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New York Times: “U.S. Setting Up Emergency Shelters in Texas as Youths Cross Border Alone.”

Though problematic because of its legally incorrect use of language to describe children migrants and other errors, Julia Preston of the NY Times wrote an important story today. The article is below, followed by our analysis:

With border authorities in South Texas overwhelmed by a surge of young illegal migrants traveling by themselves, the Department of Homeland Security declared a crisis this week and moved to set up an emergency shelter for the youths at an Air Force base in San Antonio, officials said Friday.

After seeing children packed in a Border Patrol station in McAllen, Tex., during a visit last Sunday, Homeland Security Secretary Jeh Johnson on Monday declared “a level-four condition of readiness” in the Rio Grande Valley. The alert was an official recognition that federal agencies overseeing borders, immigration enforcement and child welfare had been outstripped by a sudden increase in unaccompanied minors in recent weeks.

On Sunday, Department of Health and Human Services officials will open a shelter for up to 1,000 minors at Lackland Air Force Base in Texas, authorities said, and will begin transferring youths there by land and air. The level-four alert is the highest for agencies handling children crossing the border illegally, and allows Homeland Security officials to call on emergency resources from other agencies, officials said.

In an interview on Friday, Mr. Johnson said the influx of unaccompanied youths had “zoomed to the top of my agenda” after his encounters at the McAllen Border Patrol station with small children, one of whom was 3.

The children are coming primarily from El Salvador, Guatemala and Honduras, making the perilous journey north through Mexico to Texas without parents or close adult relatives. Last weekend alone, more than 1,000 unaccompanied youths were being held at overflowing border stations in South Texas, officials said.

The flow of child migrants has been building since 2011, when 4,059 unaccompanied youths were apprehended by border agents. Last year more than 21,000 minors were caught, and Border Patrol officials had said they were expecting more than 60,000 this year. But that projection has already been exceeded.

By law, unaccompanied children caught crossing illegally from countries other than Mexico are treated differently from other migrants. After being apprehended by the Border Patrol, they must be turned over within 72 hours to a refugee resettlement office that is part of the Health Department. Health officials must try to find relatives or other adults in the United States who can care for them while their immigration cases move through the courts, a search that can take several weeks or more.

The Health Department maintains shelters for the youths, most run by private contractors, in the border region. Health officials had begun several months ago to add beds in the shelters anticipating a seasonal increase. But the plans proved insufficient to handle a drastic increase of youths in recent weeks, a senior administration official said.

Mr. Johnson said Pentagon officials agreed this week to lend the space at Lackland, where health officials will run a shelter for up to four months. The base was also used as a temporary shelter for unaccompanied migrant youths in 2012. It became the focus of controversy when Gov. Rick Perry of Texas objected, accusing President Obama of encouraging illegal migration by sheltering the young people there.

Mr. Johnson said the young migrants became a more “vivid” issue for him after he persuaded his wife to spend Mother’s Day with him at the station in McAllen. He said he asked a 12-year-old girl where her mother was. She responded tearfully that she did not have a mother, and was hoping to find her father, who was living somewhere in the United States, Mr. Johnson said.

Mr. Johnson said he had spoken on Monday with the ambassadors from Mexico and the three Central American countries to seek their cooperation, and had begun a publicity campaign to dissuade youths from embarking for the United States.

“We have to discourage parents from sending or sending for their children to cross the Southwest border because of the risks involved,” Mr. Johnson said. “A South Texas processing center is no place for a child.”

Officials said many youths are fleeing gang violence at home, while some are seeking to reunite with parents in the United States. A majority of unaccompanied minors are not eligible to remain legally in the United States and are eventually returned home.

I am pleasantly surprised at Jeh Johnson’s swift action and his unequivocal message: The United States Government must not abuse children migrants regardless of the situation. Jeh Johnson is right that a South Texas Processing Center is no place for a child.

But his prior statement that parents of children must be discouraged from sending their children to cross the border because of the risks involved is not as straightforward as it sounds.

To be sure, the journey from Central America to the United States by land is extraordinarily dangerous. One minor client of ours was abducted right after crossing the U.S./Mexico border and held for ransom. Luckily, he was rescued after other victims escaped the house they were being imprisoned in and alerted authorities.

