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ORR’s Opens New Secure Detention Facility For “Violent Criminal and Gang Affiliated” Immigrant Children.

Suffolk Police Chief Will Review MS-13 Gang Confirmations After Pressure From Human Rights Advocates

Timothy Sini, Suffolk Police Commissioner: “What I don’t want to be transparent about, and i’ve been telling you this repeatedly, is the specific criteria that we use to confirm.” MS-13 gang members.

The following is a partial transcript of a meeting between Suffolk County Police Commissioner, Timothy Sini, with various local community leaders. Both Ala Amoachi and Bryan Johnson attended the meeting.

Here is the audio:

And transcript:

1. “My name is Bryan Johnson. We represent hundreds of unaccompanied alien children on long island. We have been doing it for years. and it would be an understatement to say we are extremely disturbed by what we’ve been seeing from the schools, the SCPD, and ICE. So i have some concerns regarding this. and I am going to start with, um, you said to the senate, right, that intelligence is shared between SCPD regarding gang members and homeland security. Can you elaborate on any other ways that you collaborate with ICE?

2. Sini: We work with the DHS on number of different investigations, they have a criminal investigative arm, they investigate drugs , they investigate…

3. Me: No i mean, w/ respect to gangs?

4. Sini: We collaborate with the DHS in a number of different criminal investigations.

5. Me: Do Suffolk county police officers, do they make arrests exclusively on behalf of ICE?

6. Sini: No.

7. Me: They don’t. Well, I have a client, right, he was, I just want to use this as an example, ok?

8. Sini: This is not how this forum works actually.

9. Me: How does it work?

10. Sini: You asked me a question. I haven’t finished answering it.

11. Me: Ok, sorry, I apologize.

12. Sini: We do joint operations with the DHS to target MS-13 members for detention and commencement for removal proceedings or whatever may be appropriate under the immigration…we will work with the DHS carefully targeting members of MS-13

13. Me: Well, I mean, I am not saying you have knowledge of this, but maybe it is something you want to look into because some officers might be doing it because i spoke to my client, who is 17, he was identified by scpd as a confirmed MS-13 member, and in no unspoken, in very clear language, he said, first he was arrested for disorderly conduct on June 9, he was released on June 15, on June 16, at his home, when he got home, there were two scpd officers there, one of them was officer matthew t. fernandez, and he said ‘you are not here legally, i have to bring you to immigration. He took him in the scpd car and brought him the the federal court house in central islip. so I mean, i believe my client, and there’s several people who saw it and.

14. Sini: I can’t speak to that specific case, i’m not going to, but it there’s not necessarily. if that’s someone who was on our target list for ms-13 activity, that’s not necessarily violative of what we we are asking our officers to do.

15. Me: Uh, I mean, correct me if I am wrong, but the suffolk county doesn’t have a 287g agreement w/ ICE?

16. Sini: that’s correct.

17. Me: So there would be no authority to make that kind of arrest, no?

18. Sini: Well, if it’s a joint collaborative effort w/ the DHS…

19. Me: Got it.

20. Me: And, that brings me to the other important question, we’ve been scratching our heads, what does one have to do to become a confirmed ms-13 member,.

21. Sini: We have a written rule and procedure about the different requirements that have to be checked before one is confirmed as an ms-13 gang member. There’s also a time restriction on it. you can only be confirmed for a certain period of time before you have to either be reconfirmed or taken off the list. That criteria is based on the FBI’s criteria, we’ve actually made it more restrictive to identify ms-13 or any other gang then the FBI requires and we are not going to share that with because it would be detrimental to our efforts to let gang members KNOW what we are looking for in terms of identifying the.

22. Me: but that is shared w/ the schools, right?

23. Sini: the criteria, no? that’s not shared

24. ME: the school dress code, i mean we have had a lot of kids suspended.

25. Sini: we educate the schools about what we think are telltale signs of gang membership.

26. Me: Like 503, 504, is that enough on its own?

27. Sini: I’m not going to, that’s essentially a run around.

28. Me: I mean, it’s not a run-around…

29. Sini: of the previous statement that i am not going to share the criteria. there is, typically there has to be multiple indicators, but there may be scenarios where 1 indicator is sufficient, but i’m not going to give the details about our formula to confirm MS-13 gang members, and I think the reason should be obvious…

30. ME: Ok, there’s been how many arrests approximately of ms-13 confirmed gang members. I am talking about arrests regarding, that were subsequently handed over to ICE.

31. Me: Just a rough, rough estimate. if you don’t know.

32. Sini: Those where ICE has made arrests.

33. Me: yeah, or collaborating.

34. Sini: I believe it’s approximately 90.

35. Me: Um, Do you think it’s possible that any of those kids were wrongly identified by SCPD?

36. Sini: Look, if someone is wrongly identified and they are being picked up for being ms13 gang member, they should have recourse with ICE to fight that.

