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Judge Ordered DHS To Continue To Deport DAPA Eligible Individuals

In a recent interview with MSNBC host Jose Diaz-Balart, President Obama was asked how he would ensure that individuals who would be eligible for Deferred Action would not be deported in light of Judge Hanen’s February 16, 2015 injunction of DAPA and expanded Daca.

Obama responded: 

José, look, the bottom line is, is that if somebody is working for ICE and there is a policy and they don’t follow the policy, there are going to be consequences to it.  So I can’t speak to a specific problem.  What I can talk about is what’s true in the government, generally.

In the U.S. military, when you get an order, you’re expected to follow it.  It doesn’t mean that everybody follows the order. If they don’t, they’ve got a problem.  And the same is going to be true with respect to the policies that we’re putting forward.

The President is either not being honest or he did not read Judge Hanen’s order, which enjoined ICE from “implementing any and all aspects or phases of the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program as set out in…Jeh Johnson’s memorandum dated November 20, 2014.”

Judge Hanen’s order is unequivocal: every aspect of the November 20, 2014 memorandum is frozen, including the critical part that instructed CBP and ICE to refrain from removing individuals who appeared eligible for DAPA or expanded DACA.

In other words, Judge Hanen ordered ICE and CBP to continue to remove individuals who are DAPA eligible if they do not fall under existing prosecutorial guidelines.

President Obama must issue a new order or memorandum to prevent DAPA eligible individuals from being removed from the United States.

Obama’s Rocket Docket For Unaccompanied Children Is Illegal

Last week, a federal judge ordered a preliminary injunction against the Obama administration’s policy of locking up all Central American mothers and children in order to send a message to other migrants that they should not come to the U.S.

A similar injunction may be possible to stop the Obama administration’s “rocket docket” policy of expediting the removal proceedings of all unaccompanied minors who entered the U.S. after 2014.

The rocket docket’s purpose is to send a message to future unaccompanied minors that they will be removed from the United States. The consequences of this policy are already apparent: more children are being ordered removed.

The reason more are being removed is basically two-fold: 1. Children are given less time to find an attorney to represent them; and 2. There are not enough attorneys–both private and non-profit–to accommodate  the volume of cases being pushed through the court at such an unprecedented pace.

As attorneys that are representing hundreds of children on the rocket docket in New York city, I have witnessed first hand how it has weakened the due process protections for all unaccompanied children, whether they have an attorney or not.

For those that do have attorneys, the latter are being pushed to the limit given the time constraints the rocket docket has created. We are not given substantial time to prepare cases for asylum, for example, and are unable to represent as many individuals as we would be able to if the cases were not being rushed so much.

The numbers back this up.

In FY2014, out of the 1208 uac cases decided who had an attorney, 16 % and 15 % resulted in a removal order and voluntary departure, respectively.

In FY2013, before the surge, of the 3710 cases decided who had an attorney, 9 % and 11 % resulted in a removal order and voluntary departure, respectively.

It gets worse. In FY 2014, of the 4778 cases decided without an attorney, 88 % and 2 % resulted in removal orders and VD orders, respectively.

For FY 2013, of the 4623 unrepresented uacs, 74 % and 4 % resulted in a removal order and VD.

The clincher is how many children are being left without an attorney at all in since the surge began. In FY2014, only 20 % of the 42857 pending cases had an attorney.

In FY2013, 46 % of  the 13,373 pending cases had an attorney.

The surge docket’s purpose is identical to the blanket detention policy: to send a message to future unaccompanied children from Central America that they will be deported if they come to the United States unlawfully.

The 2008 Trafficking Protection Law makes it clear that Congress intended to offer more procedural and substantive safeguards to unaccompanied minors from non-contiguous countries than anyone else in removal proceedings. 

8 USC 1232(a)(2)(D) of the TVPRA states that all unaccompanied children with exception to Mexicans and Canadians, must be placed in removal proceedings and provided access to counsel in accordance with subsection (c)(5).

