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Our Request to Chief Judge Lippman: Stop Partisan Politics Against Vulnerable Immigrant Children

Below is our request to Chief Judge of New York, Jonathan Lippman, demanding that the New York Court System cease its partisan efforts to weaken the federal law known as Special Immigrant Juvenile Status, which is designed to protect vulnerable immigrant children from being deported to harm in their native countries.

Instead of maintaining the best interests of the children that come before its courts, the New York Court System is currently focusing on how to make it more difficult for children with little resources to obtain desperately needed protection in the United States.

The best interests of children–not politics–should be the focus of New York State Family Courts.

RE: Request to Cease Partisan Political Activities To Weaken Federal Statutory Protections for Vulnerable Children Seeking Special Immigrant Juvenile Status

Dear Honorable Chief Judge Lippman:

We are attorneys who represent over 200 unaccompanied minors. We write to express our deep concern over the New York State Court System’s involvement in partisan politics by seeking to severely restrict or eliminate Special Immigrant Juvenile Status.

Pursuant to the Judicial Code of Conduct Section 100.5(A)(c), a sitting judge shall not directly or indirectly engage in any political activity, except for “measures to improve the law, the legal system or the administration of justice.” Prohibited political activity includes “engaging in any partisan political activity.” Recently, the court system has on numerous occasions engaged in partisan politics.

On March 4, 2015, NBC released an article detailing concerns that members of the Punjabi immigrant community brought fraudulent cases in the Queens County Family Court and abused a remedy called “Special Immigrant Juvenile Status,” which was designed for immigrant children who cannot be reunited with one or both of their parents due to abandonment, neglect, abuse or a similar basis.[1]

Despite no allegations of fraud outside of the Punjabi community, the Department of Homeland Security (“DHS”) began an investigation into the Queens, Nassau, and Suffolk Family Courts.  Incredulously, the New York State Court system has called for SIJS to be severely limited and/or eliminated, a political call-to-arms which threatens the best interests of hundreds of immigrant children who would be left without protection.

Specifically, on March 5, 2015, David Bookstaver, speaking on behalf of the Chief Judge of New York State, Jonathan Lippman, reached out directly to federal Congressional officials to modify the federal law regarding special immigrant juveniles by stating to NBC News Reporter Melissa Russo that “We’re looking to the federal government to help us out and to see if there is a way to close the loophole,” referring to SIJS as a “loophole” rather than a law designed to protect children victims of abuse, abandonment and neglect.[2]

On March 14, 2015, the New York Court System’s request was answered: Chairman of the House Judiciary Committee, Representative Bob Goodlatte, told NBC News that he would explore options of investigating the alleged conspiracy to commit fraud to obtain special immigrant juvenile status. Mr. Goodlatte stated that it was apparent that word had spread that it was easy to game the system.[3]

On March 19, 2015, Mr. Goodlatte directed Jeh Johnson, Secretary of the U.S. Department of Homeland Security (“DHS”) to “immediately direct the Fraud Detection and National Security Directorate at USCIS to conduct a Benefit Fraud Assessment of the current SIJ program and to determine what steps can be taken to prevent fraud in the program.”[4]

Mr. Goodlatte also asked DHS Secretary Johnson “What, if any, statutory changes do you suggest to give you additional tools to ensure that fraudulent SIJS petitions are not approved by USCIS adjudicators.”

On July 17, 2014, Congressman Goodlatte introduced H.R. 5137, the “Asylum Reform and Border Protection Act.” HR 5137 would gut the current SIJS status in place requiring that a child demonstrate that reunification with both parents is not viable to abuse, abandonment, neglect, or a similar basis under State law.  This would lead to mass deportations of children given the federal government’s prioritization of the juvenile docket.[5]

Family Court Judge John Hunt spoke on camera to NBC News reporter Melissa Russo and made several comments that demonstrate he wants a change in federal legislation to make it harder for children to obtain special immigrant juvenile status.

