On Friday afternoon, President Donald J. Trump issued an executive order barring citizens of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, who are not also United States citizens, from entering the United States, initially for 90 days. People arriving at U.S. borders after the order was signed have been detained and some removed. On Saturday night district court judges stayed their removals – a New York judge stayed all removals – and a Virginia judge permanent resident removals.
Lawsuits have been filed and the courts, as courts do, will sort through the conflicting statutes and the Constitution to determine what the President can and cannot order. Compare, INA § 212(f) (“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”) with INA § 202(a)(1)(A) (… no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.) And then compare these to the 5th Amendment to the United States Constitution (“No person shall be … deprived of life, liberty, or property, without due process of law.”) and the 14th Amendment to the United States Constitution (“… nor shall any state [and also the federal government] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”).
Some of the arrivals have been released. Many remain detained. Under the immigration laws, arriving aliens who express a fear of return to their country are allowed to ask for asylum or other related legal protections, withholding of removal or protection against the United Nations Convention Against Torture. These aliens, at least most often the males (regrettably, no men’s rights groups have been protesting this dichotomy, though, most likely, the fear is that protesting the unequal treatment of men would result in the detention of more women), are often detained while pursuing their cases. The immigration laws allow them to hire lawyers. ICE, through a network of detention centers, detains, by statutory mandate, on any given day in excess of 30,000 aliens. These are aliens seeking entry into the country or found inside the country whom the government wants to remove. Detention centers house these detainees and facilitate the legal process by which the government tries to remove them and aliens defend themselves against removal. At least in San Diego, and at least my recent experience is that San Diego’s detention center, the Otay Mesa Detention Facility, (ODF) operated by CoreCivic, formerly the Corrections Corporation of America (CCA), is derelict in its duty to facilitate the legal process.
One way the ODF is derelict is in its allowing for the access of interpreters to accompany attorneys in meeting with their clients, the detainees. Without interpreters the legal process is thwarted and to the extent CoreCivic is hindering the process, it is failing in its primary mission. Not only is this an affront to common perceptions of fairness, but it is expensive as it delays processing of a detainee which costs the government in excess of $100 a day to detain and it is mean and cruel and heartless and disgusting.
A case in point. I represent an alien and need to meet with him with an interpreter. The first step, get the interpreter cleared for entry. The age-old method of clearance: Fax the ODF warden two days before coming with the information about the interpreter and then show up at the ODF with him or her. My policy was to ask in my fax for confirmation from the facility that the interpreter was cleared, but of course this never ever happened – never a telephone call, “Got your fax, Mr. Montag, your interpreter is cleared.” But the system worked and when we showed up, we got in.
However, times, they are a changin’. Here’s the time line for a recent adventure in bringing an interpreter:
1. January 11, 2017: Faxed the warden’s office asking for an interpreter’s access.
2. January 14, 2017: Visited the facility with the interpreter on Saturday morning, The interpreter was not cleared. The front-desk guard tried to call CoreCivic and Immigration and Customs Enforcement (ICE) staff at the facility to see about my request to clear the interpreter, but no one was answering their phones.
3. January 19, 2017: I called the ODF to ask about the clearance request. I left a message with the warden’s secretary.
4. January 24, 2017: I called the ODF once again and once again there was no one responsible answering the phone and I left a message with the warden’s secretary.
5. January 26, 2017: I called the ODF once again in the morning. I was put on hold forever and so had to hang up.
6. January 26, 2017: I called the ODF again in the late morning and after a long hold was forwarded to the warden’s secretary and once again left a message with her.
7. January 27, 2017: Having heard nothing from the warden’s office after three messages and the fax, I emailed ICE. ICE replied that they would forward my concerns to a supervisor at the ODF;
8. January 27, 2017: An ICE supervisor emailed in the middle of the afternoon to instruct me that the warden’s secretary needs to be contacted by email about requests for clearing an interpreter. Apparently a fax, a visit, and several phone calls were not the way to do it and not a way to elicit information about how to do it.
9. January 27, 2017: I emailed the warden’s secretary, cutting and pasting the request that I faxed on January 11, 2017, to the email requesting access of an interpreter.
The results so far:
– Fifteen days and no access to the facility with a interpreter.
– At least $1,500 in fees to the American people for detention.
– Possible delay in resolving the case.
– Obvious misfeasance by a government contractor making a fortune by detaining aliens.
ICE needs to police CoreCivic if it is at all interested in moving cases and protecting the public’s financial and legal interests. CoreCivic needs to be held accountable for how it is assuring access to justice for detainees.
If we want to make American great again, I know where to start. Posted January 29, 2017.