Demand that USCIS Cease Deprivation of Rights of 30 Families Detained at Berks
Below is the original document followed by an text version.
May 3, 2016
Joseph E. Langlois, Associate Director
Refugee, Asylum, and International Operations Directorate (RAIO)
20 Massachusetts Avenue, Suite 3300
Washington D.C., 20529-2100
RE: Demand to 1. grant de novo credible fear (CFI) interviews of all detained families served with negative CF determinations; 2. Reinstate mandatory Asylum Division Headquarters Review of all negative CF and Reasonable Fear (RF) determinations; 3. Rescind all families-only expedited CF procedures described and implied in Asylum Division Chief John Lafferty’s August 6, 2015 declaration submitted in Flores litigation;
Dear Mr. Langlois:
I am an attorney who represents hundreds of unaccompanied children and families in removal proceedings. I have also represented several families detained in the Artesia, Karnes, and Dilley detention centers.
I am aware of about 30 families in prolonged detention at the Berks Family Residential Center, some up to 8 months. In these cases USCIS denied, either outright or in effect, the families’ requests pursuant to 8 C.F.R. 1208.30(g) (2)(iv)(A) for an additional credible fear (CF) interview and reconsideration of USCIS’ negative credible fear determination based on procedural errors or new material facts not previously considered in initial CF interview
Given that your agency intentionally eliminated several important procedural safeguards designed to ensure that bona fide asylum seekers are not removed to countries where they may face persecution or torture, specifically in response to the increase in the number of families apprehended in the Fiscal Year of 2014, and given that your agency went even further by eliminating virtually every procedural safeguard in the CF and RF screening process exclusively for families, the initial negative CF determinations made against the families currently detained must be vacated, discarded, and de novo CF interviews must be conducted.
In order to ensure future families are not intentionally deprived of their constitutional, statutory, and regulatory rights to procedural due process in the CF and RF determinations, you must re-instate the policy of mandatory pre-decision and post-decision Asylum Division Headquarters (HQAD) review of all negative CF and RF determinations made against all asylum applicants, but especially for families, which require enhanced procedural safeguards given the additional challenges in screening inherently vulnerable children for asylum eligibility.
There is no rational basis to Asylum Division Chief John Lafferty’s June 11, 2014 memorandum eliminating mandatory headquarters review of all negative CF and RF determinations and therefore it appears to be a direct result of a plan created and executed by ICE, and DHS leaders to deter future families from seeking asylum by removing bona fide asylum seeking families through the deprivation of their due process rights.
In a memorandum you issued on December 23, 2008, titled Revised Credible Fear Quality Assurance Review Categories and Procedures, you set a policy that required Asylum Division Headquarters (HQASM) to “review all negative credible fear determinations to ensure that bona fide asylum seekers are not returned to countries where they may face persecution or torture.”
Additionally, the Asylum Divisions Training, Research, and Quality Branch (TRAQ) had a policy of “mandatory pre-decision review of all negative CF and RF determinations” as well as as post-decisional review of a selected number of positive CF determinations to ensure that there was no built-in bias towards the issuance of positive CF determinations.
The above-described procedural requirements remained in place until June 11, 2014, when Asylum Division Chief John Lafferty issued the memorandum titled, Changes to Credible Fear and Reasonable Fear Cases Requiring Quality Assurance Review, which eliminated previous requirement that HQASM review all negative CF and RF determinations with the following:
“Under the revised QA Model, the asylum offices will send a random sampling of CF and RF determinations—both positive and negative—to HQASM for pre-decisional review. HQASM has established a statistically valid sample size that facilitates a thorough review of each case and maintains a high confidence level.”
This radical reduction in procedural safeguards for individuals issued negative CF and RF determinations came on the heels of the February 28, 2014 release of a revised lesson plan for the adjudication of CF and RF determinations. Mr. Lafferty stated its purpose was to “reinforce the Asylum Division’s interpretation of the statutory ‘significant possibility’ standard as requiring that the applicant ‘demonstrate a substantial and realistic possibility of succeeding.’”
Mr. Lafferty’s justified this reinforcement “in light of the concerns that the application of the ‘significant possibility’ standard has lately been interpreted only to require a minimal or mere possibly of success” despite the fact that the CF positive determination rate for FY 2013 and FY 2012 was virtually the same.