I could go on. But has Jeh  Johnson walked in the shoes of these children in their native countries of El Salvador, Honduras, and Guatemala, where the government is powerless to protect children from gangs and other predators?

The simple truth is this: There are often more risks for a child to stay in their native country than for them to take the journey to the United States.

More than half the children that walk through into our office did not live with their parents in their native countries. Without parents, children in Central America  are at an even higher risk of being exploited by powerful street gangs; sexual predators; and other bad actors.

The vast majority of Central American children who are brought to the U.S. unlawfully  have been abandoned by one  or both parent, or both, or their parents are residing in the U.S. to ensure their kids don’t go hungry.

PROBLEMATIC JOURNALISM

Minors do not have the sufficient intent to violate immigration law. Yet the first sentence in this article states:  “With border authorities in South Texas overwhelmed by a surge of young illegal migrants traveling by themselves…”(emphasis added.)

Minors are brought to the United States. They do not commit the act of violating the law. So why does the NY times permit this patently false description  of children fleeing their homelands? It’s frankly a bit perplexing.

Preston also uses the word “young”, which is itself problematic. An 18 year old is still young, yet they are clearly not a part of the class of individuals described in the article because they are not under 18.

The following example would be an accurate for the vast majority of children entering the U.S. at the border: “a surge in children brought to the United States unlawfully.”  Granted, some children flee with just the clothes on their back without telling any adult. Another alternative example would be this: ” a surge in minor children entering the United States without legal permission.”

The article concludes that  “the majority of unaccompanied minors are not eligible to remain legally in the United States and are eventually returned home.” Both of these conclusions are very problematic.

For example, the vast majority of Mexican unaccompanied minors are in fact deported  to Mexico within 48 hours of arriving in the U.S. Many deported Mexican minors are actually eligible for relief as special immigrant juveniles, refugees, victims of trafficking, or other means.

The fact that most Mexican children are deported does not mean that they were not eligible to remain legally in the United States.

Also, Jeh Johnson and Julia Preston seem to be ignorant of the fact that in 2012 DHS deported 14,000  unaccompanied Mexican children. U.S. authorities will claim that the children return to Mexico voluntarily but this is impossible given that they are minors. They did not come for a golf trip. They came to live in the United States.

However, the vast majority of Central American unaccompanied minors are not deported to their native country, regardless of whether they are eligible to remain in the U.S. legally. The reasoning is simple: DHS cannot deport children back to Central American countries within the 72 hours that they have to transfer the child to the custody of the Office of Refugee Resettlement.

In our experience, well over half of unaccompanied children from Central America are eligible for permanent residency in the U.S. through special immigrant juvenile status, asylum, or other means. Even if a child is not eligible to remain legally in the U.S., DHS cannot detain a minor under the age of 18. Therefore, once released, it would be near impossible for DHS to force a child to return to their native country.

Mayor Bill De Blasio: Another Fake Pro-Immigrant Politician

There has been a lot of talk about how Mayor Bill De Blasio is  more pro-immigrant than his predecessor. Reality tells a different tale.

In De Blasio’s State of the City address earlier this year, everyone applauded his warm words on undocumented immigrants. He promised that Municipal ID cards would be available to all residents of New York City regardless of their immigration status: “so that no daughter or son of our city goes without bank accounts, leases, library cards, simply because they lack identification.”

Veering away from the concrete, he concluded: “To all of my fellow New Yorkers who are undocumented, I say: New York City is your home, too, and we will not force any of our residents to live their lives in the shadows,”

Unless you are deported and ripped away from your family because of New York City’s voluntary cooperation with Immigration and Customs Enforcement (“ICE”.)

New York City likes to pretend more than act as pro-immigrant.

In 2013, Christine Quinn announced the passage of two bills that purported to stop a significant amount of individuals from being handed over to ICE, saying that:

“We have seen too many families torn apart by current detention and deportation practices. Our legislation will ensure that the city does not enable such a harmful policy.”

