The Advocates Opposes Proposed Fee Increases by Immigration Court, Appeals Boar

The Advocates for Human Rights submitted comments opposing proposed fee increases by the Executive Office for Immigration Review. The agency plans to increase fees across the board. The cost of an appeal would rise by a staggering 786%, making appeals of immigration court decisions the most expensive appeals in the federal system. 


 

March 30, 2020

Lauren Alder Reid
Assistant Director
Office of Policy, EOIR
5107 Leesburg Pike, Suite 2600
Falls Church, VA 22041

RE: EOIR Docket No. 18-0101

Dear Assistant Director Adler Reid,

We write on behalf of The Advocates for Human Rights in response to the above-referenced Proposed Rule to express our strong opposition to the Proposed Rule to amend regulations relating to EOIR fees as proposed in the Federal Register. We first note that the comment period, occurring during an unprecedented restriction on movement and access due to the Coronovirus pandemic, provides an insufficient time to comment on these Proposed Rules.

The Advocates for Human Rights is a nonprofit, nongovernmental organization headquartered in Minneapolis, Minnesota. Founded in 1983, The Advocates for Human Rights’ mission is to implement international human rights standards to promote civil society and reinforce the rule of law. Holding Special Consultative Status at the United Nations, The Advocates regularly engages UN human rights mechanisms. The Advocates for Human Rights has provided free legal representation to asylum seekers for more than three decades, working with more than 10,000 cases to assess, advise, and represent in asylum proceedings. The Advocates for Human Rights is a global expert in women’s human rights, particularly in the area of domestic violence. We have worked in Central and Eastern Europe, the former Soviet Union, the Caucasus, Central Asia, Mongolia, Morocco, Nepal, Mexico, Haiti, and the United States. At the request of government officials, embassies, and NGOs, we help draft laws that promote the safety of women. We have provided commentary on new and proposed domestic violence laws in nearly 30 countries. We have worked with host country partners to document violations of women’s human rights, including domestic violence. We train police, prosecutors, lawyers, and judges to implement both new and existing laws on domestic violence. In addition, our Stop Violence Against Women website serves as a forum for information, advocacy, and change and, working with the UN, we developed the Legislation and Justice sections of the UN Women’s Virtual Knowledge Center to End Violence Against Women.

The Advocates for Human Rights opposes the Agency’s Proposed Rule because it violates statutory and international human rights obligations. In addition, the Proposed Rule lacks justification, fails to appropriately account for the costs imposed on the Agency by decisions of the Department of Homeland Security, and fails to meet the “fairness” standard established by the Independent Offices Appropriations Act of 1952 (“IOAA”), 31 U.S.C. 9701. Finally, The Advocates opposes the Proposed Rule because it promises to negatively impact the most vulnerable persons subject to removal proceedings, including asylum seekers, children, and victims of trafficking.

I. The Proposed Rule Violates Federal Statute Establishing Appeal Rights and International Treaty Obligations

The Advocates opposes this rule as a violation of federal statute and of international treaty obligations. The increased fees in each category render meaningless rights to pursue appeals, motions to reopen/reconsider, and other relief statutory available. For example, the Agency’s proposed increase in the fee for Form EOIR-26, Notice of Appeal, from $110 to $975, without guidance on how and when fee waivers will be granted, renders meaningless the right of appeal for many.

While the IOAA allows collection of fees, those fees must be consistent with other U.S. laws and policies. Congress has passed the Refugee Act, the INA and the Trafficking Victims Protection Act, which require specific protections for certain categories of vulnerable individuals. For example, the TVPA/TVPRA require that the U.S. and its agencies take steps to protect victims of trafficking, particularly those vulnerable due to immigration status. As detailed below, the proposed fee increase—without specific guidelines that would ensure fee waivers are available and readily granted—would unduly impact trafficking victims in immigration proceedings and create incentives that may allow re-trafficking as victims attempt to get sufficient funds to cover exorbitant fees. Similarly, the 1980 Refugee Act and the INA codify the U.S. obligations under the Refugee Convention.

Federal law establishes the right to a review of decisions by the immigration judge at 8 CFR § 1003.38 International treaty and international human rights obligations require that people fleeing persecution, torture, and trafficking have access to fair adjudicatory processes to raise their claims.[1] While governments may determine the appropriate process to adjudicate protection claims, at a minimum applicants must have the opportunity to have a negative decision reviewed before expulsion.[2] The Agency cannot circumvent its obligations by setting filing fees so high as to effectively block access to the appeals process.

