Skip to content

Democrats’* Deterrence Strategy Continues To Spectacularly Fail At Dissuading Children From Escaping Deadly Violence

Today, the Customs and Border Protection released the number of apprehensions of Unaccompanied Children and Family Units for the month of April, 2016.

In April of 2016, 5,219 unaccompanied children were apprehended at the Southwest U.S./Mexico border, almost 2000 more than the previous fiscal year.

uac-april-graph-20160517

For Family Unit subjects, 5,616 individuals were apprehended compared to 3,087 in the previous fiscal year. Importantly, the April numbers are remarkably close to the 6,511 individuals apprehended in FY 2014.

fmua-april-graph-20160517

When will the Obama administration learn that detaining and deporting children will do nothing mothers from saving their children from a violent death?

That is almost beyond the point given that the Democratic party is more interested in the illusion of being tough on the border while failing catastrophically at its purported mission.

*22 Democratic Senators, including leaders Harry Reid and Chuck Schumer, declined to  oppose President Obama’s much-publicized 2016 deportation raids against families and unaccompanied children.

As such, Obama’s strategy of deterrence–which includes detaining and deporting children in the United States, Mexico, Guatemala, Honduras, and El Salvador as well as a strident media blitz in those same countries urging them to refrain from saving their own lives–must also be attributed to the entire Democratic party.*

CHILDREN SEEKING ASYLUM ASK FEDERAL COURT TO END THEIR DETENTION AND APPOINT A MONITOR TO OVERSEE OBAMA’S DETENTION POLICY

 

From attorneys Peter Schey and Carlos Holguin of the Center For Human Rights And Constitutional Law.:

Claiming that the conditions of their detention are “deplorable” and “inhumane,” and that they are being illegally held in remote detention centers commingled with hundreds of unrelated adults, children seeking asylum in the United States today asked a federal court in Los Angeles to order their prompt release and the release of their detained mothers.

The request was presented to federal district court Judge Dolly Gee in Los Angeles. Judge Gee is presiding over a class action case dealing with the conditions of detention of immigrant children and the process for releasing them. In a nationwide settlement reached in 1997, the government agreed that children taken in to custody would immediately be held in humane conditions and “without unnecessary delay” would be released in order of first preference to a parent – even if the parent was apprehended with the child. The settlement also requires that if a parent or other relatives or suitable custodians are unavailable, children must be promptly placed in non-secure facilities licensed for the care of dependent children. Lawyers for the children claim that in response to a temporary surge in apprehensions of children along the US-Mexico border in the spring of 2014, the Obama administration stopped complying with the 1997 settlement and started holding children for weeks or months in sometimes dangerous and unhealthy secure detention facilities comingled with hundreds of unrelated adults.

In August 2015 Judge Gee decided that the Department of Homeland Security’s policy of detaining children and their mothers violated the 1997 Flores settlement and ordered the government to comply with the settlement within ninety days. Now the plaintiff children are asking Judge Gee to order the Department of Homeland Security to come into compliance with the settlement within thirty days. The children’s lawyers argue that because of the government’s failure to comply with the court’s prior rulings, Judge Gee should appoint an independent Special Monitor to oversee and report on the government’s family detention policy and compliance with the 1997 settlement.

Peter Schey, President of the Center for Human Rights and Constitutional Law and a court-appointed class counsel for the detained children, said upon the filing of the federal court request: “The evidence filed today shows that in violation of the court’s previous orders, conditions at border patrol detention facilities remain deplorable with children forced to sleep for one to several nights in over-crowded cells on concrete floors with no mattresses or blankets, no change of clothes, no soap, towels or washing facilities, and inadequate food and dirty drinking water. In disregard of the court’s prior orders, the Department of Homeland Security is not making efforts to promptly reunite children with family members and children are being illegally held for months in lock-down facilities commingle

Children Seeking Asylum Ask Federal Court To End Their Detention May 19, 2016 Page 2 with hundreds of unrelated adults. The treatment of these refugee children is appalling. It places children’s safety and well-being at risk in pursuit of an irrational, unworkable and indefensible deterrence policy.”

Another inhumane and ineffectual component of the administration’s campaign to “deter” Central Americans from seeking refuge in the U.S. is an increase in U.S. support for Mexico’s Plan Frontera Sur, an iron-fisted campaign under which the government of Mexico is now interdicting and summarily deporting thousands of Central American children asylum seekers yearly. Carlos Holguin, General Counsel of the Center for Human Rights and Constitutional Law, said today: “The Obama administration has repeatedly claimed—and statistics confirm—that unauthorized entries across the U.S.’s southern border are now at historically low levels not seen since the 1970s. The administration’s fixation with throwing back impoverished Central Americans is an unnecessary and perverse response to human wretchedness and suffering that is unworthy of a great and compassionate nation.”

