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FOIA Result: Assigning Bad Officers Higher Volume of Children Asylum Cases.

Today, our office received a FOIA result on the asylum grant and referral rate of all officers at the NY asylum office for juvenile cases applying under the provisions of the TVPRA from FY 2013-FY2016.

The original data is here. Our additional analysis, with grant rate per officer, is here.

The overall grant rate for the time period of FY 2013-16 was 31.9%. However, the year by year data is markedly different.

For example. in FY 2015, NY asylum officers granted a total of 491 cases and denied (referred) 947 cases, which comes to a 34.1% grant rate. InFY 2016, however, the grant rate dropped to 26.9% overall ( 213 grants, 580 denials).

Most tellingly, the chances that a child is approved for asylum appears to depend just as much more more so on which asylum officer is assigned their case than anything to do with the strength of their claim.

Moreover, I detected a distinct pattern: asylum officers with lower grant rates were assigned significantly more children asylum claims than asylum officers with higher grant rates..

This pattern can be seen when one analyzes the officers sorted from highest number of decisions to lowest number of decisions and then breaks the top 30 officers into 5 block units.

For example, the top 5 asylum officers had a combined grant rate of 27.4% and accounted for a 19.4% of total children’s decisions in the same time period.

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Officers with the most cases from six to ten; 6-10; 11-15; 16-20; 21-25; and 26-30, respectively, we see that the top15 asylum officers on volume of cases decided all had below the overall average grant rate of 31.9%. 

In fact, it is not until one reached the officers from 16-20 that the grant rate rises above the average, to 37.9%, and then from 21-25 all the way up to a peak of 41.2%

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Did the New York Asylum Office intentionally assign children’s cases to certain officers to ensure a low overall grant rate? It’s possible.

Even if not intentional, these results reveal that  the leaders of the New York Asylum office are aware that the decisions of its asylum officers on whether to grant children asylum is  arbitrary and capricious. (i.e. a few officers grant rates were below 10% while at least one rose to that of 75%.

Dear EOIR: Don’t Knowingly Make False Statements About Me.

One would think the that senior level officials in the Department of Justice would not knowingly make false statements, especially when they knew that the object of their false statements–me–had evidence dispel even the most flimsy veil of plausible deniability.

Here is EOIR’s statement in full

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I will reveal to the readers the exact process (by showing the EOIR documents that were the sole source that I used to identify 6o Immigration Judges with their respective complaints). By the end, readers will be able to see, without a shred of doubt, that EOIR knowingly made several false statements to the public about my actions.

First, EOIR claims that “A private attorney then took the time to manipulate some of these documents in order to uncover data not accessible on the face of the documents themselves…”

I did not manipulate any documents. Instead, I inadvertently discovered that many of the documents were improperly redacted when I saved the .pdf version as .jpeg version. Specifically, the following set of files all had most or some pages that were not in fact redacted:

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The documents above include several hundred pages. As I was going through each file, I realized that the “Non-responsive Vaughn Index” could be used to identify most of the immigration judges who are referenced in the 8 non-responsive releases. Here are the 5 steps I took to identify the vast majority of the judges in my modified key:

Here it is:

Step 1: Look at the “Vaughn” Index.

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Step 2:  Open the applicable file referenced in the Vaughn index. Here, that  is the  12-20-14 file.

Step 3:  Choose a page number, which for our purposes is Page 2.

Step 4: Read Page 2 and identify Immigration Judge Steve Sholomson.

Step 5: Search EOIR’s original key for the complaint number associated with Page 2, which is complaint # 104.

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Step 6: Conclude that Judge Solomson’s three letter code is NMS

Thus, we can conclude with certainty Jugde Solomson is the subject of all complaint numbers matched to NMS.

Furthermore, at least three Immigration Judges could be identified simply through the fact that EOIR forgot to even use a black highlighter to cover their name: The three Judges who could be identified in this manner are Judge Nugent, Abrams, and Rogers. Here is a step by step example of how Judge Nugent was identified:

Judge James Nugent:

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Opening 619-R-F-pdf and searching for Nugent revealed the following:

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In EOIR’s own key , which assigning random three letter codes to each immigration judge, one can then ascertain the three letter code for the Immigration Judge that is the subject of complaint number 619

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As such, ANY=Judge Nugent.

For some of the Judges identified, none of the complaints were included in the “Vaughn Index.” However, emails officially identified with other Immigration Judges, EOIR explicitly mentioned the complaint number with the Judge.

For example, in this following document, one can identify several immigration judges at once:

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Therefore, we can conclude that IJ Houser’s code is TAD:

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After EOIR alleged that “some members of the…immigration judge corps have been…falsely named in the private attorney’s action” I wanted to add an extra layer of verification to ensure beyond any doubt whatsoever that I had made no mistakes.

To do so, I created 3-4 page files for each Immigration Judge. Each Immigration Judge file has tracks the precise way in which the Judge was identified. Furthermore, each file includes a copy of the summary page for the complaint that the Judge was identified to so that the substance of each document is matched with the actual complaint that the judge is identified with.

For example, here is are final pages from (the first two are immediately are above:

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As one can see, the summary of the complaint for 709 references that basis relating to a motion to reopen. In the email identifying houser, a motion to reopen is mentioned as the basis for the complaint. As such, it is indisputable that IJ Houser’s code is TAD .

Here are the 60 “verifications” for each Immigration Judge identified in my original key.

One caveat: several days prior to EOIR’s false press release, I did notice one IJ was initially misidentified. Originally, I identified FRW as belonging to IJ Dowell. However, when I went through the verification process, I realized that FRW is former IJ Holliday.*

 

Nevertheless, on the day that EOIR published its press release, all 60 Judges were correctly identified, as one can see for themselves by looking at each judge’s verification file.

Therefore, EOIR’s statement that I “falsely named…some members” of the Immigration Judge Corps is itself false.

Additional False Statements Made By EOIR: 

“EOIR has determined that the “key” is inaccurate…”

As you can see above, the key is 100 % accurate. EOIR’s statement is false. And lest one think that EOIR can claim it didn’t thoroughly investigate the veracity of the key,  a report I compiled that tracks the IP addresses of individuals who click on links I created with through my dropbox account shows that the several individuals at the Department of Justice viewed documents related to my IJ key a total of 980 times in a span of only 3 days. 

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From the counter on our firm’s website, where the dropbox links were posted, one can see that the IP addresses that start with 149.101.1.115, etc. are from the DOJ:

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Here EOIR makes another reckless lie:

It is instead a representation of one person’s assumptions based on his own manipulations of the text, which resulted in the errors.”

EOIR represented that I made assumptions to identify each immigration judge even though it knew or should have known that I did not make any assumptions. Instead,  I simply read their own documents that identified each of the 60 immigration judges named.

Also, one can’t conclude that another made assumptions without actually speaking to that person about what the alleged assumptions made were.

Lastly, this:

“… he chose to publish his erroneous findings without any way of verifying his information.”

EOIR knew I could verify the information I published because it knew that the key was 100% accurate. Thus, this statement is false given that it claims I did not have any way of verifying my information.