II. The Calculations Used by EOIR Lack Justification and are Fundamentally Unfair

The proposed appeal fee increase of 786%, born only by individuals who appeal, is particularly suspect given the dramatic rise in the number of appeals filed by ICE in recent years. In this case, the Agency’s proposed increase in appeal fees effectively eliminates the right to appeal for individual appellants but leaves the Department of Homeland Security free to appeal. The Agency charges no fee when DHS appeals a decision of the immigration judge. The proposed fee increase not only leaves many individual appellants without the ability to challenge decisions made against them, by charging fees only to respondents and not DHS, it effectively shifts the costs of DHS’s appeals onto the individual.

As the Department of Homeland Security continues to place migrants in removal proceedings, appeal and reopen an unprecedented number of cases, and implement new policies that produce greater rates of denials, more people are forced to fight their cases through the EOIR system and in ways that require many more applications, motions and appeals. Thus, the cost passed-on to the taxpayer for the significant number of appeals processed, for example, is a reflection of the need for appeals created by EOIR and its DHS counterpart; not by the migrants whom EOIR now asks to cover the full cost of driving this machine. The IOAA should not be used as an excuse to shift the cost of immigration enforcement decisions onto individuals appealing decisions of the immigration judge.

The proposed fees are calculated “based on the amount of time the step takes, the average salary of the responsible staff, and the percentage of total cases in which the step occurs.” (Prop. Rule at p. 23). It is unclear, however, how such time and staffing is determined. For example, the proposed staffing fees for an appeal to the BIA include two legal assistants, a paralegal, an attorney and a Board Member. Without further explanation of the time and contribution of each of these staffing allocations, EOIR cannot justify a nine-fold increase in the cost to appeal.

The proposed regulation purports that a fee increase is necessary to 1) update fees to account for inflation; and 2) update fees under the IOAA in order to cover operating costs. The Advocates notes that, based on inflation, the $110 cost of an appeal would be less than $250—not nearly close to the proposed $975.

In addition, The Advocates clarifies that, under the IOAA, an agency may—not must— charge fees that would ensure recovery of the full cost of providing all such services. The IOAA does not require that agencies do so. Agencies must, however, ensure that that such fees be “fair” and based on Government costs, the value of the service or thing provided to the recipient, the public policy or interest served, and other relevant facts. 31 U.S.C. 9701(b).

As the IOAA states, the fees must be fair and based on public policy and other relevant facts. The fee increase proposed is not fair. The new fee for an appeal to the BIA, for example, will be the same as one month’s salary for a family of two according to the Federal Poverty Guidelines. This cannot possibly be reasonable and fair. Moreover, the IOAA states fee scales should take into account public policy and other relevant facts. Due process requires that one be able to access justice in their case. Migrants are not provided counsel or other guarantees that would generally inure in judicial proceedings. However, due process does require that they not be priced-out of obtaining relief for which they are eligible or in such a way as to discourage them to fight their case.

The proposed fees are significantly more costly than similar fees in other courts—both in federal courts and administrative bodies. Indeed, in our sampling of a variety of other courts, the $975 fee for an EOIR appeal would be the highest appeal fee, including appeals on patents, copyright and to the U.S. Court of Appeals. This is concerning given the lack of justification for staffing costs passed-on to appellant to explain why the Agency’s operating fees are so much higher than other similarly situated—or, in the case the U.S. courts of appeals and district courts, more burdened—courts. A list of those comparisons can be found, below. Such uncommonly high costs raise the question whether fees are being raised to cover operations or to discourage pursuing relief.

US Court of Appeals — $500 fee per party filing notice of appeal.

US District Court — $38 for filling an appeal from a magistrate decision on a misdemeanor case

US Bankruptcy Court — $293 for filing an appeal or cross appeal

US Court of Appeals for Veterans Claims — $50 for filing notice of appeal or petition for extraordinary relief.

Copyright Office — $350 for first appeal (per claim); $700 for second appeal (per claim). 37 CFR § 201.3(d).

USPTO Trademark Appeals — $200 for ex parte appeal, per class. 37 CFR § 2.6(a)(18).

USPTO Patent Appeals — $800 regular fee, $400 small entity fee, $200 micro entity fee. 37 CFR § 41.20(b)(1).

III. The Proposed Rule Will Severely Impact the Most Vulnerable

A. Asylum-Seekers

Requiring fees for asylum applications is unprecedented in the United States, and rightly so, as asylum is a form of humanitarian relief intended to be accessible to refugees forced to flee for their safety. Many asylum seekers arrive in the United States with few personal belongings and little or no savings. They are often dependent upon distant community connections to provide for their basic needs including housing, food, and transportation. Unable to access the social safety net and ineligible to work unless and until their asylum applications have been pending for 180 days, they are also unable to access income in order to pay the proposed filing fee.

