Press Release: ICOP Publishes New Report on Due Process Crisis

Release Date: May 3, 2011

For Immediate Release

Contact: Conor Gleason (NewYorkCityICOP at gmail.com), Immigration Court Observation Project

May 3, 2011 — Students from five New York City law schools today released a report that documents glaring lapses in the procedural rights afforded to immigrants facing deportation.  Fundamental Fairness: A Report on the Due Process Crisis in New York City Immigration Courts presents findings based on observations from 414 immigration hearings held in 2009 and 2010. The law students who authored the report are part of the National Lawyers Guild’s Immigration Court Observation Project (ICOP), a citywide initiative aimed at bringing greater transparency and accountability to Immigration Courts.

Through statistics and anecdotal evidence gathered during observations of individual immigrants’ public removal proceedings, the report documents the harsh reality faced by immigrants in New York City’s Immigration Courts.  One of its key findings is a persistent lack of access to adequate counsel in deportation hearings—a critical issue that was highlighted today in a colloquium convened by Judge Robert A. Katzmann’s Study Group on Immigrant Representation.  Participants included former Supreme Court Justice John Paul Stevens and a wide range of government actors, advocates, and private attorneys.

The new report also reveals the detrimental impact detention has on individuals and the overall fairness of the Immigration Court system for immigrants facing deportation. Detainees who appeared in NYC Immigration Courts recounted harrowing stories of inadequate medical care in detention, difficulties accessing counsel, and incompetent attorneys prolonging their detention or inadvertently precipitating their deportation. ICOP data indicate that many of these detained individuals were denied release on bond or offered bonds as high as $35,000.

The report also documents routine deficiencies in language access that compromised the ability of non-native English speakers to participate in their immigration cases.  Examples include one individual in removal proceedings who unknowingly waived a potential form of relief because of inadequate and incorrect interpretation.

Based on findings from the hundreds of hearings observed, the report recommends that Immigration Judges, the Department of Homeland Security, and legislators, take action to cure the due process deficiencies documented in the report. These include:

• Guaranteeing detainees access to counsel
• Minimizing the detention of immigrants by exercising discretion in taking individuals into custody and employing alternatives to physical incarceration
• Setting affordable bond for all eligible detainees
• Improving conditions of detention, including access to adequate medical care
• Ensuring adequate language access and promoting transparency and professionalism in the courtroom
• Enforcing immigrants’ rights to adequate, effective representation.

ICOP continues to observe immigration hearings at Varick Street Immigration Court and 26 Federal Plaza, and is actively working with similar groups outside of New York City to promote greater transparency and accountability in the nation’s Immigration Court system.

Notes to editors

A small group of law students founded ICOP in 2006 under the name “Detainee Working Group” as a response to chronic due process lapses in the Immigration Courts. Inspired in part by the National Lawyers Guild Legal Observers, ICOP’s mission is to promote transparency and accountability in the Immigration Courts through its observations and documentation. Currently, ICOP has expanded to include student organizers and observers from Brooklyn Law School, Cardozo School of Law, Columbia School of Law, CUNY School of Law, and New York University School of Law. Since its founding, ICOP has organized hundreds of New York-area law students to observe over one thousand hearings. In 2008, ICOP published its first report, Broken Justice: A Report on the Failures of the Court System for Immigration Detainees in New York City, documenting nearly 400 hearings observed between 2006 and 2007. For more information on ICOP, including copies of reports, visit http://www.NYCicop.wordpress.com.

ICE Begins Second Round of Deportations to Haiti During Humanitarian Crisis

April 15, 2011, New York and Miami – Today, the Immigration and Customs Enforcement (ICE) agency of the United States Department of Homeland Security resumed deportations of Haitian nationals. On a conference call this morning, U.S. officials confirmed that they have received no assurances that the 19 individuals who were deported will be treated humanely upon their arrival in Haiti. In response, the Center for Constitutional Rights, University of Miami School of Law Human Rights Clinic and Immigration Clinic, FANM/Haitian Women of Miami, Alternative Chance, and Florida Immigrant Advocacy Center issued the following statement:

This morning, the United States deported a second group of Haitian men to face jail and death in post-earthquake Haiti. In January, a 34-year-old man, Wildrick Guerrier, died only 9 days after being deported to Haiti. Guerrier and 26 other men were jailed without being provided with clean water or food and were held in a cell covered with human feces and vomit. Guerrier and other men fell ill, exhibiting cholera-like symptoms, and were refused medical care.

