Archive for August, 2009
A few years ago, the method of paying fees for relief in immigration cases changed. By way of background, foreigners sent to immigration court are sent because the government considers them removable from the United States. Sometimes the government is wrong. The foreigner and the government then argue about whether the person is actually deportable in legal briefs followed by a decision by the immigration judge. Sometimes a person is deportable but is eligible for relief. That relief may be to obtain a visa or sometimes, statutory forms of forgiveness. There are fees that must be paid for the visas or the forms of forgiveness. It used to be that these forms could be paid for locally, i.e, with the the Immigration and Naturalization Service in the city where the person lived or the court was. It was not very important exactly where – the important thing is that INS took the fees. Then the Department of Homeland Security came into being and INS was split up into several components. It became unclear which of the new parts should take the money and what procedures would be used.
What the government came up with was that fees had to be sent to the Texas Service Center, part of U.S. Citizenship and Immigration Services, for most fees. An exception existed for cases where the alien was detained. Then, the fees could be paid locally for most forms. The reason was obvious. It could take a month or more to mail a form to Texas and get a receipt back. The immigration courts did not want to act on a request for relief until the judges were sure the fees were paid. Recently, USCIS and the immigration courts announced that nearly all fees now have to be paid for at the Texas Service Center. The government is obviously no longer concerned that cases need to be resolved fast and that fee payment could delay resolution. The reason is that the courts are so backlogged that no one’s case where relief is available is resolved in a month or less. Aliens hardly see a judge in less than two weeks for their initial court dates. Final court dates where relief, like a visa or forgiveness, can be granted are more like six months in the future. At least when forms could be paid locally there was a pretense that cases would be resolved rapidly. Now that pretense is gone.
What is interesting about this is that when the government argued that its mandatory detention authority was constitutional, it argued that most cases got resolved in a month to a month and a half. The Supreme Court reasoned that since mandatory detention of permanent residents only becomes problematic after six months [what hat they pulled six months out of is not very clear], and since cases never last six months, the mandatory detention statutes was constitutional. Now that all pretences are gone and cases drag on for far longer than six months, it is time to re-visit the constitutionality issue. The government’s abandoning local fee paying is a telltale sign that immigration court cases are dragging on beyond the maximum constitutionally permissible six month limit. It is time to declare mandatory detention unconstitutional.
Many times I have made reference to Julie Andrews to illustrate a problem with immigration detention. The reference is actually to Maria von Trapp, her character in “The Sound of Music.” You may recall that in addition to spinning dervishly on a mountaintop meadow and singing about whiskers on kittens, she and the family she was the governess for, and then stepmom for, fled Austria to Switzerland. The story ends with the family hiking safely into Switzerland. This is where the reference kicks in. If the family was safely hiking to a border checkpoint to the enter the United States without the requisite visas, presumably seeking asylum, they would have been arrested to await a removal proceeding where they would ask for asylum. ICE, Immigration and Customs Enforcement, has a policy of not releasing such arriving aliens despite how compelling the asylum case and despite whether the person will ever be able to be deported back to their countries. For example, Iraqi Christians and Somalis are not being deported to their countries, but thy nonetheless must sit in detention despite the fact that, win or lose in the asylum case, they will end up in the United States.
Similarly, lawful permanent residents are subject to detention if they are being deported for crimes. For many crimes, the detention is mandatory for the duration of the time their hearing takes. At first blush, it is perhaps undisturbing that “criminal aliens” are detained, until two facts are considered. First, even some extremely minor crimes can subject one to mandatory detention. For example, a simple possession conviction for drugs, even a ten year old one, can result in mandatory detention. Admittedly, attorneys become immunized to the criminal conduct of the people they represent, but even a person who does not knowingly routinely come into conduct with people with criminal convictions would be surprised if he or she found out how many people he or she knows have some dark secret in their past – a couple of shopliftings in their 20’s, a drug arrest, a domestic violence arrest after a loud fight. If everyone who had some past indiscretion was locked up, the streets and roads would be a lot less congested.
Well, what is wrong with some brief detention anyway? So an alien has to spend a month or two in detention to seek forgiveness for some crime in the remote past or to receive asylum from an immigration judge. What is so bad about that? At least the government knows where the person is so he or she does not run away if he or she loses her case. Certainly people lose their cases and could run away. Isn’t this a perfect solution to the absconding problem?
There are a couple of problems with this solution. First, while a short period of detention might not be so troubling, when this detention lasts months and months, it starts becoming quite inhumane. Remember, asylum seekers and people with past criminal convictions are not being detained because of a criminal prosecution. Immigration proceedings are not criminal proceedings to find guilt and to punish, they are civil proceedings – like if you sue the plumber who installed your bathtub wrong. How long should someone sit detained in a civil proceeding without any opportunity for release? Should there not be some upper limit. The Supreme Court set an upper limit in a related context – the detention of aliens who have deportation orders but no country will take them. The Supreme Court set an upper limit of six months in Zadvydas v. Davis. This did not mean that a person had to be released after six months, but that a showing that the person could be deported must be made and if there was no chance, the person should be released with adequate controls to make sure they are not a danger to the community or about to run off.