Many of the clients The Advocates for Human Rights serves report being a burden on their hosts and are often reluctant to request help to meet their basic needs. Adding an additional hurdle, including requiring that a $50 fee be paid to initiate the asylum process, will undermines their access to the asylum process. In addition, by requiring a fee for the underlying application, motion to reopen removal proceedings based on asylum will now be subject to the new filing fees of either $145 for motions before the immigration court or $895 for motions before the Board of Immigration Appeals. Subjecting asylum seekers to this fee further erodes their ability to seek protection, reunite with family, and integrate into the United States.

B. Children and Youth

Many asylum seekers represented by The Advocates for Human Rights have been recognized as unaccompanied minors,[3] and thus lack any parent or legal guardian to care for or provide for them. The unaccompanied minor clients of The Advocates for Human Rights have been as young as seven years old when they are filing their initial application for asylum. Unaccompanied alien children are uniquely vulnerable in that they are filing their asylum claims alone, and are solely responsible for providing documentation, evidence, and testimony in support of their claims for protection from deportation to the persecution they fled. This burden placed by the legal system on unaccompanied children is already extremely high, and unparalleled in any other legal setting in which children are present.

According to UNHCR’s most recent survey of unaccompanied children, of 404 unaccompanied children from Mexico, El Salvador, Honduras, and Guatemala, 58 percent “were forcibly displaced because they suffered or faced harms that indicated a potential or actual need for international protection.”[4] A 2017 study by the organization Kids In Need of Defense and other collaborators demonstrated extremely high level of sexual and gender-based violence suffered by female and LGBTQ unaccompanied children fleeing from the Northern Triangle of Central America.[5] The unaccompanied minor clients of The Advocates have almost universally survived traumatic experiences of child abuse, sexual abuse, death threats and beatings by transnational criminal gangs, or other extreme violence at a young age. These children have legitimate claims for refugee protection, but already face high barriers to presenting these claims. Most unaccompanied alien children lack any familiarity with the U.S. legal system and many lack access to counsel or even adults in their community that can help them navigate the court system and understand even their basic obligations within that system. Since they are not authorized to work before filing their asylum applications, and are also often prohibited from working under state law provisions, and often lack access to any adult who can or will pay application fees on their behalf, imposing fees on children seeking asylum will effectively prevent numerous legitimate refugees from accessing refugee protection.

Requiring children who have no access to any adult legally obligated to care for them to pay fees to file applications for humanitarian protection from deportation is inconsistent with U.S. and international law, unreasonable, and a violation of the rights of these children to access the legal system and seek protection from deportation. Not only does this violate numerous laws, it also will result in the deaths of vulnerable children and adolescents who are deserving of refugee protection under U.S. law.

Moreover, The Advocates for Human Rights represents many families in which parents have fled with their children to the United States seeking refugee protection. These individuals qualify for our pro bono legal services based on their very limited income. While The Advocates for Human Rights endeavors to provide access to counsel for as many asylum seekers as our resources allow, many families seeking asylum lack access to counsel. According to Syracuse University’s TRAC reports, less than 50 percent of families with children in South Dakota are represented and only slightly more than 50 percent of families with children in Minnesota are represented. Many families lack the resources to access counsel. Many of these families are unable to access counsel because of lack of resources. Imposing another financial burden on them will prevent even more families with valid claims for refugee protection from accessing the legal system, leaving the children in those families vulnerable to further persecution and torture.

C. Detained Individuals

Many asylum seekers are held in civil detention during the pendency of their asylum proceedings. This can be for past criminal history, lack of family or other community support, or simply because they don’t have access to resources to pay their bonds.[6] Asylum seekers in detention are particularly impacted by this proposed fee hike. While they are detained, they have no access to gainful employment and are forced to use any savings they have to pay for commissary, attorneys fees, or to use the high-cost phone system. Often, the detained asylum seeker is the sole or primary bread winner for their family. As such, any administrative fee, and even more so an exorbitant administrative fee, is a burden on their family and their finances. DHS should not seek to balance its budget by charging usurious fees to the most vulnerable. Rather than increasing revenue, this policy will force many immigrants and asylum seekers to forego their meritorious applications and appeals simply for lack of immediately-accessible funds. Detention is already a strain on the economy and on families. This unconscionable fee hike will only exacerbate the problem.

D. Trafficking Victims

Noncitizen trafficking victims are often vulnerable to trafficking due to prior immigration violations or uncertain immigration status. Traffickers used these vulnerabilities to exploit victims. Once victims are out of the trafficking situation, federal law provides important benefits to regularize status and ensure participation of victims in the investigation and prosecution of traffickers. Yet, many such victims would need to file a motion with EOIR in order to take access these protections. Already, the $110 fee is a hurdle for many; a nine-fold increase is all the more so. Nearly $1000 is equivalent to one month’s salary at the federal poverty guidelines. Requesting that migrants have an extra month’s salary to use for these fees is not only absurd but also discriminatory against indigent families who may not have resources despite having legitimate immigration relief.

