are extremely disappointed that in the Flores litigation, DHS continues to rely on discredited deterrence arguments to support the incarceration of children and their mothers at family detention camps in this case.  On February 27, a week after the D.C. district court's injunction, DHS sought to water down the Flores Agreement by arguing that family detention is necessary to deter: "Thus, DHS strongly believes that the appropriate use of family detention is a key element of the U.S. Government's efforts to deter aliens from Central America from making the dangerous journey across Mexico and into the United States."3

This issue of family detention has not escaped the notice of the United States Congress. On February 25, 2015, Senator Blumenthal published an Op Ed in The Hill calling on the administration to end family detention and begin processing these families in a manner consistent with American values.  He promised to introduce legislation to limit the detention of families with children who are seeking asylum in the United States. On that same day, Senator Patrick Leahy spoke on the Senate floor opposing the new funding for family detention: “Incarcerating women and children fleeing violence runs contrary to our long history as a nation that offers refuge to those most in need.”  In the House, Reps. Deutch and Foster also circulated a Dear Colleague letter on February 13th, stating that “Detaining women and young children fleeing extreme violence is not only inhumane, but the financial costs are staggering.”

These new developments come amidst greater public scrutiny of the abuses faced by migrant children and their mothers in detention.  On February 4, 2015, the cover of the Sunday New York Times Magazine – “The Shame of America’s Family Detention Camps” – chronicled the suffering of children and mothers in the now-closed Artesia, New Mexico detention facility.  The detainees reported sleeping eight to a room and having little exercise or stimulation for the children. Many of the detainees were under the age of 6, and many refused to eat.  Attorneys witnessed one 7-year-old who just lay in his mother’s arms while she bottle-fed him. Another was threatened with possible force-feeding of her child if she could not get her to eat.  Visitors also witnessed children with fevers, coughs, chickenpox and children lying limp and listless.

We also note the allegations of sexual abuse at the family detention facilities.  In January 2015, a man employed at the family detention facility in Berks County, Pennsylvania was criminally charged with seven counts of institutional sexual assault, involving a 19-year-old Central American woman detained there.

The Department of Homeland Security has tacitly recognized that the detention of families is unwise policy, yet it continues to enforce it.  In his November 20, 2014 memorandum, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” DHS Secretary Jeh Johnson explains that “field office directors should not expend detention resources on aliens who are known to be suffering from serious physical or mental illness, who are disabled, elderly, pregnant, or nursing, who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest.” Many of the mothers and children in detention have physical or mental illnesses, many are survivors of torture and trauma, many are nursing, and some children have evidence of disabilities.  Despite these facts, DHS has continued to detain these mothers and children and has not considered these exigent circumstances when making a detention bed allocation.   The memo does not contain an exception for family detention and there is no reason why the overall DHS detention policies should not apply to children and families in custody.

We ask that you instruct DHS that these families are not exceptions to the policy that the detention of asylum seekers, children, nursing mothers and other vulnerable populations is not in the public interest.  Specifically, we ask that DHS comply with the Flores Settlement Agreement with respect to all children in its custody including children in family units.  Furthermore, we ask that you reconsider subjecting these families to special non-judicial forms of removal (such as “expedited removal” and “reinstatement of removal”) that shortcut due process.  We ask that you give every family the chance to tell their story to a judge before being deported back to danger, perhaps back to the very abusers and traffickers they fled.  Lastly, we urge DHS to use funds appropriated by Congress for alternatives to detention wisely, including creating a robust alternative to detention for families through the recently released Request for Proposals for family case management services.  Alternatives to detention must be generously utilized, reduce the overall use of family detention and be responsive to the holistic needs of these traumatized and vulnerable mothers and children.

With all of the new information we have about the reality of the dangers these families face and the nature of our nation’s legal obligations to them as asylum seekers, the district court injunction offers your administration an opportunity to reverse course on family detention.4   We ask that you decline to challenge the injunction and immediately instruct DHS to stop implementing its “no-bond” policy.  DHS must make truly individualized custody determinations, always ensuring that detention is used only as a last resort when no other conditions can reasonably ensure compliance with hearing notices or public safety.

