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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:

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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:

Screen Shot 2017-01-24 at 8.07.51 AM.png

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:

Screen Shot 2017-01-24 at 8.14.03 AM.png

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

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

Secret Identities of Immigration Judges Revealed

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

Until today.

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

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

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

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

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

IJ Sims Complaints

IJ Couch Complaints 

IJ Duck Complaints

IJ Arrington Complaints

IJ Vomacka Complaints

IJ Hom Complaints

IJ Cassidy Complaints 

IJ Wilson Complaints 

IJ Nugent Complaints 

IJ Ford Complaints 

IJ Pelletier Complaints

IJ L. Munoz Complaints

IJ Codes Revealed

Update: 01/23/2017. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Accuracy in Immigration Judge Key

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

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

UPDATE Number Three, 01/24/2017: 

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

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

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

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

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

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

Throwing Children Asylum Applicants To The Wolves

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

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

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

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

screen-shot-2016-11-08-at-4-21-38-pm

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

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

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

screen-shot-2016-11-08-at-4-49-19-pm

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

 

Screen Shot 2016-11-08 at 5.03.05 PM.png

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

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

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

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

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

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

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

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

John

John Lafferty

Chief

USCIS Asylum Division

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

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

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

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

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

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

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

(8) Specialized needs of unaccompanied alien children

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

screen-shot-2016-11-11-at-4-38-57-pm

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

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

Screen Shot 2016-11-11 at 4.51.47 PM.png

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

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

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

screen-shot-2016-11-11-at-5-03-17-pm

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

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

screen-shot-2016-11-11-at-5-17-00-pm

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

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

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

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

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

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

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

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

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

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

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

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

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

x. Headquarters QA Review Required

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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