This is particularly troubling for victims of trafficking who may fall prey again if forced to take exploitative work or relationships to cover such fees. While a fee waiver remains available, many pro se applicants will not be aware of this or have the capacity to complete the form themselves. Additionally, there is no guarantee written into policy or this regulation which lays out a clear standard by which fee waivers will be judged if this regulation is implemented. Without such guidance, there is no guarantee that trafficking victims will be able to access justice in the immigration courts, which will prevent them from accessing congressionally-mandated benefits as defined in the TVPRA, and further risks new episodes of exploitation. Indeed, the Code of Federal Regulations, giving effect to the INA and TVPRA, provides that trafficking victims may file motions to reopen prior removal orders to pursue T nonimmigrant status.[7] An insurmountable filing fee of $895 – an increase of more than 713% over current fees for motions filed before the Board of Immigration Appeals – fails to give effect to these provisions and will arbitrarily restrict trafficking victims from obtaining protections afforded them.

For example, The Advocates represented a trafficking survivor who had not been identified as a trafficking survivor until we met him in ICE detention. Because he had a prior removal order, he was facing expedited removal. This, despite the fact that he detailed information about the location and strategies of his traffickers. In order to process his T visa application, however, The Advocates had to file a Motion to Reopen the old removal order. This client had been forced to work in indentured servitude under threat of death by his traffickers before escaping. He had no resources and no other supports in the U.S. However, because he was facing imminent removal due to the prior order, our office had to file the Motion to Reopen quickly and, therefore, could not take a chance that a fee waiver would be denied. An increase of the fee to nearly $1000, however, this would not be possible for a trafficking victim or nonprofit legal services organizations, and our client would likely have been swiftly removed despite being a victim of trafficking.

IV. Conclusion

The Advocates for Human Rights opposes the Agency’s Proposed Rule because it violates statutory and international human rights obligations. In addition, the Proposed Rule lacks justification, fails to appropriately account for the costs imposed on the Agency by decisions of the Department of Homeland Security, and fails to meet the “fairness” standard established by the Independent Offices Appropriations Act of 1952 (“IOAA”), 31 U.S.C. 9701. Finally, The Advocates opposes the Proposed Rule because it promises to negatively impact the most vulnerable persons subject to removal proceedings, including asylum seekers, children, and victims of trafficking.

[1] See, Conclusion No. 81 (XLVIII) 1997, para. (h) (A/AC.96/895, para. 18); Conclusion No. 82 (XLVIII) 1997 para.(d)(iii) (A/AC.96/895, para.19); Conclusion No. 85 (XLIX), 1998, para. (q) (A/AC.96/911, para. 21.3).

[2] See, Global Consultations on International Protection, (2nd Meeting) May 31, 2001, para. 32 (EC/GC/01/12).

[3] See unaccompanied alien minor definition, 6 U.S.C. § 279(g).

[4] See UNHCR, Children on the Run, available at https://www.unhcr.org/en-us/children-on-the-run.html

[5] See, Kids In Need of Defense et. Al., Sexual and Gender Based Violence (SGBV) & Migration Fact Sheet, January 2017, https://supportkind.org/wp-content/uploads/2017/02/SGBV-and-Migration-Fact-Sheet.pdf

[6] Unlike in the criminal context, where detainees are able to post 10% of the assigned bond to secure their release, immigration detainees must pay the entire amount. Many bond companies are unwilling to loan money to pay immigration bonds, and the minimum allowable bond in the immigration context is $1,500. TRAC reports that, in FY 2018, only one in twenty individuals had a bond amount that was less than $2,500, median bond amounts ranged from a low of $5,000 to a high of $15,000 depending upon court location, and nearly 40% of bonds were greater than $10,000. (TRAC immigration, Available at: https://trac.syr.edu/immigration/reports/519/).

[7] 8 C.F.R. ß 214.11(d)(9)(ii)

Supporting Victims/Survivors of Domestic Violence during the COVID-19 (Coronavirus) Pandemic

As the coronavirus spreads throughout the U.S., and across the globe, more and more people are being ordered to stay home. Yet, according to the United Nations Office on Drugs and Crime (UNODC), “home” is the “most dangerous place for women.”1 For victims/survivors of domestic violence, the ability to leave home to go to safe, public places, such as school or the workplace, is a critical protective measure. So, too, is a victim/survivor’s ability to access the courts to obtain emergency protection and relief.  

