Lawrence Hurley, Andrew Chung
The U.S. Supreme Court on Tuesday curbed the ability of immigrants held in long-term detention during deportation proceedings to argue for their release in a ruling in sync with President Donald Trump’s get-tough approach toward immigration.
The court’s conservative justices carried the day in the 5-3 decision that overturned a lower court’s ruling that required that immigrants held by the U.S. government awaiting the outcome of deportation proceedings get a bond hearing after six months of detention to seek their release.
The ruling could lead to indefinite detentions of certain classes of immigrants, including some with legal status who the government wants to deport.
The court’s five conservatives were in the majority in the ruling written by Justice Samuel Alito. Three liberals dissented, including Justice Stephen Breyer, who sharply criticized the decision. Another liberal, Justice Elena Kagan, did not participate.
Class action litigation brought by the American Civil Liberties Union challenged the government’s practice of placing immigrants facing deportation proceedings in detention for months or years without being able to argue for release.
Breyer said that forbidding bail would likely violate the U.S. Constitution’s guarantee of due process under the law. Breyer said he doubted the U.S. Congress, in crafting the immigration provisions at issue, would have wanted to put thousands of people at risk of lengthy confinement without any hope of bail.
“We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have ‘certain unalienable Rights,’ and that among them is the right to ‘Liberty,'” Breyer wrote.
But Alito said that these immigration law provisions cannot be interpreted to limit the length of detention. He called Breyer’s view of the statutes “utterly implausible.”
The case assumed added importance in light of the Trump administration’s decision to ramp up immigration enforcement, with growing numbers of people likely to end up in detention awaiting deportation.
The court threw out a 2015 decision by the San Francisco-based 9th U.S. Circuit Court of Appeals that the government must provide bond hearings to gauge danger and flight risk when detention exceeds six months, and every six months after that. Former President Barack Obama’s Justice Department had challenged that ruling. The Trump administration took up the appeal.
Justice Department spokesman Devin O‘Malley said the 9th Circuit’s ruling had resulted in unnecessary bond hearings, adding to a backlog in the immigration court system.
“We are aggressively working to implement common sense reforms to reduce that backlog, and today’s Supreme Court decision ensures that immigration judges in the Ninth Circuit can focus their valuable docket time on matters actually required by law,” O‘Malley said.
The justices sent the case back to the 9th Circuit to consider the question of whether the Constitution requires bond hearings for detained immigrants.
The ACLU said it looks forward to arguing the constitutional questions in lower courts. “The Trump administration is trying to expand immigration detention to record-breaking levels as part of its crackdown on immigrant communities,” ACLU attorney Ahilan Arulanantham said.
There are roughly 36,000 immigrants held in detention in the United States on any given day, and the ACLU estimates that about 10 to 20 percent have been detained at least six months.
Those suing included immigrants who were held at the border when seeking illegal entry as well as others, including lawful permanent residents who hold so-called green cards, who have been convicted of crimes.
The lead plaintiff was Alejandro Rodriguez, a legal immigrant from Mexico living in California who was brought to the United States as a baby. He was working as a dental assistant when he was detained for three years without a hearing after being placed in deportation proceedings based on two non-violent convictions, joyriding and misdemeanor drug possession.
Although Rodriguez was released eventually, the case brought on his behalf continued.
In dissent, Breyer said that asylum seekers or non-citizens who arrive at the U.S. border still have due process rights.
“We cannot here engage in this legal fiction,” Breyer wrote.
“Whatever the fiction, would the Constitution leave the Government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States?”
Breyer added, “No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.”
This marked the second time the high court considered the case. It ordered a new round of arguments after Trump’s conservative appointee Neil Gorsuch joined the bench last year.
Published on Reuters on February 27, 2018
By Mallory Moench
Asylum-seeker Aboubacar Soumah won the right to a bond hearing and a chance to be released from immigration detention two months ago. But he is still behind bars in upstate New York because he can’t afford the $15,000 cash bond set by the immigration judge.
Soumah has only $59 to his name. With no family in the U.S. to help support him, his only way to raise funds is the $1 a day he earns by cleaning tables in Batavia Federal Detention Center where he is locked up.
The asylum-seeker, who fled persecution in Guinea, has been in detention since he arrived across the southern border and presented himself for asylum in July. A psychiatrist diagnosed him with depression and post-traumatic stress disorder, but he has no way to receive proper treatment until he’s released.
Lawyers from the New York Civil Liberties Union (NYCLU) sued the federal government last year for unlawfully denying parole and bond hearings to asylum-seekers in Batavia. They won the case in late November and a federal judge ordered the government to re-adjudicate parole or have their first bond hearing after being held in detention for more than six months.