With great dismay, I realized that this legislation was mostly just for show: New York City would still hand over immigrants with outstanding orders of deportations and of persons previously ordered deported who returned unlawfully afterwards. The two latter classes of individuals make up the vast majority of persons deported from the U.S. In other words, New York City’s 2013 legislation did almost nothing to stem the destruction of immigrant families living in its neighborhoods.

And the data backs this up. The Department of Correction granted 73 % of all requests submitted by ICE and transferred 3000 people to ICE between October 2012 and September of 2013, according to a Daily News Article. 

Two of those 3000 were our clients, Werner and Oscar.  Neither had ever been convicted of a crime.

Oscar was abruptly torn away from his two infant twin girls after being arrested for having an open beer can. Werner was forcefully separated from his U.S. citizen wife and stepdaughter after being arrested on bogus charges after a traffic stop. All charges were dismissed.

Bill De Blasio is still complicit in destroying families like that of Oscar and Werner.

A recent campaign called ICE-Free NYC is requesting that the city to “refuse to allow ICE into city jails to look for people to deport. Also, they say, it should stop holding people once they have finished serving time for their conviction and have paid their debt to society — with no exceptions.”

De Blasio’s response was to repeat that it was immigrant friendly while not addressing the fact that it still cooperates with ICE to separating families for no reason. 

Maybe De Blasio should give Barack Obama a call. He is, after all, the ultimate fake pro-immigrant.

 

 

Guest Post: “The Revised Credible Fear Lesson Plan: Enough is Enough!”

Dree Collopy, AILA Refugee & Asylum Liaison Committee Chair and Partner at the Immigration Law Firm Benach Ragland LLP , wrote an excellent article today in response to DHS’s recent change in policy to make it harder for individuals fleeing persecution or torture to obtain protection in the United States.

Spread it far and wide:

“This is not just a blog post, but a call to action.  Over the past six months, we have seen dog-and-pony hearings by Congress and a series of administrative changes to our asylum system that have deviated from the United States’ longstanding obligations under domestic and international law to the detriment of bona fide refugees.  The most recent of these deviations is the U.S. Citizenship and Immigration Services (USCIS) Asylum Division’s revisions to its Lesson Plan on Credible Fear of Persecution and Torture Determinations.

Implicit in the core humanitarian purpose of U.S. asylum law is the requirement that it be as effective as possible in offering reliable protection to bona fide refugees.  While effectively protecting refugees may seem like a simple concept, the human rights considerations involved in U.S. asylum law often collide with the challenges involved in maintaining the integrity of the application process.  It is this collision that led to the development and implementation of the expedited removal and credible fear provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), which took effect on April 1, 1997.

Expedited removal was a direct result of the Congressional perception that individuals arriving at ports of entry with false or no documentation were abusing the asylum system.  Nonetheless, under U.S. asylum law – which was derived directly from international law – the government is prohibited from returning refugees to countries where they would face persecution.  In an attempt to address the potential for violations of this obligation of nonrefoulement through the implementation of the expedited removal process, the credible fear provisions were also enacted.  Under these provisions, rather than being subjected to immediate removal, an individual arriving at a port of entry who expresses a fear of persecution or torture will be referred to an asylum officer for a “credible fear” interview.  If the individual substantiates a “significant possibility” she could establish eligibility for asylum under INA § 208, the asylum officer will find her to have a credible fear of persecution.  Such a finding grants the individual her rightful day in court, allowing her to present a full asylum claim before an immigration judge in INA § 240 proceedings.

For those who have been following recent developments in U.S. asylum law and procedure, the rhetoric surrounding – largely unsubstantiated – claims that our asylum system is under attack by abuse and calling for sweeping changes that threaten the core humanitarian purpose of U.S. asylum law sounds all too familiar.  With a significant and steady influx of refugees fleeing the violence and turmoil stemming from the entrenchment of gangs and drug cartels in Central America, the human rights considerations involved in U.S. asylum law are once again colliding with the challenges involved in maintaining the integrity of our asylum system.  Unfortunately, this collision has resulted in a series of changes that have deviated from the United States’ longstanding obligations under domestic and international law to the detriment of bona fide refugees.