What EOIR did not foresee was that I would release the documentary evidence to do so.

 

 

 

 

 

*However, the error was only possible because of the sloppy way in which EOIR references the complaint in the first place. In the  Vaughn index for Complaint number 337, two pages were identified, specifically 27 and 28 of the 3-25-14 file.

On page 27, at first glance it appears that the document is related to IJ Dowell. However, upon a closer reading of page 27 and page 28, it was clear that the document was actually referencing former IJ Holliday.

EOIR’ Misleads Public on Judge Misconduct Complaints

In response to the publication of this article by the Daily Beast, The DOJ Accidentally Doxxed These Immigration Judges, The Executive Office For Immigration Review released its own statement, essentially attempting to shift all the blame on me:

EOIR believes the attorney, upon finding information was inadvertently provided, should have promptly notified the sender (EOIR) rather than taking steps to publish guesses. This unfortunate incident resulted in the attorney publishing a “key” to the documents. EOIR has determined that the “key” is inaccurate and does not correctly present the actual details associated with the documents. It is instead a representation of one person’s assumptions based on his own manipulations of the text, which resulted in the errors.

My “key” was not based on “assumptions based on his own manipulations of the text.” It was based on using EOIR’s own index to match to the un-redacted documents. In the interests of transparency, I am releasing caches of the documents as I used them in identifying particular immigration judges in my “key”.

Here are the documents from the 12-20-14 release, un-redacted, except that personal information of complainants and immigrants was redacted–correctly this time.

Here is one screenshot example:

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Using the names of judges identified in each page number of the 12-20-14 release (and others), I then used the following EOIR index to ensure that each judge’s name matched the corresponding complaint number:

Once a complaint number was identified with a particular immigration judge, I then looked at EOIR’s Judge identity key, which looks like this:

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For example, page number 1 of the 12-20-14 release clearly is in reference to a complaint made against former IJ Alan Page. In the index of the 12-20-14 release, page number 1 is identified as relating to complaint number 21. Complaint number 21, in turn, is matched to the 3 letter code “EDZ”. Therefore, EDZ=Former IJ Alan Page, and so on.

This is not “guesswork.” Any errors in identifying judges are attributable to the inaccuracy of EOIR’s own inability to accurately identify what documents correspond with which particular complaint and particular immigration judge.

Secret Identities of Immigration Judges Revealed

The Department of Justice (“DOJ”) has aggressively concealed the identities of Immigration Judges in connection with complaints of misconduct made against them for several years.

Until today.

In response to a FOIA from the American Immigration Lawyers Association (AILA), the DOJ released over 14,000 pages of documents in connection to 770 complaints made against immigration judges between 2008 and 2013. The lawsuit is still pending, and DOJ has yet to reveal any of the identities of the Immigration Judges.

This past weekend, I discovered that a significant portion of the documents released by the DOJ were not, in fact, redacted.

Using the information gleaned from the un-redacted documents, I identified 60 immigration judges with 474 complaints. In other words, over half of the complaints are now matched with the immigration judge whom the complaint was made against.

Here is a modified key, which you can use to identify complaints in AILA’s database linked to above with the corresponding Immigration Judge.

Here are additional documents I have already combined for the general public’s use:

IJ Sims Complaints

IJ Couch Complaints 

IJ Duck Complaints

IJ Arrington Complaints

IJ Vomacka Complaints

IJ Hom Complaints

IJ Cassidy Complaints 

IJ Wilson Complaints 

IJ Nugent Complaints 

IJ Ford Complaints 

IJ Pelletier Complaints

IJ L. Munoz Complaints

IJ Codes Revealed

Update: 01/23/2017. 

This update is to clarify my intent in identifying immigration judges with complaints of misconduct against them. In addition, I am including the National Association of Immigration Judge’s (NAIJ) official position on identifying individual Immigration Judges with respect to complaints made against them.

Here is NAIJ’s most recent statement on this issue, copied in full:

The recent decision of the DC Circuit reversing the district court’s ruling protecting the names of Immigration Judges (IJs) from disclosure on an across the board basis, while an understandable effort to provide transparency for the public we serve, will instead reveal a distorted system, incapable of providing true clarity. Without correcting the discipline system under which we are reviewed, and assuring due process for these judges, the information released will be as misleading and flawed as the system which produced it.

AILA had made a request under the Freedom of Information Act seeking disclosure of disciplinary records of Immigration Judges. The government response redacted names of judges and other identifying information, asserting the judges’ privacy interest outweighed the public’s interest in learning the judges’ names. AILA then filed suit in district court arguing that disclosure was required. The DC Circuit Court of Appeals late last week found that the judges’ names could not be categorically withheld, and remanded to the lower court for it make specific findings as to the reasons striking the transparency-privacy balance in each instance.

Most people, lawyers included, fail to understand that the position of Immigration Judges is a legal anomaly. The law under which we serve describes us as attorneys appointed to serve as judges. We are called judges and held to standards of conduct that apply to judges, yet IJs are considered attorneys by the U.S. Department of Justice. This classification means we are subjected to the orders of supervisors, and like any employee, are at risk of discipline for failure to follow the instructions of our supervisors. Immigration Judges are viewed by DOJ as low level employees. Rather than treating misconduct from a judicial perspective where discipline generally is limited to serious misbehavior, Immigration Judges can be disciplined for mere insubordination or failing to follow a supervisor’s instructions outside the courtroom, even if their courtroom performance is flawless.

What is even worse is the star chamber manner in which Immigration Judge discipline is meted out. Not infrequently, Immigration Judges have been investigated and discipline proposed without even advising the Judge that a complaint has been filed, let alone asking the Judge to provide his or her side of the story. Even when the Judge filed a response, it frequently was not released by the Agency in these materials. So the public is seeing only the Agency’s side of these matters.

For example, in AILA FOIA Complaint Number 82, the supervisory Assistant Chief Immigration Judge (ACIJ) issued a letter of written counselling to an Immigration Judge based on descriptions of the Judge’s behavior from other parties, without giving the Judge the chance to say whether these descriptions were accurate. The ACIJ refused a request from the Judge and the union to discuss the matter, even to talk about what steps could be taken to avoid potentially problematic behavior in the future.

In AILA FOIA Complaint Number 589, while reference is made to the Immigration Judge’s response to the complaint in the decision to suspend, the response itself was not released. In addition, the emails released in Complaint Number 589 show that the ACIJ was affirmatively seeking out in order to discipline the Judge. The December 13 email from a DHS attorney to the ACIJ starts, “If you’re looking for a case which demonstrates [redacted] incompetence and inefficiency [redacted] may be it.” Clearly this ACIJ and this DHS Attorney had been in discussion for quite some time on how to bring charges against this Judge, as other statements in the email chain also show.

Frequently, the Office of the Chief Immigration Judge fails to advise the Immigration Judge of a complaint when it is not considered meritorious, although its inclusion in the data leads to a skewed view of the number of complaints lodged against that Judge. Even more frequently, the Chief Judge’s office records that a Judge has been “counselled” about his/her behavior, when all that happened was a short, seemingly informal, conversation between the ACIJ and the Judge. Occasionally, Judges who have been “counselled” were unaware that they were being counselled.