Victor Nieblas, President of the American Immigration Lawyers Association (AILA) which has been working with CLINIC, the American Immigration Council, and RAICES as part of the CARA Family Detention Pro Bono Project to provide legal representation to detained children and their mothers, said today: “Detaining and re-traumatizing children and their mothers fleeing widespread violence in Central America is a shameful legacy for President Obama to leave behind. This detention and rapid deportation policy is fundamentally inhumane, undermines refugees’ access to legal counsel and fair process, and is in violation of federal Court Orders issued in the Flores class action case. It has already resulted in the wrongful deportation of children and families back into the very violence from which they fled and must end once and for all.”

The children’s lawyers have asked the White House to drop what they call a “failed policy to deter defenseless children from fleeing for their lives,” and to “temporarily suspend all deportations of Central American children and grant deserving Central Americans temporary protected status.”

The case is Flores v. Lynch, No. CV 85-4544 DMG (C.D. Cal.) Copies of the court motion, proposed court Orders and children’s and mother’s declarations (with family names redacted) may be viewed and downloaded on our website or directly through the links provided below.

Copies of a recent human rights petition filed by the Center for Human Rights and Constitutional Law and other groups with the Organization of American States against the U.S. and Mexico addressing the externalization of the deterrence policy may be viewed and downloaded here. * * * * * * To access the recently filed court documents in Flores v. Lynch please use the following links: Motion to Enforce Settlement and for Appointment of Special Master Proposed Order Appointing Special Master Proposed Order Enforcing Settlement Exhibits in Support of Motion to Enforce Part 1 Part 2 Part 3 Part 4 Part 5 Part 6

1000 reasons why Obama Belongs in Jail For Illegally Detaining and Deporting Children

Leon Fresco

Leon Fresco is Obama’s Chief Immigration Lawyer. He is the legal architect of family detention as well as the child rocket docket. Chuck Schumer contracted Fresco out to the Obama administration on behalf of the Democratic Party Leadership, who needed to look tough on the border, at the height of the border crisis (08/2014) to detain and deport as many children from Central America as possible.

Today,  attorneys representing immigrant children in the Flores case filed 1052 pages of evidence demonstrating that Obama administration officials–including but not limited to Barack Obama, Jeh Johnson, Sarah Saldana, and Chuck Schumer’s hired anti-immigrant gun, Leon Fresco–are willfully and openly defying U.S. District Court Judge’s August 21, 2015 order which commanded DHS to release children from secure, unlicensed detention facilities within 3-5 days of their initial apprehension.

Although the lawyers for the Children have not asked Judge Gee to hold the above-referenced officials in contempt of court, the evidence leaves little doubt that the Obama administration has and continues to illegally detain children in intentional defiance of the Court’s order.

On advice from their Chief Immigration Lawyer, Leon Fresco, Obama administration officials believe the law does not apply to them. Instead, the Obama administration officials believe they  can commit illegal acts solely because they are acting on behalf of the most powerful individuals in the world –the President of the Executive Branch of the United States Federal Government.

Below are links to all of the separate exhibits, with the last one the motion to enforce:

Mother, Daughter, & 4-month-old Granddaughter murdered in Ciudad Delgado

valentina

Valentina Rivas, 4 months and 21 days old, was shot by gunmen pretending to be Police Officers. She died in her father’s arms, after being rushed to the hospital. 

Armida Marisol Mendez, 42-years-old, her daughter Alexia Marisol Rivera, 22, and her grandchild, Valentina Rivas, 4 months and 21 days old, were murdered in their home in  the Santa Marta Neighborhood of Ciudad Delgado, San Salvador.

The triple crime was allegedly committed by two subjects who had knocked on the door pretending to pass as police officers in the middle of the night this past Monday.

According the the information, the murderers directly shot at the mother and daughter, while the baby was struck by the bullets that were fired at her mother Alexia Marisol. The baby, still alive, was transported to the hospital Benjamin Bloom, but died in the arms of her father, according to the information.

Another child was saved from death because fortunately she went to sleep at the home of close by relatives.

Armida Marisol Mendez was pregnant according to the report from the Attorney General of the Republic (FGR).