As acknowledged by the U.S. State Department, conditions have only worsened since the January 2010 earthquake that caused ICE to suspend deportations. Haiti is reeling under a cholera epidemic, social unrest, and unsafe and deteriorating tent camps housing over 1.2 million displaced people. Haiti also continues its practice of jailing deportees with past criminal records under life-threatening conditions.

Yet ICE unexpectedly announced in December 2010 that it was lifting the ban on deportations to Haiti for individuals with past criminal records and began rounding up Haitian community members.

Before the first plane to Haiti left on January 20, a wide range of immigrants’ rights and human rights organizations warned that deportation could be a death sentence. On January 6, our organizations petitioned the Inter-American Commission on Human Rights (IACHR) to instruct the United States to halt the deportations. On February 4, the IACHR issued an order urging the United States not to deport the Haitian petitioners to Haiti and expressing serious concern about the deportations separating families and placing people with medical conditions in life-threatening conditions.

The cholera epidemic has resulted in over a quarter of a million known cases in Haiti with 4,717 reported deaths as of March 18, 2011. Even more alarming, a new study by the University of California, San Francisco (UCSF) and Harvard Medical School, published March 16, 2011 in the journal Lancet, is predicting that there could be nearly twice the number of previously expected cases of cholera – up to 779,000 – between this March and November 2011 alone. The U.S. government claims it is working with the government of Haiti towards “safe and humane” removals. This is simply not possible given the conditions on the ground, particularly in the jails where deportees are held.

The United States has an obligation not to deport anyone to death. Our country must live up to its human rights commitments and immediately halt any and all deportations to Haiti.

We call on the Obama Administration for an immediate halt to all removals to Haiti and the release of all Haitians being held with final orders of removal.

From: http://ccrjustice.org/newsroom/press-releases/ice-begins-second-round-of-deportations-haiti-during-humanitarian-crisis

How to fix ‘massive crisis’ in immigration courts

By SHARON COHEN

AP National Writer

The mother from Cameroon came to immigration court bearing scars: She’d been imprisoned back home, she said, beaten with cables, burned with cigarettes and raped repeatedly, contracting HIV. Her husband had died behind bars; her three children she’d left behind were struggling to survive.

She was seeking asylum, hoping to remain in Los Angeles and bring her children there. They were on their own after their grandmother died, living in a bamboo hut without water or a toilet, begging for food. For years, the mother, who’d fled Cameroon, had no contact with her kids, fearing she’d jeopardize their safety. When she finally did, her oldest son – gravely ill with malaria – sent her a letter:

“Ever since you left us mum, six years now, life has become so miserable, hope God intervains,” the 20-year-old wrote. “Our greatest desire is to be beside you and … acquire the love we need from you mama.”

If the system had worked, this kind of asylum case would have been resolved promptly. But this was immigration court, where justice often moves at a glacial pace. Files were lost. Background checks delayed. Hearings scheduled at least 12 times over five years. The woman’s lawyers, fearing their fragile client had become suicidal, were so alarmed they appealed to two members of Congress – not to intervene, but to call attention to what they say is a system in desperate need of reform.

Read more: http://www.miamiherald.com/2011/04/07/v-fullstory/2155340/how-to-fix-massive-crisis-in-immigration.html#ixzz1JQdOqJmX

Immigration court: Troubled system, long waits

In this Thursday, Dec. 2, 2010 picture, Mamadou Balde from Guinea sits under a wall of West African masks in the office of his attorney, Glenn Fogle, in Atlanta. Balde was granted asylum after spending three years in an Alabama prison. A bloated immigration court system has been saddled by explosive growth, a troubled reputation and a record backlog of nearly 268,000 cases as of the end of 2010. The problems are drawing increased scrutiny of a little-seen world where justice can seem arbitrary, lives can remain in limbo for years _ and blame seems to be in abundance.
(AP Photo/David Goldman)

In this Thursday, Dec. 2, 2010 picture, Mamadou Balde of Guinea, left, is photographed in the office of his attorney, Glenn Fogle, right, in Atlanta. Balde was granted asylum after spending three years in an Alabama prison.
(AP Photo/David Goldman)

Article by SHARON COHEN

CHICAGO — Every morning, they don their black robes, take their seats and listen to the pleas of a long line of immigrants desperate to stay in America. The pace is fast, the pressure intense, the stories sometimes haunting. The work, these judges say, is exhausting:

“The volume is constant and unrelenting.’ … ‘There is not enough time to think.’ … ‘Nobody gives a damn about us!’ … ‘I know I couldn’t do this job if I were not on medication for depression or did not have access to competent psychological care myself.’ … ‘I cannot take this place anymore. What a dismal job this is!'”