On March 13, 2020, Governor Walz declared a peacetime emergency, which imposed restrictions of a wide range of public activities.2 And on March 25, 2020, Governor Walz issued a stay-at-home order effective midnight Friday, March 27 until April 10, 2020. The state’s district and appellate courts remain open, but have limited their operations. As essential safety services, domestic violence programs also remain open. If you are experiencing violence, please call Minnesota’s 24/7 crisis hotline at 866.223.1111 or text 612.399.9995. [Text Wrapping Break] 

“COVID-19: Court Changes for…OFP Cases During the Pandemic”* 

Education for Justice (Law HelpMN) & the MN Judicial Branch 

*modified and condensed from original version 

What has changed? On March 16, 2020, the courts  split case types up into different groups. A “High Priority” group of cases will continue as normal. The rest of cases are suspended for 14 days. 

What are “High Priority” cases? Cases that involve your safety are “High Priority.” All court cases related to domestic violence are in the “High Priority” category. You can see the full list here: http://www.mncourts.gov/mncourtsgov/media/CIOMediaLibrary/Limited-Court-Service-Case-Priorities-List-with-Definitions.pdf  

As of March 23, 2020, the parties and attorneys to an OFP case may appear remotely.3 

If you have exhibits, you should ask the judicial officer how best you can present those exhibits if appearing remotely.  

Can I still file for a restraining order or order for protection? Yes. You can still file a case for restraining orders or orders for protection. Your county might have different rules about how to come to court for this.  

If you feel unsafe, call an advocate. A domestic violence advocate who knows the process and can support you through all of the steps. Violence Free Minnesota has a statewide online directory of advocacy agencies. You can also call their 24-hour crisis line at (866).223.1111. 

You can also call your Legal Aid office. Find your Legal Aid office here: https://www.lawhelpmn.org/providers-and-clinics. You can also apply for help from Legal Aid online: www.justice4mn.org. In-person clinics are probably canceled during the COVID-19 outbreak.   

For more information, check out the following resources: 

https://www.lawhelpmn.org/self-help-library/fact-sheet/covid-19-court-changes-housing-family-and-ofp-cases-during-pandemic

http://www.mncourts.gov/Help-Topics/Domestic-Abuse-and-Harassment.aspx#GetOFP

https://www.vfmn.org/

http://www.mnlegalservices.org/

How do I file for a restraining order or order for protection if I don’t want to leave my house? Use Minnesota Guide & File to create the forms you need to Ask for a MN Restraining Order – either an Order for Protection or Harassment Restraining Order. You can file the forms electronically (eFile) through Guide & File, or print your completed forms. For more information, visit the Guide & File Help Topic on the MN Judicial Branch Website. Your county might have different rules for whether or not you can file by paper, so call the court to confirm (For Hennepin County District Court, call (612).348.6000​). Other counties’ numbers include:  

Ramsey County: (651) 266- 5130 

Washington County: (651) 430-6261  (Family Court) 

Stearns County: (320) 656-3880 (Victim Assistance Coordinators) 

Criminal Justice System Responses to COVID-19 

Minnesota’s criminal justice and legal systems are attempting to respond to the COVID-19 outbreak by issuing new guidelines to prevent/reduce the transmission of the virus.  

How does this affect victims/survivors of domestic violence? According to the MN Department of Corrections: 

“Under the new guidance, if an offender violates the terms of his/her release, supervision agents and hearing officers are being asked to assess the level of danger posed by the violation before revoking the client’s probation/parole and taking the client into custody. Overall, agents and hearing officers are being asked to be as conservative as possible when it comes to taking violators into custody. 

However, if the violation or new crime provides evidence that the individual poses a credible threat to an individual victim or to the general public, agents can bring someone into custody and/or request a hearing through the Hearings and Release Unit.”  

What if my abuser is currently in state prison? Will he/she be released now? Most likely not. The MN Department of Corrections noted: 

The MN DOC is not talking about releasing incarcerated individuals to reduce prison populations at this time; rather, they are focused on reducing the numbers of individuals coming in for low-level violations and crimes, and possible early release of some inmates whose release dates are less than 120 days and who have approved release plans in place. (Of the ~130 individuals being considered for this modified work release with increased levels of contact with DOC staff, all are individuals who are considered low-risk based on the DOC’s scoring assessments.)” 

Will this affect whether I am notified through VINE or MN DOC system of my abuser’s release? No. Nothing has changed in regards to victim notification; it still depends entirely on whether or not victims have registered for notification in the MN DOC system (https://mn.gov/doc/assets/VICTIM_NOTIFICATION_REQUEST_FORM_2015_tcm1089-276323.pdf). It is critical to understand how notification operates, and that VINE (county jail) registration does not transfer to HAVEN (MN DOC/state prison) registration. 

