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Armed and Unaccountable, Federal Forces Use Tactics Honed at the Border against Protestors

The deployment of anonymous armed federal agents, now identified as part of the Department of Homeland Security (DHS), in Portland has yielded shocking reports of arbitrary arrests, detention without charge, and short-term disappearances, in addition to injuries to protesters resulting from use of sub-lethal force and chemical agents. Garnering less attention, but no less troubling, on July 8, the Department of Justice launched Operation Legend and deployed federal forces under the guise of addressing “violent crime” in Kansas City, Missouri. Plans for more operations in other cities have been reported.

What explains the federal government’s apparently newfound zeal to engage in garden-variety policing of the kind usually reserved to local and state law enforcement?

Widespread protests around the United States, sparked by the extrajudicial execution of George Floyd by Minneapolis police officers, provided the administration with a pretext to flex its paramilitary muscle. In June, the president’s desire to “dominate” protestors and the attorney general’s promise to deploy “even greater law enforcement resources” in Washington made news.

Meanwhile, The New York Times reported a chilling statement by acting DHS secretary Chad Wolf that his agency “will not allow anarchists, disrupters and opportunists to exploit the ongoing civil unrest to loot and destroy our communities. While the department respects every American’s right to protest peacefully, violence and civil unrest will not be tolerated. We will control the situation and protect the American people and the homeland at any cost.” [emphasis added]

International human rights standards explicitly forbid defense of public safety “at any cost.” Certain human rights – including freedom from arbitrary detention or unacknowledged detentions and freedom of opinion – can never be waived, no matter how severe the state of emergency.

As New York Times columnist Jamelle Bouie asks, “How can this be a job for Homeland Security?

The DHS Rapid Deployment Teams followed an executive order directing federal agencies to send personnel to protect monuments, statues, and federal property during continuing protests against systemic racism and police brutality. The RDTs are reportedly “made up of officers from Customs and Border Protection, the Transportation Security Administration, the Coast Guard and Immigration and Customs Enforcement who back up the Federal Protective Service, which is already responsible for protecting federal property.”

By deploying DHS forces in Portland, the country is witness to abusive tactics long used against immigrants, border communities, and communities of color. While federal courts occasionally have reminded the Customs and Border Protection (CBP) that the border is not a “rights-free zone” (read Judge Donovan Frank’s 2018 opinion in a case brought by our colleagues at the ACLU), their effective jurisdiction has spread to operate freely within 100 miles of US land and water borders where approximately 63 percent of the US population resides. And even the extrajudicial execution of a teenager who was standing in Mexico at the time he was shot by a Border Patrol agent has been found to be acceptable. (DOJ investigators declined to prosecute after finding the agent did not violate CBP policy and the Supreme Court allowed the killer to evade civil liability through its overbroad qualified immunity doctrine).

Since its inception, DHS has run this rapidly expanding agency (CBP boasts more than 60,000 employees)  with a dangerous mix of extraordinary power and little accountability. The agency operates with virtually no transparency, making it chronically difficult to get answers from CBP officials about policies, procedures, or practices. A 2014 report examining 809 complaints filed between January 2009 and January 2012 found:

“For years it has been reported that U.S. Border Patrol agents routinely ignore the constitutional and other legal rights of both immigrants and U.S. citizens. More precisely, agents of the Border Patrol are known for regularly overstepping the boundaries of their authority by using excessive force, engaging in unlawful searches and seizures, making racially motivated arrests, detaining people under inhumane conditions, and removing people from the United States through the use of coercion and misinformation.”

American Immigration Council, “No Action Taken: Lack of CBP Accountability in Responding to Complaints of Abuse,” 2014.

CBP’s powers are extraordinary. What other federal agency sets up checkpoints for document inspection, engages in race-based traffic stops under color of law, insinuates themselves into routine law enforcement encounters as “interpreters,” and boards buses and trains demanding identity documents? These tactics are tailor-made for repression.

