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)

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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

alert girl in class JP
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.

happy new year 2020 images 9

Understanding the Liberian Refugee Immigration Fairness Act

FeaturedUnderstanding the Liberian Refugee Immigration Fairness Act

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.

Featured

Bringing the worldwide movement to end the arbitrary death penalty to the U.S. Supreme Court

Amy
Connie Numbi of the Foundation for Human Rights Initiative in Uganda & The Advocates’ Amy Bergquist serve on the Steering Committee of the World Coalition Against the Death Penalty

I’ve spent the last few days in Paris immersed in the work of the World Coalition Against the Death Penalty—collaborating with other members the Coalition’s Steering Committee to review our accomplishments over the past year and to define our countries and issues of focus for the next three years, and attending workshops to prepare for a four-year project funded by the European Union to combat the death penalty in several African countries and other countries at risk of resuming executions. But when I get on the plane for Minneapolis Wednesday, it will be time to switch gears and think about the connections between The Advocates’ involvement with the international abolitionist movement and death penalty issues closer to home.

On Wednesday, December 11, 2020, the U.S. Supreme Court is hearing oral argument in a death penalty case called McKinney v. Arizona.  With pro bono assistance from Dechert LLP, The Advocates for Human Rights and the World Coalition submitted an amicus curiae brief in support of the petitioner, James McKinney, who was sentenced to death in Arizona for his involvement in two 1991 murders. McKinney was 23 years old at the time of the crimes.

amicus brief

We work to limit the scope of the death penalty

The Advocates, like the World Coalition, is opposed to the death penalty in all circumstances. In some countries, however, we don’t expect immediate abolition of the death penalty. As an interim measure, we try to limit the scope and applicability of the death penalty, consistent with international human rights standards.

Article 6, paragraph 1 of the International Covenant on Civil and Political Rights recognizes that “No one shall be arbitrarily deprived of his life.” In the context of the death penalty, this language means that a person charged with a crime eligible for the death penalty must receive a fair trial and the jury (or judge) must consider all relevant evidence before deciding whether to sentence the person to death.

My Steering Committee colleague Connie Numbi, who represents the Foundation for Human Rights Initiative (FHRI) in Uganda, notes that several East African countries such as Tanzania and Botswana have a mandatory death penalty. If a person is convicted of certain crimes, the death sentence is automatic. No judge or jury hears evidence about the nature of the crime, why the person committed it, or what “mitigating” factors might warrant a sentence other than death.

The death penalty is arbitrary if the defense can’t present evidence about the defendant’s personal circumstances and the circumstances of the offense

The Human Rights Committee (the UN body in charge of interpreting the Covenant) has explained that any mandatory imposition of the death penalty violates Article 6, paragraph 1 because it is arbitrary:

In all cases involving the application of the death penalty, the personal circumstances of the offender and the particular circumstances of the offence, including its specific attenuating elements must be considered by the sentencing court. Hence, mandatory death sentences that leave domestic courts with no discretion on whether or not to designate the offence as a crime entailing the death penalty, and on whether or not to issue the death sentence in the particular circumstances of the offender, are arbitrary in nature.

Similarly, Article 6, paragraph 2 of the International Covenant on Civil and Political Rights states that, “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes,” The Human Rights Committee has explained that under this provision, the death penalty “must not be applied except for the most serious crimes, and then only in the most exceptional cases and under the strictest limits.”

McKinney never had a fair chance to present evidence of his personal circumstances

Which brings us to McKinney’s case before the U.S. Supreme Court. A jury found McKinney guilty of murder, but at the time, under Arizona law, a judge was responsible for deciding the appropriate sentence. McKinney’s attorneys presented evidence to the judge about McKinney’s horrific childhood, including evidence McKinney has Post-Traumatic Stress Disorder from his abuse. The judge accepted McKinney’s PTSD diagnosis but did not consider it in deciding on the sentence. Indeed, under Arizona law at the time, the judge was prohibited from taking into account any evidence of mitigating factors that were not causally connected to the crime.

An appellate court ruled that the judge was wrong to reject the PTSD evidence. The State of Arizona then took up the case with the Arizona Supreme Court, asking that court to review the sentencing decision. McKinney argued that he was entitled to a new sentencing hearing, particularly because in the interim the U.S. Supreme Court had ruled that juries—not judges—must make any factual findings relevant to deciding whether to sentence someone to death.

But the Arizona Supreme Court disagreed. It decided to conduct an independent review of McKinney’s sentence. In so doing, it said that McKinney’s conviction had been finalized before that Supreme Court ruling. And it then went on to look at the trial transcript and make its own sentencing decision, concluding that the mitigating evidence wasn’t sufficient to warrant a punishment other than death.

McKinney takes his case to the Supreme Court

Before the U.S. Supreme Court, McKinney will argue that the Arizona Supreme Court made two mistakes. First, when it reopened the case, the Arizona Supreme Court should have applied the current law, requiring a jury (rather than a judge) to make the factual determinations relevant to a death sentence. Second, the Arizona Supreme Court should have given McKinney the opportunity for a new hearing to present mitigating evidence, rather than simply reading the trial transcript.

Our friend of the court brief: The U.S. Supreme Court helped build a consensus under international human rights law that people like McKinney must have a fair chance to present all their mitigating evidence

Our amicus brief sheds light on the connection between Article 6 of the International Covenant on Civil and Political Rights—a treaty the United States ratified in 1992—and McKinney’s case. Our brief notes that the Human Rights Committee’s comments rejecting the mandatory death penalty are rooted in a consensus that began with a decision of the U.S. Supreme Court in 1976, which ruled that a mandatory death penalty law in North Carolina was unconstitutional.

Our Supreme Court’s reasoning in that case gradually helped build a consensus among national courts and international human rights mechanisms favoring individualized sentencing in capital cases. In 2009, for example, in a case that FHRI initiated, the Ugandan Supreme Court struck down that country’s mandatory death penalty for murder, and earlier this year the Ugandan parliament adopted a law eliminating several provisions rendering the death penalty mandatory. Kenya’s Supreme Court followed Uganda’s lead and struck down the mandatory death penalty in 2017. Malaysia is also taking steps to limit the mandatory nature of the death penalty.

Our brief cites the Ugandan Supreme Court as well as a long line of Human Rights Committee rulings recognizing that under Article 6, a person has the right to “individualized sentencing” where defense counsel may present evidence about the defendant’s personal circumstances as well as the circumstances of the crime.

Our brief also points out that the U.S. Federal Government has repeatedly assured the Human Rights Committee that in capital cases “the jury must be able to consider and give effect to any mitigating evidence that a defendant proffers.”

By the time I get off the plane, court-watchers will be sharing their spin on the oral argument, and by the end of the week, the Court will probably release a transcript I can read to get caught up. And then it will be a matter of waiting to see whether the Court will build on the foundation of international human rights law that it helped lay to ensure that McKinney finally has a chance to tell a jury his story.

Click these links to learn more about the death penalty in Uganda and Malaysia, and The Advocates’ death penalty work.

Amy Bergquist is Senior Staff Attorney with the International Justice Program. She is Vice President of the World Coalition Against the Death Penalty and represents The Advocates on the Coalition’s Steering Committee.