The Great Green Card Procurement Announcement Internet Freak-Out of October 2014.

23 Oct

Kim Jong un

In the past two months, North Korean despot Kim Jung-un disappeared and reappeared.  And earlier this week, the U.S. government sought bids on a potential government contract.  Both events caused massive speculation but little information regarding critical policy issues.

Those who watch the immigration issue with obsessive scrutiny noticed this week that the U.S. Citizenship & Immigration Service put out a request for bids for a contractor who could provide supplies to produce up to 34 million work permits.  Anti-immigration outlets quickly picked up on this obscure notice and sounded the alarm that the administration was preparing for “amnesty.”  Likewise, immigrant advocates were heartened and thought that this requisition orderCards was evidence that the administration planned to “go big” and announce expansive administrative measures to relieve the suffering caused by our merciless immigration laws.  The speculation grew so hot that White House Press Secretary Josh Earnest felt the need to tamp down expectations.  Yesterday, Earnest said, “I think those who are trying to read into those specific orders about what the president may decide are a little too cleverly trying to divine what the president’s ultimate conclusion might be. What I would caution you against is making assumptions about what will be in those announcements based on the procurement practices of the Department of Homeland Security.”

If people are “a little to cleverly trying to divine what the president’s ultimate conclusion might be,” the blame lies squarely with the White House.  On a topic of immense policy importance, the White House has been extraordinarily tight-lipped about that it plans to do or not do.  After resisting administrative action for several years while presiding over the most efficient deportation machine this country has ever known. the President raised hope of executive action in June 2014, announcing that he would take action on administrative reform by the end of the summer.  He charged the Secretary of Homeland Security with offering plans as to what steps the administration could take to relieve the suffering his removal policies have caused.  Of course, proposals for administrative reform have been around since before the President took office in 2009.  That deadline was scuttled to assuage skittish and vulnerable Democrats facing election in November.  So, the President announced that he would hold off on reform until after the elections.

Meanwhile, the tension mounts.  The anti-immigrant crowd is screeching about “Obama’s lawless amnesty” and the “ISIS-ebola-unaccompanied minor” threat.  Families continue to be torn apart and many Latino leaders are calling on people to sit out this election.  Everyone is waiting on the President to announce his plan.  The lack of information about what the President may do is what causes the internet to go berserk over “the procurement practices of the department immigration-protest-your-handsof Homeland Security.”  In the absence of real information, speculation and hysteria will fill the void.

Last month, the world engaged in speculation that North Korean despot Kim Jong-un had been overthrown because he had not been seen in weeks.  Reports of injuries to the dictator filled the airwaves until he reappeared in public.  Of course, such speculation makes complete sense in a country that tightly controls its media and in a government that operates by power and secrecy.  People interested in those affairs have learned how to divine what may be happening through little clues.  Just like in the Soviet era, insiders would try to figure out who was in and who was out by where they were seated at Party Congresses.

The internet freak-out caused by the White House’s lack of information about its plans and a cannily-timed procurement request can only be expected where the administration behaves more like the secretive cabal in North Korea than an American administration genuinely interested in solving a real problem.

Court of Appeals Limits Mandatory Detention

9 Oct

Detention

On October 6, 2014, the U.S. Court of Appeals for the First Circuit issued a decision in Castañeda v. Souza that greatly limits the ability of Immigration & Customs Enforcement to subject individuals to mandatory detention during their removal proceedings.  In Castañeda, the First Circuit interpreted the not very confusing language “when the alien is released” and rejected the Board of Immigration Appeals’ formulation, articulated in Matter of Rojas that the “when released” means “any time after release.  The First Circuit determined that the Board got that wrong and concluded that “when released” means “at the time the individual is released” rather than “any time after release not matter how many days, weeks, months or years later.”  Amazingly, two other circuit courts, the Third and the Fourth, have already upheld the Board’s decision.  Thus, the First Circuit’s decision creates a “circuit split” that may result in the Supreme Court resolving the two differing interpretations.