Judge Hunt said that the SIJS process is “faulty” because “It’s a one sided proceeding. There is no way to investigate it yourself. It makes us take what they say at face value.”  Judge Hunt went on to express concern that the SIJS statute “could result in children flocking here to get the benefit of it and at the same time expose themselves to danger and expose themselves to criminal elements.”[6]

Judge Hunt’s dehumanization of immigrant children, by comparing them to birds, and resort to the political “floodgates argument” is improper.  His statement shows that he is against the underlying policy of SIJS, not allegations of specific children or attorneys exploiting the existing SIJS statute.

In all cases in Family Court, the judge must rely heavily on sworn testimony of parties and witnesses.  Judge Hunt’s complaint against the one-sided proceeding, because the cases are often uncontested by the abandoning and/or abusive parents, would seem to prefer that there be an advocate against the children in Family Court.  This runs counter to the Family Court’s supreme duty to act in the best interests of the children.

Clearly, fraud is a very serious concern.  Judges in Family Court, like all judges, have the challenging tasks of assessing the credibility of litigants, through their testimony and demeanor.  In the Family Court context involving children, it is particularly difficult because children often cannot provide any documentary proof that they were abandoned or abused.  For that reason, an attorney for the child is often appointed, at times to perform a home investigation, look into the veracity of the case, and confer privately with the child.

Mr. Bookstaver, the New York Court Spokesperson, stated that Hunt “hit the nail on the head, we are not equipped to deal with this,” referring to special immigrant juvenile cases.  Bookstaver went on to state that the “additional caseload” caused by SIJS cases “does not belong in family court.”

The process of SIJS is currently in place precisely because the Family Court is best equipped to determine the best interests of a child, whether a child should be placed in a guardianship or custody situation, and to make findings of abuse, abandonment or neglect.  It is precisely because DHS is not the proper adjudicator of such issues, that it relies on determination of Family Court Judges who are specialized in dealing with such issues.  The federal government has no institutional expertise on child welfare issues.  There is no federal family court, or federal child protective services.  The Family Court’s caseloads, which increased due to the increase of children coming to the United States in 2014, do not eliminate their obligation to the children.

The New York State Family Court System has already concretely acted to weaken the due process protections for children with undocumented individuals in the household based on no evidence but hearsay to back its decision.

In a March 19, 2015 report from NBC News, the New York Court Spokesperson responded to allegations that the some guardians and household members were not providing sufficient identification to be fingerprinted. Instead of clarifying that the fingerprint process is not required, by law, for Letters of Guardianship to be issued, the New York Court System stated that although “we hoped to avoid turning away people who needed the court’s help. Now we are aware that there may be a scam and we need to raise the bar.”

As you may know, Section 205.56 of the administrative rules for New York Family Court authorizes—but does not mandate—family court judges to order the probation service or other disinterested person to conduct investigations to aid the Court in determining custody of minors and appointing guardians of minors.[7]

The fingerprinting procedure is part of the investigation as permitted by Section 205.56. As most Family Court judges affirmatively order investigations that include fingerprinting of household members.  The refusal of the Family Court to fingerprint members therein without sufficient identification would act as an absolute bar for that child from access to the court and would raise serious constitutional issues of due process and lack of access to justice based on national origin and race.

Chief Judge Lippman and Family Court Judge Hunt have asked for and received significant changes in the adjudication of special immigrant juvenile-based guardianship and custody petitions.  Without any evidence of fraud, the court system is now actively cooperating with DHS to allegedly investigate children committing fraud to obtain the protection of SIJS.

The Court system has not expressed any concern on whether its myopic focus on alleged fraud could result in the exclusion of children who do in fact qualify for SIJS and do in fact desperately need it.  We are unconditionally dedicated to maintaining the ethics of our profession and have obtained SIJS for hundreds of immigrant children, all of whom were neglected, abused or abandoned and who desperately needed the protection of an adult caregiver.