(c)(5) is what renders the priority docket unlawful because it orders HHS to do all in its power to provide representation for all unaccompanied minors who were ever in HHS custody. Here is (c)(5)

 “The Secretary of Health and Human Services shall ensure, to the greatest extent practicable and consistent with section 292 of the Immigration and Nationality Act (8 U.S.C. 1362), that all unaccompanied alien children who are or have been in the custody of the Secretary or the Secretary of Homeland Security, and who are not described in subsection (a)(2)(A), have counsel to represent them in legal proceedings or matters and protect them from mistreatment, exploitation, and trafficking. To the greatest extent practicable, the Secretary of Health and Human Services shall make every effort to utilize the services of pro bono counsel who agree to provide representation to such children without charge.”

The rocket docket flies directly in the face of DHS and HHS’s statutory obligations because it’s purpose is the opposite: to prevent children from having counsel so that they can be deported from the United States.

Obama’s Executive Actions: Paid For With The Blood of Central American Children Refugees


Deferred Action for the millions of individuals who will qualify under President Obama’s series of Executive Actions may have never been announced if it were not for the tens of thousands of children and young mothers who fled war zones of Guatemala, Honduras, and El Salvador in 2014.

In order to legally justify Executive Action, President Obama’s lawyers advised him that he could not ““‘consciously and expressly adopt[] a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4 (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (en banc));”

At the same time, the Supreme Court of the United States has long recognized that the Executive Branch has broad discretion in whether to enforce the immigration law with respect to individuals in unlawfully present in the United States.

For the President to exercise discretion, he must be able to show there are more important priorities for enforcement of the immigration laws than the individual or individuals who are the beneficiaries of discretion.

Otherwise, the President would in effect be re-writing the laws and his actions could be construed as  abdicating  his responsibility to carry out his duties as the executive.

In DHS Secretary Jeh Johnson’s November 20, 2014 Deferred Action Memorandum, the importance of prioritization as a means to enable prosecution discretion was emphasized at in the very first paragraph:

“Due to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. “

The expansion of Deferred Action to several million undocumented individuals appeared to be huge victory for the immigrant community. But there was a caveat: Every person who unlawfully came into the U.S. after January 1, 2014 would be showered with the full might of DHS’s detention and deportation machine.

The New World: Where Deporting Children Is More Important Than Deporting Adults

Starting November 20, 2014, anyone who unlawfully entered the United States after January 1, 2014 is among the highest priority for removal from the United States.

Although Jeh Johnson states that these individuals “must be prioritized unless they qualify for asylum or another form of relief under our laws”, the reality is that the Obama administration is prioritizing everyone  in this category regardless of whether they qualify for relief under U.S. law.

Starting in August of 2014, DHS and the Immigration Courts created a special court to rush the removal proceedings of unaccompanied children as well as family units who unlawfully entered the United States after January 1, 2014.

Although close to 90% of unaccompanied minors in this special court are eligible for permanent relief such as Special Immigrant Juvenile Status or asylum, the Obama administration has decided that they should be removed anyway, and that they be removed now.

The Rocket Docket 

We represent close to 300 unaccompanied minor immigrants, many of whom are in the special immigration court.

We represent these children almost every day at the immigration court in Manhattan.

There are 3 judges in the New York court tasked with exclusively hearing the cases of unaccompanied minors and family units. The thousands of cases on these judges calendars were suddenly in effect administratively closed upon the motion of President Obama.

Additionally, most of the immigration countries in the country have been sent on special tours to serve as a judge for detained individuals near the U.S./Mexico border.

Just within the last couple of weeks, we were informed of what happened to the suspended cases: they were scheduled for the year 2019.

Adults who did not enter with children are having their deportations deferred to make room for the acceleration of deporting all children and family units who came to the United States unlawfully after January 1, 2014.

Government data makes it clear that an unaccompanied minor without legal representation has a approximately an 80 percent chance ordered removed from the United States. With legal representation, close to 80 percent were able to remain in the United States.

