News sources have widely reported that beginning in 2019, U.S. Customs and Border Protection (CBP) began expelling from the United States immigrant women who recently gave birth, as well as their U.S. citizen infants. These actions were part of the former administration’s “zero tolerance” policy, which, among other things, intentionally separated thousands of families at the border. Regardless of any right to asylum, these women were expelled from the country days after giving birth. Even though their U.S-born children would have been U.S. citizens, many mothers were not even given birth certificates for their children. Making matters worse, these women were often forced into dangerous conditions, having to sleep in shelters or on the streets in Mexico with their newborns.
An anxious mother, detained in a separate facility from her son, is informed that authorities had lost track of him. A devastated father is deported without his child. A crying child is ripped from his father’s arms and put into a cage-like metal cell. These Proskauer clients – all escaping violence in Central America – suffered those horrors not in their home countries but in the country where they sought asylum, in the United States.
Beginning in 2017 as a pilot project, the U.S. government began splitting thousands of families in an effort to deter immigration across the southern border. The practice became official in 2018 through the government’s “zero tolerance” policy which called for the detention and prosecution of all individuals – including those seeking asylum – who crossed the border anywhere other than an official port of entry.
While national outrage prompted an official end to the policy, the government did not stop, and to this day continues to separate families. In total, over 5,500 children have been separated from their parents since 2017, at least 1,100 of whom were separated after the policy officially ended. Tragically, the parents of 666 separated children still have not been found.
Off a side street in a small town in central Mexico, the shelter entrance was hard to find until we noticed a young family sitting under a tree near a gate with a worn sign welcoming “migrant brothers and sisters.” We walked through the gate into a dusty courtyard surrounded by makeshift structures in the shadow of a church, where we were greeted warmly by the shelter’s director. He explained they were currently accommodating approximately 30 migrants from Central America, and that we had just missed 120 others who left to catch the train going north. The shelter, with a staff of five and several volunteers in and out during the day, has served over 3,000 people so far this year. This is a substantial increase over last year, and most notably, they are serving an increasing number of families.
We spent last week in Mexico providing asylum presentations and individual consultations in partnership with the Institute for Women in Migration, IMUMI. The biggest takeaway from our experience was the prevalence of violence. Everyone described stories of domestic violence or gang violence (or both) in their home countries of Honduras, El Salvador, and Guatemala, and the lack of any protection from government authorities. Everyone also described the great danger they faced along their journey through Mexico, detailing robberies, assaults and even an attempted kidnapping.
Last week, Proskauer’s Chicago office, in partnership with HSBC Bank (HSBC), hosted a Deferred Action for Childhood Arrivals (DACA) clinic to assist 12 pro bono clients with preparing their DACA renewal applications.
The DACA program provides eligible, undocumented immigrants who came to the United States before the age of 16 with a renewable two-year period of deferred action from deportation, along with work authorization and the ability to apply for a social security number. While the United States government is not currently accepting DACA applications from new enrollees, individuals who are currently on deferred action status can re-apply to maintain their status.
Recent events have created an urgent need for an independent Immigration Court separate from the Department of Justice. On October 17, Proskauer hosted a panel discussion in its New York office co-sponsored by Sanctuary for Families, the New York Immigration Coalition, and the Federal Bar Association’s Immigration Law Section entitled, “Lives in the Balance: Eviscerating Asylum Protection for Victims of Gender Violence.” The speakers included The Hon. Carolyn Maloney, U.S. Representative from New York’s 12th Congressional District, the Hon. Amiena Khan, Executive Vice President, National Association of Immigration Judges, Lori Adams, Director, Immigration Intervention Project at Sanctuary for Families, and Lisa Koenig, a Partner at Fragomen.
The immigration lawyers on the panel provided different perspectives on Matter of A-B, a consequential decision from last summer where the Attorney General purported to overrule Immigration Court precedent, and thereby limit the availability of domestic violence as a basis for asylum. Aside from placing the law on asylum in flux, the AG’s action raises the important question of how a cabinet-level, executive branch official could claim the authority to reverse a court’s decision.
A recent change in immigration policy is adversely impacting a vulnerable population, and is likely to have a chilling effect on immigrants reporting crime and cooperating with law enforcement. Undocumented immigrant victims of domestic abuse, who prior to the updated guidance could freely file petitions for U Nonimmigrant status or Violence Against Women Act (VAWA) self-petitions without fear of bringing on deportation proceedings, now may suffer the very real repercussions of an unfavorable petition or application. If unsuccessful, they now face a mandated issuance of a Notice to Appear (NTA), which is the charging document that initiates removal proceedings.
In a letter dated June 28, 2018, the United States Citizenship and Immigration Services (USCIS) issued “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” Policy Memorandum 602-0050.1, in pertinent part, provides updated guidelines regarding USCIS’s issuances of NTAs in Immigration Court. The new guidelines serve to ensure conformity with Executive Order 13768, and replaced, in its entirety, Policy Memorandum 602-00550 published in November 2011.
It was unlike any courtroom I had seen before. The Immigration Judge appeared on a video screen a little blurry but larger than life. My client, an eight-year-old girl, sat next to me at a long table. This proceeding in Dilley, Texas was not open to the public but was held behind two locked doors in a trailer secured within a sprawling “family residential center” that despite its friendly name, had all the indicia of a jail.
This was an expedited removal proceeding, and I was appealing an asylum officer’s negative credible fear determination for my young client. Her mother’s appeal already had been denied so this was our last chance to prevent the two from being deported. Especially considering my client’s age, I wanted to marshal the evidence and explain why the legal standard had been met in this case. “May I be heard Your Honor?” I asked. “No, you may not,” he responded. The Judge asked my client a few questions with little follow-up and denied the appeal, wishing my client, “good luck in your home country.”
The South Texas Family Residential Center here in Dilley, Texas is surrounded by metal fencing, video cameras, and tall light poles that you can see from miles away at night. The country’s largest immigration detention facility, it sprawls 50 acres and is comprised of 2,400 beds in a series of large barracks-style trailers which look eerily similar to pictures of the Japanese-American “relocation centers” during World War II.
I met more than 25 detained women and their children here. All are from El Salvador, Honduras or Guatemala, and all but two suffered from some form of gang violence, severe domestic violence or in many cases, a combination of both. I heard stories from people who witnessed the murder of family members, and who themselves were subjected to unspeakable violent crime without protection from law enforcement.