For more information, check out the following resources: 

https://mn.gov/doc/

https://mn.gov/doc/family-visitor/search-offenders-fugitives/

https://www.vinelink.com/#/home

By Rosalyn Park, Women’s Human Rights Program Director at The Advocates For Human Rights

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The Advocates for Human Rights Condemns U.S. Move to Block Asylum Seekers, Increase Detention Spending

The Advocates for Human Rights condemns plans by the administration to summarily return asylum seekers to Mexico without a hearing while simultaneously asking Congress for more than $800 million for federal immigration enforcement.  

On Tuesday The New York Times reported the White House plans, stating that “[u]nder the policy, asylum seekers would not be held for any length of time in an American facility nor would they be given due process.” Alongside the measure, the White House has requested more than $800 million in increased spending for Customs and Border Protection and Immigration and Customs Enforcement. Roll Call reports the increased funding is earmarked for migrant quarantine facilities and for charter deportation flights to allow continued deportations despite commercial airline shutdowns.  

“This move, made at the very moment when federal immigration officials are refusing to release people from ICE detention centers who are at high risk of contracting COVID-19, makes clear that the administration has no interest in ensuring the health of people in its custody or in meeting its international human rights obligations,” says Robin Phillips, executive director of The Advocates for Human Rights. “While we are encouraged by Wednesday’s announcement by ICE that it will temporarily halt interior enforcement activities, people cannot be allowed to languish inside detention centers.  

“We call on Congress to reject the White House’s request for more money for immigration enforcement. We also call on the administration to comply with international obligations to ensure that people are not returned to torture or persecution without a hearing. By reuniting people with their families, rather than detaining or deporting them, we can keep our communities safe and meet our legal obligations.” 

Despite calls by immigration judges, prosecutors, and attorneys, federal immigration courts continue to hold deportation hearings for people in detention.  

By Michele Garnett McKenzie, Deputy Director at The Advocates For Human Rights

The Advocates for Human Rights is a nonprofit organization dedicated to implementing international human rights standards to promote civil society and reinforce the rule of law. The Advocates represents more than 1000 asylum seekers, victims of trafficking, and immigrants in detention through a network of hundreds of pro bono legal professionals.  

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Following Harvey Weinstein’s Sentencing, the message to the Rest of the World’s Prosecutors: “Just Try It!”

Women’s human rights defenders are celebrating an overdue breakthrough in prosecuting sexual assault and harassment. Former film producer Harvey Weinstein was sentenced in New York to 23 years in prison on Wednesday, March 11 for his two sexual assault convictions.  He faces additional charges in Los Angeles.  Many who work against sexual violence see a clear message to criminal justice professionals:  Just try it!

The criminal laws are only as good as the professionals who enforce them.  Human rights defenders around the world, including The Advocates for Human Rights, commonly report that criminal sexual assault laws are not implemented to hold offenders accountable.  If police and prosecutors do not investigate, charge, and go to trial in sexual assault cases, then the existence of well-written laws have little effect in the community.  Of course sexual assault perpetrators often victimize repeatedly with multiple victims.  They are free to do so with impunity so long as justice professionals find reasons not to enforce the law.

But the Harvey Weinstein case serves to demonstrate what can happen when police and prosecutors do their best work to enforce sexual assault laws.  Weinstein was convicted of both acts of sexual assault he was charged with committing.  He was convicted of forcing oral sexual contact with Mimi Haleyi in 2006, and of raping then aspiring actress Jessica Mann, in 2013.  He was acquitted of three other higher-penalty charges involving those same events, but the jury found him guilty of committing the 2006 and 2013 crimes.  In short, the jury believed the two women Weinstein was charged with victimizing.

The prosecutors going into the Weinstein trial had no guarantee the jury would convict him.  They had multiple challenges to overcome and no physical or biological evidence of sexual encounters.  The prosecution was almost entirely based on the testimony of women describing acts that occurred years ago.   Haleyi and Mann, and others who also testified about Weinstein’s sexual attacks, continued to communicate with and meet with Weinstein.  They continued to be friendly to him and, in Mann’s case, even saying that she loved him.  They did not report the crimes to the police at the time.  Yet, with their testimony, along with other survivor testimony, the jury found proof beyond a reasonable doubt of his guilt. 

The Weinstein verdicts support the notion that community members -serving as jurors – are ready to hold sexual assault perpetrators accountable.  It won’t happen every time; prosecutors must have sufficiently thick skin to weather a few not-guilty verdicts.  But, when it comes to enforcing the sexual assault laws, if not now, when?  If not today’s prosecutors, then who?  The age-old excuse that “a jury will never convict him” is beginning to evaporate.  So, the only way to move forward is for police and prosecutors to do their best work and just try it. 

