When our own government tortures

TJMore often that not, I feel like I live in a dystopian novel.  Unfortunately the events of today are real.  Over the past year I have been hearing about the numbers of people at the border seeking asylum.  I could not believe it was true.  Yet, according to Physicians for Human Rights, as of August 2019, there were 60,000 asylum seekers waiting at the southern border waiting to apply for political asylum.  One third of them were located in Tijuana, Mexico.

One of the reasons for this large number is a program that was started in January 2019 by the Trump Administration called the “Migrant Protection Protocols,” (“MPP”).  Pursuant to this program, asylum seekers are expected to apply for asylum at the border but then are returned to Mexico to wait for their hearings.

Like everyone else,  I watched on television and listened to the radio about the numbers of asylum seekers and could not believe what was happening.  I started receiving requests to volunteer and I felt I had to go; I could not stay here and do nothing.

I went to Tijuana in October of 2019 and volunteered with Al Otro Lado, a legal aid organization with offices in San Diego, Los Angeles and Tijuana.  I found my experience both horrifying and rewarding at the same time.  I am going to describe some of what I experienced here.

On my first day of volunteer work, we received an orientation and training by the volunteer coordinator of Al Otro Lado.  She described the method by which asylum seekers are required to apply for asylum at the border.  I kept interrupting her, asking questions because I could not believe what I was hearing.  I saw it the next day for myself.

Essentially, asylum seekers who are trying to enter the United States from Tijuana first line up at the pedestrian entrance at the border called El Chaparral.  They are given a number on a small piece of paper and their names and numbers are recorded in a spiral notebook.  The asylum seekers are then told they must wait for their number to be called (in a few months) and when their number is called, they will be taken to the US by Customs and Border Protection (“CBP”) for a “credible fear interview.”  (An asylum seeker is given a credible fear interview first, before being permitted to apply for asylum.)  Every day, CBP decides how many people are to be let in for the credible fear interview and that number varies.  It could be 20 or it could be 70.

The people maintaining the spiral notebook, writing down numbers, giving out numbers, and announcing numbers are not employees of the US government.  They are not even employees of the Mexican government.  These “list managers” are volunteers.  They are asylum seekers themselves.  They are volunteering with Grupos Beta – supposedly the humanitarian section of the Mexican Immigration Services.  CBP tells Grupos Beta every day how many numbers to call and in turn, Grupos Beta tells the list managers how many numbers to call.  A list manager, always a woman,  then walks to the front of the line and with a bullhorn reads off numbers, along with the names.  So much for confidentiality.

It is currently a 4-5  month wait for people between the time they receive a number and when their number is called.  Asylum seekers from countries other than Mexico do not have the right to work and the right to remain in Mexico.  They do not have a safe place to live.  People do not know the date their number will be called and many people have either missed hearing their number being called or have found another way to enter the United States in the meantime.  Tijuana is a dangerous place and no doubt some have been the victims of crime/trafficking/prostitution.

I was appalled when I heard how this system; I had to go see it for myself.  I went on my second day of volunteer work to observe.  I saw people waiting in line to receive numbers and then I saw another line of people who were being called to enter.  The people who were called to enter were carrying all their possessions, wearing layers of clothes and carrying suitcases.  When they were allowed through the gate, they were told to place their suitcases in a truck and then sit in a van.  I wondered if they were ever going to see their possessions again.

My first reaction when I heard about this “system,” and then when I saw it in action was to think of Nazi Germany.  The Nazis assigned supervisory and administrative duties in the concentration camps to Kapos, who were themselves prisoners.  Seeing the “list managers” in action working for Grupos Beta who are in effect working for CBP reminded me of that “system.”   The analogy does not end there. Seeing people – men, women and children, line up with all of their belongings, suitcases and then acting as if they are going on vacation, well it reminded me of pictures of people lined up to go into cattle cars and being told they could take their belongings with them…..

Of course, the United States is not Nazi Germany, but what happens next is in my opinion is close.  The asylum seekers are taken by CBP, told they must strip down to one layer of clothing and then are detained in cell blocks which are permanently kept cold.  The lights are kept on 24/7.  The asylum seekers remain there anywhere from 24 hours to two weeks before they are given a credible fear interview.  They do not know how long they will be held there, they do not have their possessions, are not given edible food and may or may not be separated from their families and children.

If they manage to pass their credible fear interview, they are returned to Mexico (assuming they are not Mexican citizens) along with a notice of a court date.  They will again wait a few months for this court date and will be taken back into San Diego to appear in Immigration Court.  If the asylum seekers are Mexican citizens, they will be taken elsewhere, to a permanent detention facility where they will remain until their court date.  If the asylum seekers do not pass their credible fear interview, they are deported back to their country.

Call me naive but I could not believe our government detained asylum seekers in what they called “ice boxes.”  After my second day of volunteer work, I went back to my hotel room and started looking up “ice boxes” and CBP, online.  Sure enough, I found numerous Human Rights Reports including one from Human Rights Watch documenting these horrible conditions.  I usually look to Human Rights Watch, Amnesty International when I am researching country conditions for asylum applications.  It was the first time I ever looked up country conditions in my own country.  I was very distraught.  We can and should do better.  If we are going to detain people  we should at least detain them in humane conditions so that are not starved and freezing when they try to present their case.