The end result is that over half of the children and family units who are eligible to remain in the United States may be ordered removed because there is not enough legal representation, both private and non-profit, available to meet the demand of representing tens of thousands of individuals within just a matter of months.

However, current U.S. law makes it impossible for President Obama to realistically deport even a small percentage of the tens of thousands of unaccompanied Central American children who entered the U.S. in 2014.

The “Rocket Docket” is a ruse because the purported goal is not achievable regardless of how much resources are spent on enforcement.

In 2008, Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act, which greatly expanded procedural and substantive protections for minor immigrant children unlawfully in the United States.

Because of the change in law, the vast majority of the children that came both unaccompanied and accompanied in 2014 are eligible to remain in the United States as special immigrant juveniles or as asylees.

Moreover, DHS cannot expeditiously remove any unaccompanied children arriving from Central America because it must transfer every child to the custody of Health and Human Services (“HHS”) within 72 hours of apprehension. Once a child is in HHS custody, tHHS  must attempt to reunify the child with his or her parents or closest relatives living within the United States and give the child a right to a hearing before an immigration judge.

In other words, it is virtually impossible for the Obama administration to remove even a small fraction of the unaccompanied children who entered the United States in the year 2014.

Even if the Obama administration obtained a removal order for every child in immigration court in 2014, it would be practically impossible for ICE to enforce the immigration judge’s orders because conducting massive raids where children are arrested and ripped away from family would be a public relations catastrophe and a recipe for unspeakable child abuse.

So why is the Obama administration spending so many resources on deporting a class of individuals Congress has, through procedural and substantive changes in the law, declared to be undeportable?  To create a poor pretext for the legal justification behind the expansion of deferred action to millions of individuals.

When a child or baby comes with an adult, the Obama administration has not only been willing to spend millions of dollars, but also willing to criminally harm thousands of children and babies by locking them up in dangerous jails.

The Imprisonment of Babies

In October of 2014, top Senate Democrats, including Patrick Leahy, Harry Reid, Dick Durbin, and Charles Schumer, wrote a letter to President Obama expressing grave concerns regarding his decision to expand  and make family detention permanent. The Senators wrote that they believed the use of the Artesia facility and the refurbishing of Karnes County Detention Center was to be temporary.

The Senators emphasized that the construction of the new mega-jail–the biggest immigration detention in the country with a capacity of 2400 bed–in Dilley Texas made it look like the practice of locking up young children and their mothers would now be a permanent fixture in the United States.

The following excerpt summarizes the Senators’ position: 

We are troubled by your apparent decision to make permanent and greatly expand the policy of family detention against the backdrop of these problems.

We are also troubled by the decisions that are helping drive the demand for additional family detention beds, particularly the administration’s current practice of seeking expedited review and detention for all mothers and children arriving from Honduras, El Salvador, and Guatemala, regardless of their individual circumstances and asylum claims.

Indeed, the Senators had good reason to believe that the use of family detention was to be a temporary measure to address the unprecedented increase in mothers with children fleeing Central America for the United States.

In a July 31, 2014 press release, Jeh Johnson stated that Karnes and Artesia would  “…provide temporary facilities for adults with children while they undergo removal proceedings…”

But all along it appears that the Obama administration had turned the purported Central American immigration crisis in its favor as a launching board to legally justify an unprecedented expansion of deferred action for undocumented immigrants in the United States.

On September 22, 2014, ICE announced the birth of the South Texas ICE Detention Center located in Dilley, Texas.

The facility would ultimately be able to house up to 2400 human beings, all of whom would be adults accompanied by their minor children.

In December of 2014, Jeh Johnson spoke outside of the Dilley facility to announce its opening and ensured that the New York Times was present to hear his boss’s new priorities: refugee women and children would be the highest priority for detention and removal from the United States.

Mr. Johnson also ensured that the public knew that family detention would require the expenditure of significant resources: $296.00 a day for each individual. At its full capacity, the detention center would cost over $700,000.00 per day and nearly $260 million annually.