By Kaarin Long, Staff Attorney at The Advocates for Human Rights and former sex-crimes prosecutor

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20 Ways to Support The Advocates for Human Rights in 2020

 

2020 Volunteer Pic

At The Advocates for Human Rights, we envision a world where every person lives with dignity, freedom, justice, equality, and peace. We rely on volunteers to move us closer to this ideal. Volunteers are an essential part of our mission. They create a bigger impact beyond the capacity of our limited staff resources. For example, we leveraged a cash budget of $1.8 million dollars into programs and services worth more than $11 million dollars in our last fiscal year. Furthermore, by involving individuals from all walks of life in the work of human rights, we jointly build a stronger human rights movement.

We are encouraged by our volunteers who work in the trenches to protect and promote human rights. There are many ways to engage with The Advocates for Human Rights. As we move into 2020, we want to share 20 ways you can work with The Advocates to move all of us closer to a world where the inherent dignity of every person is recognized and respected.

  1. Observe WATCH hearings on violence against women and children.
  2. Observe an Immigration Court hearing.
  3. Attend a human rights training, like our Asylum Conference, or case presentation.
  4. Sponsor or attend our annual Human Rights Awards Dinner.
  5. Take on a new affirmative asylum claim.
  6. Provide ongoing representation in removal proceedings.
  7. Help interpret for our clients in another language.
  8. Participate in United Nations advocacy.
  9. Conduct research for an ongoing project, like a United Nations shadow report.
  10. Volunteer at our front desk.
  11. Participate in one of our CLE offerings.
  12. Come to a house party and meet other volunteers and supporters.
  13. Tell your friends, colleagues, and family about The Advocates for Human Rights.
  14. Help us with our mailings.
  15. Take a shift at our State Fair booth.
  16. Host a salon or neighborhood gathering on a human rights issue.
  17. Attend an Asylum Support Network
  18. Write letters to representatives advocating for human rights.
  19. Give a presentation on a human rights issue at your faith community.
  20. Like us on social media and share our posts (Facebook, Twitter, YouTube, LinkedIn, Blog)

We celebrate small victories as well as the bigger successes that combine to change the world for good. Every bit helps, and small steps are essential to building the larger movement. Thank you for all that you have done to make The Advocates such a strong organization.

We look forward to working with you in 2020 to build the human rights movement by involving individuals in other sectors in the work of human rights.

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Celebrating victories in an imperfect system

Woman embracing sky 2I will admit that when I realized that I had scheduled myself for court observation the Wednesday prior to Thanksgiving, I had not considered all the last-minute errands that would be put on my list, as the sole able-bodied member of my household.  So when I woke up to heavy snowfalls and school cancellations that Wednesday morning, I felt a small surge of relief, mixed with guilt. However, when I called, I was informed that Immigration Court was moving forward, full stop. So out I went.

When I saw this particular case involved a woman (I’ll call her Mary – not her real name), my interest was piqued.  It’s not all that common for women to appear on the detained docket at the Fort Snelling Immigration Court. The facts of the case were sad:  Mary had been arrested after a loud, violent domestic incident had been reported to the police.  I do not know whether her partner was also arrested.  An immigration judge had already denied her request for release on bond, citing the domestic assault charges as evidence that she was a danger to the community.

But today her request was being re-heard by a different judge.

With her was a new lawyer, and his impassioned defense was the first inkling that this hearing was not business as usual.

The judge explained that she needed evidence of a material change in circumstances in order to consider granting release on bond. The attorney replied that her previous counsel had been ineffective.  The previous counsel had failed to uncover the years of domestic abuse that Mary had endured at the hands of her partner. He not only abused Mary, but also threatened her children, several of whom were in the courtroom that day.  Her lawyer emphasized that no one had spoken directly to the children during the police investigation of the incident.

He submitted a 315-page document to support the request for a bond, including dozens of affidavits of support from her community.  He said that she had never been in trouble with the law previously, that this was her sole offense, and most importantly, that she had been acting in self-defense of herself and her children.  Mary had an upcoming child custody hearing with this partner and was determined to retain custody of her minor children.  She was clearly not a flight risk, because that hearing was her top priority.

The attorney asked for a $2000 bond because of their impoverished circumstances and the fact that she had been in custody for nine months. NINE months! [me, not the attorney]

Imagine my surprise when the judge almost interrupted the government lawyer to say that she was going to rule in Mary’s favor.  There was a slight difficulty with the microphones that day which made hearing just a tad more difficult, and the judge was speaking rapidly.  Everyone in the courtroom leaned forward to hear what she was saying.  She went on to cite well-established research in the area of domestic violence that found that typically law-abiding and nonviolent individuals will resort to self-defense to protect their children. In a high percentage of cases, women’s use of violence is actually reactionary or defensive and often preceded by severe acts of violence by their partners.

