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. 

The Advocates For Human Rights Condemns President Trump’s Intention to Halt Immigration

On Monday The New York Times reported that President Trump said he would sign an executive order to temporarily halt immigration to the U.S. as the coronavirus outbreak continues to spread. Trump campaigned on shutting down immigration. From 2017’s Muslim Ban to last month’s order to illegally turn back asylum seekers without a hearing the administration has been ready to exploit any opportunity to isolate the United States.

By focusing on jobs, the president’s tweet plays into xenophobic tropes. But the facts are clear: 459,000 people immigrated to the United States last year; 22 million Americans filed for unemployment last month. At a time when the administration should be focusing on public health, safety and real economic issues, it is scapegoating immigrants yet again. “The administration’s immigration policy has consistently ignored federal law, international treaty obligations, fundamental human rights, and its impact on the human beings involved, including the immigrants, their families and the broader community,” said, Robin Phillips, executive director of The Advocates for Human Rights.

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.  

Asylum Seekers Continue to Push for Change Abroad

Protesters carry a Burundian flag in Brujumbura, Burundi. Photo: Reuters/G. Tomasevic

As a newly-initiated intern in The Advocates for Human Rights’ International Justice Program, I was unsure what to expect when I walked into my first official team meeting in May 2019. Despite this uncertainty, I quickly learned that me and my intern team’s responsibilities would not follow the traditional Devil Wears Prada-esque intern tropes of office coffee runs and administrative purgatory. Instead, much of our role would involve conducting research for UN shadow reports by delving into former and current asylum cases. 

My team’s first major project of the summer involved writing a client-based report on the human rights situation in Burundi to submit to the UN Commission of Inquiry (COI) on Burundi. After President Nkurunziza announced that he would be running for a third term in April of 2015, a violation of Burundi’s constitutionally-mandated two-term limit, Burundians took to the streets in protest. Many were kidnapped, detained, or killed. One failed coup attempt and four years later, Burundians today continue to live in fear of speaking out, lest they meet a similar fate. And after Burundi’s government forced the UN to shut down its local office in 2019, fact-finding has proven increasingly difficult.

As an advocacy organization that also provides pro-bono legal representation to asylum seekers through its Refugee and Immigration Program, The Advocates for Human Rights routinely uses firsthand information from former and current clients in advocacy reports (examples of this can be found here, here, and here). Accounts from asylum seekers who have directly witnessed and survived human rights violations can help NGOs identify patterns of abuse, identify bad-faith actors, and ultimately push for accountability on the international stage. 

Full disclosure: I had heard nothing of the situation in Burundi before joining The Advocates. So when my supervisors informed me and my fellow International Justice interns of our project, I began gathering information: reading articles, watching videos, and sifting through The Advocates’ asylum case files from Burundi. Asking individuals to recount their experiences and, in some cases, relive their trauma, requires sensitivity, awareness, and humility. My fellow International Justice interns and I spent a week drafting an interview protocol complete with questions and disclaimers. After much deliberation, the questions we ultimately decided on centered specific incidents and specific perpetrators in the aim of identifying the types of abuse and distinguishing state actors from non-state actors. In pushing for accountability through international human rights law, the difference between the two was significant.

Due to the nature of asylum law in the US, all asylum cases must have some aspects in common. Gaining asylum requires a well-founded fear of persecution in the home country, and requires that the persecution be on the basis of race, religion, nationality, social group, or political opinion. The majority of the Burundians we interviewed experienced persecution on the nexus of political opinion, race, or social group.

Yet the practice of interviewing asylum seekers is not quite so formulaic.

The process began with raking through a database to find relevant case files–”relevant” included individuals who had fled from Burundi sometime around or after 2015, since the COI’s charge only concerned conditions in Burundi after the 2015 attempted coup. After identifying clients to contact, we first sent an introductory email explaining the charge of the COI and the request for an interview, and then we called. Many numbers had gone out of service, and just as many sent us straight to voicemail. We quickly learned the importance of persistence and of follow-up. Eventually, individuals began to pick up, and as we pitched our requests for interviews, we were met with a brave and resounding chorus of ‘yes’ from former Burundians. 

Your confidentiality and safety are of utmost importance to us. The Commission of Inquiry has promised to do everything in its power to protect the victims and witnesses included in this report. Every telephone conversation began with the same reassurance. Even with individuals who had successfully sought asylum, the threat of retribution against family or friends in Burundi remained present. The disclaimer served as a reminder: the information being shared is a lived experience, and, in some cases, the danger is still real. 

In total, we interviewed five individuals about the experiences of themselves and those around them. The stories shared were uniquely painful yet thematically similar. State repression. Friends and family members who had been kidnapped. Friends and family members who had been killed. Abuse by the police. Abuse by the pro-government militant youth group, the Imbonerakure. Rape and sexual assualt. Torture. Fear. 

And an abiding air of resilience. 

Flash forward to mid-July: as the end of my 10-week long International Justice internship with The Advocates for Human Rights approached, President Trump announced a federal policy eliminating nearly all asylum protections for Central Americans and other migrants seeking refuge in the United States at the US-Mexico border by introducing a safe-third-country agreement. This agreement requires that migrants must have already applied for asylum at the first country they entered on their route to the US before applying for asylum in the US. If asylum-seekers fail to do so, the government may deport them to this “first country” before allowing their asylum case to be processed in the US. 

