Skip to content

Our Response to Jeh Johnson’s “Open Letter On Illegal Immigration”

On January 20, DHS Secretary Jeh Johnson penned an op-ed for Spanish language newspaper La Opinion.

Today, it appears that the same op-ed is being released in English to multiple media sources. I have provided the text below, but first a couple of comments.

This letter demonstrates that the Obama administration is determined to aggressively deporting vulnerable children, mothers, and babies from Central America who are seeking asylum and protection in the United States.

Even worse, Johnson explicitly admits that Executive Action was made possible by throwing asylum seekers under the proverbial bus. He writes:

In fact, the President’s new executive actions put added emphasis on the removal and return of individuals who are apprehended at the U.S. border or who came here illegally at any time after January 1, 2014. As a result of our executive actions, it is now more likely that if you come here illegally, you will be apprehended, detained, and turned back in accordance with our laws.

This is unacceptable, especially given that Jeh Johnson himself has committed multiple state and federal crimes against tens of thousands of children and babies who were tortured and abused while in CBP custody.

Jeh Johnson takes his attack even further on children and others fleeing harm in their native Central America by threatening to take away Deferred Action from anyone that deigns to save the life of a loved one by arranging for their unlawful entry into the United States:

Further, those who assist family members or others in entering the country illegally risk being removed from the program.

Here is our message to Mr. Johnson and President Obama:

Shame on you for continuing to harm children, babies, and adults who are fleeing to the United States to save their lives.

Shame on you for torturing my clients–most of them children and babies–who were subjected to brutal deprivation of food, sleep, shetler, clothing, and medical care, all the while shivering from freezing cold temperatures in CBP’s South Texas jail cells.

Our message to immigrants in the United States with family members who face death or serious harm in their native countries: Do what you need to do to save your family member’s life.

Pay no attention to the Obama administration’s attempts to deprive you and your family’s right to asylum or other protection in the United States.

Our law firm, along with thousands of additional immigration attorneys, are still here fighting to use existing U.S. law to save lives of children and adults who fled their home countries.

There will always be hope as long as there are those willing to fight for it.

“Jan. 21, 2015

Open Letter Concerning Illegal Migration into the United States By Secretary Jeh C. Johnson La Opinión

In November President Obama announced a series of executive actions to fix the broken immigration system in this country. In December, the President announced that the United States government will begin a process of normalizing relations with Cuba. Both these actions are bold and historic changes to U.S. government policy. However, neither means a change in this government’s policy toward illegal migration. It is still the case that our borders are not open to illegal migration. In fact, we are taking additional measures to prevent illegal migration, now and in the future.

One of the executive actions President Obama announced on November 20 was a new program for certain undocumented people who have lived in this country for years to come out of the shadows, be accountable, and become taxpayers. We are developing this program now and will be accepting applications in the near future. But, it is important to know that this new program is only for those undocumented people who have lived in this country for five years, who have committed no serious crimes, and who have children who are either U.S. citizens or lawful permanent residents in this country. This new program is not available for someone who came less than five years ago or comes here illegally in the future. Further, those who assist family members or others in entering the country illegally risk being removed from the program.

In fact, the President’s new executive actions put added emphasis on the removal and return of individuals who are apprehended at the U.S. border or who came here illegally at any time after January 1, 2014. As a result of our executive actions, it is now more likely that if you come here illegally, you will be apprehended, detained, and turned back in accordance with our laws.

At the same time, the United States government is creating an alternative, lawful path for children at risk of harm in Central America to come to the United States: if you are an adult lawfully in the United States, you may apply to bring your child from Guatemala, El Salvador or Honduras to the United States, provided the child can qualify for refugee or parole status under our laws. Parents in the United States can now file a form with the Department of State to request a refugee interview of their child in Central America. More information about this program can be obtained at http://www.state.gov/j/prm/releases/factsheets/2014/234067.htm.

Children in Central America looking for family and a safer life in the United States must be encouraged to take a lawful, safe path, and discouraged from the unlawful, dangerous path through Mexico, in the hands of a criminal smuggling organization. Last summer I personally saw hundreds of children who made that journey. It brought tears to my eyes. No child should ever face that ordeal; it is not for children.