Mr. President, these mothers and children in detention are fleeing unspeakable violence. Detention profoundly impacts the emotional and physical well-being of children.  It inflicts indescribable pain on mothers to watch their children suffer in detention.  Most of these mothers have valid asylum claims and relatives or sponsors in the United States willing to take them in and support them during the pendency of their removal proceedings.  They do not have to be – and should not be – in detention.  For all the reasons above, international norms disfavor the use of immigration detention for children, particularly when they are asylum-seekers. The international community has called on all states - including the U.S. - to end the immigration detention of children. Until recently, the United States was a global model in its exceptional use of detention for families, and it can be again if you act to end this practice.  We look forward to the administration’s implementation of new policies favoring individualized determinations, release, the use of alternatives to detention and an end to family detention.  Please contact Katharina Obser at the Women’s Refugee Commission at 202.750.8597 or katharinao@wrcommission.org if you would like additional information.  Thank you for your consideration.

 

Signed:

National Organizations

America's Voice Education Fund (AVEF) American Civil Liberties Union (ACLU) American Friends Service Committee (AFSC) American Immigration Council (AIC)

American Immigration Lawyers Association (AILA) Americans for Immigrant Justice (AI Justice)

Asian Americans Advancing Justice (AAJC)

Asian Pacific American Labor Alliance, AFL-CIO (APALA) ASISTA Immigration Assistance (ASISTA)

Catholic Legal Immigration Network (CLINIC) Center for Community Change (CCC)

Center for Gender & Refugee Studies (CGRS) Columban Center for Advocacy & Outreach (CCAO) Council on American-Islamic Relations (CAIR) Detention Watch Network (DWN)

The Episcopal Church Farmworker Justice First Focus

Franciscan Action Network (FAN)

Global Campaign to End Immigration Detention of Children

Grassroots Leadership

Hebrew Immigrant Aid Society (HIAS) Immigrant Legal Resource Center (ILRC) Jewish Council for Public Affairs (JCPA) Kids in Need of Defense (KIND)

Korean Resource Center (KRC)

Latin America Working Group (LAWG)

League of United Latin American Citizens (LULAC) Lutheran Immigration and Refugee Service (LIRS) National Council of Jewish Women (NCJW) National Council of La Raza (NCLR)

National Employment Law Project (NELP) National Immigrant Justice Center (NIJC) National Immigrant Project – NLG (NIP-NLG) National Immigration Law Center (NILC)

National Korean American Service & Education Consortium (NAKASEC) National Latin Network

National Queer Asian Pacific Islander Alliance (NQAPIA) NETWORK, A National Catholic Social Justice Lobby (NETWORK) Physicians for Human Rights (PHR)

Presbyterian Church (U.S.A.) (PC-USA)

Refugee & Immigration Ministries, Christian Church (Disciples of Christ) Save the Children

Service Employees International Union (SEIU) Sisters of Mercy of the Americas (Sisters of Mercy) South Asian Americans Leading Together (SAALT) Southeast Asia Resource Action Center (SEARAC) Southern Border Communities Coalition (SBCC) Tahirih Justice Center (Tahirih)

The Advocates for Human Rights

United Methodist Church, Gen. Board of Church & Society (UMC-GBCS) United We Dream (UWD)

We Belong Together

Women’s Refugee Commission (WRC)

Regional and Local Organizations African Services Committee (ASC) Asian Law Alliance (ALA) CARECEN LA

Casa San Jose, Pittsburgh, PA (CSJ)

Church Women United – New York State (CWU-NYS) Community to Community Development (C2C) Equality New Mexico (EQNM)

Families for Freedom (FFF)

Florence Immigrant & Refugee Rights Project Florida Coastal Immigrant & Human Rights Clinic

Florida Immigrant Coalition (FLIC) Genessee Valley Citizens for Peace (GVCP)

