This week we had the privilege of speaking with Michael Stanley, a professional community organizer with Manhattan Together and South Bronx Churches Sponsoring Committee (SBC), and Ray Lopez, the Director of Environmental Health Services of the Little Sisters of the Assumption Family Health Service (LSA), on the topic of pro bono lawyering for social justice in collaboration with community organizers. Manhattan Together, SBC, and LSA are nonprofit organizations and members of Metro IAF, a network of multi-faith organizations that draw on the power of person-to-person organizing to transform communities and build the local power necessary to create change on local and national levels. Continue Reading
DHS Rules Effective August 2020 Will Push Asylum Seekers Further into Poverty and Marginalization
In late June 2020, the Department of Homeland Security (DHS) announced two regulatory changes intended to deprive asylum applicants of the ability to work lawfully in the United States while they await the adjudication of their asylum applications. By increasing the obstacles asylum seekers overcome to obtain an Employment Authorization Document, commonly known as a “work permit,” the new rules endanger the health and safety of asylum seekers and their families.
The first rule change, effective August 21, 2020, eliminates the requirement that USCIS must process employment authorization applications within 30 days of receiving the application. This rule change allows USCIS to adjudicate work permit applications for an indeterminate period of time, which will inevitably result in delays. The government claims this move will deter immigrants from filing “frivolous, fraudulent, or otherwise non-meritorious [asylum] claims.” But the rule change is more likely to force asylum seekers further into poverty and informal economies, thereby making it more difficult for them to meet their basic needs. Continue Reading
Demanding Withdrawal of Proposed DHS Rule Harmful to LGBTQ and HIV-Affected Asylum Seekers
Pervasive anti-LGBTQ violence around the world causes many individuals to flee their countries of origin in search of safety. The past few years have been tremendously difficult for immigrants of all walks of life, but especially so for LGBTQ and HIV-affected asylum applicants who have fled to the United States to seek refuge from persecution and torture.
Following a steady stream of new policies, executive orders, and regulations that roll back protections for immigrant victims of violence, on June 15, 2020, the Department of Justice and the Department of Homeland Security released a Proposed Rule on Procedures for Asylum that would eliminate asylum as a viable form of relief for nearly all applicants.
The Proposed Rule upends decades of well-settled case law, unlawfully attempts to re-write sections of the Immigration and Nationality Act, and creates evidentiary hurdles so high that the vast majority of asylum applications will be denied if the Proposed Rule is adopted.
While all asylum seekers will be harmed under this Proposed Rule, the effects will be particularly devastating for those who have suffered violence due to their sexual orientation, gender identity, or HIV status.
With a timeline of less than 30 days to respond to the Proposed Rule, Proskauer Pro Bono Counsel Erin Meyer led a team in partnership with the New York City Gay and Lesbian Anti-Violence Project to research, draft, and submit a public comment letter demanding the withdrawal of the Proposed Rule in its entirety.
The Anti-Violence Project is a nonprofit organization that provides free legal services and counseling to LGBTQ and HIV-affected survivors of all forms of violence. Drawing upon our collective expertise and experiences with asylum law as it pertains to these vulnerable communities, the letter focuses on the specific aspects of the Proposed Rule that threaten to jeopardize the safety, wellbeing, and due process rights of LGBTQ and HIV-affected asylum seekers.
- According to the U.S. Department of State Country Reports on Human Rights Practices and the Human Dignity Trust, more than 70 countries around the world criminalize LGBTQ identity with penalties ranging from imprisonment to death sentences.
- Laws criminalizing LGBTQ identity not only expose LGBTQ people to the threat of arrest, imprisonment, and death, but also increase their risk of facing other forms of abuse at the hands of both state actors and civilians.
- In many countries, LGBTQ people suffer a pattern of physical, verbal, and sexual abuse, as well as severe economic deprivation resulting from discrimination in employment, housing, health care, and education.
A grant of asylum can be life-saving and liberating for LGBTQ individuals who cannot freely and safely be themselves in their home countries.