Finally, the President also took historic steps to chart a new course in our relationship with Cuba and empower the Cuban people. But, the eventual establishment of diplomatic relations with Cuba does not mean a change in our current immigration policy toward Cuba, reflected in the so-called “Wet Foot/Dry Foot” policy or the Cuban Adjustment Act. Here again, we continue to seek to promote safe, legal and orderly migration from Cuba under our Migration Accords and deter dangerous unlawful migration from Cuba. We will continue to return to Cuba those migrants interdicted at sea attempting to come to this country illegally. For this purpose, we have recently sent additional Coast Guard cutters to aggressively patrol the Caribbean and Florida Straits to interdict migrants traveling from Cuba or Haiti to the United States by water. As a result, it is now more likely that if you attempt to come to the United States illegally from Cuba or Haiti you will be interdicted and returned in accordance with our laws.

It is important for the public to understand the President’s executive actions, including who will qualify for these programs and who will not. We will continue to secure our borders, and promote a legal and safe system of immigration.”

Newsday: “Lawyers want prosecution of feds over immigrant kids’ detention”

Below is an article that was published in today’s Newsday regarding our request for prosecution of DHS Secretary Jeh Johnson and former DHS Secretary Janet Napolitano for committing the federal crime of “Deprivation of Rights Under Color of Law” against our clients.

Lawyers want prosecution of feds over immigrant kids’ detention
January 15, 2015 by VÍCTOR MANUEL RAMOS / victor.ramos@newsday.com

In this June 18, 2014, file photo, detainees
Long Island attorneys representing children who entered the country illegally as unaccompanied minors and say they were held for days in cold cells without adequate food or care are formally calling on a federal prosecutor in Texas to file criminal charges against the nation’s top immigration officials because of the alleged mistreatment.

The lawyers, who have represented scores of immigrant children resettled on Long Island, said their clients and other detained children, some less than a year old, were held in deplorable conditions for longer than the 72 hours prescribed under a federal consent decree.

The children were locked in cells without adequate food and water, were not given medical attention, had to sleep on the floor and couldn’t take showers or bathe, they said.

Seeking criminal charges

Ala Amoachi and Bryan Johnson, partners in a Bay Shore firm that focuses on immigration issues, requested that U.S. Attorney Kenneth Magidson, of the Southern District of Texas, prosecute Department of Homeland Security Secretary Jeh Johnson and former DHS Secretary Janet Napolitano “for committing the federal crime of Deprivation of Rights Under Color of Law.”

The unaccompanied minors cited in the Dec. 30 request are a 17-year-old and her child from Honduras, who were among an estimated 53,000 youths illegally crossing into the United States at its border with Mexico during the fiscal year that ended in September, fleeing violence and poverty in Central America.

The wave of humanity triggered a crisis as state and federal authorities struggled to cope. President Barack Obama made an emergency $3.7-billion request to Congress to respond by increasing temporary detention capacity and speeding up cases through immigration court, but lawmakers did not approve it.

The Texas federal court district, based in Houston, is the jurisdiction where the mother and son were detained after entering the country in June. The lawyers’ request for prosecution also was filed as a complaint with the Department of Homeland Security’s Office of Inspector General and its Office for Civil Rights and Civil Liberties.

Their action is an unproven method of redress against top federal officials, several legal experts said.

Origins in slaves’ rights

The law is more than a century old — dating to the post-Civil War Reconstruction period — and was intended for use in enforcing the rights of freed slaves in the South. It traditionally has been employed in cases where the federal government is investigating state and local government officials, not against federal agencies, said Leon Friedman, a Hofstra University law professor who teaches constitutional law.

Gary Gildin, a law professor at The Dickinson School of Law of Pennsylvania State University, said it typically is used in prosecuting state and local government officials, including police officers, and “requires something that is incredible abuse or attracts such widespread publicity, like in the [Eric] Garner and [Michael] Brown cases, that the federal government feels compelled to act.”