Al Otro Lado conducts daily workshops during which they inform asylum seekers of the process and dangers they will face.  After the workshop concludes, a volunteer does an intake and then the potential asylum seeker meets with a volunteer attorney for the attorney to assess whether there is a case and to offer some advice.  I probably talked to at least 20 potential asylum seekers while I was there, from various countries from around the world – Africa, Cameroon, Cuba, Mexico, Honduras.  While not every person had a good case for asylum, every person had a horrible experience or multiple life threatening experiences either happen to them or a family member which caused them to flee their home.  I did not meet a single person who just wanted to come to the United States for the heck of it.  And indeed, I met some people who had tragic cases and who I hoped could find an attorney.

I mentioned at the beginning of this post that my experience was horrifying and rewarding at the same time.  I have already explained the horrifying parts.   What was gratifying?  The gratifying parts were to see acts of kindness.  The staff and volunteers of Al Otro Lado were amazing.  They work under difficult conditions and are extremely dedicated.  The volunteers who I had the privilege of volunteering with were awesome.  I also saw random acts of kindness from total strangers.  I met a woman at  El Chaparral who goes there every day with a few other people and gives out hot oatmeal to the asylum seekers waiting in line.  She also bring crayons and coloring books for the kids so that they have something to do while waiting in line with their parents.  And then I also saw two people stop by who handed out juice boxes to the children.  All of these people just do this every day.  There is no payment involved.  They were not seeking publicity or fame.  They did it out of the goodness of their hearts.  They made a terrible situation seem tolerable.

Al Otro Lado could use more volunteers.  If you are interested in volunteering, please send me an email through my contact page and I will respond with contact information.  I hope to go back too.  The need is too great.

 

 

 

 

End of Year Giving Safety

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calculatorpen

The year of 2015 is drawing to a close.  Immigrants and citizens alike receive spam email as well as legitimate email from organizations requesting donations.  I am happy to feature a post written by guest blogger Melba Pearson who gives tips on how to determine if the request for a donation is legitimate or not.

It’s the end of the year, and your inbox is flooded with charities seeking your donation. You may also be getting requests from crowdfunding sources such as GoFundMe. You want to be generous, as well as get the tax credit, but what should you do?

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Asylum denied to North Korean due to firm resettlement in South Korea

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Political Asylum from North Korea

Photo by Vlado

May a citizen of North Korea be granted political asylum despite being firmly resettled in South Korea?  The 9th Circuit Court of Appeals recently said, “no.”

In Jang v. Lynch, — F.3d. — (9th Cir. 2015) the applicant, Sung Kil Jang, was born in North Korea and is a citizen of North Korea.  He was persecuted in North Korea and eventually was able to escape by swimming across a river to China.  He spent a year in China and then traveled to Vietnam and Cambodia before eventually landing up in South Korea.  In South Korea, he completed college, worked and lived there for four years.  He eventually became a citizen of South Korea.  He also had family in South Korea – a sister and her family and a brother.  He had all rights available to citizens in South Korea – the right to hold property, receive education, travel, and obtain public relief.  For reasons not discussed in the case, Mr. Jang came to the United States and soon thereafter applied for political asylum.

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5 Things You Need to know About the EB-5 Investor Visa in 2016

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The EB-5 immigrant investor program is complicated and controversial.   Today’s post is from guest blogger Robert Rogers, an experienced business immigration attorney from Miami Florida.    He describes the key elements of the EB-5 program and what we need to know for 2016.

Congress made little if any progress on comprehensive immigration reform in 2015, and is unlikely to accomplish anything significant on this front in the presidential election year of 2016. It does appear, however, that they got one thing done: an extension of the popular EB-5 Immigrant Investor program through September 30, 2016.

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Can I have custody of my children if I am in the United States illegally?

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child custody issues in immigration

Issues concerning child custody are always intense and even more so during the holidays as families and children inevitably struggle with who are the children going to be with on which day. When an immigration component is present, it sometimes is used as a threat by one parent against the other. I have seen threats made in cases where both parents are in the United States as well as in situations when one parent is in the United States and the other is outside. In both situations, an undocumented parent should not be afraid of losing custody only due to immigration status.

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Deadline to Register for Nepal TPS is approaching fast

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TPS for citizens or nationals of Nepal

© Jose Fuente | Dreamstime Stock Photos

The deadline to register for Nepal TPS (“Temporary Protected Status”) is approaching fast – the deadline is December 21, 2015.  TPS is what it sounds like – a status which allows people to remain in the United States temporarily.  “Temporary” can mean a long time in some situations.  For example, TPS for nationals of El Salvador has existed since 2001. Continue reading

“Alien smugglers” cannot establish good moral character for purposes of Cancellation of Removal

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I previously published a post on cancellation of removal for permanent residents and indicated that I would discuss “discretion” in a later blog post.  It is sometimes easier to talk about concepts when they do not apply.  In the situation of a person who is an alien smuggler, the 9th Circuit Court of Appeals has established that such a person cannot establish good moral character for purposes of cancellation of removal.  The Judge has no discretion to grant a case with such facts because the applicant is statutorily prevented from obtaining the relief.  I will discuss the case that established this law and the facts surrounding it.