37. Me: ICE, we have these clients, they are not getting that recourse, so I think that, the consequences for these kids are very severe…

38. Sini: So, look, there’s going to be arrests, that ICE makes that have nothing to do with SCPD. But elsewhere we are asking ICE to assist us, we stand by our confirmation. We have a robust policy and practice on how we confirm ms13 gang members. We stand by each and every name that we give to ICE. Now, there could be cases where ICE, where the arrest has nothing to do with SCPD. Again, I’m not going to vouch for another agency. But when we are collaborating, when we are providing ICE information, we standby that information.These are not only people we are certain are ms-13, these are people who we think are dangerous to public safety. we are going to continue doing this. It is an important strategy. it’s one prong in our multifaceted strategy. Our strategy involved collecting intelligence, making street arrests for local crimes, working w/ the the FBI to make RICO cases. We have done both those things very successfully. The third part of our law enforcement strategy is to work with the DHS to detain active ms-13 gang members that we consider a threat to suffolk county safety, the last part of our strategy is the gang prevention and gang intervention side.

39. Me: Right, just one more comment, you are wrong. I think you are wrong. Because I know these kids. I know several of these kids. and there’s no way they are Ms-13. I have kids that have been ms-13, I have clients try to kill other clients. So we are not just these civil liberties advocates that defends everyone. I know some of these kids aren’t ms13.

40. Sini: was the case involved with SCPD.

41. Me: Yeah, they are all involved.

42. Sini: you should provide us the names of these individuals. I know that some attorneys in the county have, and there is no question that these people are MS-13, so provide me your list, and I promise you, i will have detectives vet that list a second time to make sure that if there has been any collaboration between SCPD, and the DHS W/ respect to that person, that we are 100% standing behind the confirmation. I can tell you this is what we have been doing. i haven’t had a single case where we have had any doubt about our initial confirmation. If we made a mistake, that’s obviously something we want to know about and correct. This is an important issue. This gang is incredibly violent, and we are making progress in taking some very dangerous people off of our streets. and we are going to utilize all the tools in our toolbox, and that involves collaborating…

43. Unidentified woman: Of those approximate 90 arrests that you mention, can you clarify, do you mean that those arrests were made as you described, you know that SCPD arrested, and there weren’t’ any criminal charges.

44. Sini: Those are immigration arrests of ms13 gang members in suffolk county. some of them involved scpd. some of them did not involve scpd.

45. Unidentified woman: ok, and your answer to his question earlier that you wouldn’t consider an operation to arrest someone for ICE even if there are no criminal charges pending against him?

46. Sini: I don’t know if, I would have to find out if we could do that. I don’t know if we have the legal authority.

47. Unidentified woman: Because I think that is what he just described.

48. Me: Yeah, i’m saying you don’t have the legal authority, you don’t have it.

49. Sini: You have a situation where scpd drove someone to the central islip courthouse:

50. Me: Arrested him, too.

51. Sini: well, correct, well I don’t know if there was a local charge on that…

52. ME: Oh, and he had a list, the officer, with my client’s name on it, with a lot of names on it, and he crossed my client’s name off the list once he arrested him.

53. Sini: I don’t have all the…if there was a local charge on it, they could have been with ice. they could have been working on operation…

54. Unidentified woman: But these 90 don’t involve criminal charges, they’re just…

55. Sini: No, some of them do involve criminal charges but they also are criminal charges plus a violation of immigration laws, and they are ultimately placed in ICE custody, or just….

56. Woman # 2: I have a question about the role of resource officers in the investigation, i know you said you shared information w the schools, but does the flow of information go from the SRO to you, and to ICE?

57. Sini: Resource officers work for me.

58. Woman # 2: I know that.

59. Sini: So the answer is definitely yes.

60. Woman: SO the question i have is these resource officers are police officers in school, are privy to information in school, and the concern is that schools, have such a low level of evidence required for suspensions, so i am questioning, what the policies are regarding the SRO with suspension laws…as they investigate in within a school, say a violation of code of conduct, which can be very minimal, like insubordination, but now they are starting to say gang involvement with i don’t know what kind of evidence. what training and what are protocols of SRO regarding information gathering in school and sharing it with ICE.

61. Sini: SROS play a lot of different roles. There are SROS who are more focused on mentoring. and pushing programs into the classrooms and identifying at risk children to connect them to much needed services but there are… and the concern

62. SINI: School resource officers are also there to ensure the safety of the school. All the students of the educators of the administrators/If they’re collecting gang intelligence they’re going to share that with the appropriate Assets in the department We have a criminal intelligence section…Where the information is warehouse and redistributed to appropriate assetsDoes that answer your question?

63. Woman: I am curious about what training they have. My concern is that I have kids that are afraid to go to school Because they are afraid that ice going to come to them in school. I’m concerned because the school says we don’t ask about immigration status Which is the law by police officers are gathering intelligence…

64. Sini: Of course they are

65. Woman: Then sharing it with ice, So the concern is

66. Sini: No no no no no no no

67. Woman: Maybe I’m confused

68. Sini: I don’t think you’re confused So when school resource officers are gathering intelligence they collect information they learn information and they make sure that information goes to appropriate assets…But if there is somebody that ends up being confirmed as MS-13, which requires specific criteria as per our policy, That information may or may not be shared with ICE depending on what we want to do with it.