The Immigration & Nationality Act (INA) allows Immigration & Customs Enforcement (“ICE”) to detain someone without any right to release on bond if they are removable for having been convicted of certain offenses.  This “mandatory detention” causes certain individuals to be held in detention for the duration of their removal proceedings.  They are not entitled to an individualized determination as to whether they present a danger to the community or are not likely to appear for removal proceedings.  The section of the INA that allows for mandatory detention states that DHS “shall take into custody” certain foreign nationals who are deportable on specific criminal grounds “when the alien is released” from criminal custody.  Stewart

For years, individuals have challenged their mandatory detention by arguing that they were not taken into custody “when released,” but weeks or even years later.  By filing actions for habeas corpus in U.S. District Court, individuals obtained decisions from courts nationwide ordering DHS to give the detainee an individualized bond hearing where issues of dangerousness or flight risk could be assessed by an independent judge.   The overwhelming majority of district courts to consider the “when released” language concluded that the Immigration & Nationality Act only subjected those who were taken into custody within a reasonable period of time from criminal custody to mandatory detention.  Courts concluded that mandatory detention did not apply to those who ICE apprehended long after their release from custody and those individuals must be given an individualized bond hearing.  Over the past few years, the government has appealed some of these district court decisions.  The first decision from a Court of Appeals occurred here in the 4th Circuit.  In Hosh v. Lucero, the government appealed a district court’s order that DHS provide Mr. Hosh with a bond hearing in light of the three year gap between his release from criminal custody and his apprehension and detention by ICE.  The 4th Circuit reversed the decision of the district court determining that the Board of Immigration Appeals’ interpretation of the “when released” language was reasonable and not plainly in opposition to the INA and therefore, was entitled to the court’s deference.  About a year after Hosh, the Third Circuit reached the same conclusion in Sylvain v. Attorney General.  Thus, although several district courts across the country rejected the Board’s interpretation, the two circuit courts that considered the question deferred to the Board.

FirstIn Castañeda, the First Circuit determined that the “when released” language did not permit the government to subject an individual to mandatory detention when she was taken into custody ten years after her release from criminal custody.  The First Circuit did not require complete immediacy and stated that ICE’s apprehension must occur within a reasonable period of time after release from criminal custody.  The Court noted the arbitrary nature of mandatory detention and why it offends due process when it is undertaken long after a person completes their criminal sentence:

Despite its years long delay in bringing removal proceedings after the petitioner’s release from custody, the government has offered no explanation for either the delay or the eventual decision to prosecute in these individual cases or for that matter, in the other cases where individuals have been detained years after release.  Indeed, when the district court ordered that the petitioners be given bond hearings, the government actually viewed them as neither dangerous nor likely to flee.  Castañeda was even released on her own recognizance (i.e., without a monetary bond) and before her bond hearing even took place.

Mandatory detention of individuals such as the petitioners appears arbitrary on its face.  We are left to wonder whether the petitioner’s sudden arrest and detention is not to “facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons,” which would offend due process.

The decision in Castañeda creates a circuit split between the 1st Circuit and the 3rd and 4th Circuits.  When federal law is different in different parts of the country, there is a strong incentive for the Supreme Court to step in.  However, the Supreme Court can only step in if the government chooses to appeal.  We will be watching to see what the Department of Justice does.

In each of these circuit court cases, Benach Ragland has submitted amicus (“friend of the court” ) briefs on behalf of the American Immigration Lawyers Association and will continue to do so as long as the issue is litigated.

Montgomery County Maryland Says No to ICE!

8 Oct

MoCo

Great news right out of our own backyard.  Montgomery County, Maryland, the county that surrounds most of Northwest Washington DC and the most populous county in Maryland, announced today that its jails would no longer honor detainers issued by Immigration & Customs Enforcement except under very specific circumstances.  This decision places a vice grip on one of the region’s most reliable ICE enforcement pipelines and is further evidence that local municipalities are rejecting the damage done to communities by the heavy-handed enforcement activities of the current administration.  We answer some basic questions about what this change means.

What is a Detainer?

A detainer is a request filed by Immigration & Customs Enforcement with a jail or prison asking the jail or prison t0o continue to detain an individual beyond their release date so that ICE can assume custody over the individual.

Is this like an “ICE hold?”

Yes, an “ICE hold” is a common name for a detainer.

Are there any rules about detainers?

Yes, under U.S. immigration law, ICE may only request that a jurisdiction hold an individual up to 48 hours beyond their scheduled release date (not including holidays and weekends) for ICE to assume custody of a detainee.

Why does ICE issue detainers?

ICE issues a detainer when it learns that an individual being held in local law enforcement custody may be subject to removal from the United States.  The issuance of a detainer is how ICE expresses an interest in an individual.  It does not necessarily mean that an individual is subject to removal.  A detainer allows ICE to assume custody and determine whether to charge an individual with removal.

Is a jurisdiction obligated to honor ICE detainers?

No.  An increasing number of jurisdictions are rejecting ICE detainers as inconsistent with their own law enforcement prerogatives.  Over 250 jurisdictions including the State of California, New York City, Washington DC, Boston, Denver and San Francisco refuse to honor ICE detainers.