By that time, her words had been translated. I looked over and saw that Mary was sobbing.  The judge set the bond at $5000 and the attorney wheeled around to look at her daughters to get the OK.  They were both sobbing but they nodded yes.  Then I saw that most everyone in the courtroom was teary-eyed and some were openly crying. I’m crying now as I remember. Mary managed to gasp out “thank you, thank you” as she was led away.

I stopped myself from running after the daughters to write them out a check for $5000.  Really, I’m not sure what good retirement savings are – they seem like almost unbearable privilege – when we live at a time when such terrible indignities can be visited upon people like Mary.  But I knew that it would be breaking the rules of no interaction with those we observe.  I was glad to have learned through the Human Rights Defender Project (court observation) about the immigration bond fund with The Minnesota Freedom Fund.

I was very glad to have witnessed such an uplifting outcome for Mary, even though the way ahead would be difficult. She would be with her family at Thanksgiving and that was a tremendous blessing for us all.

Sue

 

 

By Susan Herridge, a volunteer court observer with The Advocates for Human Rights under the Human Rights Defender Project.

 

 

About the Human Rights Defender Project:  People detained by federal Immigration and Customs Enforcement (ICE) face barriers to basic human rights. While people detained by ICE have the right to legal counsel, they do not have the right to a government-appointed attorney. Many people, regardless of age or capability, have to represent themselves in immigration court. Detention undermines the ability to seek and enjoy asylum from persecution, to remain with family, and to a fair day in court. Although immigration court hearings are open to the public, few people witness these proceedings.

The Human Rights Defender Project Court Observers help bring transparency and accountability to this system. Court Observers attend hearings and report on issues of concern including access to counsel, family and community support, and interpretation; the manner of arrest; and the ability of individuals to raise defenses to deportation.

No immigration experience or law license is needed. This community service opportunity is open to all. Court observers must have valid government-issued photo identification to enter the immigration court. Learn more and volunteer here.

This project currently is open to observers at the Fort Snelling Immigration Court only.

 

 

 

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20 Ways to Support Human Rights in 2020

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Students at The Advocates’ Sankhu-Palubari Community School in Nepal

At The Advocates for Human Rights, we envision a world where every person lives with dignity, freedom, justice, equality, and peace.

As this year comes to a close, we know that there is still much to be done to reach that ideal. In 2019, we saw setbacks in asylum policy that put the lives of victims of human rights violations in jeopardy. The administration targeted social safety net programs that keep people afloat in hard times. Universal access to health care is still out of reach. Our partners in other countries are targeted and threatened for speaking up about basic and universally accepted human rights.

We are encouraged by those who have come forward to protect human rights. We are grateful for those who are on the front lines every day, fighting to protect the dignity and human rights of people in this country and around the world.

Nearly every day, people who are frustrated with what is happening contact us and ask what they can do to protect human rights.  For the start of the new year, we have come up with a list of suggestions to move us closer to a world where the inherent dignity of every person is recognized and respected.

Here are 20 things you can do in 2020 to support human rights:

  1. Read and educate yourself about current events and their impact on human rights.
  2. Attend events and presentations to increase your knowledge of human rights standards.
  3. Familiarize yourself with groups working on human rights issues that are important to you.
  4. Donate to an organization that reflects your human rights values.
  5. Volunteer with an organization that you support. For example, at The Advocates our volunteer opportunities include monitoring court proceedings, investigating human rights conditions and much other meaningful work for volunteers of any background.
  6. Sign a petition on an important human rights issue.
  7. Write and call your elected officials to encourage them to protect human rights and to thank them when they do.
  8. Use social media to support human rights initiatives and educate others about human rights.
  9. Write a blog post or opinion piece to share your personal experiences with advancing human rights.
  10. Organize or participate in a demonstration promoting issues you support.
  11. Ask hard questions about human rights to candidates at all levels of government.
  12. Volunteer for candidates who ground their campaigns in protecting fundamental human rights principles.
  13. Vote and actively work to get out the vote on election day.
  14. Speak up when you hear someone being mistreated.
  15. Speak up when people are repeating negative stereotypes or making discriminatory comments.
  16. Start your own positive conversations about human rights issues.
  17. Recognize your own internal biases and work to overcome them.
  18. Invite someone to your home whose background or life experience is different from yours.
  19. Read a book or see a play that expands or challenges your world view.
  20. Take care of yourself so you are ready and able to respond when opportunities to promote human rights arise.

When you focus on your efforts to advance human rights, you will start seeing opportunities every day to make the world a little bit better.

Happy New Year from all of us at The Advocates for Human Rights!

By Robin Phillips, Executive Director of The Advocates for Human Rights.

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