Perhaps the most problematic aspect of the data as currently complied is the extremely high number of referrals from the Board of Immigration Appeals (BIA) which are misleadingly characterized as complaints. Such referrals are not disciplinary matters, although EOIR has chosen to treat them as indistinguishable from discipline in the context of these records. BIA referrals include matters that can implicate administrative policies or mere errors that would warrant an ACIJ deciding if additional training would be helpful. These are internal matters that do not involve actual misconduct, but rather simply involve supervisory oversight. Unfortunately, the manner in which these records are kept conflates low level discipline with serious, problematic issues and therefore leads to highly misleading information if relied upon to show actual misconduct

The ultimate outcome and true impact of the ruling remains to be seen because the Circuit Court remanded the case to the district court. Now the Executive Office for Immigration Review (EOIR) must decide if they are going to continue to withhold the identity of any Immigration Judges, and if so, must state a particular reason specific to that situation for doing so. Nevertheless, even if some Judges’ names are released, the result will not be truly transparent and helpful to the public because of fatal flaws in the EOIR discipline system. We need EOIR to reform the existing complaint process to make it conform to a judicial model, commensurate with the actual judicial duties of Immigration Judges. In the meantime, revealing the identities of Immigration Judges is unwarranted and likely damaging to their reputation, while serving no real benefit to the public because of the highly unreliable nature of this data.

August 3, 2016 For further information, contact: Hon. Dana Leigh Marks, President NAIJ http://www.naij-usa.org / danamarks@pobox.com / 415-705-0140

I agree with many of NAIJ’s points, especially in light of reviewing, in detail, many of the complaints.

For example, EOIR often issues harsh disciplinary measures for not behavior that has nothing to do with their duties as an immigration judge. In complaint number 467, ACIJ Larry Dean proposed a 7 day suspension for an IJ for not obtaining his approval prior to entering the workplace.

Even worse, EOIR’s meting out of discipline for offenses that do rise to the level of serious misconduct in relation to their duties as an immigration judge are effectively ignored. 

In complaint number 468, ICE chief counsel advised ACIJ Larry Dean that an IJ was systematically depriving detained immigrants of procedural due process rights–specifically, the IJ was observed to have been ordering immigrants removed and then subsequently using that removal order to deny immigrants’ right to a bond determination.

In this case, ACIJ Dean only disciplined the Immigration Judge with “oral counseling”

As you can see from the example above, the EOIR disciplinary process is often arbitrary and capricious. This is unsurprising given that adjudication of an immigrant’s claim in immigration court often hinges upon a the lottery of which immigration judge is assigned.

Many immigration judges discharge their duties superlatively, particularly in the court where I try the majority of our cases: New York.

However, there is still value to be gained from identifying misconduct complaints against immigration judges, with the strong caveat that no complaint be looked at in isolation.

In order to be fair and accurate in determining whether an identified immigration judge has a pattern and practice of engaging in serious misconduct, one must take additional evidence into account, such as the particular judge’s track record on appeal,  credible fear grant rate, asylum grant rate, and by speaking with immigration attorneys who regularly appear before the judge.

For example, the allegations of serious misconduct I made against several immigration judges at the Atlanta and Charlotte Immigration Courts would not have been possible without an additional step of obtaining several hundred BIA remand decisions through a FOIA request.

Yes, the Board of Immigration Appeals, which accounts for more than 25% of complaints of immigration judge misconduct, has a policy of keeping the bast majority of its own decisions secret from the public.

My intent in identifying judges is to secure additional evidence against the immigration judges who continue to systematically deprive immigrants of due process, and to hold them and their supervisors accountable for the harm they have and continue to inflict upon immigrants who appear before them.

Accuracy in Immigration Judge Key

One last point: the accuracy of each identified judge with the corresponding complaints is only as good as its source: EOIR’s original key and the un-redacted documents with which I determined each Judge’s identity.

Given the systematic incompetence  with which EOIR investigated, processed, and disposed of misconduct complaints, one should read each complaint with caution.

UPDATE Number Three, 01/24/2017: 

In light of EOIR’s false claims that I “manipulated text” to “guess” the identities of Immigration Judges with complaints of misconduct made against them, I have begun to compile authoritative evidence (“double verification”) on how precisely I identified each Immigration Judge with their corresponding three letter code.  Here are the first 31 judges I have completed thus far:

  1. IJ Hom–Verified
  2. IJ Josephson–Verified
  3. Former IJ Page–Verified
  4. IJ Arellano–Verified
  5. IJ Solow–Verified
  6. IJ Stockton–Verified
  7. IJ Straus–Verified 
  8. IJ Richardson–Verified
  9. IJ Abbott–Verified
  10. IJ Nugent–Verified
  11. IJ Bither–Verified 
  12. IJ L. Munoz–Verified
  13. IJ Yam–Verified
  14. IJ Carte–Verified
  15. IJ Devitto–Verified
  16. IJ Wilson–Verified
  17. IJ Duck–Verified
  18. IJ Arrington–Verified
  19. IJ Vomacka–Verified
  20. IJ Cassidy–Verified
  21. IJ Ford–Verified
  22. IJ Pelletier–Verified
  23. IJ Mullins–Verified
  24. IJ Mills–Verified
  25. IJ McCormack–Verified
  26. IJ Beatmann–Verified
  27. IJ Couch–Verified 
  28. IJ Clemente–Verified
  29. IJ Chapa–Verified
  30. IJ Cordova–Verified
  31. IJ Ho–Verified
  32. IJ Durling–Verified
  33. IJ Cuevas–Verified
  34. IJ Evans–Verified
  35. IJ Feldman–Verified
  36. IJ Guilloty–Verified
  37. IJ Hladyowycz–Verified
  38. IJ Holliday–Verified
  39. IJ Sichel–Verified
  40. IJ Videla–Verified
  41. IJ Cheng–Verified
  42. IJ Hollis–Verified
  43. IJ Karden–Verified
  44. IJ Malloy–Verified
  45. IJ Martin–Verified
  46. IJ Fong–Verified
  47. IJ Vinikoor–Verified
  48. IJ M. Garcia–Verified
  49. IJ Sholomson–Verified
  50. IJ Riefkohl–Verified 
  51. IJ Zerbe–Verified
  52. IJ Van Wyke–Verified
  53. IJ Abrams–Verified
  54. IJ Burman–Verified
  55. IJ Rogers–Verified
  56. IJ Ferris–Verified
  57. IJ Houser–Verified
  58. IJ Hurewitz–Verified
  59. IJ Mulligan–Verified
  60. IJ Q. Bain–Verified*

*Out of the total 60 Judges I initially identified, IJ Bain is the sole one where I cannot ascertain with 100% certainty given that there are two Immigration Judges with the last name of Bain: Quynh Vu Bain and Terry A. Bain. On page 33 of EOIR’s 03-25-14 release of documents, the un-redacted version simply states: “#524 Bain will be done as soon as I talk to her this week (she’s off to York on detail but I’m going to give her a call.) Cheers, Ed.”