69. Woman: “Say a resource officer witnesses in school witnesses a hand gesture that he interprets as gang activity. Now he is sharing it with school. He is sharing it with ICE. he is sharing it with you. Now the child is an alleged gang member.

70. Sini: No, that’s just not accurate.

71. Woman: So clarify.

72. Sini: We have a robust gang confirmation procedure and under those circumstances the individual would not be confirmed.

73. I.S.: So example. Right?

74. Sini: I am not going to disclose any more information about the gang confirmation…

75. Me: I can give you an example from my own clients, so ill give you an example.

76. Sini: I’m actually.

77. Me: this is too much?

78. Sini: I’ve tolerated this. This is totally going off the purpose of the meeting.

79. I.S.: I don’t think it is. We don’t think it is. It actually flows right under the DOJ agreement, right?

80. Sini: Let me ask DOJ where they stand on this conversation, I think it’s only appropriate, right?

81. I.S.: it’s up to you, but I don’t know.

82. Me: If you don’t want to be transparent about it, that’s fine.

83. Sini: I’ve been pretty transparent, but what I don’t want to be transparent about and i’ve been telling you this repeatedly, is the specific criteria that we use to confirm.

84. Me: that’s fine, though.

85. I.S.: I don’t want to get into specific criteria.

86. Sini: But you were about to go into specific examples that’s essentially an end around me saying I don’t want to disclose that.

87. Me: Yeah, but that’s our intelligence.

88. Me: Yeah but like it’s just for example’s purpose, like, right, my client, he was suspended from school for 503, right? That’s my client, not yours…

89. Sini: I’m not doing this.

90. Other police official: give us their names and we will investigate again.

91. Unidentified woman: So the resource officer won’t go throu gh ice directly. he has to go through protocol and give that information to

92. Sini: I’m not saying that in all cases there may be a situation where school resource officers speaking to an official in another federal agency including the department of homeland security.

93. Sini: I think that’s unlikely but there’s nothing in the procedure that prohibits a police officer from collaborating with a federal law enforcement official’s. in fact there was on the Department of chief Burke, for a variety of corrupt reasons, and we remove that procedure.a good process is often helpful for that information to flow from intelligence section 2 intelligence detectives who disseminate that information through appropriate assets in the department. either for enforcement or intervention that information may go to Deputy police Commissioner may go to the precinct, it may go to the detectives assigned to the FBI task force, so we can make sure the fbi knows what’s going on. but there is no rule or procedure prohibiting a police officer from speaking to an Ice Agent.

94. I.S.: How could Parents know what their kids can wear not do to make sure that they are not suspended. I know you said that you do not have control over what schools do but schools are actually relying on you the local law enforcement the code of conduct actually says that they are relying on you to tell them what those indicators are.

95. Sini: no, you are confusing two issues. you are confusing the telltale signs of gang membership like someone wearing a certain color with the confirmation process. that is a huge mistake

96. I.S.: but this is where I am linking it and I will not give examples from linking in this way because I’m really trying to understand. someone was suspended because they were allegedly involved in gang activity this student is suspended and has absolutely no criminal record has had no contact with your department as far as we know and he ends up on a list from your department…

97. Sini: if he ends up on a list for my department that means he is a confirmed MS 13 gang member and they have to be confirmed pursuant to our rules and procedure.

98. I.S.: how do they end up on your confirmed list if they have not had any contact with your department or have had any criminal record.

99. Sini: they’re not going to be on our list that if they have not had any contact with the suffolk county Police Department.

100. I.S. I’m telling you this kid was.

101. Sini: actually I take that back. there are numerous scenarios where someone is confirmed MS 13 and the Suffolk police have never had any direct contact with the individual. witness statements things happen on video there is a number of credible evidence that may lead to confirmation that doesn’t necessarily involve a conversation with with the Suffolk County police officer. in fact most of them are going to be based on evidence that does not involve a conversation with the Suffolk County police officer.

102. I.S. but they end up on your list then as confirmed.

103. Sini: in order for us to make them confirmed we have the check certain boxes. once those boxes are checked there going to be confirmed. it does not require contact with a member of the Suffolk County Police Department. in some cases it will. but it does not require it.

104. I.S:. but when we first started having this conversation about gangs you had said that one of the things that you are also doing is you are sending notices or giving notices to individuals who suspected and putting them on notice that they were going to be surveilled your putting them on notice that you believe…

105. Sini: I was distracted please repeat your question.

106. I.S.: I am asking you about gangs right. you have said that one of the things you are doing was giving out notices… to individuals you suspected were gang members. is that something you are still doing?

107. Sini: You are talking about customs notifications?

108. Sini: I don’t know if we have done any customs notifications with MS 13…

109. I.S. of these that are alleged or confirmed as MS 13, have you given them those notices.

110. Sini: the Commissioner and the chief of detectives division may collaborate on who is appropriate for customs notifications and who is not. there going to be some individuals that get the custom certification. and there will be some folks we are just looking to arrest and get them off the street.