Clearly, the purpose of Mr. Lafferty’s revised CF lesson plan was to reduce the percentage of individuals issued positive CF and RF determinations from the levels of FY 2013, which was over 90 percent, under the purported justification that the asylum officer corps was applying an incorrect legal standard.
With Mr. Lafferty’s subsequent elimination of HQ mandatory review of negative CF determinations, in one fell swoop, your agency managed to both a.) create a new, heightened legal standard for asylum officers that would ensure an increase in negative CF and RF determinations, and b.) eliminate HQASM review of all negative CF and RF determinations.
Precipitous drops in CF grant rates followed, as this chart demonstrates:
In March of 2014—the month immediately following the release of the February 28 heightened CF and RF guidance—the CF grant rate dropped to 82% from the previous month’s rate of 89%.
In June of 2014—the same month that USCIS eliminated mandatory HQ review of all negative CF determinations—the overall CF grant rate plummeted even further—to 71%.
In May of 2014, DHS apprehended 12,772 Family Unit Subjects, a record number and nearly double the number from April of 2014, 6,511. The number increased further: DHS apprehended 16,330 Family Unit subjects in the month of June, 2014—again, the same month that USCIS eliminated mandatory HQ review of all negative CF determinations.
On June 20, 2014, DHS Secretary Jeh Johnson announced the grand opening of the Artesia Family Residential center, promising that “The addition of this facility and the government’s response to this urgent humanitarian situation will in no way diminish the existing rights of individuals in removal proceedings…including access to asylum and other immigration protections.”
Mr. Johnson’s promise was proven false. The CF grant rate in July of 2014 for families detained at the Artesia Family Residential Center—one month after the elimination of mandatory HQ review of all negative CF and RF determinations—was 40%, an unprecedented low and nearly 30 percentage points lower than the already-diminished overall CF grant rate.
For DHS Secretary Jeh Johnson, the confluence of the total lack of access to counsel for the first three weeks of July and the elimination of mandatory HQ review of negative CF determinations yielded the desired deterrent results. By August 21, 2014, 280 women and children who were issued negative CF and RF determinations were removed, where many likely have faced persecution, torture, or even death. 
The clear connection between the elimination of procedural safeguards and the decrease in quality of initial negative CF determinations was immediately apparent from USCIS’ own statistics: from July of 2014 through October 20, 2014, 20 cases of positive CF determinations were made only after a request for reconsideration (“CFR”)pursuant to 8 C.F.R. 1208.30(g) (2)(iv)(A).
John Lafferty’s sworn declaration on August 6, 2015; the Asylum Office’s post-August 2015 policy change from granting every CFR request to denying most, if not all, CFR requests for families, including the 30+ families who have been unlawfully detained at the Berks Family Detention Center; and the Asylum Office’s withholding of family CF and RF grant rates, shows that USCIS has intentionally and arbitrarily cut back on all procedural safeguards for negative CF and RF determinations.
In an August 6, 2015 sworn declaration, Mr. Lafferty Mr. Lafferty misrepresented, both affirmatively and by omission, to Judge Dolly M. Gee that the asylum division would ensure families receive all of the statutory, regulatory, and constitutional due process rights in the adjudication of their credible and reasonable fear interviews.
On page 10 of his declaration, Mr. Lafferty represented the following under penalty of perjury:
In the second bullet point in paragraph 24, Mr. Lafferty represented to U.S. District Court Judge Dolly Gee that the asylum office eliminated “the requirements for asylum division headquarters review of credible fear and reasonable fear determinations (while maintaining quality assurance by requiring supervisory officer review of all cases.)…as one of an unspecified “number of procedures to accelerate and streamline” CF and RF processing for families in light of “challenges in credible and reasonable fear processing for families”
Eight paragraphs earlier in the same declaration Mr. Lafferty represented the following as the general procedure for CF and RF processing:
In both credible and reasonable fear processing, once the asylum officer completes the interview, he or she prepares a decision and seeks review by a supervisory asylum officer. Supervisory review is generally completed within 24 hours. A random sample of cases is also forwarded to Asylum Headquarters (HQ) in Washington D.C., for quality assurance purposes. HQ review is generally completed within 24 hours. Thereafter, the individual, and any attorney or accredited representative, is served with the decision.