Greater Rochester Coalition for Immigration Justice (GRCIJ) Immigrant Law Clinic, University of Massachusetts School of Law Jesuit Social Research Institute (JSRI)

Justice Ministry Team, Downtown United Presbyterian Church (DUPC Justice Ministry) Korean American Resource & Cultural Center (KRCC)

Korean Resource Center (KRC)

Lawyer's Committee for Civil Rights of SF Bay Area Movimiento de Accion Inspirando Servicio San Jose (MAIZ) New Jersey Advocates for Immigrant Detainees (NJAID) Northgate Free Methodist Church (Northgate FMC) Northwest Immigrant Rights Project (NWIRP)

OneAmerica of Washington State Pangea Legal Services

Pax Christi Florida

Peace & Justice Committee Sisters of St. Joseph of West Hartford, CT (SSJ-West Hartford) Political Asylum/Immigration Representation Project (PAIR)

Reformed Church of Highland Park (NJ) (RCHP)

Refugee & Immigrant Center for Education & Legal Services (RAICES) Refugio Del Rio Grande (REFUGIO)

Rochester Committee on Latin America (ROCLA) Services, Immigrant Rights, & Education Network (SIREN) Sin Huellas, Houston

Sisters of St. Joseph (Baden, PA) Sisters of St. Joseph (Rochester) Sisters of St. Joseph (Springfield) Sisters of St. Joseph (St. Augustine) Soujourners

South Texas Civil Rights Project (STCRP) Stop the Checkpoints

Tennessee Immigrant & Refugee Rights Coalition (TIRRC) Wayne Action for Racial Equality (WARE)

 

cc:       

Secretary Jeh Johnson, Department of Homeland Security

Deputy Secretary Alejandro Mayorkas, Department of Homeland Security Sarah Saldaña, Director, Immigration and Customs Enforcement

Mr. António Guterres, U.N. High Commissioner for Refugees

Mr. Juan Mendez, U.N. Special Rapporteur for Torture and Cruel and Degrading Punishment

Mr. Francois Crepeau the Special Rapporteur on the Human Rights of Migrants

 

 

1 R.I.L.R., et al. v. Johnson, et al., Case No. 15-0011, Opinion, ECF No. 33 (D.D.C. Feb. 20, 2015)

2 Pl.’s Notice of Mot. And Mot. To Enforce, Flores v. Holder, Case No. CV 85-4544 (February 2, 2015)

3 Ibid.

4 See also Center for Gender & Refugee Studies & National University of Lanús, eds., Childhood and Migration in Central and North America: Causes, Policies, Practices and Challenges (2015), available at  http://cgrs.uchastings.edu/Childhood-Migration-HumanRights (analyzing violence-based drivers of migration and international protection needs of Central American children and families, and exploring harms of family detention).

Resources by type: 

Limiting State and Local Compliance with Immigration Detainers: Three Ways You Can Make a Difference

By Jen Riddle

ICE has been partnering with state and local law enforcement on an increasing basis through such programs as Secure Communities in order to place civil immigration detainers on individuals it wishes to remove from the United States. Local police often agree to detain these individuals for up to 48 hours beyond when they would otherwise be released. While ICE claims it uses detainers to target convicted criminals who pose a threat to public safety, recent data suggests that this is not the case. The Transactional Records Access Clearinghouse (TRAC) at Syracuse University analyzed records of 436,000 detainers issued by ICE during 2012 and 2013.  According to the analysis, a mere 18 percent of detainers targeted individuals who had been convicted of a serious offense classified by ICE as a Level 1 or Level 2 crime. Thirty-two percent were placed on individuals who had only a misdemeanor or a petty offense conviction (such as a traffic violation, driving under the influence, or illegal entry) and 50 percent on individuals who had not been convicted of any criminal offense.

These statistics around ICE’s use of immigration detainers are troubling as hundreds of thousands of people who have lived for years as contributing members of our communities are being funneled into the removal system.  Among the families destroyed by the deportation of loved ones are many who would qualify for legalization upon the passage of comprehensive immigration reform.  What can you do to limit the involvement of local law enforcement agencies in enforcing federal immigration laws? How can you stop the continued use of immigration detainers to deport hardworking members of your community?