So it’s not surprising that Acting DHS Secretary Wolf said in a Fox News interview on July 21 that DHS agents are “having to go out and proactively arrest individuals.” After all, arresting people without probable cause is business-as-usual for his agency. (It is also unconstitutional. Harvard law professor Andrew Crespo breaks it down in a fabulous Twitter thread).

Perhaps most disturbing, however, is the recasting of ICE and CBP as “intelligence” rather than “law enforcement” agencies. Reported in February, the move threatens to make these forces even more impervious to accountability.

Human rights violations, like human rights themselves, are interconnected and interdependent. Our outrage needs to be too.

The same tactics refined at the border are now being deployed to “control anarchists,” according to Acting DHS Secretary Wolf (whose @DHS_Wolf twitter feed uses “anarchist” so frequently you would think he stopped reading his nativist history book at 1920). This is a potent example of how human rights abuses, when allowed to continue unchecked, create space for further repression affecting ever greater numbers of people, geographies, and issues.

Activists warning of the impact of criminalization and mass incarceration will see another tool in the toolbox of repression being used to hammer protestors in Portland: protecting private property from graffiti. That’s right. Graffiti. DHS has attempted to justify the tactics in Portland by pointing to dozens of episodes, including the defacement of federal property with graffiti. Proponents of the toxic “broken windows” policing strategy have long cast graffiti in the same terms reserved for gang affiliation and drug crime, justifying use of absurdly draconian felony charges against Black and brown communities. (For a powerful deep dive into graffiti and the impact of criminalization of urban artists check out the Scared Straight episode of the California Love podcast).

Not surprisingly, this deep-seated commitment to prioritize the protection of inanimate objects over the protection of people (especially Black and brown people) comes alongside Secretary of State Mike Pompeo’s “Commission on Unalienable Rights’” pronouncement that the founding fathers sought to protect private property above nearly everything but religious freedom (for Christians). Check out The Advocates’ blog post on the “Commission” here.

What’s unfolding in Portland has rightfully horrified many people as an extraordinary crackdown on First Amendment protected activity and a terrifying disregard for Fourth Amendment guarantees against unlawful search and seizure. Moms decked out in protective goggles and dads armed with leaf blowers have turned out in the streets.

But let’s be honest. Border communities have faced daily human rights violations committed by an unaccountable and armed paramilitary force patrolling a militarized border. Black artists have faced serious jail time for engaging in artistic expression without the protection of a studio or gallery.

Human rights violations, like human rights themselves, are interconnected and interdependent. When the headlines of federal forces in our communities shift away from the Portland protests, remember that BIPOC communities will remain directly and deliberately in the crosshairs. Our outrage needs to follow.

How can we take action?

Demand accountability and disinvestment. CBP’s annual budget is more than $18 billion, with an additional $10.4 billion for ICE, nearly doubling since 2014. (Meanwhile, CBP recently was found to have misappropriated emergency funds earmarked for “consumables and medical care” to address deplorable detention conditions,” spending the money on ATVs, boats, motorcycles, and other unrelated expenses.)

Document and report abuses. In addition to the Department of Homeland Security Office of Civil Rights and Civil Liberties, the UN Working Group on Arbitrary Detention and the UN Working Group on Enforced Disappearances and the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions each have special procedures for investigating human rights violations.

Stand in solidarity. Calls to #DefundPolice and #AbolishICE are more than hashtags. They represent insightful community-led movements to envision and achieve a new vision of safety at our border and in our communities that values the human rights of us all.

By Michele Garnett McKenzie, Deputy Director and Director of the Research, Education, and Advocacy team at The Advocates for Human Rights.

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This is No Ordinary Mother’s Day

Sarah Brenes with her mother, a nurse, on “Take Your Daughter to Work Day”

This is my first Mother’s Day without my mama. I am reminded of her every day, as I follow the news about healthcare professionals on the frontline of caring for the sick and neighbors making masks. My mom was a nurse and knew how to sew—both skills have proven essential during this current pandemic. I went into law, not healthcare, and can barely sew a button. Like many working mothers, I try to have patience with myself during these unusual times, as it feels as if the Coronavirus took the seesaw that is work/life balance and threw it up into a windstorm. I keep reminding myself that so long as we are safe and healthy at home, I just need to hold on tight and ride out the storm. For many of the mothers we serve as part of our work at The Advocates for Human Rights serving asylum seekers, the storm of upheaval is much greater before things return to normal. This Mother’s Day, I pause to acknowledge the extraordinary resilience that many of our clients are required to demonstrate in order to return to, or perhaps begin, the ordinary task of motherhood.