Mr. Lafferty’s elimination of the procedure of HQ review of a random sample of cases “for quality assurance purposes” renders his subsequent claim that USCIS is maintaining quality assurance through supervisory review alone fraudulent. Indeed, the claim that supervisory review is sufficient to maintain quality assurance of CF and RF determinations is directly contradicted by USCIS’ own quality assurance procedures in place for over a decade and even under the significantly diminished QA procedures in place since June 11, 2014.
Additionally, starting in August of 2015, the same month of Mr. Lafferty’s August 6, 2015 declaration, USCIS ceased its previous policy of granting all, or close to all, of families’ credible fear reconsideration requests. In fact, USCIS denied the CFR requests of all of the families currently detained at Berks either in explicit and conclusory decisions or de facto decisions where a full reconsideration was not provided for.
In other words, the Asylum Division unilaterally rescinded 8 C.F.R. 1208.30(g) (2)(iv)(A). Mr. Lafferty’s failure to include the latter regulation in his description of the CF and RF process in his declaration; the subsequent disappearance of CF reconsiderations; and the significant decrease in CF grant rates for families in the second half of FY 2015, suggest that USCIS’ leadership is working at the behest of ICE leadership and DHS Secretary Jeh Johnson to intentionally remove bona fide asylum seeking families by concretely and unlawfully eliminating all procedural safeguards in place for families issued negative CF determinations.
The Asylum Division’s claim that it is applying a child friendly approach to adjudicating family CF and RF determinations is deceitful given that it recently eliminated numerous safeguards designed to ensure that its own Children’s Guidelines are being applied
The Asylum Division Chief also represented to the court that “the asylum division has a longstanding practice of applying a child friendly approach to interviewing children guided by the principle of the ‘best interest of the child’ as presented in the international guidance such as the Universal Declaration of Human Rights, the Convention on the Rights of the child, and the United Nations High Commissioner for Refugees Policy and Guidelines.”
On page 7 of the DHS’ response to U.S. District Court Judge Gee’s July 24, 2015 Order to Show Cause, DOJ attorney Sarah Fabian represented that DHS had in place to allow “for processing and evaluation to apply for relief or protection in a safe and humane environment that takes into account the particular vulnerability of children.(emphasis added)
The Asylum Office’s “Guidelines For Children’s Asylum Claims,” released on September 21, 2009, summarize the extensive additional procedural safeguards necessary given the particular vulnerability of children:
In order to address the unique situation of child asylum-seekers, asylum officers must make adjustments to their interviews and interview style to facilitate the process. Procedural adjustments made at the asylum office include allowing the child to be interviewed by an officer with relevant experience and scheduling the interviews of family members – especially siblings – as close in time as possible.
Other procedural considerations necessary in children’s cases include determining whether or not the minor applicant is unaccompanied and answering the unaccompanied minor field in RAPS, sending all juvenile cases to HQASM for quality assurance review, determining a minor’s capacity to apply for asylum, and evaluating any conflicts between a minor’s and parents’ interests in the asylum application.
On January 27, 2014, Mr. Lafferty issued a memorandum titled Changes to Case Categories Requiring Asylum Headquarters Review, in which mandatory Asylum Division Headquarters Review for children’s’ affirmative asylum claims was narrowed to referrals, NOIDS and denials:
The Asylum Division will serve our goal of ensuring that the Children’s Guidelines are being followed by continuing to review the referrals, NOIDS and denials.
Thus, the Asylum Division Headquarters ceased to ensure that that the Children’s Guidelines are being followed with respect to children and mothers issued negative CF and RF determinations when it eliminated 1. mandatory HQASM review of all negative CF and RF determinations; and 2. all HQASM quality assurance review through a random sample size of CF and RF determinations only with respect to children and their mothers.