The treatment of the minors was “outrageous,” said Amoachi, whose firm has more than 200 open court cases for immigrants who came to the U.S. as unaccompanied minors and are fighting deportation. “You have to think of them not as immigrants who are crossing illegally, but think of them as children . . . It really reflects very poorly on our country, and it is a violation of human rights.”

The request to Magidson focuses on the Department of Homeland Security as the lead oversight agency for immigration enforcement, including its U.S. Customs and Border Protection agency.

Magidson’s office, in a written response, said it could not discuss any such case.

“We cannot comment on the existence and/or status of an investigation, whether or not we have received a request for investigation and/or prosecution or any other information that is not otherwise a part of the official court record,” the statement said.

Homeland Security officials and the agency’s investigative arms did not respond to the allegations.

Jeh Johnson and Napolitano, the current and former Homeland Security chiefs, also did not respond to requests for comment.

Mother recounts suffering

The mother and child at the center of the Long Island lawyers’ mistreatment allegations now are living in Suffolk County with the woman’s parents. Of nearly 6,000 unaccompanied minors who came to New York State in the 2014 fiscal year, more than 3,000 were released to relatives or sponsors in Nassau and Suffolk counties.

The lawyers withheld their clients’ names to protect them.

The mother, in an interview, said she and her son, then 9 months old, left Honduras and rode buses for 10 days to arrive in late June at the border. After floating across the Rio Grande on a raft, she and her child were apprehended and held at two locations somewhere near Hidalgo, Texas, for 10 days. In each place, they were locked in a small room that other immigrants have come to call a hielera, Spanish for icebox, with nothing but a concrete bench and a toilet.

The cells were so cold, she said, that they “had trouble breathing,” and they slept on the floor without blankets. The food was scarce, cold and unpalatable, and her son dropped weight, going from 23 to 15 pounds over their time in the cells.

She was afraid to ask for help, she said, because she heard the guards yelling at other detainees.

“I didn’t want to live anymore,” the young woman said in Spanish. “They treat us like criminals, just because we come seeking safety and something better for the future.”

Ultimately, she was released to a shelter and, about a month later, to her parents on Long Island.

María Magdalena Velázquez, 19, a native of El Salvador who is another client of the Bay Shore attorneys, spoke of facing similar conditions after she crossed the border in June with her 1-year-old son, Marvin. Velázquez eventually was resettled in Brentwood.

The cells in which they were held were filthy, she said. The first one was too hot and crowded with other mothers and children. Then, she and her child were in a cell by themselves that “was super-cold and had us shivering” for five days.

Her boy was running a fever and started vomiting shortly after their release, Velázquez said.

“I was really scared that day,” she said in Spanish.

In another case, an 8-year-old girl from El Salvador, whose parents asked that her identity be withheld, was held in cold jail cells for 15 days.

The girl, now living in the Town of Huntington and attending the second grade, said in Spanish that she thought “that I never was going to get out and I felt very bad.”Their experiences resemble those of others, which prompted an ad hoc hearing before members of Congress in July and spurred national advocates to seek improved conditions and better legal representation for the minors.

Strategy a new legal tack

The approach taken by Amoachi and Bryan Johnson appears to be a new legal tack. Other attorneys and immigrant advocates said they have not heard of any prosecution relating to unaccompanied minors’ treatment based on the “deprivation of rights” statute.

Phil Bridgmon is a criminal justice professor at Northeastern State University in Oklahoma who co-authored a scholarly article surveying prosecutions under the statute between 2001 and 2006.

While the law “is certainly usable in prosecuting federal officials,” he said, it mostly has been employed against police and correction officers.

“You have to show the deprivation of rights was intentional and that the individual was aware to have both intent and motive,” Bridgmon said.

A broader complaint about border detention cases was submitted to DHS investigators in June by a coalition of national immigrant-advocacy groups led by the American Civil Liberties Union.

That report identified 116 instances in which immigrant children in federal custody reported verbal, sexual and physical abuse, as well as squalid conditions and cold jail cells.

The complaint led to visits and reports on detention conditions from the Department of Homeland Security’s Office of Inspector General and initiated other agency investigations that still are pending.

In October, DHS Inspector General John Roth said in a statement that the border protection agency “improved its capacity to provide medical screening, facility cleaning, food service and case processing for large groups” of minors.