111. I.S.: okay because some of these kids haven’t been arrested is our concern and and I’m wondering if safety is a concern and trying to make sure that these kids aren’t going there that piece hasn’t been done with any of these kids that are ending up with ice that is what I’m saying. they are not being arrested and they are also not getting notifications telling them that they are suspected or that they are being surveilled.

112. Sini: right it may be because some of these people are folks we consider serious criminals and we would rather them just be on off our streets.

113. I.S.:some of these kids I would really like you to meet them.

114. Sini: Again, I’m asking you to give me the list right, because there may be situations where you think we are involved when we are not involved, where its entirely a DHS operation. And to the extent that we are involved, again, I told you i will look at all of the confirmations. we have a robust policy in place but i have no problem accepting a list and having a team review the information you provided.

115. Me: Would it be possible to set something like that up before they put over to ICE custody, so that there is some kind of way to challenge your confirmation? You are willing to review the cases now, so why not be able to review them when you first make that confirmation?

116. Sini: Because the idea is.

117. Me: I guess you can’t have a secret hearing.

118. I.S.: Not that wouldn’t be here in this country.

119. Sini: Alright, so, Search warrants are challenged after they are executed, right? Why? Because they are ex-parte, because we don’t let criminals know that we are going to come search their residences. It’s the same context here.

120. Me: It’s not. Because gang confirmation is not a crime. There’s no procedural way to challenge that confirmation, it’s just unilaterally law enforcement.

121. Sini: There should be, I mean, I’m not…

122. Me: I mean, you are a lawyer, right? You know that the problems with due process. that’s why there is a judiciary. So law enforcement doesn’t abuse peoples’ rights.

123. Sini: And you can use the process on the law on the administrative side.

124. ME: there is no process.

125. Sini: I’m not going to say I am an expert in all of the procedures on the immigration side, I’m not.

126. Me: No, you are not.

127. Sini: But again, this is a law enforcement policy decision that we have a confirmation process in place that we believe in that is based on fbi best practices, when we confirm someone as an active ms13 gang member, we are going to utilize our tools to keep suffolk residents safe

128. Sini: again I’m asking you to give me the list because there may be situations where you think we are involved but we are not involved for its entirely Department of Homeland Security operation and to the extent that we are involved I will again I told you I will look at all the confirmations we have a robust policy in place but I have no problem accepting a list and having a team review the list that you provided

129. Sini: so we will listen and we will I think the best thing to do is get specific cases, promise or representing that there’s going to be anything any policy change. we have a very balanced policy that we think makes a lot of sense we want to do our best to create an environment in which people feel comfortable speaking to a law enforcement officer even if you’re undocumented that is why our police officers are prohibited into immigration status at the same time we have an obligation to ensure public safety in Suffolk County vertically with respect to MS 13 which is a brutally violent gang that plays in immigrant communities. and we have made a policy decision to cooperate with all of our federal partners that includes the department of homeland security. The issue here is are there young people were being falsely labeled as MS 13 by the Suffolk County Police Department because no matter what nothing we can do is going to change. I suspect that when I get this list I suspect that many of them are going to be people who were picked up by ice without collaboration from this scpd. I suspect that is going to be the situation because we are not just labeling people MS 13 and getting the information to ice. we are targeting people who are problems in the community where academics are team members and if I didn’t target them you would be criticizing me for not targeting them. so again get me the list and i will look at the list and I will vet it to make sure that we are not complicit in what you are saying.

Berks County DA Refuses To Prosecute Crimes Against Children At Berks County Residential Center

See below: Also, to be clear, I received the letter from Berks County on July 6, 2017, despite the letter being dated June 26, 2017.

Protected: Form I-213 Redacted

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Private Criminal Complaint Filed Today Against John F. Kelly & Thomas Homan For Endangering the Welfare of Children

“Mr. Kelly continues to knowingly detain child #1; child #2; and child # 3 in clear violation of 55 PA Code § 3800.283(7); 237 Pa. Code. 200.1(a); which, taken together,

expressly prohibit placing non-delinquent children, non-dependent, or children under the age of 10 in a secure facility.

 

In doing so, Mr. Kelly has caused each child severe and potentially fatal harm, including but not limited to causing children to suffer from 309.81 Posttraumatic Stress

Disorder, Delayed Onset, Chronic.; 309.81 Posttraumatic Stress Disorder, Chronic; 309.28 [F43.23] Adjustment Disorder with Mixed Anxiety and Depressed Mood;

Suicidal Ideation; and Suicidal Gestures;

 

Mr.Kelly has and continues, through his agents in DHS and contracted staff at BCRC, to intentionally and unlawfully deprive children of sleep by flashing bright lights

on their faces at 15 minute intervals from 8:30 pm to 6:30 am, a total of 40 interruptions in sleep per night, 280 interruptions in sleep per week; & 14,560 interruptions

per year.”