We respectfully request that the New York State Court System cease its involvement in partisan politics.  The official statements made by representatives of the NYS Court System have severely jeopardized SIJS, the purpose of which is to protect vulnerable children in the United States.  Such activity is prohibited under the New York Rule of Judicial Conduct Section 100.5, which is not designed to improve a law, but to move the government to repeal or several limit a statute that benefits children.

Thank you for your attention to this important and urgent request.

Very Truly Yours,

Bryan S. Johnson, Esq.

Amoachi and Johnson, PLLC

1918 Union Boulevard

Bay Shore, NY 11706

631-647-9701

Bryan@amjolaw.com

Ala Amoachi, Esq.

Amoachi and Johnson, PLLC

1918 Union Boulevard

Bay Shore, NY 11706

631-647-9701

Ala@amjolaw.com

 

CC:

The Honorable Andrew M. Cuomo                NY State Commission on Judicial Conduct
Governor of New York State                         61 Broadway, Suite 1200
NYS State Capitol Building                           New York, NY 10006
Albany, NY 12224

The Honorable Eric T. Schneiderman

Office of the Attorney General

The Capitol

Albany, NY 12224

 

[1] See Family Court Exploited in Queens, Insiders Charge,  NBC News New York, March 4, 2015,

http://www.nbcnewyork.com/news/local/family-court-queens-immigration-cases-human-smuggling-green-card-295050931.html

[2] See Family Court Asks Feds for help after I-team Uncovers Immigration Exploitation, NBC News New York, March 5, 2015, http://www.nbcnewyork.com/video/#!/investigations/Family-Court-Asks-Feds-for-Help-After-I-Team-Uncovers-Immigration-Exploitation/295259431

[3] See Congressman Promises Fix After I-team Uncovers Family Court Immigration Scheme, NBC News New York, March 14, 2015, http://www.nbcnewyork.com/investigations/immigration-scheme-queens-family-court-green-cards.html

[4] See, Goodlatte to Secretary: Changes Needed To Reduce Fraud In  Immigration System, March 19, 2015, http://goodlatte.house.gov/press_releases/686

[5] See, Chaffetz And Goodlatte Introduce Bill To Stop Border Crisis, July 17, 2014 http://goodlatte.house.gov/press_releases/568

[6] See Footnote 1, supra.

[7] See Section 205.56 of the New York Family Court Administrative Rules, Investigation by disinterested person; custody; guardianship https://www.nycourts.gov/rules/trialcourts/205.shtml#56

Request to Shut Down Unlawful Berks County Children Jail and To Revoke Unlawfully Issued License

Below is a request we sent out today to Pennsylvania State Authorities to shut down the Berks County Residential Center (“BCRC”)

BCRC is a secure detention facility under Pennsylvanian law, which also states that children under the age of 10 cannot be detained in a secure detention facility.

Given that BCRC does in fact detain children as young as 14 days old, it is violating Pennsylvania law and must be shut down.

Below is our request:

March 23, 2015

Dear Ms. Perry:

I am an attorney in New York who has represented various children who have previously been detained at the Berks County Residential Center (“BCRC”) located in Leesport, Pennsylvania.

As you know, Pennsylvania Code § 3800 governs the standards for licensing and regulation over child residential centers.

On October 31, 2014, Pennsylvania’s Office of Children, Youth, and Families (“OCYF”) issued a Certificate of Compliance for the BCRC as “Child Residential and Day Treatment Facilities pursuant to PA  § 3800, renewing its license until February 21, 2016.

However, OCYF had no authority to issue a certificate of compliance for BCRC because the latter is a “secure detention facility” under PA Code § 3800.5, which is “…any 24-hour living setting to one or more children…from which voluntary egress is prohibited” through one of the following mechanisms:

(i)   Egress from the building, or a portion of the building, is prohibited through internal locks within the building or exterior locks.

(ii)   Egress from the premises is prohibited through secure fencing around the perimeter of the building.”