I recall my first asylum interview with a client when I returned to work after giving birth to my daughter, Cecilia.

Sarah’s daughter, Cecilia, dancing in a dress sewn by her mother and grandmother

The client was a prominent journalist in her home country. She had an accomplished career covering all topics, including politics. Her work covering corrupt practices heading up to the country’s presidential elections eventually resulted in her being targeted and raped by government officials for reporting on its corrupt acts. She learned she was pregnant after arriving in the U.S. — her son just a few months older than my daughter.  

I was raised in a white middle-class family in the 1980’s. My mom was a daughter of the 50’s. As a high schooler, the only extracurricular my mom could participate in was cheerleading. Less than 10% of women had college degrees by the time she started nursing school. I was raised with new doors opened under Title IX and my mom was committed to enrolling me in every sport, musical activity and academic extracurricular that she could. I went on to graduate college and earn my law degree, when women were approaching 50% of law graduates (there is still a long way to go on equality in the profession, but that is for another blog). I managed to start a family while in law school and was in step with many of my peers, nimbly managing work and home life. My life experience could not be more different from my client’s, yet we were connected by our womanhood, our motherhood and our desire to pursue a meaningful career.

I remember preparing the client for her interview.  Having the privilege of not knowing what it was like to be violated by government officials, I did not know how she managed to carry the weight of that horror alongside her unborn child, or welcome this new innocent life into the world, having come from one of the darkest places of humanity.

In unlawyer-like fashion, I broke down during my closing statement. The pain and suffering this client endured for her allegedly political acts as a journalist were undeniable. It was a slam dunk, as far as the legal case was concerned. Yet I could not hold back tears as I pleaded that the officer grant her case swiftly, “so that she can know that she is safe here and can just focus on being a mom.”

In 2019, we saw an unprecedented number of pregnant women come to The Advocates for help. Some fled in order to protect their unborn daughters from female genital mutilation (FGM). Others were pregnant from rape, by a partner, a government official or a gang member who ordered her to visit him for conjugal visits. Other mothers fled alone, leaving children behind, to be reared by family or friends, or whom they would struggle to remain connected with, mothering from afar.  

International Human Rights Law as it relates to refugees is premised on the simple goal of protecting families and individuals who face life-threatening harm to the point it is no longer safe to remain in their home country. Over the years, the U.S. has complicated the rules to limit those protections and access to the process to seek it.

We have jailed mothers with their children, separated moms from their babies, added to the checklist of en route requirements before seeking protection in the United States and most recently moved and then closed the door where mothers can ask lady liberty for protection for themselves and their families. We have turned on mother’s who are beaten and limited the definition of “family” in pursuit of limiting who can find safety in the U.S. when there was none at home.

All of this has made extraordinary the work of ordinary attorneys who volunteer with us to help the over 600 asylum seekers we provide free legal services to each year.  

Things are not quite normal for anyone these days, but this Mother’s Day I am safe at home…with my family. For most clients, this most simple wish is what they hope to come true when they come in to seek our help. To be safe; to have a place to call home; to be with your family–these most basic human rights are what drive us to keep coming to work, even if we have to stay home.   

Masks sewn by Sarah’s neighbors, made from Sarah’s mom’s quilt fabrics

If you are an ordinary attorney who wants to do extraordinary work, join our volunteer team.  If you speak another language, join our volunteer interpreter network.  If you want to help us make mother’s day an ordinary celebration for our clients, donate to support our work.

By Sarah Brenes, Director of the Refugee & Immigration Program 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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Volunteers Fight The Fight; Families Reunite

A client of The Advocates For Human Rights reunited with her children after 7 years.