 

Learn the Detainer Statistics Specific to Your Area

Consult the TRAC report to review the number of detainers issued in your state as well as the criminal histories, if any, of the individuals the detainers targeted. It is concerning that in 35 states, 50 percent or more of the detainers issued were aimed at individuals without any criminal record. The report also sorts detainer statistics by detention facility. The largest numbers of detainers were placed against individuals in Los Angeles County and Maricopa County jails (over 10,000 detainers in each facility) with 39 percent and 57 percent , respectively, targeting individuals with no convictions. The information in this report can be a useful tool to understanding and educating others about the extent to which ICE is targeting individuals in your community with minimal or no criminal background.

 

Educate Law Enforcement and Policymakers About ICE Detainer Practices

ICE detainers are non-binding requests

Many local law enforcement officials do not understand that compliance with ICE detainer requests is not mandatory. Rather, it is within the discretion of the local law enforcement agency whether or not to continue to hold the subject of a detainer for ICE to pick up. This is confirmed by the federal regulation governing detainers (8 CFR §287.7), the I-247 detainer form, and various Department of Homeland Security (DHS) communications, as well as by a recent Third Circuit Court of Appeals decision in Galarza v. Lehigh County.

Detainer use presents various constitutional concerns

Immigration detainers are not arrest warrants which are issued by judges and require probable cause. Rather, detainers are issued by ICE officers upon reason to believe an individual may be removable. Detainers are not evidence that someone is deportable or is not a U.S. citizen. While the 4th Amendment ensures a probable cause hearing within 48 hours for those arrested without a warrant, the detainer regulation permits prolonged detention without a hearing for 48 hours excluding Saturdays, Sundays and holidays. Individuals subject to detainers are often held longer than 48 hours. Police are not required to give detainees a copy of the detainer form which may violate the fundamental requirement of notice before being deprived of one’s liberty.

Indiscriminate issuance of detainers makes communities less safe for everyone

Local law enforcement compliance with detainers creates fear among immigrants of any interaction with the police, including reporting crimes. 44 percent of Latinos surveyed in a University of Illinois study reported they are less likely to contact police if they have been the victim of a crime because they fear that police officers will inquire into their immigration status. The Major Cities Police Association agrees that local enforcement of immigrations law undermines trust and cooperation with immigrant communities which compromises the safety of the whole community.

Facilitating deportation destroys families

Issuance of detainers against low level offenders and those with no criminal record results in the deportation of hardworking members of our community and often leaves U.S. citizen and permanent resident children without a parent or breadwinner.

Detaining individuals at ICE’s request is costly to states and localities

Keeping individuals in jail for an additional 48 hours (or more) is expensive and ICE generally does not reimburse localities for these costs. Los Angeles County taxpayers, for instance, spend $26 million a year to detain people for ICE while the state of California spends more than $65 million annually. This additional incarceration drains scarce local resources, wastes taxpayer money, and can subject local law enforcement agencies to liability when ICE mistakenly places detainers on U.S. citizens.

 

Advocate for Limited Law Enforcement Compliance with Detainers 

Civil immigration enforcement is the purview of federal immigration authorities and should not be shifted to local police whose primary job is to prevent crime and protect communities. We must respect the dignity and humanity of all individuals, regardless of immigration status. Consider undertaking the following actions to reduce the deportation of non-criminals in your state. 

Join a campaign to pass a local ordinance or state-wide law limiting detainer compliance

Over the past few years, two states and more than 20 localities have implemented laws or policies restricting the extent to which law enforcement will continue to detain individuals to hand over to ICE. Some prevent jails from honoring immigration detainers unless the arrested individual has actually been charged with or convicted of a particular criminal offense, usually a serious or violent felony.  Others refuse to comply with detainers without a prior written agreement from ICE agreeing to reimburse them for all detainer-related expenses. Still others decline to honor immigration detainers under any circumstances.