Over the past six months, we have seen border officers overzealously using expedited removal to deny individuals fleeing real persecution and torture the opportunity to seek asylum.  We have seen Congress focus its attention on a series of hearings entitled “Asylum Laws and Abuse,” designed to attack those seeking protection rather than the faulty implementation of the expedited removal and credible fear provisions by Customs and Border Protection and Immigration and Customs Enforcement.  We have seen the Board of Immigration Appeals, in Matter of M-E-V-G- and Matter of W-G-R-, dramatically increase the evidentiary burden on asylum-seekers while seeking to rationalize a legal test that is irreconcilable with U.S. obligations under domestic and international law.  And just last week, we saw the USCIS Asylum Division join in the backlash against the influx of refugees at our borders with a notable narrowing of the “significant possibility” standard for credible fear determinations made by its asylum officers.  Is anyone else out there thinking, “Enough is enough!?”

In this most recent development, USCIS revised its April 14, 2006 Lesson Plan on Credible Fear of Persecution and Torture Determinations, which it uses to train asylum officers.  In releasing the revised Lesson Plan, USCIS issued a memorandum describing the changes and the reasons for these changes (see AILA InfoNet Doc. No. 14041845).  In explaining the need for these revisions, USCIS notes the significant increase in credible fear referrals to the Asylum Division and its need to allocate more resources to credible fear adjudications than ever before.  Instead of recognizing that this increase in resources devoted to credible fear adjudications may be due to the overall increase in individuals seeking protection at our borders, however, USCIS seemingly attributes this increase to its concern that “the application of the ‘significant possibility’ standard has lately been interpreted to require only a minimal or mere possibility of success.”  Although USCIS claims that “these modifications…do not change the ‘significant possibility’ standard or alter the screening function of the credible fear process,” in practice these revisions will considerably narrow the longstanding “significant possibility” standard.

The main problems with the 2014 Lesson Plan stem from deviations that thwart the legislative intent behind the expedited removal and credible fear provisions.  The legislative history of IIRAIRA indicates that Congress intended the credible fear provisions to be a safety net and the “significant possibility” standard to be a low standard that would catch any potential refugees in that net.  The 2006 Lesson Plan previously included several explicit references to this intent, but in the 2014 Lesson Plan, all such references have been removed.

Moreover, Congress intended the credible fear process to serve as a threshold screening mechanism for protection claims to ensure that, in its implementation of the expedited removal provisions, the United States was still abiding by its longstanding obligation under domestic and international law not to return an individual fleeing persecution to his or her persecutor.  The credible fear process was not intended to be a full assessment or adjudication of an asylum claim, but rather, a gateway to the full assessment and adjudication process.

Contradicting this Congressional intent, the 2014 Lesson Plan: (1) directs officers to apply the significant possibility standard through the lens of a full adjudication, (2) emphasizes that a claim that has only a minimal or mere possibility does not meet the “significant possibility” standard, (3) creates a three-prong test that did not exist in the previous 2006 Lesson Plan standard, requiring the asylum-seeker’s testimony to be “credible, persuasive, and…specific”, and (4) includes extensive statements of the current regulations and case law, similar to those discussions included in the Lesson Plans on full asylum assessments and adjudications.  These changes seem to require an asylum officer to complete a full assessment of the asylum-seeker’s potential asylum or Convention Against Torture (CAT) claim, rather than a safety net preliminary screening for a potential refugee.

These changes are likely to yield confusion among asylum officers, as well as a blending of the credible fear standard with the full asylum and CAT standards.  Furthermore, they will likely lead to officers applying prohibitively high standards during credible fear interviews, creating yet another source for the increasing number of bona fide refugees who are denied the opportunity to seek asylum in the United States.  Finally, since these changes are likely to generate assessments that are closer to full asylum and CAT adjudications than screenings for potentially successful claims, these changes are ironically likely to cost USCIS even more time, money, and resources.  Notably, USCIS did not consult key non-governmental organizations or non-governmental stakeholders during its revision process.