During this time of coronavirus, we are bombarded with news of things going wrong, with too many stories of loved ones passing away alone, retirement savings lost, and doctors feeling overwhelmed without the resources they need.

As immigration lawyers, we have a front row seat to the assaults on the rights of marginalized people when society is dealt a blow. Every day we field calls from detained immigrants whose health conditions make them extremely vulnerable to contracting COVID-19. We’re learning of large employers endangering their immigrant workers by forcing them to stay on the job even when numbers of ill coworkers climb into the hundreds., Anxious clients and volunteers are asking what will happen to them now that Trump says he’s going to “end immigration”.

This pandemic has unquestionably had an impact on us all. A recent column in The New York Times highlighted a Kaiser Family Foundation poll which found that nearly half of all Americans — 45 percent — feel that the coronavirus has negatively affected their mental health.

I would be lying if I said I have not often felt dispirited by the news and the challenges facing the communities we serve. However, I have a daily dose of motivation to keep me running full speed ahead: the amazing volunteer attorneys, interpreters, and paralegals, who continue to fight tirelessly for our clients’ rights and safety. Our volunteers live and work nationwide, and their practices range from large firm to solo. They handle every type of case, from filing asylum applications with USCIS to fighting for bonds for detained immigrants.

These are not people with endless time on their hands. I often hear kids playing in the background on calls with volunteers. Yesterday I got a call from a volunteer right after her work day wrapped up. She informed me she had seven minutes to ask her questions because that was how long her child was allowed to play on his iPad. We had a very efficient seven-minute call. Almost daily, I receive late-night emails from busy attorneys ensuring their pro bono clients receive timely responses to their questions. These attorneys do not come to this advocacy work feeling they know everything (or anything) about asylum law; most do not have immigration law backgrounds. They learn “on the job,” supported by The Advocates’ training and mentorship. They ask questions, they research, and they do excellent work representing their clients.

Legal representation matters, but immigrants facing deportation in Minnesota have a less than 50 percent chance of getting counsel. We know that 98.5 percent of families appearing without a lawyer were ordered deported. In contrast, when an attorney represented these families, the immigration judge allowed almost a quarter to stay in the country. The Advocates’ attorneys have won close to 70 percent of their cases. It is only because these dedicated people do the daily, often unglamorous, and nearly always difficult work of ensuring access to justice that many individuals, families, and children have a chance to rebuild their lives after fleeing with nothing.

It is clear that this advocacy work is essential to the safety of asylum seekers. But does it help volunteers too? The author of The New York Times column cited not only the findings by the Kaiser Family Foundation; she also reminded us that those who find ways to make meaning and create hope are most able to experience resilience in times of crisis like this one.

I know from experience that it not easy to fight for justice as the pandemic rages. I was curious how our volunteers are staying motivated, so I asked them to tell us why they’re volunteering. I hope you see in these reflections the kind of world you want to see.

“I volunteer for The Advocates to honor the humanity of others.” – small firm attorney

“Every day we represent our asylum clients we help them take another step toward freedom and reunification with their families. One of the primary reasons I went to law school was to continue being a ‘Man for Others,’ a phrase instilled in me at my Jesuit high school. Working with The Advocates and wonderful clients carries on that tradition and hopefully inspires others to join our team.” – mid-sized firm attorney

“The reason I volunteered was to have an opportunity to help our immigrant friends get out of ICE detention – which I believe is a serious human rights abuse against our fellow human beings.  I have been so blessed in my life by the love I have been given by family and friends that I believe it is imperative for me to share this love with others and help them find a more peaceful and meaningful life.” – retired attorney

“There is such a huge need for legal representation by asylum seekers living in Greater Minnesota, and The Advocates for Human Rights is uniquely positioned to provide state-wide assistance. I firmly believe that no matter where an individual came from or where in the U.S. they live now, everyone is entitled a supportive advocate network to help them find a more uplifting path.” – solo attorney  

“Given the unprecedented times we are living in, and the state of crisis, it was so rewarding to find out that USCIS has just granted our pro bono client’s application for Special Immigration Juvenile Status!” –large firm attorney