Thanks to that ruling, nine asylum-seekers have been released on parole since then and another 17 received bond hearings. But the amounts set are often well beyond the ability of the asylum-seekers to pay: In eight cases, bond was set at $15,000; others range from $5,000 to $12,000.
Thirteen detainees have been able to make bail through crowdfunding from friends and family or loans from bail-bond companies. But Soumah is one of at least four detainees who can’t afford to pay at all.
In January, NYCLU filed a motion to challenge how the federal judge’s November ruling was being implemented – with bonds set so high that some asylum-seekers are still detained. NYCLU argued that immigration judges failed to consider whether asylum-seekers could pay the bond, and that detainees shouldn’t remain behind bars just because they’re poor.
“Most of these people have hardly a penny to their name when they fled persecution in their home countries and came to the U.S.," said NYCLU attorney Aadhithi Padmanabhan. "It’s going to be very difficult and in some cases impossible to collect thousands of dollars. There might as well be millions of dollars."
“They are being jailed because of their poverty," she said.
Detained immigrants usually have bond set by the Department of Homeland Security, but asylum-seekers are an exception. Instead, after six months in detention they can get bond hearings before judges in immigration court, which is overseen by the Department of Justice Executive Office for Immigration Review.
A spokesperson for the department said that these judges adjudicate bond on a case-by-case basis. They don’t grant bond if “the alien is a danger to the public or national security” and set an amount that is “required to compel the alien’s presence at future hearings.”
Immigration bond is usually higher than criminal bond and always has to be paid in cash. The law calls for bond to be set at a minimum of $1,500, but it’s often much more. The national average for immigration bonds tripled over the past two decades, according to data from Syracuse University’s Transactional Records Access Clearinghouse (TRAC).
Civil rights groups have sued the federal government multiple times over detained immigrants’ right to win release on an affordable bond. A federal judge ruled in 2015 that immigrants held longer than six months in detention should receive a bond hearing, but it doesn’t always happen.
Andrea Sáenz, supervising immigration attorney at Brooklyn Defender Services, said she and other lawyers in New York City filed at least 50 petitions suing the government to give detained asylum-seekers bond hearings in 2017.
The judge should grant bond unless the government can prove they pose a danger to the community or may run away. Sarah Deri Oshiro, head immigration attorney at Bronx Defenders, explained that if the government can’t prove either condition with clear and convincing evidence but still denies bond, “the bond-seeker’s constitutional rights have been violated.”
But just getting bond doesn’t address whether someone can afford to pay it. Last year, the U.S. District Court for the Southern District of New York ruled that an immigration judge should have considered whether a Haitian asylum seeker could afford bond when setting the amount. Not all judges are required to follow this decision, but NYCLU attorneys argue that they should at Batavia.
“The extremely excessive bond amounts at Batavia not only keep people detained needlessly, but to the extent that they are able to obtain release, they do so at extreme personal cost to them and to their families,” said NYCLU attorney Paige Austin.
Mamadou is a 28-year-old asylum-seeker who prefers to be identified by his first name only because his asylum case is still pending. He was detained at Batavia for 14 months after fleeing ethnic and political persecution in Guinea.
“Sometimes I thought, one year in detention when all I ask for is protection, and I would cry and think about that,” Mamadou said. While in detention, he developed an acute stomach condition that doctors said required an operation, but he was too afraid to have it done because, he said, he didn’t want to die before he saw his family again.
After NYCLU’s successful lawsuit, Mamadou received a bond hearing on Dec. 29, 2017 – the same day as the hearing about his asylum case. He said he was excited but nervous. Some of his fellow detainees had their bonds set as high as $15,000 and Mamadou knew his friend helping him make the payment could never afford that amount.
With pleading from his volunteer attorney, the judge set Mamadou’s bond at $5,000. Mamadou was released from detention on Jan. 2.
“It’s unforgettable for me to have been freed,” Mamadou said. “My friends and family give me everything I need, they’re always giving me food and if I need money for anything. I can’t even eat all the food they’re giving to me. They say, I know you suffered, but now you’re home.”
Families and friends bear the brunt of paying thousands of dollars to get a loved one out of detention. They often turn to bail bond companies, even though many have been exposed for exploitative practices such as charging immigrants up to $400 a month to rent ankle trackers. Most attorneys warn immigrants against using these companies, but sometimes they’re the only options.
One detainee in Batavia decided to use a bail bond company to get out of detention. Austin said she understood his decision, but lamented that he’s now “in bondage”, as she put it – possibly for years before his asylum case is decided.
