Supreme Court orders reargument in indefinite detention case

Child or woman's hand in jailLast week, the Supreme Court ordered reargument in Jennings v. Rodriguez.  The case challenges whether detention for indefinite periods of time without review defies the constitution.  

This year, there could be up to 500,000 people detained in federal Immigration and Customs Enforcement (ICE) detention centers, jails, and private prisonsWhile some are detained a few weeks, others may be held for months or even years while they challenge their removal before the immigration courts and on appeal.   

 

The initial challenge to indefinite detention, Rodriguez, et al. v. Robbins, et al., was filed in 2007 at the federal district courtAlejandro Rodriguez, who had been detained for 3 years awaiting his deportation without a bond hearing, challenged the government’s authority to detain him indefinitely. The Ninth Circuit upheld the lower court’s order requiring the detainees to receive bond hearings after six months of detention and every six months following to address their detainment while pending their deportation proceedings.  

Throughout the Ninth Circuit, Rodriguez hearings have been provided regularly, resulting in the release of people from detention while they pursue their claims to remain in the United States. Following the Court’s order, people detained outside the Ninth Circuit will continue to face indefinite detention until the Court rules next year.

The Advocates for Human Rights recognizes the fundamental human rights of the rights of asylum, due process, fair deportation procedures, freedom from arbitrary detention, family unity, as well as other rights as an approach to immigration.

By Michele Garnett McKenzie, Deputy Director of The Advocates for Human Rights

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This World Refugee Day, Take a Moment to Listen to Their Stories

Among the world’s more than 22.5 million refugees are an estimated 2.8 million people seeking asylum. In the United States, asylum seekers can wait years for a hearing and even longer to reunite with their families. With no right to government-appointed counsel, adults and children alike face complicated legal proceedings alone.

Last year, The Advocates for Human Rights provided free legal assistance to nearly 1,000 refugees and their family members, including ongoing legal representation in more than 650 asylum cases.  In addition, our National Asylum Help Line has connected more than 1500 callers with legal help.

With the help of hundreds of volunteer attorneys, together with interpreters and community support volunteers, The Advocates helps protect refugees, reunite families, and ensure that no asylum seeker has to go it alone.

We commemorate World Refugee Day on June 20, 2017 by sharing some of our clients’ stories of courage and hope.  Please take five minutes to listen to their stories.  You can help us by sharing their truth.

Learn more about applying for asylum and The Advocates’ legal services here.

On World Refugee Day, please consider making a donation so that we can help more families like the ones featured in this video.   The Advocates stands #WithRefugees.

 

Cruelty as Policy: Part One

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Euphemisms can be well-intentioned. Perhaps the most famous of all New Yorker cartoons depicts a mother offering a plate of greens to her toddler. “It’s broccoli, dear,” she says. The toddler glares at the plate and says, “I say it’s spinach, and I say the hell with it.”

Euphemisms can also mask evil intent and remarkable cruelty. Consider the term “self-deportation.”  Promoted to one degree or another by various proponents of curtailing immigration, this is typically described as the notion that the flow of immigrants into the United States, and the percentage of the U.S. population represented by undocumented immigrants, can be reduced by taking away economic and other incentives for them to enter or remain in this country, so that they never come or they decide to leave after arrival. A quick scan of such a description might suggest that self-deportation is a relatively moderate political goal that relies on voluntary acts rather than draconian changes to existing law.

Think about that. The decision to flee one’s home country permanently and come to a strange land is not made lightly. Many refugees seek to escape starvation, persecution, torture or certain death, which could be due to their ethnicity, gender or gender orientation, political beliefs or religion, or it could be simply because conditions in their country of origin make it impossible to stay. Such people often have a legal right to asylum.

What the concept of encouraging “self-deportation” embraces is intentionally making conditions in the United States worse for undocumented immigrants than the conditions in the country from which they fled. Not the American Dream, but the American Nightmare. On purpose.

