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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.”


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.”

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

Fresh Off The Press: White House Fact Sheet on Executive Action

Also directly from White House:


November 20, 2014


FACT SHEET: Immigration Accountability Executive Action


The President’s Immigration Accountability Executive Actions will help secure the border, hold nearly 5 million undocumented immigrants accountable, and ensure that everyone plays by the same rules.  Acting within his legal authority, the President is taking an important step to fix our broken immigration system.

These executive actions crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay their fair share of taxes as they register to temporarily stay in the U.S. without fear of deportation.

These are common sense steps, but only Congress can finish the job. As the President acts, he’ll continue to work with Congress on a comprehensive, bipartisan bill—like the one passed by the Senate more than a year ago—that can replace these actions and fix the whole system.

Three critical elements of the President’s executive actions are:

  • Cracking Down on Illegal Immigration at the Border: The President’s actions increase the chances that anyone attempting to cross the border illegally will be caught and sent back.  Continuing the surge of resources that effectively reduced the number of unaccompanied children crossing the border illegally this summer, the President’s actions will also centralize border security command-and-control to continue to crack down on illegal immigration.
  • Deporting Felons, Not Families: The President’s actions focus on the deportation of people who threaten national security and public safety. He has directed immigration enforcement to place anyone suspected of terrorism, violent criminals, gang members, and recent border crossers at the top of the deportation priority list.
  • Accountability – Criminal Background Checks and Taxes: The President is also acting to hold accountable those undocumented immigrants who have lived in the US for more than five years and are parents of U.S. citizens or Lawful Permanent Residents.  By registering and passing criminal and national security background checks, millions of undocumented immigrants will start paying their fair share of taxes and temporarily stay in the U.S. without fear of deportation for three years at a time.


The President’s actions will also streamline legal immigration to boost our economy and will promote naturalization for those who qualify.

For more than a half century, every president—Democratic or Republican—has used his legal authority to act on immigration.  President Obama is now taking another commonsense step.  As the Administration implements these executive actions, Congress should finish the job by passing a bill like the bipartisan Senate bill that: continues to strengthen border security by adding 20,000 more Border Patrol agents; cracks down on companies who hire undocumented workers; creates an earned path to citizenship for undocumented immigrants who pay a fine and taxes, pass a background check, learn English and go to the back of the line; and boosts our economy and keeps families together by cutting red tape to simplify our legal immigration process.



Under the Obama Administration, the resources that the Department of Homeland Security (DHS) dedicates to security at the Southwest border are at an all-time high.  Today, there are 3,000 additional Border Patrol agents along the Southwest Border and our border fencing, unmanned aircraft surveillance systems, and ground surveillance systems have more than doubled since 2008. Taken as a whole, the additional boots on the ground, technology, and resources provided in the last six years represent the most serious and sustained effort to secure our border in our Nation’s history, cutting illegal border crossings by more than half.

And this effort is producing results. From 1990 to 2007, the population of undocumented individuals in the United States grew from 3.5 million to 11 million people.  Since then, the size of the undocumented population has stopped growing for the first time in decades. Border apprehensions—a key indicator of border security— are at their lowest level since the 1970s.  This past summer, the President and the entire Administration responded to the influx of unaccompanied children with an aggressive, coordinated Federal response focused on heightened deterrence, enhanced enforcement, stronger foreign cooperation, and greater capacity for Federal agencies to ensure that our border remains secure.  As a result, the number of unaccompanied children attempting to cross the Southwest border has declined precipitously, and the Administration continues to focus its resources to prevent a similar situation from developing in the future.

To build on these efforts and to ensure that our limited enforcement resources are used effectively, the President has announced the following actions:

  • Shifting resources to the border and recent border crossers. Over the summer, DHS sent hundreds of Border Patrol agents and U.S. Immigration and Customs Enforcement (ICE) personnel to the Southwest border, and the Department of Justice (DOJ) reordered dockets in immigration courts to prioritize removal cases of recent border crossers.  This continued focus will help keep our borders safe and secure.  In addition, Secretary Johnson is announcing a new Southern Border and Approaches Campaign Plan which will strengthen the efforts of the agencies who work to keep our border secure.  And by establishing clearer priorities for interior enforcement, DHS is increasing the likelihood that people attempting to cross the border illegally will be apprehended and sent back.
  • Streamlining the immigration court process. DOJ is announcing a package of immigration court reforms that will address the backlog of pending cases by working with DHS to more quickly adjudicate cases of individuals who meet new DHS-wide enforcement priorities and close cases of individuals who are low priorities. DOJ will also pursue regulations that adopt best practices for court systems to use limited court hearing time as efficiently as possible.
  • Protecting victims of crime and human trafficking as well as workers. The Department of Labor (DOL) is expanding and strengthening immigration options for victims of crimes (U visas) and trafficking (T visas) who cooperate in government investigations.  An interagency working group will also explore ways to ensure that workers can avail themselves of their labor and employment rights without fear of retaliation.