The first name of Bain, as one can see, is not identified. However,  circumstantial evidence within page 33, which is a 2011 email exchange between ACIJ Edward Kelly and EOIR staffer Deborah Moutinho, and from other documentary evidence strongly supports a conclusion

At the time, ACIJ Kelly was in charge of supervising Immigration Judges at 4 immigration courts: Arlington Headquarters, Baltimore, Charlotte, and Cleveland. IJ Q. Bain’s base city is Arlington Headquarters. Immigration Judge Terry Bain, however, has been an immigration judge based in the New York Immigration Court for well over a decade.

The ACIJ for the New York Court in 2011 was not Edward Kelly.

Throwing Children Asylum Applicants To The Wolves

Under the dark shadow cast of Americans’ obsession with Donald Trump, Barack Obama continues to wage a fierce, relentless, and exclusive war against the most vulnerable group imaginable: children who fled war in Central America.

Below are the results of a years-long investigation–based on documents obtained through FOIA, friends, and the public domain–into the  story of how the Obama administration secretly suspended  laws, regulations, and policy so that it could deport as many children as possible.

The law of the land in the United States–8 U.S.C. 1232, to be precise–mandates that that the U.S.provide enhanced procedural protections for unaccompanied immigrant children who seek asylum in the United States.

Yet just when an unprecedented number of Central American children were in need of these legally mandated protections, the DHS’ asylum division leadership weakened its Headquarters review process in a secretive February 20, 2015 e-mail to the leaders of asylum offices across the country:

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In laymen’s terms, “HQ” is Asylum Division Headquarters and “QA” is Quality Assurance. “Referrals” is a legal euphemism to camouflage the fact that the asylum office denied a an individual’s asylum application. After a “referral”,  the asylum office orders the applicant to appear for deportation proceedings before an immigration judge. As a defense to deportation, the  applicant may apply for asylum before an immigration judge and have their case decided de novo. 

Why is this all important? Because substantial evidence shows that the policy change initiated on February 20, 2015 caused a steep drop in the asylum grant rate for unaccompanied children (UC) applying under the initial jurisdiction of the TVPRA.

The asylum division granted  60.4% of UC asylum applications in the period spanning from October 1, 2014 to December 31, 2014, as can be seen in the following chart:

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At the same time that the asylum division eliminated mandatory headquarters review for juvenile referrals, the grant rate unaccompanied children dropped by over 19 percentage points to 41% from January 1, 2015 to March 31, 2015 with 1772 children denied and 1230 granted asylum, respectively.

 

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The grant rate continued to slide:  for FY 2015 and FY 2016, 41.2 % and 38.2% of UCs were granted asylum, respectively.

Are  there are factors unrelated to the HQ review policy change that account for the decrease in asylum grant rates? Perhaps, but the overwhelming evidence supports the conclusion that, indeed, the asylum division’s 02/20/2015 about-face in HQ review was the main driving cause of the steep decline in unaccompanied children granted asylum.

An Off-the-Record E-mail From Asylum Division Chief John Lafferty Reveals Intent To Increase Number of Children Denied Asylum. 

In August of 2015, Asylum DIvision Chief John Lafferty responded to an inquiry from an advocate with the following:

Your inquiry to the Chicago Asylum Office has been forwarded to HQ for response.  The Asylum Division regularly reviews and considers revisions to our internal quality assurance process.  Not all revisions and adjustments to the quality assurance process are accomplished with the issuance of a formal memo, and none of the changes impacts the requirement that 100% of cases processed by an Asylum Officer are reviewed and signed off by a supervisor prior to issuance of the decision.

As you have noted, in January 2014 we revised the category of review of cases where the principal is a juvenile from reviewing all such cases to reviewing only NOIDS, denials and referrals.  After spending more than a year reviewing this revised category of cases, we decided in February 2015 to begin work on establishing a random review of the full range of UAC decisions, both positive and negative.  This is consistent with the change that was previously made to our QA review of credible fear and reasonable fear screening determinations.  While we work to establish a procedure for random review, we asked our offices to send us the following revised category of juvenile cases that involve both positive and negative decisions – cases that fall within one of the other categories designated on the QA Referral Sheet and cases involving a novel PSG.

We will consider issuing a memo outlining the changes to the QA review process for juveniles once we have settled on the parameters for the random sampling of cases.

Thank you for your continued service to the protection of refugees.

John

John Lafferty

Chief

USCIS Asylum Division

Once notes Mr. Lafferty never explicitly disclosed the policy as set forth “official-yet-unpublished February 20, 2015  e-mail to asylum offices “What this means is that you [asylum office directors] are no longer submitting all referrals and NOIDs incases in which the principal applicant is less than 18 years old at the time of filing.” Instead, he cites to an aspirational future review policy and states, in as indirect way as possible, that juvenile asylum applicants will be reviewed by HQ like any other asylum applicant.

HQ Review Policies for Juvenile Asylum Claims and Credible Fear Determinations Were Both Explicitly Designed to Provide Enhanced Procedural Due Process Safeguards 

The previous policy for  HQ review of juvenile asylum cases was promulgated in a January, 27, 2014 memorandum from Mr. Lafferty, Changes to Case Categories Requiring Headquarters Review. The policy and its explanation were explained at length:

Fifth, the juvenile category is being narrowed to include only referrals, NOIDS and denials of juvenile cases. The category of juveniles was added to the QA referral list in 2003. At that time, HQ determined that a juvenile category was necessary to ensure that the Children’s Guidelines were being followed and to look for trafficking concerns among UACs. The Asylum Division has significantly enhanced the resources available to Asylum Officers regarding human trafficking over the last couple years by developing a comprehensive lesson plan and formally implementing new procedures. 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. The field, however, is no longer required to submit grants of juveniles for HQ review, unless they fall into another HQ review category.

As one can gather from the bold section above, the purpose behind requiring HQ review for all juvenile referrals, NOIDS and denials was to ensure that the children’s guidelines were being followed in the field.

The “guidelines” are in fact a series of binding rules that asylum officers in the field must comply with when interviewing and adjudicating children’s asylum claims. If there is no mechanism to force a group of individuals to comply with a rule, the rule is not worth the paper it is written on.

Moreover, the guidelines were issued in 2009 to take into account the recent enactment of the Trafficking Victims Protection Reauthorization Act, (TVPRA), which commanded the U.S. government to

(8) Specialized needs of unaccompanied alien children

Applications for asylum and other forms of relief from removal in which an unaccompanied alien child is the principal applicant shall be governed by regulations which take into account the specialized needs of unaccompanied alien children and which address both procedural and substantive aspects of handling unaccompanied alien children’s cases.

In clearer terms, the January 2014 memorandum means that the Asylum Division’s HQ review served their goal “of enforcing compliance of the rules set forth in the Children’s guidelines.”

