Monday, April 14, 2014

9th Circuit Requests Additional Briefing in Case To Determine Whether to Hear en banc

Last week, I received an order from the Ninth Circuit Court of Appeal for additional briefing on the question of whether to hear the case en banc. I filed the petition for review in 2009 seeking appellate review of the denial of the protection afforded under the Convention Against Torture. This case was filed and fully briefed for my last law office that I worked in Burlingame.

The appellant was a Mexican national, who was a Lawful Permanent Resident at the time, and he was ordered removed for an aggravated felony conviction, first degree burglary. Once he was removed to Mexico, he was kidnapped at the airport in Mexico City by uniformed police officers telling him he did not have proper papers and he needed to go with them. They turned him over to the Federal Police, who transported him to Morelia in Michocan and placed him inside the prison. There he was tortured while his father in the U.S. was on the phone. The crooked cops were demanding ransom, which was eventually paid. The appellant had cigarettes burned into his skin, he had his teeth knocked out, he had electrodes place on his genitals, and he was waterboarded with Coke Cola poured onto a rag placed over his mouth and nose.

Appellant returned to the U.S., crossing in Arizona, but not before he was bit by a rattlesnake and lost his legs before Customs and Border Patrol located him. Appearing before Immigration Judge Yamaguchi in San Francisco, everybody acknowledged that he had suffered torture, by Yamaguchi held that he could safely relocate inside Mexico and ordered him removed.

The Board of Immigration Appeals sustained the removal order and the case was brought to the Ninth Circuit by my former office. I completed all the briefing, raising the legal issue that the IJ impermissibly held appellant to an incorrect standard, namely that under Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir. 2008), that a CAT petitioner must establish that internal relocation is "impossible." I argued that just as in this case, where the petitioner has established past torture, the burden should shift to the government to prove that relocation is possible, pursuant to Perez-Ramirez v. Holder, 648 F.3d 953, 958 (9th Cir. 2011).

There is seemingly a split of authorities in the Ninth Circuit on this questions and this case is being considered for an en banc decision on what is the correct procedure. My contention is that Perez-Ramirez should be the standard.

"As we have previously acknowledged, "it will rarely be safe to remove a potential torture victim on the assumption that torture will be averted simply by relocating him to another part of the country." Nuru v. Gonzales, 404 F.3d 1207, 1219 (9th Cir.2005). Thus, when the past-persecution is shown, the government bears the burden to show by a preponderance of the evidence that the petitioner can move elsewhere within the country. Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir.2003) ("[B]ecause a presumption of well-founded fear arises upon a showing of past persecution, the burden is on the INS to demonstrate by a preponderance of the evidence, once such a showing is made, that the applicant can relocate internally to an area of safety."). Additionally, when petitioner "has established a well-founded fear of future persecution at the hands of the government, a rebuttable presumption arises that the threat exists nationwide and therefore that internal relocation is unreasonable." Id.

Friday, March 14, 2014

House GOP Passes Immigration Bill That Would Eliminate DACA: The Relief for Dreamers

House Republicans passed a bill Wednesday that would eliminate President Barack Obama's policy that allows young undocumented immigrants to stay in the United States.

The ENFORCE Act, which passed 233 to 181, goes after Obama for alleged overreach. The bill would allow Congress to sue the executive branch for allegedly failing to enforce the law, and it could lead to the dismantling of a key policy protecting some undocumented immigrants.

The move was a far cry from the votes on immigration reform that Democrats want, and stood in stark contrast to the immigration principles put forward by House Republican leadership in January. While those guidelines called for young undocumented immigrants who came to the United States as children -- often referred to as Dreamers -- to receive eventual citizenship, the bill approved Wednesday could end the Deferred Action for Childhood Arrivals policy that keeps the same people from being deported.

The Obama administration has used prosecutorial discretion, or the decision to use limited resources to enforce some cases over others, to grant some undocumented immigrants a reprieve, while continuing a high level of deportations more broadly.

House Republicans said passing the bill was necessary because the president had shown an unwillingness to enforce the law and a desire to go around Congress, including through the Deferred Action for Childhood Arrivals policy.

"We have seen a pattern: President Obama circumvents Congress when he doesn't get his way," Judiciary Committee Chairman Bob Goodlatte (R-Va.) said on the House floor in support of the bill. "But the Constitution does not confer upon the president the executive authority to disregard the separation of powers and rewrite acts of Congress based on his policy preferences."

The Obama administration threatened to veto both bills should they come to the president's desk, and White House spokesman Jay Carney criticized them during a press briefing, noting the contrast between the legislation and some Republicans' stated desires to work on immigration reform.

