On June 3, 2016, Department of Justice Lawyers alleged that:
“Plaintiffs make claims that are…an attempt to improperly substitute their judgment regarding the operations of ICE family residential centers in place of the judgment of those authorized by Congress to administer these facilities.”
However, Congress did not authorize the Department of Homeland Security to intentionally weaken procedural protections for women and children in the credible and reasonable fear process and then misrepresent this fact (and many additional facts) to Federal Courts.
Withholding and Manipulation of Material Statistics Regarding Credible and Reasonable Fear Adjudications (CFI and RFI, respectively)
Recently, I wrote a letter to Asylum Division Chief John Lafferty alleging that USCIS, at the behest of DHS, weakened or eliminated several procedural protections in the CFI and RFI process.
New statistics provided in the June 3, 2016 filing further corroborate my claims. First, the manner in which Mr. Lafferty conveyed the CFI and RFI statistics is extraordinarily selective, as one can see when comparing his declaration with the statistics previously released by USCIS (which was abruptly halted since March of 2015):
Compare with the below released statistics, which USCIS has inexplicably kept secret since March of 2015:
As one can see from above, to federal courts, the DHS provides only the total number of positive and negative CFI and RFI determinations for the entire year of FY 2015 and up to May 15, 2016 for FY 2016. There is no month-by-month of facility by facility breakdown of statistics.
Furthermore, the DHS withholds all statistics regarding Credible Fear Reconsideration/Review requests despite this category of statistics being highly material and potentially dispositive as to whether the U.S. District Court Judge renders a decision finding DHS to be in Contempt of her July and August orders.
John Gurule, the ICE’s Assistant Director for Field Operations, provides the specific basis as to why many of the mothers and children were now detained for more than 20 days.
The “Requests for Review (RFR)” are requests for reconsideration of negative credible fear determinations after the Immigration Judge review process is completed.
It is a certainty that many credible fear review requests have been granted for detained families. The statistics regarding USCIS’ total number of RFR grants and denials over the lifetime of family detention since June of 2014 would enable the U.S public, the Courts, and Plaintiffs to calculate the average percentage of RFRs that are granted and denied.
With this percentage in hand, it is likely that one could establish that the DHS is applying a policy requiring USCIS to issue blanket denials exclusively against families who challenged their negative credible fear determinations with pending habeas corpus petitions before the U.S. Court of Appeals for the Third Circuit.
The percentage of RFR grants calculated over a month-by-month basis (or even a week-by-week) may also show that the DHS is selectively turning an RFR grant (and initial CFI grants) “valve” on and off to respond to especially high spikes in family unit apprehensions. USCIS shut off the CFI valve for Artesia in July of 2014 and in Karnes in August of 2014, as the below charts show:
In the June 3, 2016 filing, the DHS did not issue the CFI grants and denials on a month by month basis. Instead, the DHS provided the CFI statistics into two categories: Fiscal Year of 2015; and 2. Fiscal Year 2016 (October 1, 2015 to May 15, 2016). By limiting the disclosure of statistics to 12-month and 8 month periods, respectively, the DHS could effectively “cover up” statistical aberrations such as the 40.6% and 59.4% grant rates that occurred in July and August of 2014 in Artesia and Karnes, respectively.
Applying DHS’ disclosures of statistics on June 3, 2016 in Flores to its month-by-month disclosures in Artesia from 07/2014 to 11/2014, it would be fundamentally dishonest to claim that the average credible fear grant rate for all families was 63.6%. In July of 2014, USCIS only found credible fear for 40.6% of families interviewed. In August of 2014, almost 80% were determined to have a credible fear, almost double the percentage of July.
A family who had their credible fear interview in August of 2014 had almost double the chance (80%) of positive decision than a family who had their interview in July of 2014 (40%).
Similarly, with respect Karnes County Residential Center, in August of 2014, USCIS found credible fear in only 59.4% of family cases. In October and November of 2014, the number jumped to 90.1% and 89.2%, respectively, before dropping back down to 63.8%.
Given the past statistical aberrations on positive credible fear determinations from just one month to the next and given that USCIS has failed to release any month by month CF and RF statistics specific to family facilities since March of 2015, the DHS’ decision to only release CF and RF statistics on a year by year basis in the Flores litigation is suspect at best and at worst evidence of the DHS committing fraud on the Court.
To be clear, though, the withholding of all statistics on Credible Fear Review requests is likely evidence of the DHS’ commission of fraud on the Court given that it prevents the Judge from determining whether DHS own justifications for the prolonged detention of several families for 4 months to 10 months were made in good faith.
THE PRECIPITOUS DROP IN QUALITY ASSURANCE FOR ASYLUM OFFICERS’ NEGATIVE CREDIBLE FEAR DETERMINATIONS.
Credible and reasonable fear interviews are only designed “to quickly identify potentially meritorious claims to protection and to resolve frivolous ones with dispatch.… If an alien passes this threshold-screening standard, his or her claim for protection…will be further examined by an immigration judge in the context of removal proceedings under section 240 of the Act. The screening mechanism also allows for the expeditious review by an immigration judge of a negative screening determination and the quick removal of an alien with no credible claim to protection.”
Asylum Officers have wrongly dispatched non-frivolous credible fear claims in over half of the negative determinations made against individuals detained at Berks, Dilley, Karnes facilities in the time period of November 1, 2015 to May 15, 2016.
Immigration Judges vacated a 587 out of 1,070 negative credible fear determinations issued by USCIS against families.