The mandatory language in the guidelines clearly indicates that an asylum officer must follow specialized rules. A sampling:

In order to create a child-friendly atmosphere, asylum officers must attempt to build a rapport with the child, “read” the child applicant for any sign of anxiety, and guide the child through the interview process.

Asylum officers must make an effort to ascertain the child’s quantitative reasoning ability.

In order to communicate effectively with a child asylum applicant, an asylum officer must ensure that both the officer and the child understand one another.

During the interview the asylum officer must take the initiative to determine whether the child understands the process and the interview questions.

All asylum claims filed by principal applicants under the age of eighteen at the time of filing must be submitted to the Headquarters Asylum Division (HQASM) for quality assurance review before they can be finalized.

Asylum officers must earn the trust of the child applicant in order to dispel these preconceptions and put the applicant at ease.

The lesson will cover the international guidance that bears on this issue, the procedural adjustments asylum officers must make when interviewing children, and the legal issues that must be considered when analyzing cases and making asylum determinations.

 

If an asylum officer clearly failed to comply with the child guidelines and then denied a minor’s asylum application, HQ likely sent the case back to the asylum office to reconsider the decision in light of the correct guidelines. This may include reassigning the case to a different asylum officer for another interview, or a reconsideration on the legal  basis for the denial of asylum. In short, violating the children’s guidelines up until February 20, 2015 often created concrete consequences–more work and more hassle– for the asylum officer  and his or her supervisor.

With the prospect of rebuke from HQ, the asylum officer and asylum office directors had a strong incentive to comply with the children’s guidelines. For example, an asylum office director would try to assign children’s cases to  asylum officers with naturally friendly dispositions towards children because they would be less likely to run afoul of the rules and therefore would minimize the chance that a denied case would be sent back for reconsideration upon HQ review.

The Asylum Division rescinded the children’s guidelines in a sweeping fashion by eliminating HQ review of juvenile asylum denials. The message to asylum offices in the field was clear: “You should follow the rules in the children’s guidelines, but feel free to do whatever you want since we will no longer enforce the rules.”

Why would the asylum division destroy its own mandatory rules on children’s cases? To tacitly encourage the violation the children’s guidelines as well as the statutory mandates under the TVPRA.

The enforcement of compliance with the children’s guidelines–mandatory HQ review of all juvenile denials–prevented the asylum division leadership from complying with the Obama administration’s orders to speed up completion of children’s asylum cases.

A Test Case:  Elimination of Mandatory HQ review for all Credible Fear Denials Yielded Immediate Decrease In Credible Fear Grant Rate in June of 2014

 

In addition to the goal of  expediting the completion of children’s cases as explained above, Mr. Lafferty alludes to another potential goal–to decrease the percentage of children granted asylium–when he states the February 20, 2015 decision to be “…consistent with the change that was previously made to our QA review of credible fear and reasonable fear determinations.”

Prior to June 11, 2014, HQ review of “all negative credible fear determinations” was mandatory “to ensure that bona fide asylum seekers are not returned to countries where they may face persecution or torture.”

To add context, at the time, USCIS’ policy was partially guided by recommendations madein 2005 by the U.S. Commission on International Religious Freedom, an “independent, bipartisan U.S. federal government commission.” UCIRF found that “the QA and other procedures for negative determinations were more onerous than the procedures for positive determinations, creating a potential bias toward positive determinations.”

As such, UCIRF recommended that the asylum division “similar QA procedures to both positive and negative determinations.”  The Asylum Division only partially implemented the procedures: it increased the HQ QA review of positive determinations but continued to require “more onerous” procedures for negative determinations” by requiring HQ QA review for all negative determinations.

Clearly, the rationale of USCIS’ policy in place from 2008 to June of 2014 was to err on the  side of minimizing erroneous negative CF determinations, even if there was evidence that to do so would create the risk of more erroneous positive CF determinations. The reasoning makes logical,sense: the consequences of an erroneous CF determination is that a human being will be sent to a country where they will face persecution or torture whereas the reverse is less dire: an erroneous positive determinations will, at worst, give a human being the right to apply for aslyum before an immigration judge.

Indeed, the CF grant rate from FY 2012 up through FY 2013 remained near 90% and never dropped lower than 85%.

On February 28, 2014, the asylum division issued a revised lesson plan on credible and reasonable fear determinations, which was widely seen as an intentional policy shift to heighten the requirements for an individual to be granted a credible fear.

But the subsequent statistics reveal that the memorandum did not, by itself, cause a large decrease in CF grant rates. In March of 2014, the month immediately following the new lesson plan on credible fear interviews, the CF grant rate was 83%, a 6.1% drop from February of 2014.

The CF grant rate remained steady at 83% in April and May of 2014, then dropped to 76.1 in June of 2014, the same month that Mr. Lafferty eliminated mandatory HQ review for all negative CF determinations.

In 2015, the total CF grant rate was 80.76%, 33,998 grants and 8097 denials.  However this was an inflated number given that extraordinary efforts of pro bono lawyers for mothers with children in family detention centers, and the fact that families were detained in only 3 detention centers, as opposed to single adults who are detained in dozens of centers spread out throughout the United States.

The CF grant rate for families in FY 2015 was 93%, with 8097 grants 602 grants, which provides us with a more accurate number.

As such, for single adults, there was a 77.5% grant rate for the all adults in FY 2015.

The depressed CF grant rates in place since 2014 continued for FY 2016.

The total CF grant rate was 88.28%, with 73,081 grants and  9697 denials. However, again, like in FY 2015, this grant rate is significantly inflated due to a higher CF grant rate for mothers with children at family detention centers, with  36570 grants and 1626 denials. 95.7% grant rate for families and 81.9% for single adults.

The Asylum Division’s June 2014 policy change was ostensibly a change based on USCRIF’s recommednation in 2005 to eliminate the mandatory review of all CF denials. But the asylum division failed to explain why it waited for over a decade to adopt USCRIF’s recommendation. The timing leaves little doubt as to the unstated reason: to increase CF denials in an effort to deter asylum seekers from fleeing to the U.S. in record numbers.

The number of CF requests exponentially increased in the last years:

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As one can see, the Asylum Division’s decisions to restrict the number of individuals granted CF came after a record leap in CF requests–in 2013, the number almost tripled from the previous year, over 36,000 requests compared to the previous year of just under 14,000.

In the FY 2014 itself, the adoption of the USCRIF “recommendation” to eliminate HQ review for CF denials occurred in the month with the highest number of CF requests in history:

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In other words, USCIS decided to abandon its policy of ensuring that as few bona fide asylum seekers were wrongfully deported due to an erroneous CF at the same time that there was an unprecedented number of individuals requesting asylum protections in the United States.

The Elimination of Mandatory HQ Review for all Juvenile Asylum Denials Also Occurred Same Month Where Record Number of Children Applied For Asylum

Before 2015, the aslyum division received very few asylum requests for children as this chart shows:

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In FY 2015, which began right at the same time–October of 2014–that the Obama administration kicked of its campaign to expedite the deportation of unaccompanied minors, including a directive to the aslyum division to schedule unaccompanied minor over all other applicants. Asylum offices nationwide decided almost 12,000 juvenile aslyum cases in FY 2015, more than 10,000 from the previous year number of 1,013..