Although these Lesson Plan revisions may seem minor in the grand scheme of our broken, punitive, and increasingly unworkable immigration system, to me, they signify another drastic deviation from our system’s founding principles and legal obligations.  I don’t know about you all, but for me, “Enough is enough!”  As another AILA year concludes and a new AILA year begins in June in Boston, let us re-commit ourselves to working together on all fronts.  Only together can we fill the next six months with developments that restore protection for bona fide refugees and renew our obligations under domestic and international law, while still maintaining the integrity of our asylum system.  This is not just a blog post, but a call to action.”

 

Telemundo Captures Teen’s Joyful Family Reunion After 7 Months in ICE Prison

Despite Maria Pena Rodas’s eligiblity for a green card as a special immigrant juvenile (“SIJS”), ICE considered her a priority for deportation, locking her up for 7 months.

Yesterday, Maria was reunited with her family in New York after ICE released her detention. She is now  just months away from receiving her green card based on SIJS.

Diego Arias of Telemundo’s “Al Rojo Vivo” was there to capture the happy moment:

Stay of Removal Granted For Special Immigrant Juvenile Detained More than 6 months!

The approval notice of Maria's stay of removal.

The approval notice of Maria’s stay of removal.

ICE tried very hard to deport Maria Pena Rodas, a 19 year old who has always been eligible to obtain her green card as a special immigrant juvenile (“SIJS”). Even after the New York Daily News and Telemundo exposed ICE’s harsh policy towards Maria and others in her situation, ICE steamed forward in its core “business of removal.”

Thankfully, ICE forced us to think hard and creatively on how we could keep Maria here and obtain her permanent residency through SIJS despite her being detained by ICE across the country in California.

Racing against the clock–Maria was scheduled to be deported on March 25–we convinced a Family Court judge in Suffolk County that she had jurisdiction to appoint Maria’s uncle as her guardian and to issue a special findings order.  These Family Court orders made Maria immediately eligible to qualify for her green card as a special immigrant juvenile.

After obtaining the orders, we immediately filed a stay of removal with ICE the following day, which was enough to cancel her deportation while a decision was pending.

Today, we received the great news that the stay of removal was approved and she will be on a flight to NY to be reunited with her uncle tomorrow. 

She will likely be a permanent resident of the United States within 6 months.

In case you were wondering about how a NY court had jurisdiction to appoint a guardian over a child detained in California, here is how:

“Pursuant to SCPA § 1702(2), where an infant is a ‘non-domiciliary of the state but has property situate in that country’ the court ‘may appoint a guardian of his person or property, or both.’”

Maria’s family created a trust account for her in Suffolk County, New York, thereby giving the Family Court jurisdiction to appoint a guardian over her person and property.

 

Our detained client at GEO center in Texas: “Maggots in the food caused us to start on a hunger strike.”

Our detained client, Angel Guillen, who is only 18 years old and eligible for a green card as a special immigrant juvenile, was a participant in the ongoing hunger strike at the Joe Corley Detention Facility, owned and operated by the GEO Group. (P.S. Please sign his petition for release from detention)

In a phone call today, Angel informed us that he and others decided to start a hunger strike because there were maggots in the food served at the facility.

When the detainees complained to someone at the facility about the maggots, they were told that nothing would be done because no one cares about them.

Today I spoke to the warden at Joe Corley, who told me that there were never any maggots in the food. The warden further stated that the hunger strike was only in response to detainees’ immigration concerns.

We believe our client, who gave up on the hunger strike when he saw many others who were unable to continue. According to the Warden, 12 detainees remain on hunger strike as of today.

 

A Glimpse of ICE’s True Priorities: Parents of U.S. citizen children with no criminal record.

The Obama administration always speaks of how ICE prioritizes dangerous criminals for deportations. This is not true. Look at the following footage of our client, Wilfredis Ayala Castillo, who is the sole financial support for his 4 year-old U.S. citizen son, Justin. Wilfredis has no criminal history.

On March 22, 2014, ICE headquarters  informed us that they concurred with the Newark Field Office’s decision to deny Wilfredis’ request for prosecutorial discretion. Securing deportations should not be more important than the lives of U.S. citizen children like Justin.

Please take a moment to sign a petition on Wilfredis’ behalf to stop his deportation. http://action.dreamactivist.org/newjersey/wilfredo/

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