In other words, of the negative CF determinations challenged by USCIS, Immigration Judges decided that the asylum officers’ decisions were wrong 55% of the time.
Similarly, Immigration Judges vacated 78 out of 114 negative reasonable fear determinations issued by USCIS against families. Asylum officers’ negative reasonable fear determinations were wrong 68% of the time, a stunningly high rate of failure.
These numbers are even more shocking when compared to previous percentage rates of Immigraiton Judge vacating NCFI and NRFIs including individuals not detained at family detention facilities.
In the Habeas case in, Castro v. Lynch, EOIR provided the following statistics for the entire Immigration Judge Review process nationwide.
Thus, USCIS’ negative CFI rate was only 30% for the stated time period, which is 25% lower than with respect to detained families.
The below chart from EOIR’s FY2016 Yearbook on Statistics shows even further how profoundly the quality of USCIS’ NCF determinations have fallen exclusively for detained families:
For the reader’s reference, the percentage of USCIS NCFI’s reversed by Immigration Judges are as follows:
FY 11: 15.6%
FY 12: 19.4%
FY 13: 11.7%
FY 14: 13.7%
FY 15: 17.9%
It would appear that Asylum Division Chief Lafferty’s decision to now eliminate procedural protections such as headquarters review for families has, to a startling extent, yielded results: USCIS’ negative credible fear determinations have been reversed in an unprecedented number of cases, providing compelling evidence that the quality of USCIS’ negative determinations is significantly poorer against families than compared with everyone else.
MANIPULATION OF STATISTICS ON AVERAGE NUMBER OF DAYS FAMILIES ARE DETAINED AT FAMILY FACILITIES
The DHS provided the following statistics to convince Judge Dlley Gee that it “continues to work diligently to process and release individuals from the FRCs, as appropriate…”:
For the 18,706 residents initially booked into ICE family residential facilities from October 23, 2015, to May 18, 2016, and subsequently released or removed as of May 16, 2016, the average length of stay was 11.8 days. Gurule Decl. ¶ 13.
A small percentage of individuals do remain in ICE family residential centers for longer periods of time, but this too is consistent with the Agreement and the Court’s orders. This is because these individuals fall into one of three categories: (1) individuals who are subject to mandatory detention because they have not established a credible fear, but who have asked USCIS to reconsider their screening determination, and have sought and received stays of removal; (2) individuals who have received a negative credible fear determination, are awaiting removal, and are subject to mandatory detention;11 or (3) individuals in family units with final orders of removal where the parent has been determined to constitute a flight risk. See Gurule Decl. ¶ 14 and Exh. 9;
Without explanation, the DHS and DOJ only provided the average length of stay for families who were initially booked into ICE FRCs starting on October 23, 2015. As a result, the DHS excluded from its average the families who have been detained the longest–those who were initially booked into FRCs prior to October 23, 2015 and remained detained as of the date of June 3, 2016.
The DHS even references these same individuals when it states to the Judge that “a small percentage of individuals remain in detention”, which include some of the families listed in Exhibit 9.
Exhibit 9 contains at least two individuals–Victor and Ludwin–who were initially booked into family detention centers prior to October 23, 2015. Furthermore, the list of names in Exhibit 9 only include individuals who made declarations in support of the Plaintiffs’ motion to enforce.
As such, it was fraudulent for DHS to exclude the class members detained for the longest periods of time from its average days detention figures.
Also, note, the bizarre manner in which the conveys the following: “Of these 18,706 residents, 58% were released or removed in 10 days or less, 96% in 20 days or less, and 99% in 30 days or less. Id. Of those detained as of May 16, 2016, the average length of stay is 17.7 days. Of those detained as of May 16, 2016, 44% have been detained 10 days or less; 88%, 20 days or less, and 94%, 30 days or less. Id.”
If one is trying to provide a clear picture with the use of percentage figures, one does not double and triple count percentages to add up to over 100%. Confused? I was too.
The DHS presented the statistics as if it was providing three distinct categories when in reality it provided only 1 distinct category and two overlapping categories, thereby shielding the true number of families detained in each distinct category.
Here is what DHS really provided:
% of residents released or removed in 10 days or less
% of residents released or removed in 10 days less and 20 days or less;
% of residents released or removed in 10 days or less, 20 days or less, and 30 days or less.
An honest submission would require actually distinct categories, with a range of days that includes the least amount of days any family was detained with the maximum amount of days that any family was detained. Here is a translation of the Feds’ fraudulent submission:
- 58% (10,849)of residents were released or removed within 0-10 days;
- 38% (7,108) of residents were released or removed within 11-20 days;
- 3% (561) of residents were released or removed within 21-30 days;
- 1% (187) of residents were released or removed within 31 or more days;
In a twist of dishonesty that can only be attributed to the DOJ lawyers representing DHS, the memorandum omits to the Judge, unlike Mr. Gurule, that 1734 members of families remained detained as of May 16, 2016.
Here is another translation of the DHS’ fraudulent numbers with respect to those still detained:
- 44% (762) of residents detained for 0-10 days;
- 44% (762) of residents detained 11-20 days;
- 6% (104) of residents detained 21-30 days;
- 6% (104) of residents detained for 31 or more days.
Given the above, it becomes so much more likely that the DHS is the party who is improperly substituting their judgement regarding the operations of the credible and reasonable fear process in place of the judgment authorized by Congress. And that and willfully telling an untruth to a Court is unlawful?