To avoid using these companies, community organizations try to raise bond funds. Jamila Hammami, director of the Queer Detainee Empowerment Project, estimates she’s raised $40,000 in bail for at least 10 immigrants since 2014.
The average amount was $7,500, although she remembered one gay man from Honduras whose bond was set at $15,000. Hammami said that if she’s not able to raise enough money through personal connections or online platforms, immigrants remain detained until they are granted asylum or deported.
But many asylum-seekers like Soumah, who fled persecution in their home countries, still lack community or family support in the U.S. Until the judge grants him relief, he will remain behind bars, too poor to be free.
Published on WNYC on February 7, 2018
The US should renew its grant of Temporary Protected Status (TPS) to almost 7,000 Syrians living in the United States, Human Rights Watch said today. Anyone forced to return to Syria would face grave risks from the widespread conflict and violations of human rights and international humanitarian law there.
The Department of Homeland Security (DHS) is expected to announce a decision by the end of January 2018 about whether to extend existing TPS for Syrians.
“The brutality and violence that originally motivated the US to provide Temporary Protected Status for Syrians have not abated,” said Sarah Margon, Washington director at Human Rights Watch. “Multiple armed groups, including the Syrian government, are targeting and indiscriminately attacking civilians in Syria day after day, and it is not safe for people to return there.”
More than 400,000 people have died because of the Syrian conflict since 2011, according to the World Bank, with 5 million seeking refuge abroad and more than 6 million displaced internally, according to UN agencies. As of September 2017, the UN also estimated that 420,000 people were still living in besieged areas.
The Syrian government and non-state armed groups have committed a host of violations, including attacking civilians and civilian infrastructure, using prohibited chemical weapons, employing starvation as a war tactic, and using civilians as human shields. Many armed groups have long used arbitrary detention, enforced disappearances, and ill-treatment against civilians in Syria.
The US first granted TPS to Syrians already in the US in 2012, finding that “extraordinary and temporary conditions” in Syria prevented “nationals from returning in safety.” The Homeland Security secretary revised the classification in 2016, making Syrians who had continually lived in the US since at least August 1 of that year eligible to register.
The US government should not only keep the program in place for Syrians who currently receive its protection, but it should expand protected status to include people who arrived after the current August 2016 cutoff date. This would make more people facing exactly the same dangers eligible for blanket protection from return to Syria. The UN Refugee Agency (UNHCR) has called on all governments not to forcibly return anyone to Syria.
“As a practical matter, Temporary Protected Status would ensure that no eligible Syrian is returned to face threats to their safety from the ongoing armed conflict in their country,” Margon said. “With mounting pressure on Syrian refugees in Lebanon, Jordan, and Turkey to return, terminating the protection in the United States would send a dangerous signal that could affect far larger numbers of Syrians at serious risk of forced return.”
Published on HRW on January 24, 2018
By RICK GLADSTONE
The leaders of 21 global aid organizations asked the Trump administration on Wednesday to restore withheld funds to the United Nations agency that helps Palestinians, calling the funding cut a “dangerous and striking departure” from a history of American generosity.
In a letter to top administration officials, the groups’ leaders expressed concern that the White House’s decision to withhold more than half of the planned contribution to the agency, if maintained, would disrupt Palestinian access to food, health care, education “and other critical support to vulnerable populations.”
The administration announced last week that it was withholding $65 million from a scheduled payment of $125 million to the United Nations Relief and Works Agency for Palestine Refugees in the Near East, which aids more than five million Palestinians in refugee camps across the Middle East.
The announcement came after Palestinian leaders had accused the administration of blatantly siding with Israel in the protracted Israeli-Palestinian conflict and dimming prospects for a Palestinian state that would exist side by side with Israel.
Administration officials said that restoration of the aid depended partly on the Palestinian aid agency’s making unspecified reforms, and that withholding the funds had not been punitive.
Many Palestinians and their supporters disputed that assertion. They pointed to statements by administration officials, including a Jan. 2 Twitter message by President Trump, who complained that “we pay the Palestinians HUNDREDS OF MILLIONS OF DOLLARS a year and get no appreciation or respect.”
United Nations officials said the administration’s move had created the worst financial crisis in the Palestinian aid agency’s seven-decade history.
In their letter, the leaders of the aid groups said: “We are particularly alarmed that this decision impacting humanitarian aid to civilians is not based on any assessment of need, but rather designed both to punish Palestinian political leaders and to force political concessions from them.
“This is simply unacceptable as a rationale for denying civilians humanitarian assistance, and a dangerous and striking departure from U.S. policy on international humanitarian assistance,” the letter stated.