"It is, in my view, in our view, pretty amazing that today House Republicans went in the opposite direction by passing legislation targeting the deferred action for childhood arrivals policy that removed the threat of deportation for young people brought to this country as children, known as Dreamers," he said, adding later, "It doesn't require much to look at what House Republicans are doing today and question whether or not they're serious about moving forward on comprehensive immigration reform."

"Instead of voting to fix our broken immigration system as the Senate did in June, House Republicans today voted to prevent the President from fixing the problems that are within his constitutional authority to solve," Reid said. "These irresponsible Republican bills are dead on arrival in the Senate. I strongly support the President’s decision to protect DREAMers from deportation. Republicans should try solving problems for a change instead of blocking progress for our nation and making life more difficult for the immigrant community."

Monday, February 10, 2014

Obama Administration Announces a Relaxations of Some Restrictions on Asylees Found to Have Aided Terrorist Organizations

The Obama administration recently made it easier for people with tangential connections to terror groups to receive refugee status or asylum in the United States.

Two new exemptions to the Immigration and Nationality Act published in the Federal Register Wednesday by the Departments of Homeland Security and State mean that who provided “insignificant” or “limited” material support for terror groups will no longer be automatically denied eligibility from asylum or refugee status. The so called de minimus exception to the harsh consequences of providing material support to a foreign terrorist organization.

The rules will likely affect about 3,000 people who have pending asylum cases and an unknown additional number of people currently in the process of being deported. It will certainly help Syrian refugees who would otherwise be blocked from receiving U.S. aid by existing rules.

The new exemptions apply to “limited material support,” which a DHS spokeswoman said is defined as “material support that was insignificant in amount or provided incidentally in the course of everyday social, commercial, family or humanitarian interactions, or under significant pressure.”

DHS provided a series of examples of individuals who would have been ineligible for asylum or refugee status before the new exemptions, including business owners who unwittingly provided service to members of a terror group, aid workers who assisted members of a terror group during the aftermath of a natural disaster or civil conflict and people who had to pay a toll or tax to a terror group to pass through opposition-occupied territory.

“For instance, an owner of a restaurant who serves food to any paying customer, even though he knows some of them are members of an opposition group; or a mother or father who — as any parent would — fed and clothed their young adult child, even when they knew their child is part of a resistance movement,” the DHS spokeswoman said.

Aside from the Federal Register publication, the only public notice announcing the changes came from Sen. Patrick Leahy (D-Vt.), who has for years been championing a change in the “material support” definition.

“The existing interpretation was so broad as to be unworkable. It resulted in deserving refugees and asylees being barred from the United States for actions so tangential and minimal that no rational person would consider them supporters of terrorist activities,” Leahy said. “These changes help return our nation to its historic role as a welcoming sanctuary to the world’s most vulnerable populations.”

The DHS spokeswoman did not say how many people would be impacted by the rule change, but Leahy said tens of thousands of refugees would be helped.

Wednesday, January 8, 2014

The California TRUST Act: A Guide for Criminal Defenders, courtesy of ILRC


Tuesday, January 7, 2014

U.S. Government Tells Federal Judge They Cannot Produce the Names and Identities of All Immigration Detainees Held for More Than 6 Months

In response to a Federal Court Order in Case No. 11-Civ.-3786, ACLU v. U.S. Department of Homeland Security, federal prosecutors told the judge they can't meet a his demand that they quickly deliver documents about thousands of immigrants who've been detained nationwide for months or years as their immigration statuses are reviewed.

The office of U.S. Attorney Preet Bharara laid out the government's position to U.S. District Judge Richard M. Berman in a letter made public just before Christmas.

The letter, dated December 23, 2013, came five days after the judge criticized the government, saying it had been on notice since the American Civil Liberties Union requested the documents nearly five years ago.

The ACLU eventually filed a Freedom of Information Act lawsuit in Manhattan federal court in 2011 seeking documents from the U.S. Department of Homeland Security and U.S. Immigration and Customs Enforcement.

The ACLU questioned the practice of "prolonged immigration detention — for months, if not years — without adequate procedures in place to determine whether their detention is justified." It cited a dramatic increase in the number of immigration detainees in recent decades, noting they weren't serving criminal sentences but were being detained by the thousands to ensure they're available for removal from the country if removal is ordered and appeals are exhausted.

The judge said the government's continued refusal to produce documents had stymied efforts to reform a system in which thousands of immigrant detainees, some applicants for asylum, languish in immigration jails longer than six months.