ICE arrests of noncriminals plummet under Trump Administration

Immigration Arrests of noncriminals dropped by 13% under the Trump administration, compared with the overall percentage of noncriminals arrested from 2009 to 2016 under the Obama administration, according to statistics provided to the Washington Post as well and the Senate Judiciary Committee: 

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Despite this, Maria Sachetti of the Washington Post reported the opposite: 

Immigration arrests rose 32.6 percent in the first weeks of the Trump administration, with newly empowered federal agents intensifying their pursuit of not just undocumented immigrants with criminal records, but also thousands of illegal immigrants who have been otherwise law-abiding.

This is confusing.

The WaPo article subtly yet indubitably misled its readers by selectively relying upon a very narrow sliver of data to reach its conclusion: January 20, 2016-March 13, 2017, under Trump, with the same time period in in 2016, 2015, and 2014 under the Obama administration.

Perhaps even more concerning is that the reporter constructed a false veneer of objectivity by alluding to the fact that the Obama administration may have arrested more noncriminals than Trump, but then the readers in the dark, alone to rely solely upon the Washington Post’s unrepresentative data sample.

Some say criticism of Trump’s policies seems politically charged, noting that President Barack Obama deported thousands of immigrants without criminal records. And arrests this year are lower than Obama’s first weeks in 2014, when agents arrested 29,238 immigrants, including 7,483 noncriminal ones.

Advocates for immigrants say they also criticized Obama as the “deporter in chief” and waged a national campaign to create sanctuary cities to shield immigrants from deportation.

But they said Obama sought to avoid deporting longtime immigrants with roots in their communities and American-born children. He also lobbied Congress to create a path to citizenship for illegal immigrants and granted work permits to more than 700,000 undocumented immigrants who came to the United States as children.

Arrests of noncriminals this year are much, much lower than the peak enforcement years of the Obama administration.

As a matter of percentage, under Trump, ICE arrests of noncriminals account for 25.47% of of total arrests. (5441 out of 21,362)

In the year of 2014 in the same time period, under Obama, ICE arrests of noncriminals accounted for slightly less than .1% more, at 25.6% of total arrests (7,482 out of 29,328).

The Washington Post’s idea of objectivity was to compare statistics of the 3 years most favorable to Obama on immigration enforcement–2014-2016–and to exclude the 5 years that are least favorable to Obama–2009-2013.

The most striking example of this is the comparison of noncriminal arrests under Trump with the year 2009, the first year of the Obama administration.

In Fiscal Year 2009, 9 months of which are attributable to Obama, ICE arrested 182,031 noncriminals out of a total of 297,898 arrests.

A whopping 61% of arrests were of noncriminals.

In fact, in 2009, the Obama administration  arrested more noncriminals than the sum of the total number criminals and noncriminals arrested  in 2015, and likely in 2016 as well.  

Lest one think that 2009 was an isolated incident, here are the percent of noncriminals arrested out of total arrests for FY2010 to FY 2013.

FY 2010: 47 % (129,302 out of 272,384)

FY 2011: 42% (121,197 out of 288,392)

FY 2012: 35% (93,648 out of 265,573)

FY 2013: 27% (63,843 out of 232,287)

As such, for each of the 5 years the Washington Post happened to omit from its article, the Obama administration deported more noncriminals than the Trump administration.

Under the Obama administration’s 8 years, 38 % of ICE arrests were of noncriminals, 666,573 out of 1,732,425.) Thus, as far as one can make a direct comparison, the Trump administration’s ICE arrests have targeted noncriminals 13% less than the Obama administration did, (5441 out of 21,362)

When I pointed this out to the Washington Post reporter to request a correction to its incorrect conclusion that arrests of noncriminals doubled under Trump, she refused to acknowledge any error, or even to respond beyond the conclusory:

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Here is the original email sent:

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And the previous “explanations” were nothing more than conclusory denials:

17A5A88D-D05D-48F5-8107-0F051AB33247620BA173-FEFD-41FF-9755-279553E822E4unnamed1

The numbers are never just the numbers.

Demand to Trump Admin: Rescind Illegal Policy of Prosecuting Parents of Unaccompanied Children

Below is the demand letter we sent out today to DHS Secretary John F. Kelly:

The link to download from dropbox is here. Finally,

 

February 27, 2017

By First-Class Mail and E-mail

The Honorable John F. Kelly
Secretary of Homeland Security
3801 Nebraska Ave, N.W.Washington, D.C.  20528

Dear Secretary Kelly:

As attorneys who represent hundreds of unaccompanied children and asylum seekers from Central America, we write this letter to respectfully demand that you rescind the Section M, “Accountability Measures to Protect Alien Children from Exploitation and Prevent Abuses of Our Immigration Laws” of the February 20, 2017 memorandum entitled “Implementing the Presidnet’s Enforcement Improvement Policies” given that it is in direct violation of the Flores v. Meese Settlement (“Flores”) and the William Wilberforce Trafficking Victims Protection Reauthorization Act (PUBLIC LAW 110–457—DEC. 23, 2008) (“TVPRA”)