In BCRC children are prohibited from leaving because of locks and guards prohibit their egress.

Even a mother who desperately wants to protect her 14 day old baby–and thus, a baby without any immunities to viruses and bacteria–from contracting a potentially deadly infection by leaving is physically barred from doing so.

As such, the license issued by OCYF to the operators of BCRC–the Berks County Commissioners–is unlawful because BCRC does not comply with the licensing requirements for a secure detention facility for children as set forth by PA Code § 3800.283.

PA Code § 3800.283(7) prohibits the placement of children 9 years of age and younger in a secure detention facility. Subsection 8 further states that: “A child may not remain in the facility longer than is absolutely necessary.”

PA Code  § 6237(e) further clarifies that the only time a child under the age of 10 can be detained is if that child is a “dependent child.” If detained, that child must then be placed in a shelter care facility, which is far less restrictive than a secure detention facility.

A dependent child includes children under the age of 10 who have been abandoned by their parents or guardians; have no parents; or have committed a delinquent act.

None of the children detained in BCRC are “dependent children.” Further, even children under 10 who are classified as dependent would be barred from placement in BCRC because it is a secure detention facility.

The Standards for Governing The Use of Secure Detention Under The Juvenile Act, PA § 200, contains additional robust protections against the detaining children whenever possible.

For example, even children 10 years and older cannot be placed in a secure detention facility unless that child has also alleged or been found to be delinquent. See PA Code § 200.1(a)

When a child is eligible for secure detention, subsection b of the same code states that detention is not mandatory and “forms of control short of secure detention…shall be given preference.”

BCRC is detaining non-delinquent children–including babies just a few days old–for one sole purpose: to permit Immigration and Customs Enforcement (“ICE”) to deport them and their parents.

Since June of 2014, BCRC has been detaining children for several months and in some instances up to one year.

It is substantially less than “absolutely necessary” for the Berks County Commissioners to detain children under the age of 10 in a secure detention facility for as long as it takes to deport them.

In fact, detention of children in BCRC is directly against their best interests because it harms their physical and mental health. OCYF’s licensing of BCRC is an act directly against the best interests of the children it is bound by law to protect.

Given that the BCRC is in direct violation of PA Code § 3800(7)-(8); PA Code § 200.1(a)-(b), and that it violates the entire legal and regulatory framework for child welfare in Pennsylvania by detaining children directly against their best interests, BCRC’s license must be revoked and BCRC must be shut down immediately.

Thank you for your prompt attention to this matter. If you should have any questions, please call me at 631-647-9701.

Very Truly Yours,

Bryan S. Johnson, Esq.

CC:

Pennsylvania Office of Attorney General

Attorney General Kathleen Kane

16th Floor, Strawberry Square

Harrisburg, PA 17120

Commissioners Office

Berks County Services Center

633 Court Street, 13th Floor

Reading, PA 19601

Request to Texas to Shut Down Unlawful Dilley Children Jail

Below is a request we recently sent to Texas State authorities to shut down the secure detention facility for children known as the South Texas Family Residential Center (“STFRC.”)

In researching the law, it became clear that Texas prohibits the placement of children under the age of 10 in secure detention facilities. STFRC detains children ranging from a few months old and up.

STFRC is subject to the jurisdiction of child welfare authorities in Texas. Therefore, Texas authorities are obligated to shut down the STFRC.

We also intend to write similar requests to shut down the Karnes  County and Berks County Residential Centers.

Dear Sir/Madam:

I am an attorney who represents a mother and a child who were detained at the South Texas Family Residential Center (“STFRC”) located at 1925 West Highway 85, Dilley, Texas 78017, which is owned and operated by Corrections Corporation of America (“CCA.”)

CCA is contracted by Immigration and Customs Enforcement (“ICE”) to detain children as young as just a few months old to 17 years of age.