In Sanchez v. Holder, 560 F.3d 1028 (9th Cir. 2009), the applicant, Mario Sanchez, entered the United States in April 1988 without inspection, and resided here without lawful status.  He returned to Mexico for three weeks in August 1993 to get married.  After the wedding, he paid a “coyote” $1,000.00 to smuggle himself and his new spouse into the United States.

In May 2000, the Immigration and Naturalization Service (“INS”) (the agency that previously existed before the creation of United States Citizenship and Immigration Services and Immigration Customs and Enforcement), charged him with removal and placed him in removal proceedings.  He applied for cancellation of removal on the ground that removal would result in exceptional and extremely unusual hardship to his U.S. citizen children and lawful permanent resident father.  After a hearing, the Immigration Judge (“IJ”)  found that Mr. Sanchez had met the statutory qualifications for cancellation of removal in all but one respect: he was barred from establishing good moral character because he helped his wife enter the country illegally in 1993. The IJ reasoned that Sanchez’s conduct made him “a member of one or more of the classes of persons”—in this case, a smuggler who by statute cannot be found to have good moral character.

The Court first analyzed the definition of good moral character as contained in 8 U.S.C. 1101(f).  Under the provisions of that statute as well as under another – 8 U.S.C. Section 1182(a)(6)(E)(i) a person is precluded from establishing good moral character who has at any time “knowingly…encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter the United States in violation of law.”

The Court determined that Mr. Sanchez could not establish good moral character because he admitted to aiding his wife to enter the United States illegally by paying a coyote to smuggle her across the border.

There are other statutes which waive “alien smuggling” in the context of admissibility and adjustment of status but the Court determined that they were inapplicable to applicants for cancellation of removal.

There were two dissenting opinions in the case and one of them would have reversed the decision.  Nevertheless, Sanchez, remains good law and has been upheld in cases decided after it.  The best advice to an individual in this situation would be to argue that the alien smuggling provisions should not apply or to apply for another form of relief other than cancellation of removal, if there is something else available.  Cancellation of removal is not available to persons who have been found to be alien smugglers.

 

Why haven’t I been scheduled for my political asylum interview?

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political asylum applicants

©UNHCR/T.Sziget

I recently saw a woman in my San Francisco office who came to see me because her political asylum case has been pending for two years and she has not been scheduled for an interview.  This is not unusual and I have clients in my own caseload in the same situation.

The asylum division of United States and Citizenship Services (“USCIS”) recently published Asylum Office Statistics which, when viewed, explain why there is such a delay.

At the San Francisco Asylum Office, alone, there are currently 11,542 cases pending.  I guess my clients should be happy that we are not at the Los Angeles Asylum Office, which at 21,878, has the highest number of cases pending nationwide.

In September 2015, the San Francisco Asylum Office scheduled 505 interviews and conducted 307 of them.   Some of the scheduled interviews did not occur because either the applicant rescheduled it or USCIS rescheduled it.  Nevertheless, given that small number of people interviewed and the number of pending cases, it is understandable that it is going to take a long time for the asylum office to work through their backlog.

The report contains other interesting statistics.  For example, it lists the top ten leading nationalities for asylum applications filed with USCIS.  As of September 2015, these nationalities are (from most to least):

  1. China
  2. Mexico
  3. Guatemala
  4. Venezuela
  5. El Salvador
  6. Honduras
  7. Ecuador
  8. India
  9. Haiti
  10. Ukraine

If you would like to know when your interview may be scheduled, you may check the Affirmative Asylum Scheduling Bulletin.  USCIS claims that they update this monthly.  The most recent bulletin is current as of December 8, 2015 and shows that in San Francisco, for all cases (not filed by children), they are currently scheduling cases that were filed in August – September of 2013.

Since it is taking approximately two years to be scheduled for an interview, you will need to be sure to update the information in your case as the basis upon which you may have filed for asylum no longer may be as strong as when you filed and/or you may need to update supporting documents on the conditions in the home country.

 

 

An Anthropologist Unravels the Mysteries of Mexican Migration

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The Land of Open Graves

I read an interesting article in the online version of National Geographic, first reported in Bender’s Daily Immigration Bulletin.  The article is an interview with Jason De León, an anthropologist and the author of a book, The Land of Open GravesLiving and Dying on the Migrant Trail.   The author grew up in the Rio Grande Valley in Texas. His father is Mexican, his mother is from the Philippines, and he spent his childhood speaking Spanish.  He is currently an assistant professor at the University of Michigan.   In the interview, he speaks about why U.S. border crossing deaths go largely unrecorded while European migrant deaths are headline news; why American economic and drugs policies helped create the crisis; and why he calls the Prevention Through Deterrence program, which funnels migrants towards the Sonora Desert, a “killing machine.”

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Immigration Blog Round-up, week ending December 13, 2015

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Every week I feature blogs published by solo practitioners or small law firms from across the United States that have been written in the previous week.   If you would like to be included, please contact me.