Flores and the TVPRA require the U.S. government to provide significant procedural and substantive rights to immigrant children, as you acknowledge.[1] Flores specifically mandates the federal agencies “shall release a minor from its custody without unnecessary delay, in the following order of preference to:

 

  1. a parent;
  2. a legal guardian;
  3. an adult relative (brother, sister, aunt, uncle, or grandparent);
  4. an adult individual or entity designated by the parent or legal guardian as capable and willing to care for the minor’s well-being in (i) a declaration signed under penalty of perjury before an immigration or consular officer or (ii) such other document(s) that establish(es) to the satisfaction of the INS, in its discretion, the affiant’s paternity or guardianship;
  5. a licensed program willing to accept legal custody; or
  6. an adult individual or entity seeking custody, in the discretion of the INS, when it appears that there is no other likely alternative to long term detention and family

reunification does not appear to be a reasonable possibility.”

 

As a condition of release, the proposed custodian must swear to several duties, including to 1. provide for the minor’s physical, mental, and financial well-being and 2. to ensure the minor’s presence at all future proceedings before INS and the immigration court.

The TVPRA, created in 2008, created additional protections for unaccompanied alien children, including the following directive to the Office of Refugee Resettlement:

“(2) SAFE AND SECURE PLACEMENTS .—Subject to section 462(b)(2) of the Homeland Security Act of 2002 (6 U.S.C. 279(b)(2)), an unaccompanied alien child in the custody of the Secretary of Health and Human Services shall be promptly placed in the least restrictive setting that is in the best interest of the child. In making such placements, the Secretary may consider danger to self, danger to community, and risk of flight.”

The TVPRA also expanded the number of children eligible for special immigrant juvenile status, a form of permanent protection from deportation. Specifically, a child can qualify for SIJS status if they can show that reunification with 1 or both of their parents is not viable due to abuse, abandonment, neglect, or a similar basis found under State law, and that it is not in their best interests to return to their native country.[2]

Section M’s Directive To Prosecute Parents For Smuggling Their Own Children Eliminates Flores and the TVPRA Protections

 Immediately after outlining the requirements that DHS must comply with regarding unaccompanied children, you began Section M with  “Although the Department’s personnel must process unaccompanied alien children pursuant to the requirements above, we have an obligation to ensure that those who conspire to violate our immigration laws do not do so with impunity—particularly in light of the unique vulnerabilities of alien children who are smuggled or trafficked into the United States.”

 The word “Although” is a conjunction, which is defined as “a word used to connect clauses or sentences or to coordinate words in the same clause.”[3] The word “although” is defined as “In spite of the fact that; even though.” We do not define these words for the sake of being difficult—we do so because it illustrates how DHS’ directive to prosecute the parents of children for smuggling is intended to eliminate children’s rights under TVPRA and Flores rather than the purported justification of faithful enforcement of U.S. immigration laws.

You made an explicit choice to condition the provision of unaccompanied children’s legal rights the DHS’ subsequent deportation and/or prosecution of the children’s parents or relatives. The latter will result in the de facto deprivation of rights of children through the loss of their parent or family member in in the United States.

The entirety of Section M reveals a clear pattern of DHS’ intent to enforce the immigration laws and criminal laws against children’s family members solely as a means to defeat the legal protections afforded to unaccompanied children.

There are a total of 3 paragraphs in Section M. In the first paragraph, reproduced above in full, the first sentence refers exclusively to the policy rationale of enforcing the immigration law against those who violate it. The second sentence, which added as an afterthought, purports to conclude that stopping parents’ from reunification with their children in the United States will protect the  “unique vulnerabilities of alien children who are smuggled or trafficked into the United States.

The second paragraph is structurally identical. The first sentence begins:

“The parents and family members of these children, who are often illegally present in the United States, often pay smugglers several thousand dollars to bring their children into this country.”

The latter focuses exclusively on 1. The “illegal” presence of the children’s parents in the united States; and 2. That the illegally present parents pay smugglers to bring their children into the United States.

The second sentence described the journey through Mexico as dangerous, though it cites to no evidence whatsoever.

“Tragically, many of these children fall victim to robbery, extortion, kidnapping, sexual assault, and other crimes of violence by the smugglers and other criminal elements along the dangerous journey through Mexico.”

The third sentence clarifies that this policy has nothing to do with protecting children from harm and everything to do with nullifying or eliminating the protections afforded children under the TVPRA and Flores to the maximum effect:

Regardless of the desires for family reunification, or conditions in other countries, the smuggling or trafficking of alien children is intolerable.”

In other words, regardless if a child smuggled into the United States is entitled to asylum and/or special immigrant juvenile protection in the United States, DHS’ policy is deny them these legal protections by prosecuting and/or deporting their parent or family member for an act made out the extreme desperation of a parents’ love for their child.