I respectfully request that the Texas Juvenile Justice Department (“TJJP”) and the Texas Department of Family and Protective Services (“DFPS”) immediately close the South Texas Family Residential Center because it is not licensed or certified to provide care and custody of children by Texas State authorities, or any other authority.

The STFRC is a secure detention facility, which is defined as “any public or private residential facility that: A. includes construction fixtures designed to physically restrict the movements and activities of juveniles or other individuals held in lawful custody in the facility.; and (B) is used for the temporary placement of any juvenile who is accused of having committed an offense, any nonoffender (emphasis added.)” See Texas Family Code § 51.02(14).

Pursuant to Texas Family Code § 51.03(e-1)(1), children under 10 years of age are prohibited from being placed in a secure detention facility.

STFRC is a secure detention facility because the facility is constructed to severely restrict the movements and activities of the children and adults held there. For example, guards and locked doors in the facility prohibit residents from leaving its premises.

Further, CCA and ICE control every aspect of a child’s life in its custody, including what a child eats; what, if any, medical care a child receives; what, if any, recreational activities the child partakes in; what hours the child is permitted to sleep; or what education the child is provided.

The fact that children in STFRC are accompanied by at least one parent does not negate the fact that CCA and ICE are the primary caregivers for the children in their custody.

A mother is completely stripped of her authority to make decisions in the care of her child. If a mother, for example, believes her child is depressed due to being detained, she is barred from making the clear decision that is in the child’s best interests—to have the child released from detention.

The South Texas Family Residential Facility Also Violates Section 4000 of the Texas Child Protective Services Handbook And 42  U.S.C. § 675

Although the STFRF is a secure detention facility, it also violates child protective services rules for the care and custody of children under the age of 10 in residential centers, which is any “facility that is licensed to provide foster care for 13 or more children at a time.”

Unless exceptional circumstances are present, residential centers are not recommended for placement of children. In fact, CPS “does not place children under five in group-care facilities unless doing so represents the only way to meet a particular child’s special needs.”

The Texas Family Code and CPS guidelines prohibit the placement of young children in severely restrictive settings because it is harmful to their physical and mental health. As evidence of this, all States in the United States prohibit the detention of children under a certain age in secure detention facilities.

Even when a child is placed in a more restrictive setting, such as a group home, federal law requires that “each child has a case plan designed to achieve placement in a safe setting that is the least restrictive (most family like) and most appropriate setting available… consistent with the best interest and special needs of the child…” See 42 U.S.C. 675 of the Social Security Act.

Given that STFRC is in violation of Texas Family Code § 51.03(e-1)(1),  Section 4000 of the CPS Handbook and 42 U.S.C. § 675, the State of Texas must close down the facility immediately. CCA and ICE cannot obtain licensing or certification for STFRC because its purpose—to detain children under the age of 10 directly and to detain all children against their best interests—is in clear violation of both Texas State Law and Federal Law on the custody and care of children.

Indefinite, Long-Term Detention of Children in an Unlicensed, Secure Detention Facility For Purposes of Deportation From The United States Is Harmful to The Physical and Mental Health of Children

The case of our client Bernice illustrates why the operation of STFRC is so harmful to the children detained there.

Bernice, a young mother, was detained with her 4-year-old daughter in STFRC since late December of 2014 until March of 2015.

Bernice was eligible for release upon payment of a $5000 bond issued by an immigration judge in mid-February. She did not have the funds to pay for the $5000 bond.

When she requested a redetermination of the bond with ICE, she hoped the bond would be lowered so that she could be released from detention with her young daughter.

When she learned that ICE would not lower her bond, she attempted suicide. Her daughter was then and placed in temporary foster care near San Antonio, Texas, and ICE transferred the mother to an adult detention center in Laredo, Texas.

The 4 year old girl’s best interests were severely compromised due to ICE detaining her and her mom for a prolonged period of time. Her mother would never have attempted suicide if it were not for the desperation she felt for herself and her daughter. She could have lost her mother forever.