Only days later, ICE secured the expansion of the Karnes Jail from 600 to 1200 bed.  Karnes would cost approximately $355,000.00 a day and almost $130 million annually to operate at full capacity.

Therefore, the cost of family detention alone could run up to $400 million a year.

DHS’s 2015 budget elucidates how the Obama administration is buttressing the legal foundation to its executive action by a radical shift of resources from its regular detention and deportation business to that of the attacking the family unit.

For 2015, the actual number of detention beds was reduced by just over 10 percent from 34,000.00 down to 30,539.00. Yet at the same time the amount of beds for children and their mothers rocketed upwards from 100 to 3700 in less than a year.

Over 12 percent of the detention beds available to ICE in 2015 are dedicated to locking up babies, children, and their mothers. A year earlier, only 0.29 percent of ICE’s beds were allocated for the same purpose.

The cost of detention is only one part of the budget that is being reshuffled to detain babies and their children fleeing war zones in Central America.

Prioritizing Detention and Deportation Of Individuals Congress Intended To Protect

Over half of the children and their mothers from Central America who have fled to the United States in 2014 will be eligible to remain in the United States permanently under United States law through asylum and special immigrant juvenile status.

Yet the Obama administration has declared war on all of these individuals regardless of whether they are eligible to remain here permanently under our laws.

The justification behind the series of executive actions announced on November 20, 2014 is an abdication of the President’s statutory obligations. Against the intent of Congress–through its expansive legislation that aims to protect asylum seekers and children who have been abused, neglected, or abandoned–President Obama has unilaterally declared that this vulnerable group of people should be prioritized for detention and removal over that of individuals that Congress has not intended to protect through any form of legislation: specifically undocumented individuals with U.S. citizen or LPR children unlawfully in the United States.

The Just and Lawful Approach To Executive Action

Executive Action can still be done lawfully, but it requires a different justification.

The June 15, 2011 Prosecutorial Discretion memorandum (“Morton Memo”) was supposed to protect roughly the same individuals who stand to benefit from the expansion of deferred action: individuals with substantial equities in the United States with no criminal records.

However, the Morton Memo was for the most part a failure because the guidelines were not enforceable when applied to enforcement bureaucrats actions in the real world. Many of our clients were clearly eligible for prosecutorial discretion yet were denied because of  erratic enforcement in the field.

As such, enforcement resources were not being spent on ICE’s so-called higher priorities of individuals who were convicted of serious crimes or who posed a serious risk to the public safety.

The only mechanism that would truly enable ICE to ensure the effective expenditure of resources to remove high priorities for removal is a deferred action program, which eliminates the waste of money spent on that was spent on individuals who were not listed priorities for removal.

Given that Executive Action as it is currently written unlawfully justifies its the prioritization of resources to detain and remove individuals that Congress intended to protect from deportation, President Obama should immediately 1. End the practice of detaining babies, children and their mothers; and 2. End the special expedited deportation courts for unaccompanied minors from Central America.

Our Formal Request For Prosecution of President Barack Obama for Federal Crime of Deprivation of Rights Under Color of Law Against Toddler and Mom

Below is our request made to the U.S. Attorney’s Office in the District of New Mexico to prosecute President Barack Obama for committing the federal crime of Deprivation of Rights Under Color of Law, 18 U.S.C. § 242, against our clients, Mateo and Katy, who are 1 and 23 years old, respectively.

Our formal request will follow after this brief excerpt:

…what the current President has done to Mateo, Katy, and hundreds of other young children, newborns, infants, and their mothers—intentionally depriving them of adequate medical care, food, and shelter to the point of causing serious physical and mental harm—is extraordinarily unconscionable and demands immediate redress through prosecution of the principal perpetrator, President Barack Obama.

Mateo suffered substantial and near-constant pain over half of the 72 days that he was detained in Artesia. He could have died to the his tender age and near constant infections due to his inability to isolate himself from other sick children and adults after he was treated at the hospital for pneumonia.

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

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 /

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.


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