He also attacked as "painstaking and riddled with further delay" the government's process for releasing documents, saying the government hasn't produced any documents since his Sept. 9 order to release documents and had at times claimed it would take seven years to produce 100 files.

The government, though, said in its letter it is "not feasible" to produce documents from more than 22,000 individual files as ordered but said it can produce a reliable sample of 385 files within 15 months, with rolling releases within eight weeks of a revised order.

In 2009, The Associated Press conducted a computer analysis of an Immigration and Customs Enforcement database obtained under the Freedom of Information Act, finding there were 32,000 immigrants from 177 countries detained, including more than 18,000 with no criminal convictions.

The analysis showed that nearly 10,000 had been in custody more than a month, that 400 of those with no criminal records had been locked up more than a year, that a dozen had been held for three years or more and that one man from China had been incarcerated more than five years. Many of the longest-term non-criminal detainees were asylum seekers.

The analysis was referenced in the ACLU lawsuit.

According to a 2001 U.S. Supreme Court ruling, immigrants are supposed to be deported or released within about six months. The steady increase in the number of immigrants held behind bars grew considerably after Congress passed a pair of laws in 1996 requiring immigrants who committed crimes be locked up for deportation. The numbers continued to rise after the Sept. 11, 2001, terrorist attacks and amid anti-immigrant political rhetoric.

Tuesday, November 12, 2013

Pro Bono Asylum Cases - Lawyers' Committee for Civil Rights

Last week, I received an email from the new asylum coordinator at the Lawyers' Committee for Civil Rights in San Francisco. Contained in the text of the message were the brief synopsis of the cases that need a pro bono attorney to take over the client's representation. Currently, I am swamped with work in my practice as well as the appointed criminal appellate cases I take from the Court of Appeal.

But just to give you a sampling of the horrific cases floating around in the immigration courts, refugees crying out for justice and relief, here are a few of the cases.


Honduran woman, 29, as teenager became partner to violently possessive man in his 40s who threatened to kill her if she left. She fled to Mexico, but her partner found her and took her back to Honduras, where he continued to abuse her and threatened to kill her family. In Mexico, she was also raped by a police officer. Must qualify for exception to one-year application deadline. Master Calendar hearing January 23, 2014.

Client is a Mayan Guatemalan woman, 20. Her alcoholic partner beat her even when she was pregnant, and would call her an “ugly hag.” When he got a new woman, he forced her from home. She returned to parents with her newborn son. Her partner, having joined a gang, tried to claim the son, cursing her and firing a gun at her. His gang member friends then molested her and told her that her partner had said they could kill her at any time. On their most recent encounter, her partner told her that he would not leave her alone until he killed her. Stockton resident. Must ask Immigration Judge to advance master calendar (preliminary) hearing to on or before June 8, 2014, for timely filing of asylum application.

Client is a Guatemalan survivor of domestic violence who met and married a man when she was 15-years old. He began abusing her, continuing when she became pregnant and she miscarried as a result. His family, whom they lived with, was also emotionally abusive towards her. After becoming pregnant again, she left to stay with family members but he found her and beat her for it. Her partner later left for the United States after which her father-in-law began sexually abusing her. Her partner then came back from the United States and raped her, from which she got pregnant, and continued to beat her even threatening her with a machete. He threatened her life and that of her mother. She decided to come to the United States and fears for her life, especially because her partner has also sometimes come to the United States. The asylum application is largely prepared and the case just needs to be advanced so that the client may file in court.

Client is a gay Jordanian man who comes from a fairly well-off religious family; his father would sometimes beat him when he made mistakes. In August 2013, his family found out he was gay through a Facebook message a friend posted on his wall. His father hit him on two separate occasions, threatened future punishment, and threw him out of the house. He stayed with a friend for three weeks, then raised money from friends and flew to the United States, where he had a visa from a previous work trip. He fears that his father and possibly other extended family members will further harm him if he returns, and that the police will not help him, because they do not protect gay people or involve themselves in internal family matters of honor. His deadline for an affirmative asylum application is November 4, 2014.

Client is a 30-year old Peruvian woman who endured almost a decade of abuse at the hands of her domestic partner, who would beat her and allowed his cousin to molest their 4-year old daughter. Afraid, she left moved to another town, where she was tracked down by the partner. When she went to the police to report him, they discouraged her and said they did not have paper to take a report. The client continued to be harassed by her partner, and decided to come to the United States. Her partner has told her recently that if she does not return to him, he will find her and he will kill her. Her Master Calendar hearing is scheduled for May 19, 2015, but this must be advanced to meet a filing deadline of August 4, 2014 to meet the one-year filing deadline.