The public ministry does not have a hypothesis for the triple crime, although the police do not rule out that it is related to settling of scores (revenge: translator note). Nevertheless, close family members did not know that they were threatened. One version claims that both women  had links to gangs.

This will have been the 9th massacre of this month, according to police and prosecutor records. Furthermore, this will be the second triple femicide recorded in April, the first was of a mother and her two daughters this past 4th of April during a robbery of their home in the Quezaltepec de Santa Tecla neighborhood.

For his part, the Chief Attorney for the Defense of Human Rights, David Morales, lamented this act of violence, “which is evidence of the cruelty, hate, evil and senseless violence with which the criminal elements are attacking society and now are costing the life of three women of the same family,” he said in a statement.

The Attorney Morales expressed his concern for the triple crime in Ciudad Delgado, as well as the increase in the cases that have been recorded in the last months in which women and girls have been victims. The official demanded that the Attorney General of the Republic prioritize the investigation of this crime.

Two Massacres Against Women

The crime in Ciudad Delgado will be the second massacre of three women in a period of 10 days.

This past 4th of April, a woman of 40 years and her daughters, of 20 and eight years-old, were murdered in cold blood in their home in the  Quezaltepec de Santa Tecla neighborhood.

The murderers had killed their victims with a firearm after having them tied up for 3 hours, according the the National Civil Police.

The three femicides were committed by subjects that knew their victims and to ensure there were no witnesses  they killed all of them, after robbing them of $20 thousand.

The triple femicide against the mother, daughter, and granddaughter, committed this past Monday night in Ciudad Delgado, could be linked to gangs, according to the PNC. For the first crime, three suspects are being processed while for the second massacre there have still been no one apprehended as suspects.

9 Massacres

Between April 3 and April 12, there have been nine massacres recorded in the country.

6 Women

In the two massacres of women registered in April six women have died.

 

El Salvador: Where Children Are Being Murdered In Record Numbers

Below is a translation of an article from El Diario De Hoy in El Salvador, dated April 12, 2016. As a caveat, there is little evidence to suggest that many of the murders were linked to gang members given that there were no arrests or concrete leads on the investigations.

It is also possible, such as the murder of the 4-month-old, that could have also been committed by the police. 

One last note: Julia and her niece did not survive their wounds.

“There are babies among the victims

Murder of 33 minors under 14 years of age registered

Similarly, homicides of youth between 15 and 19 years old has duplicated in three months of 2016.

Triple homicide in Delgado City on April 12, one of the victims was a four-month old baby

By William A Hernandez

April 24, 2016

Zoe was just a four-month old baby. She was starting to know her surroundings and identify some things. She ate her first meals different from the milk her mother gave to her. She was barely able to hold her head up. None of that will continue to happen…On April 12, her life was taken away along with her mother’s and grandmother’s in Delgado City. There have been no arrests and the possible motive of the massacre, along with others, remains unknown.

Zoe is one of the younger victims of gang violence that makes Salvadorans anxious and that in the first trimester of this year has taken the lives of 33 children aged between 0-14 years old, according to statistics from the Institute of Legal Medicine.

By this time last year, authorities registered 25 children murdered. The statistics reflect very few advances in the investigation of these murders.

According to the Institute of Legal Medicine, in the first three months of 2016, in comparison to the same period last year, the number of murders has increased.

For that matter, January registered the death of 12 children between zero and 14 years old; in 2015 there were eight; February of 2016 there were 11, and last year, eight, meanwhile in march of this year 7 murders were registered and in 2015, there were nine. In April of this year, authorities also registered at least three cases similar to Zoe’s sad story.

Repeatedly, the United Nations International Children’s Emergency Fund (UNICEF) has insisted to the Salvadoran State to “double and intensify” the efforts to ensure the “physical and emotional integrity” of Salvadoran children “given the surge of violence” that inhabits the country; however, the numbers show the upward spiral that cannot be controlled by the current authorities.

“The violence directed at children and adolescents, as well as the presence of violent acts and abandonment in their native communities, can have negative effects on them, which many times are profound and enduring.” , said UNICEF of the many reports issued in the country regarding the spike in violence generated by the gangs.”

Child victims of gang attacks.

Like with Zoe, there are other stories of infants that have been killed by bullets fired by the gangs against their adversaries, whose motives remain defined by the rivalry of criminal groups.

Only in February there were 3 children murders registered and two more injured on being caught in the crossfire of the gangs.