Detainer bills are currently pending in Massachusetts and Maryland, and there are a number of local campaigns in various counties and cities, including Austin, Texas, and Philadelphia and Norristown, Pennsylvania. Reach out to sympathetic city council members or state legislators to educate them about the dangers of honoring ICE detainers and ask them to sponsor a local anti-detainer ordinance or a state-wide law (often referred to as a “TRUST act” after the “Transparency and Responsibility Using State Tools” (TRUST) Acts passed in California and Connecticut).

Recruit local law enforcement and other government officials as allies

An increasing number of local law enforcement leaders are standing up to federal pressure to enforce immigration laws. Ask law enforcement to speak out, and show them examples of other law enforcement opinion pieces written on the issue:

-          District Attorney, San Francisco, California

-          Interim Chief of Police, Seattle, Washington

-          Sheriff of Lake County, Illinois

Governor O’Malley of Maryland recently wrote a letter to DHS Secretary Jeh Johnson requesting an explanation as to why over 40 percent of individuals deported from his state under Secure Communities have no criminal record. According to the Governor, recent deportation numbers show that DHS is deviating from what it claims is the focus of the program - violent criminals who pose a public safety and national security threat.

Collaborate with advocates to put a human face on detainer practices

As immigration service providers, you have clients who have been impacted by detainer practices. In the California TRUST Act campaign, spokespeople included a single mother arrested for selling tamales in front of Wal-Mart and another mother nearly deported after a complaint to the police about her barking dogs. Help your clients share their personal stories with legislators and policymakers.

 

For additional ideas about community education, coalition building, and strategies for engaging with local law enforcement and decision makers, please consult CLINIC’s Toolkit for Communities to Advocate Against ICE Partnerships with Local Law Enforcement Agencies and the National Immigration Project’s All-In-One Guide to Defeating ICE Hold Requests.

Resources by type: 

Appointed Counsel and Bond Hearings for the Mentally Disabled

Appointed Counsel and Bond Hearings for the Mentally Disabled

By Debbie Smith

Jose, an unrepresented noncitizen who did not learn to speak until he was six or seven years old, does not know his own birthday or age, has trouble recognizing numbers and counting, and cannot tell time, spent four and a half yearsin immigration detention after his immigration case was closed.  CLINIC has long advocated for the right of immigrants like Jose to appointed counsel, especially in cases involving unaccompanied children, asylum seekers, and other vulnerable populations.  On April 22, 2013, the government issued instructions to be implemented nationally to identify detained mentally incompetent noncitizens and appoint counsel for such individuals.  The ICE and EOIR memos preceded by one day the April 23, 2013 federal district court order in Franco-Gonzalez v. Holder, 10 CV 02211 DMG (C.D. CA August 2, 2010), a permanent injunctionthat required the government to appoint counsel and provide bond hearings for detained seriously mentally ill noncitizens in Arizona, California and Washington.  The new ICE and EOIR policies, while encouraging, are only a first step towards ensuring that at-risk noncitizens receive legal representation in immigration proceedings.

ICE Memo

The April 22, 2013 ICE memo directs the establishment of procedures to ensure that mentally incompetent noncitizens in ICE detention are identified and that information about these individuals is provided to the immigration court.  By sharing this information, the immigration judges hearing cases involving seriously mentally ill respondents will be able to rule on their competency and invoke the new EOIR procedures for appointment of counsel.  The ICE memo specifies that all immigration detention facilities must have the following procedures in place by December 31, 2013.

Identification and Assessment Procedures: As of April 22, 2013, all immigration detention facilities that are staffed by ICE Health Service Corps are required to develop procedures to screen every immigration detainee when he or she enters the detention center.  Detainees also will receive a more thorough medical and mental health assessment within 14 days of entering the detention facility.  In the case of private detention centers where ICE holds detainees, DHS staff is required to begin work immediately with the detention facilities' medical staff to develop procedures to identify detainees with serious mental conditions.  The required procedures include creating a national telephone hotline for detainees and family members to report and provide information about those detained.  Once a detained individual is identified, ICE will request that either a qualified mental health provider complete a mental health review report or the facility provide the detainee's medical records to ICE for review.