What happens if ICE does not assume custody over an individual after 48 hours?

The facility should release that individual.  The authority to detain an individual beyond their release date is limited to 48 hours.  Municipalities that detain individuals beyond that period are at risk of liability for unlawful detention.

Can an ICE hold prevent someone from being released on bail pre-trial?

Many local judges and prosecutors wrongly assume that a person subject to a detainer can not be released on bail pre-trial.  A detainer does not render someone ineligible for release on bond.  Many jurisdictions have assumed that because a detainer exists, bail may not be ordered.  Sometimes if a person gets bail from a judge, the family has a hard time making the payment because the clerk believes she can not take it due to the detainer.  Individuals eligible for bail should seek bail despite the existence of a detainer.  Once the bail has been made, ICE may assume custody.  However, since an individual will not have been convicted of a deportable offense at that time, ICE’s ability to detain may be limited.  Criminal attorneys seeking bail for clients subject to detainers should coordinate with immigration counsel to pursue the most advantageous strategy for the client.

Why did Montgomery County do this?

In April 2014, Maryland Governor Martin O’Malley determined that jurisdictions in Maryland may face liability for detaining individuals after their eligibility for release.  As counties absorbed the impact of this opinion and sought to protect themselves, counties began to rethink the wisdom of cooperating with detainers.  In August 2014, the City of Baltimore stopped honoring detainers followed by Price George’s County in October.  With Montgomery County, Maryland’s largest county, following suit, the momentum against detainers is unmistakable.O'Malley

Why did Martin O’Malley do this?

O’Malley is widely believed to be running for President as a Democrat in 2016.  O’Malley has clearly chosen to take a more aggressively pro-immigrant stand than other potential Presidential candidates.

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Scenes From the Immigration Bar: Happy October!

3 Oct

Happy October!

Video Journal from Artesia

14 Sep

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(Water tower in the remote town of Artesia, NM)

I have recently returned from my trip to the detention center in Artesia, New Mexico, after 5 days of pro bono legal work on behalf of the refugee women and children detained there. After five 20-hour work days and personally experiencing all of the awful and heartbreaking things that I saw, I have returned exhausted and emotionally drained, but also inspired by the strength of these refugees and the dedication of my fellow volunteers.

I wanted to share with you the video journal that a fellow volunteer and Friend of Benach Ragland (“FOBR”), Sandra Grossman, and I put together in an attempt to shed light on what is happening there and to encourage other immigration lawyers to make the trek to Artesia to do some pro bono work for these women and children. Our Day 1 Video discusses our journey to Artesia (an oil town in the middle of a desert), our introduction to the pro bono program that has been established by the volunteers before us, and our expectations for our pro bono work there.

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(Scenes from the road to Artesia, New Mexico)

Our Day 2 Video describes what it is like to see children as “inmates” in a detention center, the illnesses from which they suffer and the lack of adequate medical care, and the horrific stories they are exposed to on a daily basis.

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(My notes from my client’s bond hearing, showing what it is like to have a

four-year-old boy sit next to you while his mother recounts horrific violence

- doodles amongst my cross-examination notes and a “regalito” (little gift)

he made for me out of a dry cleaning receipt he had found on the ground)

Our Day 3 Video discusses the logistics of volunteering in Artesia, what the detention conditions are like, what it is like to be a volunteer in Artesia, and some of the many due process violations that are occurring on a regular basis in Artesia at the Federal Law Enforcement Training Center, where these women and children are detained, including lack of access to interpreters and legal counsel.

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(The Federal Law Enforcement Training Center entrance; in the distance,

the trailers where the pro bono attorneys meet with their clients and represent them before Immigration Judges;

and attorney visitor badge requiring ICE escort at all times)

Our Day 4 Video depicts the heart-wrenching circumstances and seemingly impossible challenges that these women and their children are facing from jail in the middle of the desert in Artesia, New Mexico.  Finally, our Day 5 Video introduces you to some of the other pro bono attorneys volunteering their time and energy on behalf of the women and children in Artesia.  The volunteers describe what inspired them to come to Artesia and what it has been like for them on the ground.

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(AILA volunteers discuss macro and micro level legal

strategies for representing their detained clients in Artesia)

I think the videos show the progression of emotions for the volunteers there, and they highlight the lack of human dignity and lack of due process in Artesia. What is happening there is a tragedy and is fundamentally un-American. The government’s attempt to conceal this embarrassment in the middle of a barren desert is shameful. Please share these videos on your own social media and with your family and friends to help spread the word about this travesty that will surely be seen as a dark mark on American history.