It was signed by top executives of prominent nongovernmental relief and advocacy organizations, including Save the Children, Oxfam America, CARE USA, Refugees International and the International Rescue Committee.
The letter was sent to Secretary of State Rex W. Tillerson, Secretary of Defense Jim Mattis, the American ambassador to the United Nations, Nikki R. Haley, and Mr. Trump’s national security adviser, Lt. Gen. H. R. McMaster.
Eric P. Schwartz, the president of Refugees International, said in a telephone interview that the letter was the outcome of what he described as “the deep reaction by the N.G.O. community to a very bad decision.”
Mr. Schwartz, a former assistant secretary of state for population, refugees and migration under the Obama administration, said the Palestinian aid decision had broken with decades of American policy.
He pointed to President Ronald Reagan’s 1984 assertion that “a hungry child knows no politics” in deciding to help famine victims in Ethiopia.
The United Nations Relief and Works Agency, known by the acronym Unrwa, was created in 1949 to aid Palestinians who fled or were expelled from their homes during the Arab-Israeli war of 1948.
Originally meant to be a temporary support for roughly one million Palestinian refugees until a political solution was reached, the agency evolved into a sprawling organization for them and their descendants, who are also classified as refugees.
Functioning almost like a government in some places, the agency is widely regarded as a critical lifeline for many Palestinians. But it also has been accused of perpetuating what critics call a culture of dependency among a population that has quintupled in size.
Many Israelis regard the agency as politically biased and inherently hostile to Israel, an assertion United Nations officials deny.
Mr. Schwartz defended the agency. “Given the pressures and challenges confronting Unrwa, a fair assessment of their work would conclude they are providing valuable services under extremely difficult conditions,” he said.
Published on The NY Times on January 24, 2018
By Maria Sacchetti, Patricia Sullivan and Ed O'Keefe
The Trump administration vowed Wednesday to fight a federal injunction that temporarily blocked its plans to rescind work permits for young undocumented immigrants, insisting that Congress must find a solution for those known as “dreamers.”
On Capitol Hill, lawmakers said a bipartisan proposal could come as early as Thursday or Friday, but such legislation would probably face fierce resistance from progressives opposed to ceding any ground on immigration rights and conservatives who feel the same on security issues.
President Trump has made cracking down on illegal immigration a top priority, a stance that was underlined Wednesday with a U.S. Immigration and Customs Enforcement search for undocumented workers at dozens of 7-Eleven stores nationwide. The agency said it was the largest targeting of a single employer since Trump took office.
A key part of Trump’s crackdown is the decision to end the Obama-era Deferred Action for Childhood Arrivals program, which the president and his supporters called an egregious example of executive overreach. That effort was upended late Tuesday, when U.S. District Judge William Alsup in San Francisco said the nearly 690,000 DACA recipients must retain their work permits and protection from deportation while a lawsuit challenging the decision to end the program moves forward.
Dreamers struggled to make sense of the ruling on Wednesday. Initially, they celebrated the injunction in a blitz of phone calls and text messages. But it quickly became clear that this was not the victory they wanted.
Lawyers said the lawsuit and perhaps the injunction could drag on for years, and could also be appealed by the Justice Department, which spokesman Devin O’Malley said “looks forward to vindicating its position in further litigation.” The Department of Homeland Security did not say whether it would begin renewing work permits, despite an order from Alsup to do so, and provided no guidance on its website, which includes a message in red letters: “DACA is ending.”
The ruling offers “a temporary window without a permanent solution,” said Missael Garcia, 27, a DACA recipient who works as a chef at a Baltimore restaurant and has been saving and building up credit with hopes of opening his own restaurant someday. “This is going to be a continual cycle of protests, marches, civil disobedience.”
Leezia Dhalla, 28, came to the United States from Canada at the age of 6. Without legal status, she took out $100,000 in student loans to get through college. Her DACA protections are set to expire May 4, and she’s worried that she won’t be able to renew her apartment lease or fulfill her dreams of attending law school.
“It’s disconcerting because it’s so chaotic,” Dhalla said. “It feels like an emotional roller coaster to wake up and not have answers about my future.”
Alsup said the government must continue to renew DACA and work authorizations for immigrants who had the status when the Trump administration ended the program on Sept. 5, though he said the federal government could deny them the right to return to the United States if they travel abroad. He also said the government did not have to accept new applicants.
The ruling said California and a host of other plaintiffs had demonstrated that they were likely to succeed on their claims that the Trump administration’s rescission of the nearly six-year-old program was “capricious,” and that the states, tech companies and other employers — and immigrants themselves — had much to lose in the meantime if the administration was wrong.