The DHS’ misrepresented material facts regarding families detained at Berks, Dilley, and Karnes to several U.S. District Court Judges and U.S. Court of Appeals Judges
In the DHS’ response memorandum to Judge Dolly M. Gee, it repeated 7 times that it needed 20 days to complete CF and RF processing for families detained in family facilities:
1.“Pursuant to recently-announced policies and procedures, Defendants are effectively transitioning the facilities into processing centers at which DHS can…release those found eligible to apply for relief or protection…within an average of approximately 20 days under reasonable conditions designed to achieve their appearance in immigration proceedings
2.DHS’s new policies, as detailed in the declarations of senior DHS officials attached to Defendants’ response here, are designed to ensure that the majority of individuals in family facilities will be there only during the relatively short time needed for essential processing (to reach an anticipated average of approximately 20 days). See Declaration of Thomas Homan (“Homan Decl.”)
3.“the average time that families found to establish a credible or reasonable fear of return by DHS will be held in family facilities will not exceed 20 days after a claim of fear is made.”
4.”Based on current apprehension statistics and other factors, ICE anticipates that, in the future, families who assert a claim of fear at the time of their encounter by DHS will be processed, screened for reasonable or credible fear, and released under appropriate conditions within an average of 20 days of making that assertion. That is significant because 86.9% of those who assert a claim to credible fear are currently. Thus, a significant majority of individuals who move through family facilities will be released in a short time period.”
5.Taking an average of approximately 20 days to process families allows ICE the opportunity to accomplish the critical screening that occurs in facilities and that maximizes the likelihood of appearance at future immigration proceedings. A period of approximately 20 days allows ICE to adequately process a family for security concerns, provide appropriate medical screening, and facilitate an Asylum Officer’s evaluation of a family’s claim of fear of persecution or torture. Homan Decl.
6.As discussed above, and shown in Defendant’s proposed order, DHS seeks to detain individuals with reinstated orders of removal for only a brief period of time – on average approximately 20 days – while their initial claims of reasonable fear are adjudicated.
DHS’ intentionally misrepresented what the procedures in place for families in the CF and RF process with the intention to persuade Judge Gee to amend her July 24, 2015 order to allow DHS to detain families for up to 20 days for purposes of CF and RF screening. . Specifically, Mr. Lafferty’s declaration misrepresented that the CF and RF process included sending a random sample sample of both positive and negative CF determinations for Asylum Division Headquarters Review for quality assurance purposes when it in fact eliminated this requirement solely for families.
Further, DHS’ concealed the material fact of procedure for reconsideration of negative credible fear determination as set forth in 8 C.F.R. 1208.30(g) (2)(iv)(A)—which prolongs the CF process from for several days and potentially longer. DHS’ failure to disclose the CFR process; how frequently the CFR grants were issued in the past; and how long on average the CFR process takes misrepresented the Judge Gee that the DHS could complete the CF and RF processing of families and preserve the families’ procedural due process.
DHS additionally concealed the material fact that it eliminated mandatory Asylum Division Headquarters Review of all negative CF and RF determinations on June 11, 2014—the month before hundreds of children and mothers issued negative CF determinations were deported. The DHS also concealed the fact that the its June 11, 2014 change caused the CF positive determination rate to plummet to below 70% for last 4 months of FY 2014 from the 86% rate for the first 8 months of FY 2014
But for the DHS’ misrepresentations of fact, Judge Gee would not have included the following excerpt in her August 21, 2015 decision:
At a given time and under extenuating circumstances, if 20 days is as fast as Defendants, in good faith and in the exercise of due diligence, can possibly go in screening family members for reasonable or credible fear, then the recently-implemented DHS polices may fall within the parameters of Paragraph 12A of the Agreement, especially if the brief extension of time will permit the DHS to keep the family unit together.
DHS’ falsely claimed to Judge Gee that it could both 1. screen families within 20 days for credible fear and reasonable fear determinations and 2. ensure sufficient procedural safeguards for families issued negative CF determinations.
DHS’ concealed the fact that it had unilaterally imposed a significant cost in exchange for its willingness to comply with the mandate for expeditious release of families issued positive credible and reasonable fear determinations: the systematic elimination of procedural safeguards exclusively against children and mothers—specifically, the complete elimination of HQASM quality assurance review and the elimination, or at least drastic reduction, of granting Credible Fear Reconsideration requests. Furthermore, it also concealed the June 11, 2014 memorandum that eliminated mandatory HQASM review of all negative CF and RF determinations, discarding the Asylum Division’s safeguards in place for the previous decade to “ensure that bona fide asylum seekers are not returned to countries where they may face persecution or torture.”