One of those cases was a baby of 6 months who was injured  in one of his legs by a bullet. The violent act occurred in the neighborhood of Alta vista. (Translator’s Note: the 6 month old died shortly after being shot)

According to police forces, Julia Graciela Funes Cortez, of 23 years of age, was outside of her home with her niece of 6 months, when all of a sudden an alleged gang member approached her and began to shoot at her.

The young person, trying to protect the girl, turned her back on the attacker, who continued to shoot at her despite seeing that his victim had a baby in her arms.

The attack against Julia was executed, according to authorities by the Sureno faction of Barrio 18, who months earlier had murdered the young woman’s boyfriend.

Another very similar case was registered in the Delicias neighborhood, Municipality of Santa Cruz Michalpa, Department of Cuscatlan.

In that case, gang members attacked Hector Antonio Andrade Salguero, 41 years old, with gunfire, while he was covering his car at his home.

In the attack, a child of 6 years old was injured with a bullet to the head. He was Hector Antonio’s child.

The child was brought to the children’s hospital Benjamin Bloom in San Salvador, where he later died from his injuries.

The small child was in his second year of kinder in the school of Cojutepeque.

Subsequently, in the Italia Community, in San Bartolo, Municipality of Llopango, Jose Adonay was struck by a bullet in the head. He was barely 2 years old.

Next to the child was a presumed gang member, who was attacked with gunfire. He survived the attack, since his injuries were not serious. However, Josue Adonay died while receiving medical attention in a public hospital.

Elsewhere, another young child of 7 years old was struck by gang members’ bullets as well, in an attack directed at his father, Jose Isais Hernandez, of 31 years of age.

This act was committed in the El Angel neighborhood, Municipality of Teotepeque, Department of La Libertad. In this case, the child managed to survive.

Those attacks made the Attorney General, Douglas Menendez to go to the children’s hospital to promise to hold those responsible for the attacks and murders of children responsible, to double the efforts to stem the violence against infants. Nevertheless, the statistics have not decreased.

The homicides of children 15-19 years old doubled.

The statistics from the Institute of Legal Medicine also report an alarming increase in the murders of minors between 15 and 18 years old, for the first trimester of 2016.

The statistics report indicates that adolescent victims of attacks from the gang members have doubled compares to the same period last year.

The data registered is 409 murders of minors between 15 and 1, which in the same period of 2015 the authorities only verified 190 murder victims.

In January of 2016, the authorities extricated 128 cadavers, which represents a 17 percent increase in the number of homicides that the authorities have registered in that month: 736 violent deaths.

In adding the minors from 0 to 14 years we obtain 140 victims, which is the equivalent of 18 percent of the murders in all of the country.

In February of 20115, the number was 62 cases, in addition to the minors for the 70 violent acts against infants and adolescents.

In February of this year, the numbers have not changed the trend much, 139 violent deaths of those between 15 and 19 years old, which is the equivalent of 11 percent of all of the violent acts of the month, which was 656 deaths.

In the previous month of March, the authorities informed that 142 adolescents were murders, which represent 23 percent of the total violent deaths, the month ended with 626 victims of murder.

In The first trimester of 2015, without a doubt, registered numbers much lower than what the legal medical institute has reported for 2016.

Minors: Shields of the gangs.

The authorities frequently report or inform of violent acts where minors have been used as shield by the gangs to protect them from the attacks from their rival gangs.

Such is the case of Katherine Roxana, a child of 14 years old who died in an attack that targeted a known gang member in the area.

The case was reported by authorities in the Alta Vista neighborhood, by the Veracruz street.

Katherine Roxana was in a store buying groceries for her mother when a gang member was attacked with gunfire.

Katherine, had gone to buy, among other things, shampoo, some for the next day’s breakfast before she would leave to go to the school that she studied at.

Seconds after a gang member also arrived to buy something when he was his attackers and took Katherine by the neck with his arms, and tried to use the child as a shield, and unfortunately, was the person who was closest to him at the moment of the attack.

The gang member was wounded, but who suffered the brunt of the attack was Katherine.

The girl was struck by two bullets in the back, and although she was transported to the San Bartolo Hospital, she died while received medical attention.

Katherine Roxana studied in the 9th great in the Alta Vista school and would have turned 15 years the on April 20th.

The family of Katherine fled the Alta visa neighborhood, as well as the owner of the store where the attack had occurred.