“There is nothing like getting an asylum win!” – small firm attorney

 “A few years ago I was looking to volunteer in a way that would make a significant difference in individual people’s lives. I have always worked in public policy and never represented clients. I wanted that experience, that relationship with a client in a deeply meaningful way. I attended an Advocates training and left with a domestic violence case three years ago. Working with traumatized women can be troubling and saddening, however it is also gratifying and meaningful. My asylum work gives me perspective in my own life. My life has been enriched by learning of my clients’ lives and advocating for them. In early March of this year, my first client’s children came to the U.S. to live with her. There is no experience quite like being at an airport when a mother is reunited with her young children after years long separation! And it fuels me to keep on volunteering and trying to make a positive impact on other people’s lives.” – public policy attorney

“I have been increasingly distressed by the xenophobia and the racism that has surrounded the immigration discussion, and I decided then and there to volunteer [when our advocacy director Michele Garnett McKenzie asked for volunteers at a community event]. I’ve thought about it for years, but was hesitant because my legal practice was in tax and estate planning (I’m now retired). This has been an amazing opportunity to live out my values. I feel grateful for the support I’ve received from seasoned attorneys at The Advocates as I have worked on my very first asylum case.” – retired attorney

And, lastly, a wonderful call to action from one of our brilliant immigration attorney mentors:

“I continue to volunteer because I know that now, more than ever, one hour of my time can potentially change someone’s life. I’ve seen the quote, “strong alone, unstoppable together”, and that’s how I feel when I volunteer alongside other incredible attorneys.” – small firm attorney  

Our volunteers remind me that through the many challenges we face with this administration, and especially during this pandemic, we are still winning many of the fights. Perhaps most importantly, their stories remind me that the kind of world I want to see, a world where the justice one gets doesn’t depend on the girth of one’s wallet, is being built day by day, case by case, fight by fight, right here and right now, by asylum seekers and their advocates. Want to join this inspiring community? Visit our website or email Alison at agriffith@advrights.org.


By Alison Griffith, Staff Attorney for the Refugee and Immigration Program 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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The Advocates Opposes Proposed Fee Increases by Immigration Court, Appeals Board

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)

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.  

Understanding the Liberian Refugee Immigration Fairness Act

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The passage of the Liberian Refugee Immigration Fairness Act ends nearly 30 years of “temporary” status for thousands of Liberians. Signed into law on December 20, 2019, LRIFA provides a singular ray of hope in an otherwise bleak immigration landscape.

LRIFA means that many Liberians who have lived in limbo may now move forward toward permanent residence and citizenship. But while the law has generous eligibility requirements, its short filing window means Liberians need to act quickly to assess their eligibility.

Who is eligible?

  1. Any Liberian national who has been continuously present in the United States during the period beginning November 20, 2014 and the date on which the application under LRIFA is filed or
  2. The spouse, child, or unmarried son or daughter of a person described in (1).

When can I file my application? 

USCIS announced that it has begun accepting LRIFA applications as of December 26, 2019. All applications must be filed within 1 year of the date of LRIFA’s enactment or no later than December 19, 2020.

I was on Ebola TPS. Am I eligible?

Any Liberian who has been continuously present in the United States during the period beginning November 20, 2014 and the date you file your application is eligible.

I have DED or DACA or am on a valid non-immigrant visa (F-1, H-1B, etc.) right now. Am I eligible?

Any Liberian who has been continuously present in the United States during the period beginning November 20, 2014 and the date you file your application is eligible.

I’m not on DED now. I never had TPS. Am I eligible?

Any Liberian who has been continuously present in the United States during the period beginning November 20, 2014 and the date you file your application is eligible.

I have traveled outside the United States. Will I still be eligible?

Possibly. You must have been “continuously present” in the United States between November 20, 2014 and the date you apply under LRIFA. You have been “continuously present” even if you have made a few short trips outside the United States. If your trips add up to more than 180 days outside the United States you will not be eligible.

Can I travel now?

The LRIFA does not give you permission to come into the country. If you leave, you may not be able to return. Check with an immigration lawyer before leaving the United States.

I have a criminal history. Will I still be eligible?