What else can you do? Please call your Senators and Representatives to implore them to shut down Artesia.  If you are an immigration attorney, please go to Artesia to volunteer, help remotely with bond and I-589 filings, donate office supplies, or donate funds (tax-deductible) to help alleviate the financial burden on those immigration attorneys who are taking time off of their practices and traveling to Artesia to volunteer.

ICE Called Him a Terrorist. We Said He’s Not. We Won.

9 Sep

Ragland and Hamid

Our Client of the Month for September 2014 is Abdul Hamid. On July 31, 2014, Mr. Hamid walked out of the Stewart Detention Center in Lumpkin, Georgia and tasted freedom for the first time in more than 15 months. Stewart, an immigration detention center brought to you by the friendly folks at Corrections Corporation of America (CCA), is straight out of George Orwell. Along with the high fences and rolls of concertina wire are guards in crisp blue uniforms and inspirational posters on the walls lauding the CCA’s role in “serving America’s detention needs” and “leading the way in quality correctional care.” Not making this up. But call it “detention” or “custody” or “quality correctional care” all you want. The grim reality is that this place is a prison, situated in a truly godforsaken corner of Georgia more than a 3-hour drive from Atlanta, just far enough to make it very tough for lawyers or family members to visit on a regular basis. Stewart issues color-coded jumpsuits to its residents – red being reserved for the most dangerous inmates, violent offenders, and gang members. Mr. Hamid, a soft-spoken 61-year-old Pakistani gentleman who has lived with his family in the United States for the past 14 years, was made to wear red.Stewart

Mr. Hamid has never been arrested, charged, or convicted of any crime – in the U.S. or elsewhere. He fled Pakistan in 2000 to escape extortion and death threats from a group of thugs associated with the Jamaat-e-Islami political party. When he appeared before an Immigration Judge (IJ) in Atlanta in April 2013, Mr. Hamid applied for permanent residence – a green card – based on an approved visa petition filed by his adult U.S. citizen son. But then his case took an unusual turn. The lawyer representing the Department of Homeland Security (DHS) argued that Mr. Hamid’s actions in Pakistan in 1998-99, when he was assailed by representatives of Jamaat-e-Islami and forced on threat of death to pay a “jaga tax,” amounted to material support for terrorism – rendering him ineligible for a green card, deportable from the U.S. with no relief, and subject to mandatory detention by U.S. Immigration and Customs Enforcement (ICE). According to DHS, certain “evidence” (obtained primarily through internet searches) demonstrated a link between Jamaat-e-Islami – a fundamentalist political party in Pakistan – and Hizb-ul-Mujahideen – a militant group fighting to establish an independent Islamic state in Kashmir, India. The IJ agreed, ordered Mr. Hamid deported, and ICE agents immediately took him into custody and transported him from the court to his new digs at the Stewart Detention Center. Mr. Hamid and his family were stunned and distraught, unsure what had happened or how to correct such a grievous error.

Within days, Mr. Hamid’s son, Nadeem Sheikh, drove from Atlanta to Washington, DC to consult with Thomas Ragland about how to overcome the IJ’s decision and secure his father’s release. Ragland took the case and immediately began preparing an appeal to the Board of Immigration Appeals (BIA). The appeal contended that the IJ had committed a number of errors, including finding that the evidence presented by DHS established a “subgroup” relationship between Jamaat-e-Islami (the political party) and Hizb-ul-Mujahideen (the terrorist group). We argued that DHS and the IJ had failed to distinguish between the various different organizations that exist under the Jamaat-e-Islami banner – in Pakistan, in India, in Bangladesh, and in Sri Lanka – or to recognize that these disparate groups operate independently of one another. We argued further that even if the evidence did establish a subgroup relationship, Mr. Hamid fell within the “knowledge” exception to the material support bar – because he did not know, and should not reasonably have known, that money he paid under duress to the Jamaat-e-Islami thugs in Lahore, Pakistan might be used to support violent activities by an entirely different group, Hizb-ul-Mujahideen, in Kashmir, India. A few days before Halloween 2013, and more than six months after Mr. Hamid began his tenure at Stewart, the BIA agreed and remanded the case to the Atlanta Immigration Court for further proceedings.