The last paragraph of Section M is as follows:

“…the Director of ICE and the Commissioner of CBP shall ensure the proper enforcement of our immigration laws against any individual who—directly or indirectly— facilitates the illegal smuggling or trafficking of an alien child into the United States. In appropriate cases, taking into account the risk of harm to the child from the specific smuggling or trafficking activity that the individual facilitated and other factors relevant to the individual’s culpability and the child’s welfare, proper enforcement includes (but is not limited to) placing any such individual who is a removable alien into removal proceedings, or referring the individual for criminal prosecution.”

The above paragraph is identical to the draft memorandum dated February 17 with the exception of the italicized words. As such, it appears that you acknowledge prosecuting or removing a parent of an unaccompanied child is not in the best interests of the child’s overall welfare. The harm suffered by the child or the parent’s culpability in providing for the smuggling is a separate inquiry from what is in the child’s future best interests. The only scenario where prosecution of a parent or relative of a parent can be reconciled with the child’s welfare is if in fact that person brought the child to the United States to be trafficked. Although this can happen, it is exceedingly rare with respect to parents of the child.

Given your expertise on the subject[4] we were shocked that you entirely discarded the conditions of the children’s native countries of Honduras, El Salvador, and Guatemala when you signed off on Section M.

In written testimony before Congress in March of 2015, you wrote that Transnational Criminal Organizations “tear at the social, economic, and security fabric of our Central American neighbors” and engage in “money laundering, bribery, intimidation, and assassination.” You concluded that “They threaten the very underpinnings of democracy itself: citizen safety, rule of law, and economic prosperity. And they pose a direct threat to the stability of our partners and an insidious risk to the security of our nation.”

Moreover, you emphasized that the primary motivation for unaccompanied children was grounded in the dire insecurity of their native countries, measures to deter the exodus of unaccompanied children to the United States are unlikely to have success:

“Last year, almost half a million migrants from Central America and Mexico—includsing over 50,000 unaccompanied children (UAC) and families—were apprehended on our border, many fleeing violence, poverty, and the spreading influence of criminal networks and gangs. Assistant Secretary of State Roberta Jacobson testified that the ‘UAC migration serves as a warning sign that the serious and longstanding challenges in Central America are worsening.’[5]

For FY 2016,  UAC apprehensions totaled nearly 60,000, almost matching the record of 68,541 in FY 2014. Moreover, UAC apprehensions from El Salvador and Guatemala exceeded that of FY 2014.[6]

Yet now, as DHS Secretary, you state that the United States must criminalize the parent’s desperate act of love—smuggling—to save their own child from being killed or harmed by these very same organizations that you previously declared “are tearing at the social, economic and security fabric of our Central American neighbors.”

The Practical Consequences of Section M Will Be To Deny Children Their Rights Under Flores and the TVPRA

In order to initiate removal proceedings or prosecute parents who allegedly smuggled their own child into the United States, DHS must use information ORR obtained from the child and proposed sponsor during the reunification process. ORR must elicit this information, including the name, identity, and address of the parent, to ensure the safety of the child, (i.e. that the parent claiming to be the parent is in fact the parent and not an imposter seeking to traffick the child) reunified with their parent.

In other words, But for the child vindicating their rights to release from custody and to reunification with their parent or closest relative, ICE would be unable to initiate removal or criminal proceedings against that parent. The DHS’ official policy is to use laws created to ensure the best interests of immigrant children as a vehicle to work directly against the best interests of immigrant children.

If DHS initiates removal proceedings or files criminal charges against an unaccompanied minor’s parent, that parent will likely be detained and could face deportation to their native country. Detaining and deporting a child’s parent or parents is, in vast majority of circumstances, decidedly not in that child’s best interests.

If a parent is detained, that parent cannot provide for the care and custody of their child; cannot ensure that the child appears for their court hearing; and cannot obtain an attorney for that child to apply for and obtain asylum or special immigrant status that the child is likely entitled to.

In many cases, detaining, deporting or prosecuting an unaccompanied child’s parent(s) will result in the de facto deportation of the child, even if that child was granted asylum or SIJS status. Asylum protection in the United States is not worth the paper its written on if the child simultaneously loses the only adults capable of caring for them in the United States.

Although this list is not exhaustive, one particularly ironic consequence of this policy will be to increase the risk that children are trafficked, or abused and neglected by other individuals who are not suited to care for the child. Human traffickers target the most vulnerable of children. A child whose parent is ripped from their lives is not only more vulnerable, but significantly more visible as a target. One day, their was a parent to protect them.

We again respectfully demand that you rescind Section M of the implementation memo given that its clear intent to eliminate unaccompanied alien children’s rights under the TVPRA and Flores.