ACLU staff attorney James Lyall, with the group’s Border Litigation Project in Arizona, said the federal government’s response has been inadequate.

“They claim that the investigation is ongoing, but we haven’t been contacted by investigators and, frankly, DHS oversight agents have a track record of ignoring and failing to respond to complaints,” Lyall said. “In the few instances where any agent was disciplined . . . the disciplinary action consisted of additional training.”

The lack of significant reforms and accountability is why the Long Island immigration attorneys say more drastic measures are needed. The cases should be considered as matters of criminal law, they said, because the Department of Homeland Security and its agencies allowed detention conditions to deteriorate despite a multitude of complaints.

“If these kids were harmed in this way in any other context,” Bryan Johnson said, “they would be arrested for child abuse.”

Prosecute Jeh Johnson For Crimes Against Children in DHS Custody

The following document is a request made to the U.S. Attorney for the Southern District of Texas to prosecute DHS Secretary Jeh Johnson and fomer DHS Secretary Janet Napolitano for the federal crime of Deprivation of Rights Under Color of Law, 18 U.S.C. § 242 against two of our minor clients, a 17 year old mother and her 1 year old son.

I encourage other attorneys and advocates to make similar requests for children who have been victims of egregious deprivation of adequate food, clothing, shelter, and medical care in the custody of DHS in 2013 and 2014.

Obama’s torture of a 9-month-old baby

Below is an affidavit of a teen mother who was forced to endure 10 brutal days in freezing cold jail cells with her 9-month-old baby.

The affidavit will be used to legally bar the Obama administration from deporting her and her baby in a motion to terminate.

The baby was very sick during 10 days in border patrol’s jails with a fever and severe congestion.

He did not receive any medical treatment for 10 days straight. He did not eat anything solid for 10 days straight. As a result of this brutal deprivation of basic necessities, the 9 month old baby lost approximately 35 percent of his body weight.

Thus far, there has been no one held accountable for the crimes committed against this teen mom and her baby boy.

We will continue to expose Obama’s systematic torture of children and babies in DHS custody over the past few years until those responsible are held accountable for their egregious violations of both civil and criminal law.

Here is the full, redacted affidavit

Obama’s Torture of Children at the Border

The following document is a legal request made to an immigration judge to terminate the deportation of our unaccompanied child client.  Under United States law, we believe that DHS’s egregious violations of the legal and human rights of our client should legally bar ICE from pursuing her deportation.

This week the U.S. Senate released a scathing report on how the CIA participated in torture of individuals suspected of terrorism during the Bush administration.

President Obama condemned the “techniques” that “did significant damage to America’s standing in the world and made it harder to pursue our interests with allies and partners.”

He concluded that he hopes the report “can help us leave these techniques where they belong — in the past,”

Some of the CIA’s techniques (i.e. torture) included depriving detainees of sleep for up to a week.

From the New York Times: 

One clandestine officer described the prison as a “dungeon” and another said that some prisoners there “literally looked like a dog that had been kenneled.”

Under the Obama administration, DHS has treated unaccompanied minors in border holding cells in many of the exact same ways that the CIA has terrorist suspects under the Bush administration.

From the words of a 15 year old girl who was a victim:

She lost significant weight and was extremely weakened as a result of the almost total deprivation of food, water, sleep, clothing, and medical assistance during her time in DHS custody. She could have suffered irreparable physical injury from the acute lack of sufficient water and food for a 96 hour period. HHS officials also failed to provide Respondent with sufficient food and shelter for 7 consecutive days given that she was only able to eat cookies and juice, the temperatures in the shelter dropped to very cold temperatures at night, and the lights were kept on for 24 hours a day for 7 days straight.

Below is the full request to the immigration judge. If you are an attorney of accredited representative, please feel free to use this motion as a template to help your clients.

ICE To Continue Deportations of Parents Eligible for Deferred Action Until January 5, 2015

In May of 2014, Justin, a 4 year old U.S. citizen, asked ICE to release his dad, who is still detained and at risk of deportation despite being eligible for the new Deferred Action.

