Judge’s Order in Flores Should Signal the End of Family Detention in the United States

A federal judge issued an order in the Flores case that should go a long way to ending the government’s practice of detaining children and their mothers in unlicensed, secure facilities in Dilley and Karnes, Texas. Since the summer of 2014, the government has detained thousands of women and children fleeing violence in Central America. The longstanding Flores settlement guarantees minimum standards for the detention, release, and treatment of children in immigration detention. These standards, the court concluded, are not being met.

The judge’s order came after settlement negotiations between the parties failed earlier in July. The judge gave a withering critique of the government’s argument that the terms of the original Flores v. Reno 1997 settlement agreement only apply to unaccompanied minors, finding that the terms of the agreement plainly apply to “all minors.” Under the settlement, children generally must be released from custody.

Moreover, the judge said that the government “must release an accompanying parent as long as doing so would not create a flight risk or a safety risk.” There should be few cases in which a mother should not be released with her child. Almost all of the mothers currently detained are fleeing threats of violence and persecution in their home countries and are seeking asylum and other humanitarian protection here in the United States. They lack criminal records and have every incentive to appear for future court dates given that a clear majority of them have credible claims to asylum.

The judge also weighed in on short-term detention facilities, finding that the government had materially breached the agreement to provide “safe and sanitary” holding cells for children following their arrest. The freezing concrete cells, known as “hieleras,” or ice boxes, are unsanitary, overcrowded, and deprive children of adequate nutrition or hygiene.

What remains to be seen is how the government will respond to the court’s order. The government has until August 3 to submit papers to the court explaining why the ruling should not be implemented within the next few months; the government also may appeal the Judge’s decision. Given the harmful effects of continued detention—which include mental and physical harms—many advocates are hopeful that the government will choose to comply with the order promptly.

In anticipation of releasing children and mothers, the government should be taking steps to make sure that proper release practices are developed and implemented. Unfortunately, over the past couple of weeks, advocates witnessed chaos, disorganization, and coercion surrounding releases stemming from Homeland Security Secretary Jeh Johnson’s June 24 announcement that women who passed an initial interview to establish their eligibility for protection under U.S. immigration law would be released.

Today, the CARA Family Detention Pro Bono project partners, who provide pro bono representation to women and children currently detained in Dilley and Karnes, Texas, called on Immigration and Customs Enforcement Director, Sarah Saldaña, to take immediate steps to remedy the situation. It is critically important that measures are in place to ensure that the mothers fully understand their rights and obligations upon release, to ensure their future appearance in immigration court and their timely filing of claims for protection in the United States.

As we see the light at the end of the long, dark tunnel of family detention, let’s make sure that the government goes about this the right way.

(Cross-Posted from Immigration Impact)

 

In passing: Lt. Cmdr. Bill Kuebler, defense attorney at GTMO for Omar Khadr

kueblerShocked and saddened to read that U.S. Navy Lieutenant Commander William Kuebler died from cancer on July 17, at age 44. (photo credit)

Bill’s representation of Omar Khadr, born in Canada and seized by U.S. forces in an Afghanistan battle, is recounted in an Ottawa Citizen obituary. I feel compelled to add my own recollection.

We met in December 2008, at Guantánamo. The occasion was the first set of military commissions hearings since November 4, 2008, when voters chose then-Sen. Barack Obama to become the next U.S. President. Because Obama had pledged to shut down GTMO, many of the lawyers, media, and observers aboard the chartered jet that took us to the U.S. military base at the southwestern tip of Cuba were calling this “The GTMO Farewell Tour.”

The week began with a failed attempt by Khalid Sheikh Mohammed and his codefendants to plead guilty to capital charges of masterminding the terrorist attacks of September 11, 2001. It ended with a hearing in Khadr – a hearing in which Kuebler proved himself a master of his craft. As I wrote at page 13 of my report for the National Institute of Military Justice:

‘Of particular interest was the effort of Navy Lt. Cmdr. William C. Kuebler (pronounced “keebler”), lead military counsel for Omar Khadr, to gain admission during this pretrial hearing of photos made during the firefight at which Khadr was captured. Kuebler argued that the photos would help the defense to make its case for compelling certain witnesses, whose testimony, it was said, would exonerate Khadr by indicating that he was buried beneath rubble at the time someone threw the grenade that killed a U.S. servicemember. The judge refused, and Kuebler went forward without the photos. But the dispute whetted the appetite of the media to see the photos, and some published a next-day story suggesting Khadr’s innocence.’

This understanding of the importance of public scrutiny, combined with an ability to inform the public even as a request was denied, illustrated Kuebler’s diligent representation of his client, Khadr – who, today, is out of prison and living in Alberta, Canada, released on bail while appeals are pending. “Khadr owes more to Bill than to any other advocate,” the Citizen obituary aptly states. And so we pause in his memory.