Wednesday, October 9, 2013

California Governor Brown Signs TRUST Act

California Gov. Jerry Brown signed a bill on Saturday limiting the state's cooperation with federal immigration authorities, a direct indictment and rebuke of the Obama administration's enforcement policy that has led to record deportations from the state.

As the Congress stalls on immigration reform, action continues in the states, and advocates and politicians in California hope they can serve as an example of how to do it right.

“While Washington waffles on immigration, California’s forging ahead,” Brown said in a press release after signing the legislation into law. "I’m not waiting.”

The new California law, known as the Trust Act, limits the state's cooperation with Secure Communities, a federal program that allows the Department of Homeland Security to access fingerprints taken by local police, to screen detained individuals for immigration status and to request that law enforcement agencies hold them if they're found to be undocumented.

Democratic Assemblymember Tom Ammiano, the top sponsor of the Trust Act, said before Brown's signature that he hopes state actions like California's will put more pressure on Congress, rather than drawing attention to the legislative fights there.

"It makes it all the more important that California be on the lead on this," he said. "If we get the governor's signature, it will be really a benchmark. It will be one of the first states that has gone on record about this program. ... And hopefully, it will signal to D.C. that they need to start moving."

Advocates have been pushing for the Trust Act for years, and finally succeeded in getting the bill to limit Secure Communities past both houses in 2012.

But Brown vetoed last year's version of the legislation, calling the bill “fatally flawed.” Brown faulted the earlier version of the Trust Act for barring the state from detaining individuals on behalf of Immigration and Customs Enforcement even when they were charged with or convicted of significant crimes, including offenses involving child abuse, drug trafficking and gang activity. This year’s version of the Trust Act addressed those concerns by making the list of crimes classified as serious offenses more extensive.

Former Homeland Security Secretary Janet Napolitano, who recently because president of the University of California system, shifted on the Trust Act and urged Brown earlier this week to support it -- even though the Secure Communities expanded across the country under her watch.

California isn't the typical state on immigration and the population is now about 38 percent Latino, compared to the roughly 17 percent of the population made up by Latinos nationwide. California is also among the most immigrant-friendly states in the country. The legislature passed a bill last month to allow undocumented immigrants to obtain driver's licenses, following steps taken by 10 other states.

Yet California isn't the only state or locality that has at least attempted to limit the scope of Secure Communities. Massachusetts, New York, Illinois and the District of Columbia either attempted to opt-out of the program or passed laws instructing law enforcement to ignore orders to hold individuals. But no area was exempted from the program -- Secure Communities is now implemented nationwide, in 3,181 jurisdictions.

ICE spokeswoman Gillian Christensen previously declined to comment on the California legislation while it was pending, but said the agency has made identifying and removing criminal offenders its "highest priority" and has implemented reforms toward that end. ICE did not immediately respond to a request for comment on Saturday.

Supporters of the Trust Act say Secure Communities makes immigrant communities fearful of police and less likely to report crime, in case in doing so they reveal their undocumented status and get into trouble.

"This is more a law enforcement issue than an immigration issue," Rep. Zoe Lofgren (D-Calif.), who has criticized Secure Communities, recently told HuffPost in an interview. "What this will do for law enforcement in California is that it will ensure that immigrants collaborate with law enforcement."

Secure Communities -- or S-Comm, as its opponents refer to it -- isn't designed to ensnare people without criminal records who get into fender benders. Despite reforms aimed at limiting holds for non-serious offenders, a report released Tuesday by Transactional Records Access Clearinghouse at Syracuse University found that plenty of people were held even when it was against ICE policy to do so.

The program is also expensive when used on a broader basis, beyond serious criminals. Requests to detain are supposed to last 48 hours at most, but law enforcement officials sometimes keep people longer, according to reports. A report from Justice Strategies in August 2012 found that Los Angeles County was spending more than $26 million a year to hold undocumented immigrants who it would otherwise release if it weren't for ICE requests to hold them. Justice Strategies estimated that California taxpayers were spending $65 million each year to hold immigrants for ICE.

National groups opposed to comprehensive immigration reform, such as the Federation for American Immigration Reform, a national group against legalization for undocumented immigrants, urged supporters to contact California lawmakers and ask them to oppose the Trust Act. "This bill would undermine public safety in my community and impede the federal government’s ability to enforce immigration law," the group's suggested script read.

But advocates of the bill said it is a major step forward toward broader immigration reform in the U.S., and applauded its passage.