And the decision’s timing, like with credible fear HQ review, occurred during the same time with an unprecedented number of asylum decisions issued for unaccompanied children:

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Thus, in the second quarter of FY 2015, the aslyum division decided more children’s asylum cases–3287–than the previous 6 years combined. the aslyum division rescinded the mandatory guidelines for children asylum applicants at the precise moment that a record number of children were in desperate need of our asylum laws protections.

The Asylum Division Concealed Its Decision To Cease “Ensuring Compliance With Children Asylum Guidelines” From Congress and the U.S. Public

The Asylum Division misrepresented its policy regarding juvenile asylum cases to the Government Accountability Office (GAO) in connection with a report released in December of 2015:

Second, the Asylum Division’s Quality Assurance Branch requires that asylum offices submit certain types of cases to Asylum Division headquarters for review. According to Quality Assurance Branch officials, these reviews focus on sensitive asylum cases, such as…cases that could result in particularly negative outcomes if the applicant is improperly denied asylum, such as cases involving a juvenile. For example, as of July 2015, the Quality Assurance Branch requires asylum offices to submit to headquarters all cases for which the principal applicant is under 18 years of age and the officer had decided not to grant asylum.111 Our review of Quality Assurance Branch data found that, from fiscal years 2010 through 2014, the Quality Assurance Branch reviewed 5,696 applications. The most common type of application reviewed (3,213) involved juvenile applicants.

As February of 2015, the Quality Assurance Branch no longer required asylum offices to submit to headquarters all juvenile cases where the officer had decided not to grant asylum headquarters. As such, the asylum division’s falsely represented to GAO that its HQ review policy remained as of July 2015.(Emphasis added)

Lest one chalk this inconsistency up to a typographical error, see footnote 111:

In September 2015, Asylum Division officials told us that they are working to transition to a random review of all cases involving juvenile principal applicants, including cases in which the officer decided to grant asylum.

The Asylum Division already had moved to a random QA review immediately as of February 20, 2015. Here, it appears that the Asylum Division they are working on a future transition to a random QA review while retaining its policy of QA review for all juvenile asylum denials.

There was never any reasoned basis to implement a random QA review for juvenile asylum denials–USCRIF recommendation was solely directed at the narrow policy goal of minimizing the numbers of erroneous positive credible fear determinations caused by a potential bias given the more onerous procedural hurdles imposed on asylum officers that HQ review imposed for credible fear denials.

Unlike HQ review guidelines for credible fear determinations, there is a a statutory mandate in the TVPRA requires the asylum division to impose more onerous procedural safeguards for unaccompanied children applying for asylum.

By commanding the Asylum Division to create regulations to take into account the specialized needs of unaccompanied alien children, Congress expressed its unequivocal intent that there should be an abundance of caution in adjudicating children’s cases to ensure that a child is not wrongfully denied asylum.

As such, the Asylum Division’s leap the adoption of a recommendation from unrelated study on credible fear determinations is illegal because it is in direct defiance of its obligations under 8 USC 1232 to provide regulations that take into account the specialized needs of unaccompanied children. It is also without any sound evidentiary basis in whatsoever.

The second strong piece of evidence supporting the conclusion that the Asylum Division actively concealed its ultra vires revocation of statutory mandated procedural protections for children asylum applicants is its December, 2015 “Affirmative Asylum Procedurals Manual (AAPM) Public Version, in which it purports to the public the following:

x. Headquarters QA Review Required

Referrals and NOIDs of all juvenile cases in which the principal applicant is less than 18 years old at the time of filing should be sent to HQ for QA review prior to service.

The Asylum Division HQ eliminated this requirement 7 months earlier in February of 2015. Thus, the asylum division falsely represented to the public that HQ review of all juvenile cases is required.

The Mandatory Scheduling of Asylum Interviews for 7:45 am deprives children of their constitutional right to due process and is wholly unnecessary given the asylum office does not start the interview until 9 am or later in the vast majority of cases.  

The asylum office’s policy, at least in New York, is to schedule all juvenile cases at 745 am. In reality, the asylum officer does not call the child in for the interview until 9 am, and often significantly later.

The majority of children whose claims are under the jurisdiction of the NY asylum office reside in Suffolk and Nassau Counties. Prior to the NY asylum office’s transfer from Rosedale, Queens to Bethpage, New York, the 745 am appoinments required children to wake up no later than  530 am to ensure that they could arrive at the Rosedale office, which is 1 to 2 hours away with traffic.

Even with the asylum office in Bethpage, children still have to rise no later than 6 am to ensure they arrive at 745 am. Many of our clients, in a rush to not be late, come to their interview before even having breakfast.

Furthermore, many children already struggle to obtain enough sleep on the eve of their interview due to anxiety.

The potential harm to a child’s due process rights is not speculative.

The American Academy of Pediatrics recommend that middle and high schools delay the start of classes to 8:30 am or later given that “Studies show that adolescents who don’t get enough sleep often suffer physical and mental health problems…and a decline in academic performance.”

The AAP made these recommendations in light of studies that showed the majority of adolescents in the United States are chronically sleep deprived.

The additional reduction of 1-2 hours of sleep caused by the 745 am scheduling on top of a child that is likely to already be sleep deprived is a recipe for disaster. Specifically, a child will be less likely to recall details regarding past experiences, including severe trauma.

Given the above, the asylum office should rescind its mandatory scheduling of children’s asylum interviews for 745 am and schedule them no earlier than 9 am to take into account the  significant distance of the asylum office from the majority of childrens’ homes.

Obama Administration Must Be Held Accountable For Depriving Children Asylum Applicants Of Their Statutory and Constitutional Rights.

Why harm children? Why would the U.S. government under President Obama aggressively harm vulnerable children seeking safety in our country? It is a question I have contemplated over and over and over again.

Although one cannot read the President’s mind,  from administrations’ words and actions provide a strong clue.

The politics the Democratic and Republican party’s courting of the perennial  “secure our border/stop illegal immigration”  constituency.

 This  political weapon employed by the elites in both parties was on full display a press release issued yesterday by DHS Secretary Jeh Johnson’s response to mounting numbers of individuals from Central America seeking asylum protection at the U.S. Mexico  border:

As difficult as circumstances may be in Central and South America and the Caribbean, our borders cannot be open to illegal migration. We must, therefore, enforce the immigration laws consistent with our priorities. Those priorities are public safety and border security. Specifically, we prioritize the deportation of undocumented immigrants…apprehended at the border attempting to enter the country illegally. Recently, I have reiterated to our Enforcement and Removal personnel that they must continue to pursue these enforcement activities.

 

President Obama and others in leadership intentionally violated statutory and constitutional laws designed to protect children asylum applicants as a means to execute the message that his administration a. is aggressive against illegal immigration and b. has been largely successful in creating a secure border.