Lest there be any doubt of DHS’ intent deceive, one need look no further than how the agency used Mr. Lafferty’s declaration to convince U.S. District Court Judge Paul S. Diamond that families were generally afforded the same rights as any other individual subject to expedited removal in the CF and RF process.
In reaching his decision, the Judge relied heavily on Mr. Lafferty’s declaration, explaining that:
Petitioners offer no evidence to contradict the Government’s submissions, which I may consider in determining whether I have jurisdiction. See Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014) (When faced with a “factual attack” on jurisdiction—”an argument that there is no subject matter jurisdiction because the facts of the case”—”the District Court may look beyond the pleadings to ascertain the facts” relevant to the jurisdictional inquiry.) Petitioners offer only the affidavit of Lead Petitioner, who describes her reasons for seeking asylum. (Rosa Elida Castro Decl., Doc. No. 3, Ex. 1.) I will consider this affidavit as well.
Relying upon Mr. Lafferty’s deceitful declaration, the Judge was led to make the following erroneous finding with respect to the CF and RF process for families:
The negative fear determination is not deemed “final” until it is approved by a “supervisory asylum officer.” 8 C.F.R. § 208.30(e)(7). The supervisory review process “is generally completed within 24 hours.” Lafferty Decl. at ¶ 12 (“A random sample of cases is also forwarded to Asylum Headquarters . . . for quality assurance purposes.”). If the negative credible fear determination is upheld, the alien may request a hearing before an immigration judge who must conduct a de novo review of that determination. 8 U.S.C. §1225(b)(1)(B)(iii)(III); 8 C.F.R. §§ 1003.42(d), 1208.30(g)(2). The alien is entitled to consult with a person of her choosing before the hearing, providing the consultation is “at no expense to the Government” and does not “unreasonably delay the process.” 8 U.S.C. § 1225(b)(1)(B)(iv). The immigration judge’s review “shall include an opportunity for the alien to be heard and questioned by the immigration judge. . . . [and] shall be concluded as expeditiously as possible.” Id. § 1225(b)(1)(B)(iii)(III).
If the immigration judge upholds the negative fear determination, the “decision is final and may not be appealed.” 8 C.F.R. § 1208.30(g)(2)(iv)(A). “The [Immigration and Naturalization] Service, however, may reconsider a negative credible fear finding that has been concurred upon by an immigration judge after providing notice of its reconsideration to the immigration judge.” Id. (emphasis added)
The Judge found that for families “a random sample of cases is forwarded to Asylum Headquarters for quality assurance review.” Yet, as Mr. Lafferty described in the same declaration, families are no longer subject to any Asylum Headquarters Review for quality assurance review purposes.
Furthermore, Mr. Lafferty’s failure to disclose the CF grant rate for families in the second half of FY 2015 was extraordinarily deceitful. Judge Diamond cites to the only month of statistics provided for—July of 2015, where allegedly 86.9% of families received a positive CF determination.
When DHS filed its submission of evidence, it knew the month by month CF grant rates for all of FY 2015. In fact, in a subsequent and additional declaration submitted to the U.S. Court of Appeals for the Third Circuit, Mr. Lafferty stated that “with respect to individuals residing in ICE’s family residential centers, the number of credible fear referrals for FY 2015 was 9877, with 8077 receiving positive decisions and 507 receiving negative decisions.”
Given that USCIS provided the month by month family specific CF grant rates for the first 6 months of FY 2015—1,879 grants out of 2185 referrals—one can deduce with certainty that there were 6,198 CF grants out of 7692 referrals for the last 6 months of FY 2015. As such, the CF grant rate for the last 6 months of FY 2015—which includes the period when many of the families currently detained at Berks were issued negative CF determinations and subsequently denied CFR requests—was 80.57%, down from the 86% for the first 6 months of FY 2015.
