asylum seekers

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On May 7, 2018, the United States implemented the “zero tolerance” family separation policy, directing immigration authorities to systematically separate children from their parents at the border, a practice that had been ongoing as early as November 2017.  The stated purpose of this policy was to deter future migrants from attempting to cross the border, including migrants seeking asylum in the United States fleeing violence or persecution in their home countries.  Although the government formally ended the policy in June 2018 following widespread public outcry, many hundreds of children remain separated from their parents.  To address this problem, on February 2, 2021, President Biden signed an Executive Order in an effort to reunite children separated from their families at the United States-Mexico border.  Numerous nonprofit agencies and law firms, including Proskauer, have stepped forward to help victims of family separation obtain humanitarian parole and become reunited with their families.

In 2014, I had the privilege of representing two extraordinary young asylum seekers who had fled from Macedonia, where, because they are a gay couple, they had suffered extreme homophobic violence and sexual abuse at the hands of civilians and police officers.  In 2021, I had the honor of helping them become U.S. citizens.

In reflecting on my clients’ seven-year journey to United States citizenship, I am reminded of how much has changed, but also how much has unfortunately remained the same and how far we have yet to go in the pursuit of LGBTQ human rights both at home and abroad.

The first of my two Macedonian clients arrived in the U.S. in 2012, and the second client joined him here in May 2013, just one month before the U.S. Supreme Court’s landmark decision in United States v. Windsor, 570 U.S. 744 (2013).  In Windsor, the U.S. Supreme Court declared unconstitutional Section 3 of the federal Defense of Marriage Act (“DOMA”), through which Congress had sought to define “marriage” and “spouse” in more than 1,000 federal laws and federal regulations in a way that excluded same-sex spouses, thereby depriving them of the benefits that would come with federal recognition of their marriages and imposing “a disadvantage, a separate status, and so a stigma upon all who enter same-sex marriages.”  Id. at 770.  The Supreme Court found that DOMA deprived gay and lesbian married couples of equal liberty under the Fifth Amendment because it interfered with the equal dignity of marriages under State laws recognizing marriage between same-sex spouses.

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.

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…

This week we had the privilege of speaking with Catherine Cole, the Executive Director of Grannies Respond, about the impact the “Grannies” have made through their efforts to advance immigrants’ rights, and how Proskauer’s pro bono work has supported the Grannies in their mission.

Grannies Respond / Abuelas Responden, Inc. is a grassroots movement and nonprofit organization that supports immigrants seeking asylum and safety in the United States.  What inspired Grannies Respond to take on this mission?

In July 2018, the U.S. government’s separation of children from their families at the southern border broke many hearts.  Children as young as five months old were taken from the parents who had brought them here to escape life-threatening conditions in their home countries and to seek asylum.  Many people watched the news of the separations and felt helpless, but Dan Aymar-Blair, the creator of Grannies Respond, was discussing the separations at the border with friends and said “why don’t we put a bunch of grannies on a bus and go down there?”  Grannies are the heart of the family and would never stand for separations.  For our purposes, you don’t have to be a grandmother to be a “grannie” – we welcome everyone who supports the cause of immigrants’ rights. 

When I volunteered in Mexico last spring with two Proskauer colleagues alongside the Institute for Women in Migration (IMUMI), I witnessed a growing humanitarian crisis. The U.S. “Remain in Mexico” Policy – officially called the Migrant Protection Protocols (MPP) – requires asylum seekers at the southern border to wait in Mexico for the duration of their U.S. immigration proceedings, a requirement that puts thousands of people in danger. A report issued last week by Human Rights First confirms the danger by detailing current conditions faced by the more than 60,000 migrants now waiting in Mexico. In particular, the report finds:

Last week, Proskauer — along with co-counsel Democracy Forward, and the Catholic Legal Immigration Network, Inc. — filed a complaint on behalf of seven asylum seekers, their minor children and the legal services organization RAICES in the U.S. District Court for the District of Columbia, claiming that several current immigration directives impede access to counsel for asylum seekers fleeing persecution.

A credible fear interview is the first critical step for immigrants claiming asylum who have been placed in expedited removal proceedings.  Accordingly, an asylum seeker’s case for refuge in the United States turns on the effective presentation of their asylum claim at this important interview.

The asylum directives challenged in this lawsuit impact procedures designed to ensure that asylum seekers understand their rights and have the opportunity to adequately consult with counsel prior to their credible fear interview.  Specifically, the directives:

The families and children migrating from Central America have suffered terrible traumatic experiences, and a recent report by Physicians for Human Rights (PHR), a non-profit advocacy group, addresses the serious, long-term medical consequences of this trauma. These important findings provide compelling support for more humane immigration policies, and inform best practices for lawyers working with immigration clients.

Trauma Suffered by Young Migrants

Multiple studies link trauma to long-term negative health outcomes, including chronic disease, impaired cognitive development, and mental health conditions. With analysis by medical school faculty and students from Weill Cornell Center for Human Rights, the report is significant for its sole focus on child asylum seekers. Out of the 183 children in the study, nearly 80% experienced direct physical violence, 71% experienced threats of violence or death, 59% witnessed acts of violence, and almost 20% experienced repeated sexual violence or exploitation. Sixty percent of the children experienced some form of gang violence, and 47% experienced violence perpetrated by family members. A constant theme among the children was the lack of protection from law enforcement in their home countries. (Eighty-nine percent were from El Salvador, Guatemala, and Honduras.)  Many also reported traumatic experiences during transit to the U.S. through dangerous terrain, with inadequate food or water, where they remained vulnerable to continued acts of violence.