Here is what needs to be done on this specific issue,  in 5 steps:

First, the Asylum Division must immediately reinstate mandatory headquarters review of all juvenile asylum denials.

Second, the Asylum Division must immediately rescind its policy of fast-tracking juvenile asylum applications;

Third, the Asylum Division must re-interview every child who was served a referral without Headquarters Review.

Fourth, the Asylum Division must rescind its mandatory 7:45 am scheduling policy for juvenile asylum interviews and implement a policy that ensures interviews are not scheduled any earlier than 9:00 am.

Fifth, Congress must commission an independent investigation to determine which individuals in the Obama administration are responsible for ordering the Asylum Division leadership to de facto rescind the TVPRA and the 5th amendment right to due process.

As of November 17, 2017, the above-article was forwarded as a request  to Asylum Division Headquarters officials as well as Asylum Office Directors throughout the United States.

The above-article will also promptly be forwarded to the DHS’ Office of Inspector General; Office of Civil Rights and Civil Liberties, and the members of the Senate and House Subcommittees on Immigration.

Honduras Pilot Initiative: A Conspiracy To Deprive Hondurans Right To Seek Asylum

 

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Houston Consul General of Honduras Supervisory Immigration Enforcement Agent James R. Donaldson working together on an ICE deportation flight

The Honduras Pilot Initiative (HPI) is an arrangement between the Honduran and U.S. Government to expedite the expedited removal process from weeks to days for Honduran citizens, according to documents ICE released pursuant to one of our office’s Freedom of Information Requests (FOIA).

One of the benefits of this super-expedited deportation program is to deport Hondurans so fast that they never get a chance to hire or consult with an attorney, as is illustrated on page 26-27 on ICE’s release:

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ICE boasts that the reduction in time that an individual is in ICE custody leads to a reduced possibility that an individual can contact or consult with an immigration attorney. The adjective of “unscrupulous” is superfluous because the reduced ICE detention time applies to all immigration lawyers, not just the unscrupulous ones.

The intent of ICE is further corroborated by the last two bullet points: if the detained individual’s family or friends hired an attorney to help them, an attorney must find out where their client is located prior to being able to communicate with the client.

For example, if an individual is transferred to an ICE detention center on a Friday and  their deportation flight is scheduled for the following Monday or Tuesday, that individual will likely be deported regardless of whether they were able to  hire a lawyer. The inability of a detained individuals’ lawyer or family to locate them while in CBP custody leaves them with less than 4 days to hire a lawyer or for their lawyer to locate them and send a credible or reasonable fear request to the proper ICE official, as the following slide demonstrates:

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To double down on this, the last bullet point brags that HPI effectively renders thousands of Hondurans completely incommunicado with no ability no phone access prior to the government of Honduras’ issuance of travel documents. ICE cannot deport an immigrant unless the  immigrant’s native country issues travel documents.

With the pilot initiative, Honduras’ government gives the green light for their nationals’ deportation before they even dry off after crossing the Rio Grande:

According to talking points on the HPI, “Via the Honduran Pilot Initative (HPI) , the government of Honduras agreed to interview up to 100 aliens per day , while in the Office of Border Patrol Custody,  and issue travel documents the same day…:

“In FY 2014, via the Honduras Pilot Initiative, consular officials conducted 16,658 consular interviews, and issued 16,327 travel documents.”

The powerpoint slide indicates that at some point during FY 2014, there were 18,190 travel document requests pursuant to the HPI. The total number of travel document requests via HPI for FY 2014 and FY 2013 was 21,684. Thus, the date of that the slides were made appears to be based on data towards the end of FY 2014. The Honduran government issued travel documents in close to 99% of nationals it interviewed under HPI. Therefore, approximately 85% ( 15,037 removed out of 18,000 travel documents issued) of Hondurans subject to HPI were deported from the US within a matter of days.

Those remaining 3000 who were not deported under HPI may have had the luck to communicate their fear or return to Honduras (whether through counsel or by themselves) to an official in ICE to automatically trigger a stay of removal pending the outcome of their credible fear interview.

The number of Hondurans ICE deported in 2014 was approximately 41,000, meaning that the HPI accounted for more than one third of all Honduran deportations in FY 2014.

El Salvador: Unwilling to Enter Conspiracy With the U.S. to Deprive Its Citizens Right to Apply for Asylum

El Salvador, unlike Honduras, appears to largely rejected US requests to enter into an agreement to expedite the expedited deportation process for its own nationals:

In June 19, 2013 ICE initiated discussion with the Government of El Salvador (GOES) demonstrating proven efficiencies gained through cooperative partnership with the GOG and GOH in response to the surge of their nationals arrested in the RGV. ICE asked the GOES to consider this option as a way to reduce TD processing times and was offered to collocate with the GOG sub consulate in McAllen, TX but the proposal was refused

However, the Salvadoran government did temporarily work with the US to expedite travel documents for 2 months in FY 2014: “During the two months of participation in FY 2014, the El Salvador Initiative conducted 1540 consular interviews, and issued 1129 travel documents.” The number of travel documents issued pales in comparison with that of Honduras and Guatemala.

The Honduran government’s cooperation in HPI resulted in a startling low number of Honduran nationals requesting credible or reasonable fear interviews.

The following numbers were derived from statistics provided by USCIS on fear interviews and and CBP’s national security reports for FY 2014 and FY 2015. I have excluded family unit and unaccompanied minor apprehensions from the calculation given that neither is subject to the Honduran Pilot Iniative.

In FY 2014, CBP apprehended 38,736 Hondurans at the Southwest border. In the same time period, 9,800 Hondurans nationals requested either a credible or reasoanble fear interview. Thus, only 25% of  Hondurans apprehended at the southwest border formally expressed a  fear of returning to their native country.

In FY 2014, Cbp apprehended 35,401 Salvadorans at the Southwest border. In the same time, 21,185 Salvadorans formally expressed a fear of return to their native country. Thus, 60% of Salvadorans apprehended at the Southwest border formally requested a fear interview.

The Honduran government should work for the best interests of its people. If the Honduran government cannot or will not protect its nationals from widespread and severe violence then it should afford them the right to seek safety abroad, including in the United States.

But instead, Honduras’ leaders  are willing participants in a conspiracy with the Obama administration, the Honduras Pilot Initiative, to deprive thousands of Hondurans of their right to seek asylum in the United States.

 

No, President Obama, Central American Children Are Not Likely to Be Deported

In fact, children from Central America have over a 95% chance of not being deported.

In what he thought would be a breezy joint press conference with the Italian Prime Minister, President Obama’s comfort bubble was pricked by an unapproved question from Washington Post reporter David Nakamura.

To better understand the full import of the question, it is necessary to know what happened first.

The question immediately followed the tail end of Obama’s speech, in which he peddled the same policy to address Central American migration that he started during “border crisis” that dominated the headlines in the summer of 2014:

“But one area where we have seen a big spike over the last several years is actually from the smaller countries in Central America, where the economy is doing poorly; agriculture has done poorly, in part, because of changing weather patterns; violence brought on by narcotraffickers.