The Proposed Rule threatens to force LGBTQ and HIV-affected immigrants to return to these dangerous conditions in their home countries by, among other things:
- drastically narrowing the definitions of “persecution” and “political opinion,”
- imposing a list of 12 so-called “discretionary” factors that would mandate denial of asylum claims, and
- removing a number of critical due process protections.
Of particular relevance to LGBTQ asylum seekers, the Proposed Rule refuses to recognize that laws criminalizing LGBTQ identity are inherently persecutory, even though the U.S. Supreme Court struck down as unconstitutional such laws when they existed in the U.S. prior to 2003 on the basis that laws criminalizing same-sex relationships violate human rights and personal liberties.
Laws criminalizing LGBTQ identity are persecutory, even in the absence of prosecution, because these laws 1) forcibly closet LGBTQ individuals – which is itself a form of persecution, 2) enable government actors and civilians to harm LGBTQ people with impunity, and 3) prevent LGBTQ people from seeking protection from harm, particularly where the harm is on account of their LGBTQ identity.
The Proposed Rule would require LGBTQ asylum seekers to prove that persecutory laws have been or would be applied to them personally, a requirement that unreasonably expects that LGBTQ immigrants should expose themselves to the risk of arrest and prosecution before they can obtain asylum.
The Proposed Rule is by no means the first immigration law in the U.S. to target LGBTQ immigrants for exclusion. Laws dating back to 1917 denied LGBTQ immigrants admission to the U.S. on the basis that “homosexuals” were “persons of constitutional psychopathic inferiority.” This bar against LGBTQ immigrants was not lifted until 1990.
Similarly, HIV-affected immigrants were banned from entering the U.S. from 1993 until as recently as 2010. In closing the door once again on many LGBTQ and HIV-affected immigrants, the Proposed Rule threatens a return to this shameful time in U.S. history.
Supported with legal precedent, social science literature, and the lived experiences of past clients, the public comment letter filed on July 14, 2020 makes a clear case for rescinding the Proposed Rule in its entirety.
To access the public comment letter in full, click here.
Our pro bono team included Pro Bono Counsel Erin Meyer, Litigation Associate Bryant Wright, Pro Bono Paralegal Alex Volpicello, Litigation Project Assistant Tori Klevan, and Pro Bono Intern Jennifer Qu, in collaboration with Lauren DesRosiers, an Equal Justice Fellow co-sponsored by Proskauer, at the Anti-Violence Project.
Educational Institutions Take on ICE Directive Targeting International Students
On July 13, 2020, Proskauer filed an amicus brief on behalf of 15 educational institutions in support of a preliminary injunction sought by Harvard University and MIT in the District of Massachusetts against enforcement of a new policy directive by the U.S. Immigrations and Custom Enforcement agency (ICE). The ICE directive seeks to make the availability of international study in the United States dependent upon whether international students attend class in person notwithstanding the worldwide pandemic.
Background
ICE issued the directive on June 6, 2020, requiring international students enrolled in U.S. schools for fall 2020 on F-1 visas to attend in-person courses at their schools if they wished to retain their visa. In the midst of the COVID-19 pandemic, the directive demands that such international students either transfer to a school with physical instruction (even while many schools have made the public health decision to offer online courses only) and subject themselves, school faculty, staff, and other students, to an increased risk of illness – or be forced to leave the country. The directive also requires schools, who relied on earlier guidance from ICE that such international students may attend online classes and retain their F-1 visa status, to redesign their educational plans and practices for the coming school year in a matter of weeks, when the process ordinarily takes months. Academic institutions across the country immediately responded to ICE’s directive, voicing strong opposition – in fact, two days later, Harvard and MIT filed a lawsuit against ICE and the U.S. Department of Homeland Security in the District of Massachusetts seeking a preliminary injunction against the directive.
The directive is an arbitrary and capricious change in policy. In March 2020, given COVID-19, ICE exempted international students with F-1 visas from course requirements that required them to attend in person. This exemption was to remain in effect “for the duration of the emergency.” In reliance on this exemption, institutions expected that they would have enough time to create a plan for the academic year 2020-2021 without the fear of losing students. If the directive goes forward, that would no longer be the case.