Information-Sharing: DHS staff must also immediately develop procedures to transmit all documents related to the mental competency of an unrepresented detained individual to the ICE attorney (Office of Chief Counsel - OCC) in order for OCC to inform the immigration court of the individual's mental incompetency.

EOIR Memo

The EOIR April 22, 2013 memo requires Immigration Judges to implement several procedures to provide the following protections for mentally incompetent individuals.

 

Competency Hearings: Immigration Judges must conduct competency hearings when medical records or other evidence reflects that the individual appearing in immigration court may have a serious mental disorder or condition causing the individual to be unable to represent himself/herself in removal proceedings.

 

Mental Competency Examinations: Immigration Judges may order an independent mental competency examination and the production of a psychiatric or psychological report if unable to decide whether an individual is competent to represent himself or herself following a competency hearing.  EOIR will be working with DHS to obtain these reports.  Although the Immigration Judge will make the ultimate decision regarding competency, the independent evaluation will assist in this determination.

 

Appointment of Counsel: Immigration Judges may appoint counsel to represent an individual found to be mentally incompetent in removal and/or bond proceedings.  EOIR will provide qualified legal counsel in such situations.

 

Steven Lang, Program Director, Office of Legal Access Programs at EOIR noted at the CLINIC Convening in May, 2013 that EOIR had signed contracts with several immigration legal services providers, including our CLINIC affiliate, Esperanza Immigrant Rights Project in Los Angeles, to provide legal representation to mentally incompetent detainees.

 

Bond Hearings: Unrepresented mentally incompetent detainees who have been held in detention for six months or longer will be provided a bond hearing.

 

Franco-Gonzalez Class Action Case

 

On April 23, 2013, federal district judge Dolly M. Gee granted a permanent injunction in the Franco-Gonzalez v. Holder class action lawsuit brought in 2010, a lawsuit that began with Mr. Franco-Gonzalez's petition for writ of habeas corpus.  The ruling, covering three states – Arizona, California and Washington – requires immigration courts to provide legal representation for detained immigrants with mental disabilities "in all aspects of their immigration proceedings," and bond hearings for detained immigrants with mental disorders or disabilities who have been detained for more than six months.  The government's April 22, 2013 policy expands the Franco-Gonzalez order nationwide.  For the first time immigrants unable to afford legal representation who are mentally disabled will have an opportunity to present their cases with the assistance of counsel and request release under bond.

Resources by type: 

Recorded Webinar: What Really Happened at the Border: Determining Whether Your Client was Ordered Removed

Price: $25.00

Held on October 12, 2012.Your client isn't sure what happened at the border when she tried to enter several years ago and didn't succeed.  How do you determine what actually occurred at the border? Was there a removal order at all?  If so, what kind?  Was it expedited removal, Section 240 removal or voluntary departure?  The presenters will discuss strategies for determining what occurred including: what questions to ask clients, FOIA requests and obtaining FBI rap sheets.  The presenters for this webinar are Sarah Bronstein and Jennie Guilfoyle, CLINIC Training and Legal Support Attorneys. 

Resources by type: 

Prosecutorial Discretion Toolkit

What is prosecutorial discretion and how can it benefit my client? Over the past year, DHS and White House statements and memos have announced new immigration enforcement policies and priorities. This effort to implement new enforcement standards through the exercise of prosecutorial discretion includes the review of 300,000 cases at all stages of the removal process. While this review commenced in late 2011, it remains on-going.

The purpose of this Toolkit is to help advocates understand various components of prosecutorial discretion ---- who can benefit, what is the process, and what advocates can do to assist clients both before and after the issuance of the Notice to Appear. While the answers to some of these questions are still unclear, the government documents, articles, sample letters and motions, and other materials contained in this Toolkit will help advocates understand DHS prosecutorial discretion enforcement policies and practices.