These are the voices of immigration judges who determine the fate of tens of thousands of people every year — illegal border crossers, visa violators, refugees who flee China, El Salvador, Iran and other countries, each making a case to remain here.

These judges are at the heart of a bloated immigration court system saddled by explosive growth, a troubled reputation and a record backlog, according to one estimate, of nearly 268,000 cases. The problems are drawing increased scrutiny of a little-seen world where justice can seem arbitrary, lives can remain in limbo for years — and blame seems to be in abundance.

There are lawyers who accuse immigration judges of bias, stall tactics and incompetence. Judges who criticize lawyers as unprepared. Advocacy groups that say some immigrants don’t even understand the proceedings — and in extreme cases, end up unfairly deported.

“It is a maddening system,” says Chuck Roth, director of litigation at the Heartland Alliance’s National Immigrant Justice Center. “It really doesn’t get us anywhere toward justice.”

And that’s no surprise, says Laura Wytsma, a former immigration government lawyer in Los Angeles who does pro-bono work on asylum cases.

“When you take so many things …. inadequate resources, hostile judges, overly aggressive government lawyers, laws that don’t make sense, an immigration bar that generally is not the caliber of civil litigators, language barriers, poor translation,” she says, “you’ve got a system with so many broken parts, it’s a wonder it functions at all.”

Put aside the toll the system exacts on immigrants and their families. These courts, some say, are a bureaucratic disaster.

“This has nothing to do with whether you think someone should be deported or not. What this boils down to is this — if you’re going to have a court system, you have to do it right,” says Malcolm Rich, director of Chicago Appleseed Fund for Justice, a legal research and advocacy group. “By doing it wrong — the way we’re doing it now, we’re wasting tens of millions of dollars.”

Can the NY Dream Act Solve a National Immigration Nightmare?

Immigration Court is a nightmare by most accounts.  For respondents, or those forced to appear in deportation proceedings by the Department of Homeland Security, their whole future hangs in the balance and they may wait months to years to find out if they will be able to stay in the U.S. or be forcibly returned to their country of origin through deportation.  For judges, immigration court is an endless backlog of cases with complex legal issues that can take piles of documentation and hours of legal research to conclude.  A recent study by TRAC (Transactional Records Access Clearinghouse) estimated that there are 267,752 cases pending resolution in immigration courts nationally as of December 2010, an all time high.  Last year, the New York Times reported that Immigration Judges hear as many as 1,200 cases per year each (three times that of a federal judge in district court).

 

Besides the obvious problems posed by the immigration court system strained past its workable limits, the NYC Immigration Court Observation Project (ICOP) has documented further obstacles and barriers to justice present in the immigration court system: lack of adequate interpretation, excessive time that people spend detained awaiting adjudications, a total lack of accommodations for respondents who suffer from mental illnesses, and others.  Proposals to correct the serious deficiencies in the immigration court system are gaining support, as evidenced by the recent American Bar Association’s report on a recommended overhaul of these administrative courts and calls by concerned advocates and policy makers for guaranteed legal representation for anyone fighting deportation in immigration court.

 

Despite the critical importance of enacting reforms, the largest barrier to justice for immigrants in court is the lack of legal defenses to deportation.  Once DHS brings you to immigration court and charges you with deportability, there are few options to stay legally in the U.S.  Growing up here or having U.S. citizen relatives will not save the majority of people from deportation because U.S. immigration law offers little opportunity to gain legal status and punishes people greatly for time spent here without permission from the U.S. government.

 

Beginning in 2001, the Dreamers, a growing movement of undocumented youth and their advocates, have sought to implement better immigration laws by regularly introducing the Dream Act into Congress.  Each time, our national legislators have turned it down, as the Senate most recently did in December 2010.  The Dreamers don’t quit because the Dream Act would give undocumented youth the chance to transform years spent as an undocumented kid growing up in the U.S. to an adult with a future here.  Instead of a looming day in immigration court and an eventual deportation order, these youth could look forward to a U.S. college degree or service in the U.S. military, followed by a green card.   Most paths to getting a green card still depend on immigrating through a close family relative (parent, spouse, or adult sibling) and that process can take as long as twenty years if you even have a relative who can petition for you.