Texas Admits Family Detention Licenses Are Unlawful

 

6) Comment Concerning DFPS’ Overall Authority to License the FRCs:

Comment: One commenter argued that DFPS’ regulation of FRCs was unlawful and without authority because the FRCs violate state laws regarding the detention of juveniles. The commenter argued that the Texas Family Code offers a “robust series of statutes that specifically prohibit, and even criminalize placement of certain children in secure detention facilities.” The commenter documented reasons why the FRCs should be considered secure detention facilities, including the use of techniques such as isolation as punishment, the existence of high walls, restrictions on movement, and so forth. The commenter then argued that because they are secure detention facilities where children are held, the FRCs, and any licensure of those FRCs, violates Texas laws regarding juvenile offenders. Specifically, the commenter asserts both that DFPS lacks statutory authority for and that DFPS is explicitly banned from licensure of the FRCs, though for the latter point no particular authority is cited. The rule, per the commenter, is without legal authority because children in the FRCs may be detained beyond statutory time frames and in contravention of other restrictions in Chapter 51 of the Texas Family Code (TFC), and because the children are never adjudicated in front of a Texas juvenile court but are being housed to enforce deportation laws, in contravention of TFC §54.011(f). Further, the commenter suggested that DFPS’ licensure effectively aids in the commission of a Class B misdemeanor under the same statutory provision of TFC §54.011. The commenter explained that Texas juvenile detention laws prohibit the secure detention of children under the age of ten. Finally, after arguing that DFPS has no authority to regulate the centers as child-care facilities, the commenter concluded that DFPS was obligated to immediately order the FRCs to cease operation because they have been operating without such a license for more than one year pursuant to CCL’s enabling chapter.

Response: The commenter’s arguments related to the TFC are misplaced. As noted in materials attached by the commenter, the chapters of the TFC in question relate to facilities operated by or on behalf of the Texas Juvenile Justice Department or on behalf of a juvenile board in the state of Texas. They do not govern federal facilities, including the FRCs under discussion in this rule promulgation. To the commenter’s point that DFPS should immediately order the FRCs to cease operation as unlicensed facilities, DFPS has not previously issued regulatory guidance regarding the FRCs’ status and to take enforcement action against the operators of the FRCs would in all likelihood violate the Administrative Procedure Act, Chapter 2001 of the Texas Government Code, in addition to being patently unjust. DFPS declines to take any such action on the basis of a previously nonexistent regulatory pronouncement.

 

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.”[1]

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,[2] 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[3]” despite the fact that the CF positive determination rate for FY 2013 and FY 2012 was virtually the same.[4]

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:

CFmanipulation

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.

Familyapprehensions

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.”[5]

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[6] 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. [7]

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).[8]

CFRdata.png

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:

laffdec.png

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”[9]

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.[10]

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.[11](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.[12]

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.[13]

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:[14]

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. Aichele757 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.[15]

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.”[16]

CONCLUSION

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.

CC:

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

 

[1]https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/cf_qa_review_catproc_23dec08.pdf

 

[2]https://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/2014/MEMO_Changes_to_CF_and_RF_Cases_Requiring_QA_Review_6.11.14.pdf

 

[3] http://www.aila.org/infonet/uscis-asylum-revised-credible-fear-lesson-plan

 

[4]https://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/2013/Asylum-CredibleFear-ReasonableFear-FY13.pdf; https://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/2012/December%202012/Credible-Reasonable-workloadsFY12.pdf

 

 

 

 

[5] https://www.dhs.gov/sites/default/files/publications/FACT-SHEET-ARTESIA-TEMPORARY-FACILITY-FOR-ADULTS-WITH-CHILDEN-IN-EXPEDITED-REMOVAL.pdf

 

[6] https://innovationlawlab.org/the-artesia-report-story/

 

[7] http://www.latimes.com/nation/nationnow/la-na-nn-ff-new-mexico-immigration-deportation-20140821-story.html

 

[8]https://www.uscis.gov/sites/default/files/USCIS/Outreach/PED_Artesia_and_Karnes_Updates_Through_October_2014.pdf

 

[9] http://www.slideshare.net/abogadobryan/asylum-division-sell-out

 

[10] Id. Paragraph 12.

[11] http://www.slideshare.net/abogadobryan/department-of-injustice-response

 

[12]https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/AOBTC%20Lesson%20Plans/Guidelines-for-Childrens-Asylum-Claims-31aug10.pdf

 

[13]https://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/Asy-Changes-CaseCategories-AsyHQ-Review.pdf

 

[14] https://www.aclu.org/legal-document/rosa-elida-castro-v-us-department-homeleand-security-order

[15] https://www.dropbox.com/s/ylm491k341iu9mk/second%20lafferty%20.pdf?dl=0

[16] 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

 

Follow

Get every new post delivered to your Inbox.

Join 59 other followers