In May of 2014, Justin, a 4 year old U.S. citizen, asked ICE to release his dad, who is still detained and at risk of deportation despite being eligible for the new Deferred Action.

Yesterday President Obama released the details of f Executive Action for parents of certain U.S. citizen and lawful permanent resident children.

One of our clients, Wilfredis Ayala Castillo, has been detained for more than 9 months by ICE after his request for a stay of removal was denied by ICE in March of this year. Wilfredis qualifies for the new form of Deferred Action because he is the father of a U.S. citizen child, 4 year old Justin, has resided continuously in the United States since before January 1, 2010, and has no criminal convictions.

Yet ICE continues to pursue his deportation.

Today, I sent a request to the ICE Field Office in New Orleans for his immediate release pursuant to DHS Director Jeh Johnson’s November 20, 2014 Deferred Action Memorandum (“DA Memo”.)

On page 5 of the DA Memo, Director Johnson states that individuals would likely be able to start sending in applications for deferred action in approximately 6 months. In the next paragraph, Johnson makes three clear instructions to DHS agencies in three consecutive bullet points, including the following, which was listed first:

“ICE and CBP are instructed to immediately begin identifying persons in their custody…who meet the above criteria and may thus be eligible for deferred action to prevent the further expenditure of enforcement resources with regard to these individuals.”

In other words, ICE is instructed to release individuals from detention if they appear to qualify for deferred action.

However, an Assistant Field Office Director in New Orleans ICE stated that he was not sure if Wilfredis could be released because there was not sufficient guidance from ICE headquarters. The ICE officer cited to Jeh Johnson’s November 20, 2014 Prosecutorial Discretion Memorandum(“PD Memo”), which does not address the new Deferred Action program for parents of U.S. citizen children and lawful permanent residents.

In the PD Memo, Paragraph E on Page 6 states that: “The revised guidance shall be effective on January 5, 2015″ The same paragraph goes on to clarify that the guidelines will only be applied to individuals who have not yet been removed from the United States.

From looking at both the PD Memo and the DA Memo, it is clear that the PD Memo is meant to apply to individuals not covered by the DA Memo.

The PD Memo specifically states that any individual who entered the United States after January 1, 2014 is a top priority for removal for the United States. After outlining the 3 categories of priorities for removal, the PD Memo briefly re-iterates well-established guidelines on when one should be granted prosecutorial discretion, such as whether one is seriously ill, is the primary caretaker of a young child, or is pregnant.

Between the lines, one must conclude that individuals who do not qualify for any new Deferred Action but entered before January 1, 2014 are not a priority for removal and therefore are more likely to be granted prosecutorial discretion.

The PD Memo was only meant to apply to those eligible for Deferred Action insofar as to clarify who would be disqualified from Deferred Action by, in effect, being a terrorist, spy, convicted felon, or posing a danger to national security.

Justin has suffered so much. He has not had his dad with him for more than 9 months. Yet ICE will not obey a clear directive that he be released immediately.

How many other ICE officers will continue to pursue the deportation of parents of U.S. citizens and lawful permanent residents by ignoring Obama’s new executive orders? Will ICE ratchet up deportations until 2015? It appears so.

Please give ICE Director Winkowski’s office a call  at 202-732-3100 to request the immediate release of Wilfredis Ayala Castillo. Sample script:

I am calling to request Wilfredis Ayala Castillo’s (A # 098-651-976) release from detention immediately. He qualifies for the new deferred action because he is the father of a U.S. citizen child, has never been convicted of a crime, and has resided continuously in the United States since 2005. The Deferred Action Memo instructs ICE to release all individuals who appear to qualify for Deferred Action so he should be released now!

BREAKING: New DHS Memorandum: “Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants.”

UPDATE: 

It is also important to read the new Memorandum on the expansion of Deferred Action, titled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Whose Parents are U.S. Citizens or Permanent.”
Residents http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf

We will have analysis on the below Memorandum as soon as possible.

Also, it is very important to stay abreast of developments on Executive Action by visiting http://www.uscis.gov/immigrationaction

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf

Follow

Get every new post delivered to your Inbox.

Join 30 other followers