 

MATERIALS ON PROSECUTORIAL DISCRETION

 

GOVERNMENT DOCUMENTS:

 

ARTICLES AND REPORTS:

 

PRACTICE ADVISORIES:

 

SAMPLE REQUESTS AND MOTIONS:

 

BIA DECISION AND CIRCUIT COURT ORDERS:

BIA decision held IJ and BIA authorized to administratively close proceedings even if a party opposes the administrative closure.  The BIA articulated standards for administrative closure.

Rodriguez v. Holder, No. 06-74444, Order (9th Cir. February 6, 2012);
Mata-Fasardo v. Holder, No. 10-71869, Order (9th Cir. February 6, 2012);
Pocasangre v. Holder, No. 10-70629, Order (9th Cir. February 6, 2012);
Middleton v. Holder, No. 09-74038, Order (9th Cir. February 6, 2012).

These cases involve petitions for panel rehearing.  The Ninth Circuit Court of Appeals ordered the government to advise the court whether in light of the June 17, 2011 and November 17, 2011 ICE memos on prosecutorial discretion whether the government intends to exercise prosecutorial discretion in these cases and, if so, the effect of such discretion on the cases before the court.

INFORMATION FROM THE FIELD ON PILOT PROGRAMS:

 

DENVER AND BALTIMORE PILOT PROGRAMS EOIR INFORMATION:

 

NEWSPAPER ARTICLES:

Resources by type: 
Programs: 

Open Letter in Response to the Closing of the Berks County Family Shelter Care Center and Solicitation of New Family Detention Beds

"We call on the administration to prioritize release of immigrant families in all cases. We
urge the administration to assign social workers to manage familiesʼ cases rather than
placing them in detention. For families without housing, the administration should
partner with non-profit shelter or child welfare organizations experienced in supporting
asylum-seeking and immigrant families to resolve any issues preventing the direct
release of families. Social workers with proven track records providing family and child
welfare services offer the only appropriate expertise for supporting families in civil
immigration proceedings."

Click here to read more.

Resources by type: 
Programs: 

Family Safety Planning Training Manual

The Department of Homeland Security (DHS) has dramatically stepped up enforcement in the interior of the country. DHS agents of the Immigration and Customs Enforcement (ICE) Division are arresting immigrants at their homes, workplaces and on the streets in communities all across the country.

The numbers of immigrants arrested in ICE enforcement operations is staggering. For example, 4,077 workers were swept up in workplace raids and charged with administrative violations in Fiscal Year (FY) 2007. Already this year (through August 2008), roughly 3,900 workers have been arrested and more than 1,000 individuals have been criminally charged. Also, ICE’s Criminal Alien Program (CAP) initiated formal removal proceedings against 164,000 immigrants serving prison terms in FY 2007. This number is expected to grow throughout FY 2008 and FY 2009. Additionally, ICE’s Fugitive Operations Teams arrested over 30,000 individuals in FY 2007, double the number in FY 2006. These numbers also are expected to be higher in 2008 and 2009 as ICE added 29 new Fugitive Operations Teams to its existing 75 teams in September of 2008.

Given this enforcement environment, it is important for members of our communities to develop a family safety plan if they are at risk of arrest and detention. This training curriculum is designed for trainers that will present Family Safety Planning Training in their communities. Through this training, participants will learn about the issues that they need to think through as well as the paperwork and documents that they need to gather in order to help themselves and their family members.

Resources by type: 

At-Risk Reports

In 2000-2001, CLINIC published a series of reports on immigration issues based on numerous case studies. These are not current reports.

The reports identify, track, and examine the impact of our nation's laws and immigration policies on at-risk immigrants. They illustrate particularly compelling problems faced by immigrants, clear explanations of the law at the root of such problems, and other research.

To order hardcopies of these reports, please complete this form and mail a $10 check or money order to CLINIC, 415 Michigan Ave. NE, Suite 200, Washington DC 20017.