The Ultra-Aggressive Policy of Expending Significant Law Enforcement Resources on Removing and Criminalizing Non-Criminal Parents Of Unaccompanied Alien Children For Saving Their Children’s Lives Undermines United States Security

In your testimony in March of 2015, you strongly urged Congress members to address the “root causes of insecurity and instability” because it was in the United States’ interests. Specifically, you cited to the “relative ease with which human smugglers moved tens of thousands of people to our nation’s doorstep and that “these smuggling routes are a potential vulnerability to our homeland. In explaining your basis, you went on to state that “In addition to the thousands of Central Americans fleeing poverty and violence, foreign nationals from countries like Somalia, Bangladesh, Lebanon, and Pakistan are using the region’s human smuggling networks to enter the United States” and that “a small subset could potentially be seeking to do us harm.

You concluded that “Last year, ISIS adherents posted discussions on social media calling for the infiltration of the U.S. southern border” though there has not yet been any evidence of this happening. You again stated “I am deeply concerned that smuggling networks are a vulnerability that terrorists could seek to exploit.”

As you know, the instability and insecurity in Central America is not what has caused human smuggling networks to flourish. These networks have their genesis in one factor: the United States and Mexico’s policy requiring individuals from the countries of Honduras, El Salvador, and Guatemala to obtain a visa prior to entering or passing through Mexico. But for this joint immigration policy[7], human smuggling networks would barely exist: a child or adult who wished to seek asylum in the United States could simply fly directly from San Salvador to the Mexican/US border and promptly express their request to seek asylum as an arriving alien at a US port of entry.

As this map illustrates, the Northern Triangle countries are the only countries in Central America, and one of the few countries in all of Latin America that require a visa to enter Mexico.[8]

It is not a stretch to conclude that the United States’ is largely responsible for Mexico’s visa requirements for Central Americans. (See former President Obama’s comments on Central American migration crisis: “If it were not for the hard work of Mexico in trying to secure its border to the south and to cooperate with us, we would have a much more significant problem.  nd if it were not for the hard work of Mexico in trying to secure its border to the south and to cooperate with us, we would have a much more significant problem.”[9])

Without visa requirements to enter Mexico, there would be no significant obstacles to Central Americans from seeking asylum or other protections in the United States at the U.S./Mexico border.

Under the current laws and policies, Central Americans, including UAC, pay smugglers from $5,000-plus to bribe Mexican law enforcement to ignore their unlawful presence in Mexico as well as to provide protection from the various drug and human trafficking organizations that prey on migrants throughout the trip from Mexico to the United States. The underground nature of human smuggling comes with inherent risks, including that the smuggler abuses, rapes, or murders the person(s) they were paid to transport.

However, the alternative to a paying a smuggler is far more dangerous: a child or any individual who attempts to travel through Mexico to the United States on their own is at the complete mercy of corrupt Mexican officials and transnational or national criminal organizations.

Providing safe passage of unaccompanied children and asylum seekers from Central America through Mexico would enhance the U.S. security by enabling the prioritization of resources on interdicting and apprehending individuals, such as potential terrorists, who pose an actual risk to the safety of the United States.

 

Conclusion

Given that Section M unlawfully eliminates the legal protections of unaccompanied children through deporting and/or prosecuting children’s parents or legal guardians in the United States and that the policy will do nothing to address the root causes of human smuggling, we again respectfully demand that you rescind Section M in its entirety.

We thank you for your attention to this urgent matter and look forward to a prompt response. If you should have any questions or concerns, please do not hesitate to contact us at

 

Very Truly Yours,

 

 

Bryan S. Johnson, Esq.

 

Ala Amoachi, Esq.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] Implementing President’s Border Security and Immigration Enforcement Improvements Policies, February 20, 2017

“The determination that the child is an ‘unaccompanied alien child’ entitles the child to special protections, including placement in a suitable care facility, access to social services, removal proceedings before an immigration judge under section 240 of the INA, rather than expedited removal proceedings under section 235(b) of the INA, and initial adjudication of any asylum claim by USCIS.”

 

[2] (d) PERMANENT PROTECTION FOR CERTAIN AT-RISK CHILDREN.—

(1) IN GENERAL.—Section 101(a)(27)(J) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)) is amended— (A) in clause (i), by striking ‘‘State and who has been deemed eligible by that court for long-term foster care due to abuse, neglect, or abandonment;’’ and inserting ‘‘State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a

similar basis found under State law;’

 

[3] https://en.oxforddictionaries.com/definition/conjunction

[4] http://www.armed-services.senate.gov/imo/media/doc/Kelly_03-12-15.pdf

[5] Posture Statement of General John F. Kelly, United States Marine Corps, Commander, United States Southern Command, Before The 114th Congress, Armed Service Committee, March 12, 2015, http://www.armed-services.senate.gov/imo/media/doc/Kelly_03-12-15.pdf

 

[6] https://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children/fy-2016

[7] Prior to the elimination of the wet foot, dry foot policy, Cubans were able to secure safe passage through Central America and Mexico, all without the need for human smugglers. http://www.bbc.co.uk/news/world-latin-america-35191828

 

[8] http://www.inm.gob.mx/gobmx/word/index.php/paises-requieren-visa-para-mexico/

 

[9] http://time.com/4419849/president-obama-donald-trump-speech/

Demand Letter to Hon. John F. Kelly from amjolaw

 

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.