Possibly, but you should check with an immigration lawyer before filing any papers. You will not be eligible if you have been convicted of any aggravated felony or two or more crimes involving moral turpitude.

I took part in the Liberian civil war. Will I be eligible?

Possibly, but you should check with an immigration lawyer before filing any papers. The LRIFA says that anyone who has ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion is not eligible for a green card under the LRIFA.

I have a final order of deportation. What do I need to do?

The LIRFA is clear that DHS must establish a process to “stay” (stop) any LIRFA applicant’s removal order while the application is pending. That means that once you file your LIRFA application, you cannot be deported unless your LIRFA application is denied.

If you were ordered deported because your asylum application was denied, you overstayed your visa, you did not renew your DED or TPS, for other reasons besides a criminal conviction, you should be eligible under the LRIFA. You will not need to file a motion to reopen. If you were ordered deported because of a criminal conviction, you might not be eligible. Talk to an immigration lawyer before you file anything.

I am in detention with a final order of deportation. What should I do?

We do not expect ICE to attempt to deport people who are eligible for LIRFA. Liberians in detention who may be eligible for LIRFA should:

  • Tell your detention officer that you intend to apply for LIRFA.
  • Contact your immigration attorney to make a plan for filing the application as soon as possible. If you do not have an immigration attorney, contact the free legal service providers who work at your detention center or call 612-341-9845.
  • Make sure a trusted family member or friend knows where you are. They can check the ICE Online Detainee Locator with your full name and date of birth or A-number.

I do not have a work permit right now. Can I work under LRIFA?

Once you file your LRIFA application you will be able to apply for employment authorization. DHS may issue you a work permit right away. If your LRIFA application for adjustment of status is pending for a period exceeding 180 days and has not been denied, DHS must authorize employment.

How can I get ready to file my LRIFA application?

  • Save money. You will need to pay the filing fee and a biometrics fee. At this time the fee is $1,225 for an adult, and the fees are scheduled to increase (make sure to check the USCIS.gov website for up-to-date filing fee information when you are ready to file). You will also need an immigration medical exam, which may not be covered by insurance.
  • Gather proof of continuous presence. You will need to show that you have been “continuously present” in the United States as of November 20, 2014. USCIS will provide more instructions about what you will need, but you will likely need copies of some documents like pay stubs, leases, or other records showing you were in the United States. If you traveled outside the United States, you will need to calculate the exact number of days you were outside the country.
  • Make a list of your addresses and your employers from the last 5 years. The application form asks for this information.
  • If you ever filed for asylum, get a copy of that application and have an immigration lawyer review it before you file.

Do I need a lawyer?

You should talk with an experienced immigration lawyer or BIA accredited representative if you have any questions about how to file your application or whether you are eligible for LRIFA adjustment. Every case is different, so do not rely on advice given to someone else. Get your own answers before you file.

  • Criminal convictions may affect your eligibility for LRIFA adjustment. Talk to a lawyer before you file.
  • What you said in your asylum application may affect your eligibility for LRIFA adjustment. Talk to a lawyer before your file.

How do I find an immigration lawyer?

  • You can hire a lawyer to prepare and file your application and help respond to any questions from USCIS. You can also consult with a lawyer to answer questions. Different lawyers charge different fees. Ask about fees before you agree to have the lawyer represent you. Ask whether they charge a flat fee or charge by the hour. Ask about payment plan options. Always get a fee agreement (sometimes called a retainer agreement) in writing. Take time to review it before signing. You can find immigration lawyers at www.ailalawyer.com
  • Free legal services may be available if you have a low income. You can find free and low-cost legal services at www.immigrationlawhelp.org. We know our colleagues at the Black Immigrant Collective will be organizing events in Minnesota. Watch for community legal advice clinics near you.

Where do I find forms and filing instructions?

The federal government’s website is the best place to find accurate information about filing your LRIFA application. Check www.uscis.gov/i-485. Each tab on the page contains specific information about LRIFA applications.

Note: This blog is not legal advice. Every case is different. Please consult with an experienced immigration attorney before making any decision about your case.