In the months that followed, Ragland traveled to Atlanta for half a dozen more hearings in Mr. Hamid’s case. The proceedings were repeatedly delayed by confusion over which IJ should be assigned, by the disqualification of two successive court-appointed Urdu interpreters, by a federal government shutdown, and by a system-wide crash of the Immigration Court’s computer system. Meanwhile, Mr. Hamid stoically endured his imprisonment and the indignity of being transported from Lumpkin to Atlanta in chains and leg irons, being handcuffed throughout his court hearings, and being repeatedly vilified by DHS counsel as an untruthful witness and a supporter of terrorism. Mr. Hamid’s entire family – his wife, his sons and daughters and their families, his grandchildren – attended each and every hearing to demonstrate their tireless support and unwavering belief in his innocence of the government’s charges.

In addition to extensive background research, numerous written briefs, and hours of in-court testimony, we deployed a secret weapon that proved crucial to our defense of Mr. Hamid. Pakistan’s former Ambassador to the United States, Mr. Husain Haqqani, is husain_haqqaniamong the world’s foremost authorities on the politics, history, and economy of Pakistan. He has advised four presidents, held various high-level posts over a long and distinguished diplomatic career, and recently authored a best-selling book entitled Magnificent Delusions: Pakistan, the United States, and an Epic History of Misunderstanding. More importantly, he is a long-time client of Benach Ragland. Ambassador Haqqani volunteered to serve as an expert witness in Mr. Hamid’s case, free of charge, authored a lengthy written opinion and flew to Atlanta to testify in Immigration Court. In off-the-record comments after the hearing, the IJ remarked that he was “very impressed” by our expert, and the DHS attorney griped that we had brought in a “million dollar witness.” Faced with great injustice and overwhelming odds, good lawyers must do what it takes to win the day.

Ultimately, the IJ was persuaded by our arguments and evidence, rejected the government’s contentions, and ruled in Mr. Hamid’s favor. Reversing his prior ruling, he found that the evidence failed to demonstrate a subgroup relationship between Jamaat-e-Islami and Hizb-ul-Mujahideen. After 15 months in prison, thousands of dollars in legal fees, and the traumatizing prospect of being deported to a country he had fled in fear for his life, Mr. Hamid was granted permanent residence and allowed to return home to his family. Justice delayed, but not denied. Our heartfelt congratulations to a very deserving client.

Journey to Artesia

7 Sep

fr3404

Tomorrow I will be heading to Artesia, New Mexico – unfortunately not to tour the beautiful Southwest, but rather, to address the smothering of due process at the remote Federal Law Enforcement Training Center, which has been converted into a detention center for women and children who have fled horrific violence and danger in Central America. In Artesia, women and children are being detained at length in inhumane conditions, intimidated and coerced by immigration officers, refused a chance for a fair hearing and access to counsel, hurled through a removal process with predetermined results, and ultimately, being sent directly and expeditiously back to the danger from which they fled – all in violation of U.S. legal obligations under existing domestic and international law.

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Evidence from the ground in Artesia has shown that the conditions there make it virtually impossible for these refugee women and children to consult with their attorneys, access legal help, obtain notice of their hearings, and meaningfully prepare their claims for asylum or other defenses to deportation. To provide an example, a significant percentage of the women at Artesia are victims of extreme violence, death threats, rape and domestic violence, and other forms of persecution. Rather than a confidential screening with an immigration officer, these women are being forced to answer traumatic questions, including detailed descriptions of rape, while their children are present. Not only are these women met with hostility and inhumanity by the procedures in place, but also by the officers who are detaining them, calling them degrading names like “cerdos” (pigs), refusing their children medical treatment, screaming at them for asking to speak to their attorneys, and forcing them to sit in their own filth for hours. This treatment and this purposeful disregard of our current laws and procedures for processing those who have fled persecution and torture in search of safety and protection in the United States makes me feel embarrassed and ashamed. This is not the America I know and love.

This is why I am heading to the remote detention center in Artesia, New Mexico (via flights from DC to Dallas to El Paso, followed by a four-hour drive through the desert). There, I will be volunteering a week of my time to counsel and represent these mothers and children, in the hope of restoring a little bit of humanity to our system and shedding a little bit of light on this dark place. As an immigration attorney who focuses my practice on representing refugees and asylum-seekers, who speaks Spanish, and who has years of experience representing individuals who have fled Central America due to the unfettered violence that is often met with impunity by those countries’ governments, I did not feel that I had a choice in the matter. Moreover, as an attorney, justice and the rule of law are two principles that are so central to the foundation of my belief system and my work that I feel compelled to do my part to restore these values in Artesia. These ideals, in addition to these women and children, need an advocate. We should not be sacrificing fundamental fairness for political posturing and valuing expediency over justice, especially in matters of life or death.

Stay tuned for updates from the ground…

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