Consider one of the most egregious ideas, that undocumented parents be separated from their children at the border, with the parents placed in a detention center for adults and their children in a children’s detention center.  This proposal, which had the stated goal of deterring families from making the journey in the first place by threatening to have their children pulled from their presence and separately incarcerated, was seriously advanced by the Department of Homeland Security until public outcry forced it to be walked back. The Advocates for Human Rights was one of 184 organizations that have signed onto a letter to Secretary John Kelly of the Department of Homeland Security, registering outraged protests over this proposal. Among other objections, the letter points out that family unity is a fundamental human right under international law, and that the American Academy of Pediatrics has called the proposal “harsh and counterproductive” and pointed to the inevitable emotional and physical trauma to children from family separation

The proposal to separate families by no means exhausted the ingenuity of the “self-deportation” advocates. An anti-immigrant organization that calls itself the Immigration Law Reform Institute has promulgated a menu of 24 methods by which state and local legislatures can make life miserable for immigrants while supposedly minimizing the danger of being found in contravention of federal immigration authority. The related Federation for American Law Reform (cutely called “FAIR”) has published a similar list of anti-immigrant actions to be taken by the federal government, entitled “Immigration Priorities for the 2017 Presidential Transition.”

To refer once again to the New Yorker, the issue of April 3, 2017 contains an article by Rachel Aviv entitled “The Apathetic.” It tells of the heartbreaking suffering of refugees, especially children, resulting both from the trauma which they flee and from the prospect of deportation. In Sweden hundreds of children aged eight to fifteen, all refugees and most from Russia or the former Yugoslavia, have fallen prey to what Swedish psychologists are calling resignation syndrome. In response to the emotional trauma resulting from the prospect of deportation and return to their countries of origin, these children simply fade away. They stop speaking, lose muscle tone, stop eating, and become mute, incontinent and unresponsive to stimuli, including pain. The article compares this syndrome, the particular symptoms of which are likely culture-related, to other severe psychological reactions to the emotional trauma suffered by refugees, such as when one hundred and fifty Cambodian women who had seen family members tortured by the Khmer Rouge lost the ability to see, or when Laotian refugees would cry out in their sleep and die, apparently frightened to death by their dreams.

Think about these refugees and what sort of trauma could cause the body to shut down in this fashion. Then think about comfortable, intelligent Americans who advocate that our country should intentionally create an environment for those refugees that is less nurturing and less attractive than they already face, and do so in order to promote “self-deportation.” Does putting America First require us to make ourselves ashamed of our country?

I say it’s spinach, and I say the hell with it.

By James O’Neal, volunteer attorney and Vice Chair of The Advocates for Human Rights’ Board of Directors. 

President Trump’s Executive Order Harms the U.S. & Refugees

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I have worked with refugees and asylum seekers since 1991. I cannot even tell you how many I have had the privilege to represent, and I believe that I have only encountered two cases of fraud in more than 20 years. I have never encountered even a single client with any links to terrorism. The refugees and asylum seekers who I have met have been fleeing for their lives – sometimes from terrorists.

The Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” signed on January 27, 2017 overreaches executive branch powers (under the plenary power doctrine, immigration policy is shared between the legislative and executive). Moreover, aspects of the order are both unconstitutional and violate United States’ international legal obligations under the Refugee Convention (which we ratified in 1980). This comes at a time when there are more forcibly displaced people (65+ million) than ever before in human history.

The Executive Order violates the United States Constitution and the nation’s international obligations under the Refugee Convention to ensure that:
  1. Refugees not returned to a place where they will be persecuted (non-refoulement);
  2. There is an individualized determination of persecution on account of one of five grounds (race, religion, nationality, membership in a particular social group, or political opinion), NOT just religion; and
  3. Refugees are not discriminated against.

Here are some specific reasons why the Executive Order is bad policy and should not be enforced:

1. Suspends U.S. Refugee Admissions Programs (USRAP).

  • The order suspends all refugee admissions for 120 days.  Refugees are perhaps the most thoroughly vetted individuals who enter the United States. Refugee processing often takes up to 36 months and includes background checks, biometrics, and interviews with several federal agencies. I have met many people stuck in limbo in refugee camps, waiting to be cleared to join immediate family members in the United States.  Even following the 9/11 terrorist attacks, refugee admissions were suspended for less than three months.
  • It does not appear that clear instructions regarding implementation were conveyed to the Border & Customs Protection — those who had to enforce the order this weekend — leading to chaos and lawsuits. Under the order, exceptions can be made on a case-by-case basis for national interest, if the person does not pose a risk and is a religious minority facing religious persecution OR diplomats OR if the person is already in transit and denying admission would cause a hardship.
  • The order reduces the number of refugee admissions by more than half, to 50,000. The President, in consultation with Congress, sets each year the refugee admission number. In fact, during President Obama’s administration, the United States had dropped historically low in the numbers of refugees resettled. The goal this fiscal year was to admit 110,000 refugees. The government’s fiscal year began October 1, and we have already admitted 29,895 as of January 20, 2017. Under this new Executive Order, we will admit only about 20,000 additional refugees before the end of the fiscal year on September 30. That means that 60,000 refugees who have already been vetted will remain in life and death situations.
  • Once resumed, the United States will prioritize the religious persecution claims of minority religious groups.  Purportedly, this is to prioritize the claims of persecution of Christian minorities, but Muslims are also a persecuted minority in some countries. What does this mean for them?
  • The order suspending the United States Refugee Admissions Program for 120 days directs Department of Homeland Security to determine how state and local jurisdictions can have greater involvement in determining placement resettlement in their district. This will allow states and cities unprecedented authority to determine whether they will resettle any Muslim refugees. Bills have already been introduced in states such as North Dakota and South Dakota to ban all resettlement unless approved by the state legislatures.

2. Bans Syrian Refugees
The order halts the processing and admission of all Syrian refugees. Indefinitely. One of the worst human rights crises on the planet is happening in Syria. Over the past few years, millions of people have fled from both the forces of President Bashar Al-Assad (supported by Russian airstrikes) and ISIS. The United States finally stepped up last year and accepted 10,000 refugees —  far, far less than most Western countries. To date, the majority of refugees resettled from Syria to the United States have been women and children. 

3. Bans Entry of Nationals of Muslim Majority Countries
Both non-immigrant (tourist, student, etc.) and immigrant (including legal permanent residents, at least for the initial roll-out of the order) from seven countries (some friends, some foe) — Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen — are banned from entry for at least 90 days. (The order also notes that other countries and immigration benefits may be added to the banned list.) Courts have already temporarily blocked the implementation of part of this order based on the First Amendment Establishment clause (which prohibits the government from preferring or disfavoring a religion) and the Fourteenth Amendment Equal Protection clause. But part of the order also calls for the exclusion of individuals who “would place violent ideologies over American law” or “who engage in acts of bigotry or hatred, including persecution of those who practice religions different for their own.” That is incredibly vague and potentially discriminatory.  Moreover, there has been enhanced screening for everyone coming from countries with high levels of terrorism since 9/11.

4. Requires In-Person Interviews for All
The order suspends the Visa Interview Waiver Program (VIWP), primarily used for people who had been vetted, were considered a low-security risk, and were on renewable employment-based visas. The requirement for in-person interviews for non-immigrant visa applications will create huge backlogs at embassies and consulates and slow down the process for anyone applying for a visa (including family members of legal immigrants, asylees, and refugees). Many of The Advocates for Human Rights’ asylum clients come to the United States on visitor or student visas; this processing backlog will prevent these people the ability to escape persecution in their countries, leaving them vulnerable and unsafe.

5. Screens ALL for Immigration Benefits
This is policy by fiat, going beyond congressional authority. While screening standards are already in place for identifying fraud, etc., the Executive Order directs agencies to create a process to evaluate the person’s “likelihood of becoming a positively contributing member of society” and “ability to make contributions to the national interest.” These are entirely new and subjective standards, and it is not clear how anyone could implement them. They are NOT statutory requirements for any immigration benefit (except a national interest visa).

This Executive Order is public policy based on myth. It is not what is best for our country. Every Department of Homeland Security professional that I have ever met has said that the problem is lack of resources rather than the need for new laws or regulations. Every refugee I know is a true American patriot, one who tears up when saluting the flag because they know the true price of freedom.
Educate yourself. Call your congressional, state, and local representatives. Volunteer to help refugees and asylum seekers in your hometown. Provide a safe haven for those who are forced to flee persecution is a core American value.
This Executive Order will not make us safe. Instead, it will erode the United States’ moral standing as leader of the free world.
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By Jennifer Prestholdt, Deputy Director, The Advocates for Human Rights.