The doctor at the hospital told Bernice that she was mentally healthy and that her attempted suicide was a result of a temporary shock.

The fact that ICE controls the custody determination of children detained in the facility does not make it exempt from Texas State Law. STFRC must comply with the laws of the State where it operates.

ICE cannot operate STFRC because it is prohibited by Texas law.

Thank you for your prompt attention to this matter. If you should have any questions, please contact me at 631-647-9701.

Very Truly Yours,

Bryan S. Johnson, Esq.

Letters from Victims of President Obama’s Child Prisons.

As we have made clear in the past, the accounts our clients have given demonstrate that the U.S. government is committing serious crimes against several hundred children and mothers in its children jails located in Texas and Pennsylvania.

Recently, ENDDetention released a list of 13 letters from Mothers who have been detained for several months in the Karnes County Jail.

The letters contain evidence of crimes against children. Below are the relevant excerpts from mothers desperate at the harm their children are suffering in our jails.

I need help because I am worried; my son…is 12 years old. He’s in bad health he is at risk for diabetes and I can’t give him the diet he needs while in here. The doctor also told me he needs to drink a lot of water. However, there is a lot of chlorine in the water….I have few resources; I don’t have the money to be able to buy him purified water which they sell at the commissary…He no longer wants the horrid food they give us in here. He doesn’t eat anymore.

I’m worried, because my daughter is losing weight, because she doesn’t eat...I’m worried, because she could get sick…Please help us. I have already been in detention for seven months. My daughter is desperate, and so am I. The water has bleach in it, and I don’t have money to buy water from the store.

I am here with My son, who is 10 years old…They don’t give us medicine when we are sick. When we go to the doctor we have to wait for two hours or more, and when we are seen [by the doctor], they tell us to only drink a lot of water. They never have medicine for headaches, stomachache, body ache, fever and cough. There is not good attention here [at Karnes].

I can’t stand to be here anymore. I am desperate, I don’t like the food anymore, and I don’t want to be here. My son’s first birthday was here.

We have been in detention at the Karnes County Residential Center for six months. I need you to help me please, we suffer so much here, and my children do not like the food.

We are very sick. I do not like the physicians. They do not tell us the types of medicines they give us. Things happen here that worry us mothers and our children.

We have been detained for 7 months in the Karnes County Residential Center. And my children can no longer tolerate being detained. They do not like the food. It has already been a lot of time.

My children don’t eat because the food is terrible, the water when we drink makes our stomachs hurt and we get bloated. When I take some of my children to the doctor, it takes a long time for them to see the children, after an hour and a half they see us and tell the mother, “give him water”. If a child goes with diarrhea, they give him 2 bananas, and that is all. My son, 3 years old, has a problem with his eyes, he has been there months and they tell me, wash his eyes with warm water and apply a paste they gave me, but it does not work… My children ask me: “What is wrong mama, why don’t we leave?” I ask that you help us. We are not a threat for this country, all I want is refuge in this country for my children and for me.

Also we are afraid because of the Abuse of Power on the Part of I.C.E. They try to cover up everything that is happening here inside. For example:

A pregnant mother had left from here. A young boy was sexually abused and the worst is that we don’t know if they deported him or sent him to another center.

We have been here for 7 months. The children don’t want to eat. They are desperate. We need help, that someone outside fight for us so we can be freed.

I have been here since August 6, 2014, and whenever my daughter has a fever or feels sick for any reason at all, the only thing the doctors prescribe is water and apple juice. The food is always badly prepared and makes our stomach hurt. The worst thing is that a woman was raped by a GEO official and is pregnant. A Guatemalan guy was also raped in his own room. I myself was a victim of one of these officials who promised marriage to me.

In the beginning you eat the food, but later you don’t anymore, because it’s always the same. For example, for breakfast they give you eggs and bread and cereal, and most of us kids don’t eat the meal.