So Vice President Biden — I gave him the charge of working with those countries to come up with a development plan; Congress on a partisan basis supported us putting more money into these countries for development, more effective policing, dealing with fighting the narcotraffickers in a more effective way, investing in young people.
But that’s not going to happen overnight. That will be a decade- long process potentially.

In the meantime, we insist that those countries cooperate with us to send a message to the populations that it is a dangerous trip to reach the United States. And if you get here, you’re likely to be turned back, to try to discourage a — this dangerous passage but also to try to undermine the human traffickers who are preying on the desperation of these people to make money.” (Emphasis added)

If one were to sum up this administration’s policy towards Central American migrants entering the U.S. at the Southwest border in one sentence, it would be “If you get here, you’re likely to be turned back.” In one word, “Deterrence.”

Starting in 2014, the White House has directed DHS, the State Department, the Department of Defense, the Department of Justice, as well as the the governments of Mexico, Guatemala, Honduras, and El Salvador to implement policies (some of which have been ruled illegal by Courts)  to deter unaccompanied children and mothers with children from reaching the United States’ southwest border.

Yet despite the untold billions of dollars spent, the number of unaccompanied children and mothers with children from Central America apprehended at the Southwest border was higher in FY 2016 than FY 2014, when the deterrence policies were first set into motion.

In this context, the Washington Post reporter asked President Obama whether the higher number of Central American apprehensions in 2016 meant that the policy  of deterrence, which the President just mentioned minutes earlier, was ineffective.

President Obama did not answer for his policies on Central American children because his they have failed spectacularly due to a combination of special  legal protections bestowed on immigrant children by Congress; incompetence, logistical obstacles; and the indefatigable will of caring adults to protect children from harm.

The Vast Majority of Central American Children Who Arrive in the United States Are Eligible for Asylum Or Special Immigrant Juvenile Status in the United States 

Congress enacted laws that bestowed additional humanitarian protections to unaccompanied and accompanied children. Children are more likely to be eligible for asylum than adults as a general matter given that they are more vulnerable to harm that rises to the level of persecution than adults are. Children who cannot be reunified with one or both of their parents due to abuse, neglect, or abandonment are eligible for permanent protection in the United States as special immigrant juveniles. (SIJS) Adults are not.

The statistics do not lie.

For example,  approximately 12,190 the 35,601 unaccompanied children placed in deportation proceedings in 2014 who were represented by an attorney, were granted asylum, SIJS relief, or prosecutorial discretion.

At the same time, only 2,345 of that same 35,601 children were ordered removed by an immigration judge, and 15,170 children’s cases remained pending.

As such, if an unaccompanied children can get a lawyer, they are likely to be allowed to stay in the United States and be granted a green card.

With respect to mothers with children (AWC), the ratio of removals to relief granted is markedly different.

Approximately 1,921 out of the 17,083 represented mothers with children who were placed in deportation proceedings in 2014 were granted relief through asylum, special immigrant juvenile status, or prosecutorial discretion. There were more ordered removed: 3320 out of 17,083. The largest share of cases remain pending–11,203 out of 17,083.

To date, for mothers with children, they are more likely to be ordered removed than to be granted relief. However, given that such a significant percentage of the 17,083 remain pending, it is premature to speculate as to whether more will ultimately be ordered removed or granted relief.

However, the reality is that the more than half of the represented mothers with children who Obama has been trying to deport since 2014 have not even had their case decided. Thus, if a mother with children can obtain a lawyer, her family is not likely to be turned back, at least not yet.

The Obama Administration Is Inept at Deporting Unaccompanied Children

According to  Sarah Saldana, ICE removed a total of 7,643 Unaccompanied Children (UC) from FY 2012 through FY 2015. As of March 10, 2016, the DHS removed at most 336 UC in FY 2016.

From FY 2012 to FY 2016, DHS apprehended a total of 231,365 UCs. Of the latter, 35,695 were ordered removed or granted voluntary departure by an immigration judge in the same period.

As such, an unaccompanied minor has roughly a 96% chance of not being deported from the United States. Even for those who were ordered deported by an immigration judge, only 77% chance of not being deported.

The head of ICE’s enforcement arm, Thomas Homan, testified before the Senate Judiciary Committee that trying to find children to remove is hard, attributing part of the blame on the Spanish media and NGOS for “educating these folks on how not to comply with law enforcement, so there has been many situations where we have been at the residence and we know they are there,  but they won’t open the door, and my officers don’t have the authority of course to go into that house. So, it’s getting more difficult…”

But, the logistical difficulties alone in apprehending unaccompanied children are only one of several reasons that explain the Obama administration’s systematic failure at life:

In a March 9, 2016 press release, Jeh Johnson described the contours of “Operation Border Guardian” as follows:

The focus of this operation are those who came here illegally as unaccompanied children after January 1, 2014, and are now over 18, have been ordered removed by an immigration court, and have no pending appeal or claim of asylum or other relief.

Why is DHS is only targeting unaccompanied children who are now over the age of 18? Because if a UC is under the age of 18, ICE must transfer that child to the custody of the Office of Refugee Resettlement .(“ORR”) ORR, in turn, is required by law to advocate for the best interests of the child. ICE does not want to spend resources on apprehending a child just to lose them to the custody to ORR. Here’s why:

Many, if not most,  of the children targeted in Operation Border Guardian, were never given an opportunity to apply for asylum or seek other relief in the United States prior to being ordered removed by the immigration judge. Therefore, in an ironic twist, if ICE apprehended a child under 18, that child may finally get a chance to apply for asylum while in the custody of ORR.

It may be that these selective enforcement actions are indicative of  primary policy goal of the Obama administration as applied to UCs:  to minimize the total number of UCs granted asylum or SIJS relief in the United States. In the administration’s mind, this works as a deterrent as well: if a child is granted a green card, the child’s family will tell their relatives and friends still in Central American that they can get a green card, too, if they come to the United States.

To be clear, President Obama wants to mass deport UCs,  but he failed to convince his own party to gut the TVPRA so that he could detain and deport UCs without ever allowing them to go before an immigration judge in a June 30, 2014 letter:

providing the DHS Secretary additional authority to exercise discretion in processing the return and removal of unaccompanied minor children from non-contiguous countries like Guatemala, Honduras, and El Salvador; and

The Obama Administration Is Inept At Deporting Mothers With Children

From FY 2014 to FY 2016, the Obama administration deported approximately 782 mothers with children. In the same time period, DHS apprehended 185,957 mothers with children. Of those apprehended, 32,377 were ordered removed or granted voluntary departure by an immigration judge.

(I pieced together the numbers from ICE’s own releases to the press as well as a TRAC statistical tool that provides the number of individuals deported from each ICE detention facility, which includes Karnes, Dilley, Berks, and Artesia, for FY 2015.)

As such, a family has 99.5% chance of not being deported from the United States. A family ordered deported by an immigration judge has a 97.5% chance of not being removed, although this does not account for those who were ordered removed pursuant to an administrative order of removal.

 

No, President Obama, children from Central America are not likely to be turned back.