On the campaign trail, Trump had called the program an “illegal amnesty” and promised to swiftly eliminate it. But he let it linger for months after taking office, and said he’d treat dreamers with “love” and try to hammer out a deal with Congress.
In September, facing legal action from Republican attorneys general who oppose the program, Trump’s administration announced it would phase out DACA starting March 5, when an estimated 1,000 dreamers a day would lose their work permits and protection from deportation. Trump has said repeatedly since then that Congress must pass a law to protect dreamers if they are to be allowed to stay.
“An issue of this magnitude must go through the normal legislative process,” White House spokeswoman Sarah Huckabee Sanders reiterated Wednesday. “President Trump is committed to the rule of law and will work with members of both parties to reach a permanent solution that corrects the unconstitutional actions taken by the last administration.”
Top Democrats and Republicans met again Wednesday to begin sorting through the details of an agreement that would resolve the fate of people protected by DACA; bolster border security; make changes in legal, family-based migration; and end or revamp the diversity lottery system.
Senate Minority Leader Charles E. Schumer (D-N.Y.) tweeted that a solution to DACA must be part of any federal budget deal, an effort to stoke negotiations in coming days. On Twitter, he said the court ruling “in no way diminishes the urgency of resolving the DACA issue. On this, we agree with @WhiteHouse, who says the ruling doesn’t do anything to reduce Congress’ obligation.”
Sen. John Cornyn (R-Tex.), a lead broker on immigration policy, agreed that the ruling “doesn’t change the need for us to act, and so we’re going forward.” But later he told reporters that he didn’t think the issue would be resolved by a Jan. 19 spending deadline because there still isn’t an actual agreement on spending levels.
House Minority Whip Steny H. Hoyer (D-Md.), who joined Cornyn at the White House on Tuesday for a highly unusual televised meeting with Trump, recalled the president asking lawmakers, “Is there anybody here not for taking care of the DACA recipients?”
“Not one of them said they were against that,” Hoyer said. “Everyone agreed yes, we need to take care of DACA-protected individuals, we need to take care of them now.”
Sen. Richard J. Durbin (D-Ill.) hosted Republican senators in his office to follow up on the meeting with Trump. The group has been in discussions for several months in hopes of brokering a deal that could earn the 60 votes needed to overcome procedural hurdles in the closely divided Senate.
The fate of dreamers is “hanging out there with great uncertainty,” Durbin told reporters. “Whether it’s by the president’s announcement or a court decision, it’s time for us to meet the president’s challenge and to create a law that solves this problem.”
But any bipartisan agreement could be derailed by lawmakers who oppose any concessions on immigration rights or security issues.
“This particular issue is one that can divide members in the House and Senate from the president if he embraces a deal that is considered too lenient on the immigration issue,” warned Rep. Mark Meadows (R-N.C.), chairman of the conservative House Freedom Caucus.
Rep. Filemon Vela (D-Tex.), a strident critic of Trump’s calls for a border wall, said many lawmakers are frustrated by the scope of the negotiations. “There’s so many moving parts on this, it’s even hard to tell who’s really doing the negotiating,” he said. “It’s a mess.”
The White House called the injunction “outrageous” and the Justice Department has said it will appeal.
Kari Hong, an assistant professor at Boston College Law School who supervises a law clinic in the 9th Circuit, said Alsup’s ruling signaled the Trump administration couldn’t rescind DACA without a solid reason.
“The courts said you can’t just change your policy, you have to have facts and you have to have a reason,” Hong said.
Immigration lawyers also differed on whether dreamers should renew their status now. Some suggested that immigrants file an application to get their foot in the door while the judge’s ruling is pending. But others said they risked losing the hefty application fee and worried that some immigrants would fall prey to fraud.
“It’s urgent that we have a permanent solution with a pathway to citizenship,” said Ivonne Orozco, 26, New Mexico’s teacher of the year, who has lived in the United States since she was 12 years old, brought from Mexico by her parents. She teaches Spanish at a public school in Albuquerque and is also finishing a master’s degree at the University of New Mexico with straight A’s. Her DACA status expires in 2019.
In a joint news conference at the White House with Norwegian Prime Minister Erna Solberg, Trump was asked if he would support a DACA bill that did not include money for the border wall he has proposed.
“No, no, no,” he replied. “It’s got to include the wall. We need the wall for security. We need the wall for safety. We need the wall to stop the drugs from pouring in. I would imagine the people in the room, both Democrat and Republican — I really believe they are going to come up with a solution to the DACA problem that’s been going on for a long time, and maybe beyond that, immigration as a whole.”
Published on The Washington Post on January 10, 2018