When someone is really sick, or feels bad, and goes to the doctor, they just give you an acetaminophen, or if not that, they tell you to drink enough water, but most of the time, they ignore you. Almost all of the babies get sick with colds or infections. Then the only thing they tell you is to run hot water in the shower, and they’ll breathe in the steam (supposedly that’s a treatment), but it’s more likely they are taking in a parasite, and get even sicker. A baby has to have a temperature of 104 before they will give you [cough] syrup or acetaminophen.

Children are literally wasting away in the President’s baby jails. These are serious crimes that are ongoing. It is time that President Obama be held accountable for being responsible for the harm these children have and continue to suffer because of his brutal creation of jails that are unfit–indeed, unlicensed–to care for children.

Executive Action backfires: Undocumented Immigrants Now At More Risk of Deportation

Federal Judge Hanen ordered a halt to all aspects of the November 20, 2014 “Deferred Action” memo, which included a clear order not to remove individuals who may be eligible for DAPA or expanded DACA.

The Obama administration has since been disingenuously insisting that the other November 20, 2014 “Priorities” memo will protect individuals eligible for DAPA from deportation.

The President’s claim that ICE officers who remove DAPA-eligible individuals will face consequences is false.

Here is why:

As a stand-alone directive, the “Priorities” memo specifically authorizes the removal of individuals who will be eligible for DAPA.

On page 5, subsection B, Johnson writes:

“Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein.”

It gets worse.

Patrick Taurel, writing for the American Immigration Counsel, wrote that “virtually every person who qualifies for either DACA or DAPA will not fall within the enforcement priorities and should not be priorities for deportation as long as the new enforcement policy is in effect.”

However, there are now no guidelines whatsoever on what factors should be taken into account by ICE in deciding whether to exercise prosecutorial discretion.

The Death of the Morton Memo

Prior to November 20, 2014, the controlling guidelines for prosecutorial discretion were laid out in a June 17, 2011 memorandum written by John Morton, the former director of ICE.

Morton included a list of  20 factors that DHS officials should weigh in deciding whether to detain or deport someone. Important factors included whether one was the immediate relative of a U.S. citizen or lawful permanent resident; a person’s ties to the community; the person’s ties to their home country; a person’s age, with particular consideration given to whether one is elderly or a minor; and a person’s length of time in the United States.

Johnson’s “Priorities” Memo rescinded the Morton Memo, which means that ICE officers now have no specific guidance on what to factors to consider in making prosecutorial discretion decisions.

Disappearance of a Prosecutorial Discretion Guideline

The “Priorities” memo is not designed to guide officers on prosecutorial discretion. In fact, Johnson’s version relies heavily on its predecessor, the March 3, 2011 “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens.” (“Priority 2”) memorandum.

The titles are identical and Morton cautioned that “additional guidance on Prosecutorial Discretion is forthcoming.”

When the executive actions were announced on November 20, 2014, the Obama administration erased the Morton memo and failed to include a replacement.

Given that it was a certainty that the “Deferred Action” memo would be challenged and potentially halted, the President should have issued an updated and more robust version of the June, 17 2011 Morton Memo on who should be protected from deportation.

It is not too late. The President must issue new and clear guidelines ordering ICE officials to immediately cease the expenditure of resources on removing individuals who may be eligible for DAPA and DACA

As Johnson and Obama have correctly pointed out, Judge Hanen’s order does not affect DHS’s ability to set and implement enforcement priorities. An instruction not to spend resources on removing individuals who fulfill certain requirements has nothing to do with the whether one is granted Deferred Action.

Otherwise, the fate of millions hinges on whether ICE field office directors believe their removal “would serve an important federal interest.”

If President Obama does not act to concretely stop the deportations of DAPA and DACA-eligible individuals, the Deporter-In-Chief will have executed his most cynical exploitation of immigrants to date: using the promise of Executive Action to gin up Latino anger at Republicans all the while continuing to destroy families with record deportations.

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.

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