The problem with the detention of aliens in removal proceedings is that they are being held longer than six months despite their best efforts to get their cases completed sooner. In other words, their cases are not taking longer than six months because of their own actions delaying the court dates, but because the courts are backed up and cannot hear the cases for more than six months. Imagine if Maria von Trapp got to Switzerland and sat in a detention center for seven months? Imagine if a loved one or friend you know who supports his or her family was detained for eight months because of a drug arrest ten years ago while in college for which he was unambiguously eligible and deserving of forgiveness. Imagine what would happen to your family, your job, and your home if you were placed in detention for seven months/ When the Supreme Court allowed for mandatory detention in a case, Demore v. Kim, it was based on government statistics that the period of time in custody was brief. When I have read the statistics the government provided and the Supreme Court cited in its decision in Demore v. Kim to immigration practitioners at conferences, the audiences break out in laughter ["85% of the cases in which aliens are detained pursuant to §1226(c), removal proceedings are completed in an average time of 47 days and a median of 30 days. In the remaining 15% of cases, in which the alien appeals the decision of the Immigration Judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter"]. In my experience these statistics were never true and are most certainly not true now. The average period for case completion is more like seven months and appeals stretch on at least six months after that. As Mark Twain said, “There are three kinds of lies: lies, damned lies, and statistics.”
Another problem with this prolonged detention is that the detention takes place in real prisons. It is not like Ms. Von Trapp is placed in some bucolic mountaintop facility while waiting for her hearing. Some pleasant camp-like setting where the indignity of confinement is mitigatedby a pleasant environment. She is locked down, given horrible food, substandard medical care, and subjected to all the indignities of prison life – including in some detention centers being intermingled with real criminals in prison for their crimes. The Obama administration recently announced plans to overhaul this system, but nothing will change overnight.
Finally, the detention of so many people causes overcrowding issues. Aliens are being transported around the country, at no small expense, to find available detention space. Several times recently San Diego families have contacted me to help them deal with a detained relative and it turns out the relative has been shipped to Texas. Think how difficult it must be to find a competent immigration attorney in a city you have never been to.
I am not advocating that all detainees be released. However, ICE and the immigration courts have vast experience in determining who is a danger to the community or a flight risk. Officers know at the outset that some aliens will never be removed and so holding them in detention is absurd and costly. If humanitarian concern is not a reason to think allowing for the release of aliens, after a determination of flight risk and danger, is warranted, the fact that it costs taxpayers more than $100 a day to detain each alien should make releasing aliens who are not a danger or a flight risk or who will never be removed an attractive proposition. Consider that a detainee held for seven months costs the taxpayer $21,000, and add that to the calculation of whether Julie Andrews should sit in prison.
Courts of appeal have criticized immigration courts for their skills in adjudicating asylum cases, including the alarming observation, “…the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice.” The criticisms suggest incompetence by immigration judges, They are generally unsympathetic to the difficultly of the job immigration judges do. In four hours or less, an immigration judge must listen to the testimony of witnesses, integrate the testimony with written material presented by the parties and with government reports, and then present a well-reasoned decision addressing a foreigner’s credibility and the legal strengths of his claim for asylum. In the process, the immigration judge must run a tape recorder and arbitrate between the parties in an adversary system. He or she often does this not twice a month or twice a week, but twice a day.
What skills does such a task require? Firstly, a judicial temperament – a person who remains objective and ready to accept and process all the evidence and who comports himself or herself in a way where all the parties are assured that their words are being heard and listened to. Knowledge of immigration law would be helpful. Knowledge of world affairs would also be a plus. Finally, cultural sensitivity would be helpful. A foreigner who has no skills in interpreting a map should not be disbelieved because he cannot interpret a map presented to him. A foreigner who does not usually think about events chronologically should not be disbelieved because his narrative is organized differently than what came first and what followed after that next in time. The immigration judge should also be acutely aware that when an alien is testifying in a different language, there are limits to the accuracy of translation. Nary a case goes by where a family member or other observer does not inform me after the hearing that the interpreter got at least some of the testimony wrong. When an immigration judge latches onto a discrepancy, “Sir, in your written statement, you say that you were wounded in the hand and now you testify that you were wounded in the arm,” and finds deception and denies a case, can the immigration judge be sure that the interpreter was accurate or that the language of the alien distinguishes between arm and hand or perhaps even that the asylum seeker was not wounded in his arm and his hand and one of the wounds was not mentioned because the point was that the wounding occurred and not the exact locations? Unless a judge is aware of these potential areas of confusion, wrong decisions are bound to happen often.
The other day I encountered an amazing example of translation problems which could lead to wrong conclusions. An asylum seeker was interviewed at the border by an immigration officer. The asylum seeker recounted a harrowing tale of persecution and torture that met all the criteria for rendering the person eligible for asylum. The asylum seeker was full of faith that America would never compel repatriation. The asylum seeker had never seen even one compatriot deported back to the country of origin. Yet, there was a problem. The interviewer asked the asylum seeker, “Are you afraid of being returned to your country?” The question was translated and the answer was, “No.” The interviewer asked, “What will happen to you if you are sent back to your country?” The question was translated answer was, “I will be beaten, tortured, and killed.” The interviewer then asked, “ Well then, “Are you afraid of being returned to your country?” The question was translated and the answer was, “No.” The question was asked and answered “No,” four times. An immigration judge is charged with determining whether an asylum seeker has a “well-founded fear of future persecution.” Based on the negative answer given four times, an immigration judge might conclude that whatever may have happened in the past, the asylum seeker now has no fear of return.
A careful examination of the question reveals that what interviewer was asking and what the asylum seeker was answering were different questions. The question the asylum seeker heard and understood was not, “If you have to go back to your country, will you be afraid?” The answer would have been that of course the asylum seeker would be afraid because return would mean death. Rather, the question the asylum seeker heard and understood was, “Are you afraid that the United States government will send you back to your country?” Of this there was no fear – the asylum seeker was confident that when a fact finder heard the story, asylum would be granted. Far less compelling stories resulted in asylum grants. A culturally aware immigration judge would see source of the problem. One trusting in the absolute ability of translation to convey all meanings and nuance across language and cultural barriers could make a dreadful mistake.