As such, it is possible—even likely—that the families currently detained at Berks account for the 6% drop in the CF grant rate given the USCIS’ August 2015 implementation of new streamlined procedures, specifically, 1.) The elimination of HQ quality assurance review, and 2.) the near total elimination of CFR requests grants.
In FY 2014, the Asylum Division’s eliminated several procedural safeguards for individuals issued negative CF determinations as apprehensions of individuals in family units increased to over 12,000 in May of 2014 and over 16,000 in June of 2014.
At the same time, the CF grant rate in FY 2014 decreased as the number of family unit apprehensions increased. As the number of individuals in family units apprehended fell below 3000 and remained so for the first 6 months of FY 2015, the CF grant rate for families increased to over 90% in February and March of 2015.
As the number of family unit apprehensions reached 3,087 in April of 2015 and climbed each successive month, from 3861; 4042; 4503;5159; and 5273 for the months of May through September of 2015, respectively, the Asylum Division abruptly stopped releasing the CF and RF grant rates for families.
However, as mentioned earlier, the overall CF grant rate for the second half of FY 2015 fell to to 80.57% from the 86% of CF positive determinations in the first 6 months of FY 2015.
The Asylum Division’s elimination of the last remaining HQASM quality assurance review solely for families and its elimination granting CFR requests for families issued negative CF determinations occurred on or about August of 2015—after consecutive increases in the number of families apprehended since April of 2015.
Therefore, the Asylum Division’s June 2014 and August 2015 implementation of the elimination of procedural safeguards for families issued negative CF determinations and resultant decrease in CF positive determinations for families, like clockwork, occurred in response to a significant increase in the number of families apprehended.
At the same time, as the number of families issued positive CF determinations decreased, the number of families subject to prolonged detention and/or removal increased.
Therefore, the Asylum Division, working with or at the behest of ICE and DHS leaders, intentionally eliminated procedural safeguards for families issued negative CF and RF determinations so that it could—with a illusory veneer of legality—detain and remove families to stem the number of family apprehensions. As DHS Secretary Johnson has declared in the past, anyone who is “apprehended at the border” and “has been ordered deported by an immigration court…must be sent home.”
The Asylum Division has engaged in an extraordinarily unconscionable course of conduct.
First, in June of 2014, it intentionally eliminated mandatory HQASM review of all negative CF and RF determinations in direct response to an unprecedented number of family apprehensions in the previous month of May. Second, it intentionally eliminated all HWASM quality assurance review of negative CF and RF determinations exclusively for families. Third, it eliminated the procedure of granting credible fear redetermination requests for families issued negative credible fear determinations.
Then the Asylum Division intentionally concealed its elimination of the above procedural safeguards from several U.S. District Court Judges and U.S. Court of Appeals Judges so that it could continue to detain for prolonged periods of time in an attempt to remove them to send a message of deterrence to future families.
But for the Asylum Division’s elimination of procedural safeguards and its subsequent concealment thereof, the vast majority of the 30 families detained at Berks would have been issued positive CF determinations thus would never have been detained for such prolonged periods of time.
Given the Asylum Division intentionally deprived, and continues to intentionally deprive, the 30 families detained at Berks of their due process rights, I demand that you immediately grant each family a de novo credible fear interview.
Additionally, I demand that you immediately re-instate mandatory HQASM review for all negative CF determinations; rescind all additional expedited procedures applied to family CF and RF processing; and create an additional policy that mandates the granting of Credible Fear Reconsideration requests for families issued negative CF and RF determinations given the particular vulnerability of children and the increased chance of persecution and torture a bona fide asylum seeking child will face if removed to their native country.
Very Truly Yours,
Bryan S. Johnson, Esq.
John Lafferty, Asylum Division Chief.
Susan Raufer, Newark Asylum Office Director.
Marie Hummert, Houston Asylum Office Director.
DHS Office of Civil Rights and Civil Liberties.
DHS Office of Inspector General
 Id. Paragraph 12.
 https://www.dhs.gov/news/2016/02/02/statement-secretary-jeh-c-johnson-southwest-border-security; and see press release in Spanish widely distributed to Central American media outlets. http://www.elheraldo.hn/pais/933012-466/eeuu-nuestras-fronteras-no-est%C3%A1n-abiertas-a-la-inmigraci%C3%B3n-ilegal