Our Amicus Brief
The filing of this amicus brief comes at a crucial time, as the directive requires schools to submit an “operational change plan” explaining the format in which they intend to teach students in the upcoming semester in a matter of weeks – a process that ordinarily takes months, even when the country is not in the middle of a public health emergency.
The Proskauer brief emphasizes this unreasonable expectation, as well as ICE’s failure to abide by procedure or to provide any explanation for the change in its policy, as it is required to do. Importantly, Proskauer points out that the directive improperly dictates education policy and puts international students at unnecessary additional risk of exposure to COVID-19 while completely disregarding any alternatives even for immunocompromised students. The brief also underscores the significant harm the directive will have on those students whose home countries have closed their borders, leaving the students effectively displaced.
Proskauer filed the brief on behalf of a number of educational institutions, including New York University, University of Rochester, Icahn School of Medicine at Mount Sinai, Glendale Community College, Cabrillo College, The Catholic University of America, San Diego Community College District, The Cooper Union for the Advancement of Science & Art, Rider University, Santa Rosa Junior College, The Art Center College of Design, The Coast Community College District, The South California Institute of Architecture, The South Orange County Community College District, and the Manhattan School of Music.
The Proskauer team, which was led by Joseph O’Keefe, included myself (Om V. Alladi), Will Dalsen, and Hena Vora.
Celebrating Diversity and Inclusion with Adopt-A-School Students
Last month, we concluded the sixth year of our Adopt-a-School program, Proskauer’s signature education initiative that provides career and college readiness to high-achieving, low-income high school students across the country, with a panel discussion focusing on diversity and inclusion in college and the workplace. We planned carefully to facilitate a remote session with the same level of educational, interactive conversation that drives our in-person monthly workshops. We gathered around our computers at home for our first-ever virtual meeting with the students who were finishing up their junior year at our five partner high schools. Even with the challenge of connecting remotely, our final session brought us together beyond what we could imagine.
Our discussion featured panelists with various job roles across the Firm, all from diverse backgrounds: manager of client operations Gil Desroches, associate Winnie Ma, manager of diversity and inclusion Courtney Paul, associate Hena Vora and associate Bryant Wright, moderated by associate director of CSR Wendy Dessy. The panel discussion centered on the topic of diversity and inclusion at college and in the workplace, providing the students with a thought-provoking conversation at what seemed to be exactly the right time. Continue Reading
UN Working Group on Arbitrary Detention Declares Detention of Sri Lankan Author Violated International Law
Working alongside Freedom Now, a nonprofit organization dedicated to advocacy for prisoners of conscience around the world, Proskauer obtained a victory before the United Nations Working Group on Arbitrary Detention (the “Working Group”) for our client, Shakthika Sathkumara, an award-winning author who had been detained by Sri Lankan authorities for the publication of a fictional short story.
Our petition to the Working Group alleged that Mr. Sathkumara’s detention was arbitrary and therefore impermissible under international law. As such, we requested that the Working Group direct the Sri Lankan government to cease its prosecution of Mr. Sathkumara’s case and end all restrictions imposed upon Mr. Sathkumara’s freedom of movement. Continue Reading
Pro Bono Spotlight: Shanice Smith-Banks
Earlier this month, justices of the Louisiana Supreme Court took their places one at a time as the proceedings began, just like they have done over the past 200 years, but this court appearance was a little different. For the first time in its history, the Court heard arguments over Zoom. And while many seasoned litigators go their entire careers without a single argument before their state’s highest court, first up that day was Shanice Smith-Banks who had just graduated from law school, and who will be starting her career at Proskauer’s New Orleans office in the fall.
Shanice credits the criminal defense clinic at Loyola University New Orleans College of Law with teaching her more than any other class. Not only did she read cases but she analyzed legal issues while working directly with and advocating for clients. She wrote briefs, mastered all kinds of procedures and rules, and appeared in court on a number of different matters. Not only did she gain valuable hands-on experience, but she was able to learn about the criminal justice system up close, observing that defendants in criminal court were disproportionately black and how public defenders were forced to juggle overwhelming caseloads. But even as she was struck by deep flaws in the system, she left the clinic experience with hope. Continue Reading