 

The Migration Policy Institute estimated that there are about 1.9 million youth currently in the U.S. who could benefit from the Dream Act now or upon high school graduation.   Nationally, about 65,000 students graduate from U.S. high schools every year who could potentially participate in the conditional residency program that the Dream Act would offer.

 

While the U.S. Congress delays the Dream nationally, the 135,000 Dream Act eligible youth in New York are getting a shot at access to financial aid for higher education, driver’s licenses, state work authorization, and eligibility for state health insurance.

 

The NY Dream Act, introduced by State Senators Bill Perkins as S. 4179 on March 22, 2011, cannot grant NY undocumented youth conditional residency leading to U.S. citizenship because only the federal government can make laws granting immigration status.  But it can acknowledge that a broken immigration system denies New York State the contributions of its youth, who would graduate from college and pursue their dreams here.  While the federal government currently only guarantees most undocumented youth an eventual deportation order in immigration court, the NY Dream Act can replace this dead end with a brighter future.  Illinois and California are also in the process of putting forward their own states’ versions of Dream Acts.

 

The NY Dream Act faces a long stretch before it becomes law, and even then, will have to survive certain challenges to its constitutionality similar to the challenges being brought against the “Show Me Your Papers” legislation, SB1070, in Arizona.  The NY Dream Act, like the national proposal for the DREAM Act, would also exlude some youth who do not have high school diplomas or proficiency in English, or whose criminal records would make them ineligible.

 

The point is that young people, who have grown up in the U.S. and see the limitations of the current unwieldy immigration system that favors the one-size-fits-all remedy of approximately 400,000 yearly deportations, are fighting for a new solution.   And the NY Dream Act would both propel us towards a brighter future for all New Yorkers and steer us out of the stagnant backwaters of our nation’s failing immigration policies.

 

Immigration Challenge to DOMA

Since the passage of the federal Defense of Marriage Act (DOMA) in 1996 gay and lesbians and many transgender individuals have experienced dramatic discrimination under U.S. immigration law.  One of the primary mechanisms to obtain status in the United States as a foreign national is through family ties.  Family ties are a pillar of U.S. immigration policies and chief among them are spouses of U.S. citizens and green card holders.

These family-based immigration laws have allowed married individuals to confer status on their spouse since the very founding of the U.S.—unless that is—that spouse is of the same-sex.  This discrimination is enforced by the Department of Justice, as well as the Department of Homeland Security.  DOMA too enshrines this discrimination by completely barring federal recognition of same-sex marriage.

With the Obama Administration’s announcement that it will no longer enforce DOMA, many have wondered what will become of DOMA and what are the immigration consequences of this policy reversal.  With the Speaker of the House, Mr. John Boehner vowing to defend DOMA, and with Minority Leader Pelosi’s counter-salvo requesting a funding report on the cost of defending such litigation, it’s anybody’s guess what such a defense of the bill from Congress would entail.

Meanwhile, Immigration Equality, a group that advocates on behalf of LGBT and HIV-positive immigrants and their families, has called on DHS to halt deportations of, and stop denials of individuals seeking green cards on the basis of their same-sex relationship to a US citizen or permanent resident.

Additionally, the chorus of calls for the repeal of DOMA and its harsh immigration consequences continues to grow.  Many, including Immigration Equality are vowing to challenge the law as discriminatory.

These laws are relics of imagined notions of traditional marriage and should be repealed.  The U.S. government should get out of the business of tearing loving spouses apart from each other, from their children, and from their mothers and fathers.  Just ask Judge Pregerson why.

Update: Immigration Judge Terry Bain yesterday (March 22, 2011) granted an adjournment to a Queens-based same-sex couple, Monica and Cristina.  Judge Bain’s decision will allow Monica and Cristina to pursue a marriage-based green card before USCIS, which adjudicates marriage-based I-130’s, or spousal-based petitions for green cards.

It’s unclear what will happen after the couple files an I-130 before USCIS.  USCIS may approve, deny, or hold the petition.  Of course an approval before the USCIS is sought by the couple, but seems rather unlikely. While the Obama Administration is not going to defend DOMA, it is still good law and USCIS is constitutionally bound to enforce the law.  A denial also strengthens any legal challenge to DOMA by providing a strong foundation for standing.  It’s little more than a guess what happens next, but regardless, this development is another brick out of the collapsing wall of DOMA.

Immigration Case Backlog

TRAC REPORTS: As FY 2010 Ends, Immigration Case Backlog Still Growing