This policy raised the bar for entry from merely demonstrating a “credible fear” of persecution in the country of origin to a prohibitively high burden of proof aimed to severely reduce the number of asylum seekers accepted into the US. Therefore as more migrants apply for asylum, a greater percentage of cases are denied. Trump’s immigration policies also exist within the context of a heavily backlogged asylum queue where hundreds of thousands of cases dating back to 2010 remain in a processual limbo. 

The result? A deeply unreliable process of asylum that violates domestic law and fails to meet international standards–a process that gambles with human lives. After spending a summer in proximity to asylum cases, I understood that, more often than not, asylum is not a choice. Asylum is a means to survive. 

At the end of one call, following protocol, I asked a former client if she had any last questions for me. “I do have one,” said the woman, an asylum seeker who had survived and escaped sexual abuse by government forces,

“Is Burundi going to get better?” 

For a moment, I struggled to find an adequate response. Yet if she still retained her capacity to hope, so could I. And with brave voices like hers cooperating with NGOs to speak out against human rights abuses, we have no choice but to believe in a better future. 

By Tala Alfoqaha, a Mathematics & Global Studies major at the University of Minnesota.  Tala was the 2019 Don Fraser Human Rights Fellow with The Advocates’ International Justice Program.

A Global Look at COVID-19 and Domestic Violence

covid-19
Photo credit: CDC/ Alissa Eckert, MS; Dan Higgins, MAMS

The Advocates is taking action to respond to increased domestic violence during the COVID-19 pandemic. Visit our social media about the impact of COVID-19 on domestic violence in countries around the world. 

Across the world, agencies are seeing an uptick in domestic violence cases as stay-at-home and limited movement orders have been put in place in response to the COVID-19 pandemic. Although some countries report a decrease in domestic violence calls to hotlines, advocates warn that this is more than likely due to victims/survivors being unable to safely make a phone call while living with their abuser. In response, hotlines around the world have implemented text and email hotline services that help victims be more discrete when attempting to access help.

Many shelters have been named “essential services,” especially in the United States, and this has allowed shelters to maintain operation of their in-person services, although these shelters are quickly becoming overcrowded. Advocates also warn that the pandemic may cause less people to seek these services due to the fear of contracting the virus. In addition, when victims are at home with their abusers, it may be more difficult for them to leave. It may also be more difficult to obtain legal services during this time, although many courts have moved proceedings online and have extended certain stipulations in order to protect victims and their children.

Although there have been efforts across the globe to address the increased risk that victims of domestic violence are now facing, gaps remain. Advocates around the world, as well governments and inter-governmental bodies like the United Nations, have led discussions on the alleviation of these barriers.

 Current state of affairs and principal concerns

Advocates around the world warn that shelter-at-home executive orders, sometimes called “safe at home” orders, will produce unintended and lethal consequences for domestic violence survivors, including:

  • Increased violence due to various aggravating factors, such as economic constraints, job loss, increased alcohol consumption and drug use, close proximity, children being at home
  • Pandemic-related abuse, such as:
    • Threatening to put victims on the street if they show symptoms
    • Making victims wash their hands until they bleed
    • Hiding essential items like hand sanitizer and soap from the victim
    • Threatening to cancel insurance
    • Circulating misinformation to victims to cause fear and deter them from leaving or seeking help;
  • Increased isolation from support systems, such as friends or family;
  • Travel restrictions that impact a victim’s escape or safety plan, or where it may not be safe for them to use public transportation or fly;
  • Decreased or eliminated access to safe havens like school, work, and community gatherings;
  • Difficulty accessing services, because of an:
    • Increased monitoring of phone activity by abusers
    • Inability to make hotline calls safely with abuser home
    • Decreased opportunities to escape
    • Decreased shelter space or shelters repurposed by the government to service COVID-19 patients
    • Fear of contracting the virus at shelters
    • Hotlines overwhelmed by increase in calls
    • Health systems that are overwhelmed by the pandemic, making it more difficult for survivors to access medical services, including therapy;
  • Increased anxiety and re-traumatization;
  • Homelessness;
  • Mental health consequences;
  • Decreased financial resources for victims to flee and support themselves due to job loss;
  • Decrease in family court approvals of requests for hearings;
  • Petitions not determined to be emergencies being dismissed or adjourned to a later date. These decisions may be made by someone in the court system screening electronically filed petitions, which could be life-or-death decisions for survivors;
  • Impacts on health workers, many of whom are women;
  • Reduced or limited access to vital sexual and reproductive health services, including for women subjected to violence.

What to do if you need help 

If you are in immediate danger in the U.S., call 911.

For help in Minnesota, call DayOne Hotline at 1-866-223-1111 or text 612-399-9995.

For help in the U.S., call the National Domestic Violence Hotline at 1-800-799-SAFE(7233) or text LOVEIS to 22522. American Indians and Alaska Natives can also call the StrongHearts Native Helpline at 1-844-7NATIVE (762-8483).

What The Advocates is doing to strengthen protections for women

The Advocates is currently collaborating with Violence Free MinnesotaMNCASA, and Standpoint to gather information about the challenges faced by Minnesota’s justice system in responding to domestic violence and sexual assault.

The Advocates is conducting fact-finding with systems actors to provide ongoing analyses of the issues and new challenges that systems actors and courts face under the COVID-19 situation that it can provide to Violence Free Minnesota, MNCASA, and Standpoint as they develop real-time guidance to strengthen systems’ responses.

This week, The Advocates will begin posting daily with COVID-19 response information for countries around the world.  Follow @TheAdvocatesforHumanRights on social media (Facebook, Twitter, Instagram and LinkedIn) for daily COVID-19 updates for countries around the world.

For more information on violence against women, visit our website StopVAW.org.

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)

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