By setting priorities and focusing its enforcement resources, the Obama Administration has already increased the removal of criminals by more than 80%.  These actions build on that strong record by:

  • Focusing on the removal of national security, border security, and public safety threats.  To better focus on the priorities that matter, Secretary Johnson is issuing a new DHS-wide memorandum that makes clear that the government’s enforcement activity should be focused on national security threats, serious criminals, and recent border crossers.  DHS will direct all of its enforcement resources at pursuing these highest priorities for removal.
  • Implementing a new Priority Enforcement Program. Effectively identifying and removing criminals in state and local jails is a critical goal but it must be done in a way that sustains the community’s trust.  To address concerns from Governors, Mayors, law enforcement and community leaders which have undermined cooperation with DHS, Secretary Johnson is replacing the existing Secure Communities program with a new Priority Enforcement Program (PEP) to remove those convicted of criminal offenses.  DHS will continue to rely on biometric data to verify individuals who are enforcement priorities, and they will also work with DOJ’s Bureau of Prisons to identify and remove federal criminals serving time as soon as possible.



Every Democratic and Republican president since Dwight Eisenhower has taken executive action on immigration.  Consistent with this long history, DHS will expand the existing Deferred Action for Childhood Arrivals (DACA) program to include more immigrants who came to the U.S. as children.  DHS will also create a new deferred action program for people who are parents of U.S. Citizens or Lawful Permanent Residents (LPRs) and have lived in the United States for five years or longer if they register, pass a background check and pay taxes.

The President is taking the following actions to hold accountable certain undocumented immigrants:

  • Creating a mechanism that requires certain undocumented immigrants to pass a background check to make sure that they start paying their fair share in taxes. In order to promote public safety, DHS is establishing a new deferred action program for parents of U.S. Citizens or LPRs who are not enforcement priorities and have been in the country for more than 5 years.  Individuals will have the opportunity to request temporary relief from deportation and work authorization for three years at a time if they come forward and register, submit biometric data, pass background checks, pay fees, and show that their child was born before the date of this announcement.  By providing individuals with an opportunity to come out of the shadows and work legally, we will also help crack down on companies who hired undocumented workers, which undermines the wages of all workers, and ensure that individuals are playing by the rules and paying their fair share of taxes.
  • Expanding DACA to cover additional DREAMers. Under the initial DACA program, young people who had been in the U.S. for at least five years, came as children, and met specific education and public safety criteria were eligible for temporary relief from deportation so long as they were born after 1981 and entered the country before June 15, 2007.  DHS is expanding DACA so that individuals who were brought to this country as children can apply if they entered before January 1, 2010, regardless of how old they are today.  Going forward, DACA relief will also be granted for three years.

The President’s actions will also streamline legal immigration to boost our economy and promote naturalization by:

  • Providing portable work authorization for high-skilled workers awaiting LPR status and their spouses. Under the current system, employees with approved LPR applications often wait many years for their visa to become available.  DHS will make regulatory changes to allow these workers to move or change jobs more easily.  DHS is finalizing new rules to give certain H-1B spouses employment authorization as long as the H-1B spouse has an approved LPR application.
  • Enhancing options for foreign entrepreneurs. DHS will expand immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment, and generating revenue in the U.S., to ensure that our system encourages them to grow our economy.  The criteria will include income thresholds so that these individuals are not eligible for certain public benefits like welfare or tax credits under the Affordable Care Act.
  • Strengthening and extending on-the-job training for STEM graduates of U.S universities. In order to strengthen educational experiences of foreign students studying science, technology, engineering, and mathematics (STEM) at U.S. universities, DHS will propose changes to expand and extend the use of the existing Optional Practical Training (OPT) program and require stronger ties between OPT students and their colleges and universities following graduation.
  • Streamlining the process for foreign workers and their employers, while protecting American workers. DHS will clarify its guidance on temporary L-1 visas for foreign workers who transfer from a company’s foreign office to its U.S. office. DOL will take regulatory action to modernize the labor market test that is required of employers that sponsor foreign workers for immigrant visas while ensuring that American workers are protected.
  • Reducing family separation for those waiting to obtain LPR status. Due to barriers in our system, U.S. citizens and LPRs are often separated for years from their immediate relatives, while they wait to obtain their LPR status. To reduce the time these individuals are separated, DHS will expand an existing program that allows certain individuals to apply for a provisional waiver for certain violations before departing the United States to attend visa interviews.
  • Ensuring that individuals with lawful status can travel to their countries of origin. DHS will clarify its guidance to provide greater assurance to individuals with a pending LPR application or certain temporary status permission to travel abroad with advance permission (“parole”).
  • Issuing a Presidential Memorandum on visa modernization. There are many ways in which our legal immigration system can be modernized to reduce government costs, eliminate redundant systems, reduce burdens on employers and families, and eliminate fraud. The President is issuing a Memorandum directing an interagency group to recommend areas for improvement.
  • Creating a White House Task Force on New Americans. The President is creating a White House Task Force on New Americans to create a federal strategy on immigrant integration.
  • Promoting Citizenship Public Awareness: DHS will launch a comprehensive citizenship awareness media campaign in the 10 states that are home to 75 percent of the overall LPR population. USCIS will also expand options for paying naturalization fees and explore additional measures to expand accessibility, including studying potential partial fee waiver for qualified individuals.
  • Ensuring U.S. Citizens Can Serve: To further our military’s needs and support recruitment efforts, DHS will expand an existing policy to provide relief to spouses and children of U.S. citizens seeking to enlist in the military, consistent with a request made by the Department of Defense.



Directly from the White House:

Border campaign – Better coordination at the border / better use of resources

New DHS-wide priorities

– Suspected terrorists, convicted felons, gang membership, people apprehended at border

– People convicted for significant misdemeanor, new immigration violators after January 1, 2014,

multiple misdemeanors (3)

– People who failed to abide by removal order or came back after January 1, 2014

– Rescinding Morton memo; Fugitive Ops memo and some other memos and re-doing priorities

– Different standards of PD at each part of the process

Court reform

• DOJ will close cases if people are prima facie cases of DACA and DAP

• Accelerate those cases that are left after prioritizing

• Ineffective counsel – Unclear

DOL reforms

• Three more crimes added to the U Visa

• Will start certifying for T Visas

• New working group for worksite enforcement

• Punting on worker issuesdont yeah don’t

Discontinuing S-COMM but new “Priority Enforcement Program” (PEP)

– Pre-conviction to post-conviction model

– Different from detainer system – a notification system

– Mandatory for national security threats

– More DOJ-DHS cooperation for federal prison releases

Expansion of DACA

– No upper age cap

– Continuous presence from January 1, 2010

– 3 year status

– 90 days implementation

New program DAP (affirmative process)

– Parents of all U.S. citizen sons and daughters, LPR sons and daughters

– Continuous presence from January 1, 2010

– Age of child?

– People with final orders not a problem. May be problem for people who were deported and

then came back

– Same fee as DACA – $465

– Same criminal bars as DACA

– 180 days implementation

Clarify advance parole for both DACA and DAP


Notes from White House Briefing 11/20/2014

Embargoed Till 6PM EST

Employment based immigrants

• Enhanced Portability for non-immigrants – H-1B

• Finalize H-4 regs

• Pre-registration – Enable individuals who are eligible to apply for adjustment of status, but for a

non-current priority date, to “pre-register” for adjustment and receive work authorization and

advance parole.

• Clarify “same or similar” in the employment context

• Extending OPT but only for STEM

• L-1B guidance issued

• DOL will modernize PERM

• Employer liabilities for DACA-related discrimination or more of an explanation

I-601A waivers – Stateside waivers

• Extended to LPR parents and spouses- Requires rulemaking

• Clarify extreme hardship – Requires rulemaking

• Waiver is only for 3/10 year bars

Parole in place for family members of anyone trying to enlist (Memo)

New citizenship program in top 10 states with lawful permanent residents

o 410K may benefit


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