(Cross-posted from Diane Marie Amann)

Trade & Development

President Obama in Kenya

Photo Credit

President Obama’s current trip to East Africa (Kenya and Ethiopia) and the recent extension of the African Growth & Opportunities Act (AGOA) are an opportunity to ponder the tenuous link that, without sound domestic policies, exists between trade and poverty reduction. A recent PBS report on Angola provides a stark illustration:

Angola is the second-largest oil producer in sub-Saharan Africa. However, about 36% of the population lives below the poverty line, reports the African Development Bank (AfDB). The country is reportedly flush with money from oil and diamonds; yet Angola ranks near the bottom of the U.N. Human Development Index (149th out of 187 countries).

Angola’s capital, Luanda, has been ranked as the world’s most expensive city for expatriates — beating out Tokyo, Hong Kong, and Moscow. Angola also bears the unwelcome distinction of being the country with the highest child mortality rate in the entire world. The World Bank reported in 2014 that 167 out of every 1,000 children born alive in Angola were likely to die before reaching the age of five. And the government just proposed to cut the health budget by 30%.

What apparently abounds in the country, and accounts for these discrepancies is corruption. Corruption, says Transparency International (TI), is “. . . the abuse of entrusted power for private gain”. Economically, TI continues, it depletes national wealth as corrupt politicians invest scarce public resources in projects that will benefit them rather than their communities. In Angola, judges drive jaguars and the President’s daughter is Africa’s youngest billionaire. Angola is one of the least transparent countries in the world and one of the most corrupt. It is ranked by Transparency International at 161 out of 175 countries and as fifth (5th) from the bottom in Sub-Saharan Africa.

Angola is not the only corrupt country in Africa; nor is corruption restricted to the African continent. Other countries share this scourge. However, the disparities between the wealth generated by the exports of this oil-rich country and the stark conditions in which one-third of its population lives help to shine a bright light on the criminal consequences of corrupt domestic policies.

Angola will, undoubtedly, continue to benefit from its ability to export its oil under AGOA. Trade alone, however, can only do so much.

As we continue to explore this topic, we will address some questions that occurred to us about the connections between corruption and the legacy of colonialism and the present role of the companies doing business in Africa.

U.S. Marriage Equality Decision Highlights Disparity in Forced Marriage Asylum Adjudication

After the recent Supreme Court ruling in Obergefell v. Hodges, which struck down bans on same-sex marriage, many news and social media outlets focused on the closing paragraph in the majority’s opinion, in which Justice Kennedy glowingly described the institution of marriage. He wrote, in part, that

“[n]o union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death.”

While perhaps unusually poetic of a Justice, the Court’s reverential treatment of marriage in Obergefell is not atypical of the Court; it has long venerated marriage, labeling the institution “sacred” and “noble.” But also notable about Obergefell, is that it highlights the deep chasm between the Supreme Court’s increasing recognition of the unique significance of the marital relationship – and its embrace of the right to marry a person of one’s choosing – and the lower courts adjudicating asylum claims that have rejected the notion that forced marriage is a harm rising to the level of persecution.

As early as the 19th century, in Maynard v. Hill, the Supreme Court validated the marital union as a deeply personal association, opining that marriage created “the most important relation in life,” that had “more to do with the morals and civilization of a people than any other institution.” Thereafter, the Court utilized numerous legal frameworks in striking down limitations on marriage, including labeling the institution a fundamental liberty right in Meyer v. Nebraska, a “basic civil right” in Skinner v. Oklahoma and Loving v. Virginia, and a fundamental right and “constitutionally protected … relationship” in Turner v. Safley. The Court employed Due Process analysis in cases such as Zablocki v. Redhail and Boddie v. Connecticut, where it stated that “marriage involves interests of basic importance in our society.” The Court has also invoked the right to privacy, most notably in Griswold v. Connecticut, where the majority described the marital relationship as beautifully as it did in Obergefell, writing that

“[m]arriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”

Most recently, in U.S. v. Windsor, the 2013 case invalidating the Defense of Marriage Act (DOMA), and Obergefell, the Court held that denying same sex couples the right to marry not only violated liberty protections, but imposed upon them a disability and deprived them of dignity.

In lower courts’ interpretation of immigration law, the legal picture is drastically different, as I have addressed at length in a previous paper. Unlike in the domestic context, where marriage is afforded great respect and the right to marry the person of one’s choosing is Constitutionally protected – largely due to the recognition of the impact that the decision of who to marry has on a person’s life – courts adjudicating asylum claims routinely discount the significance of marriage, regularly characterizing the act of being forced to marry against one’s will as harassment and a non-persecutory act.

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Introducing Natalie Nanasi

D13_414_April_OS_Faculty nfs Natalie_Nanasi, WCL, faculty

It’s our great pleasure today to welcome Professor Natalie Nanasi as an IntLawGrrls contributor.

Natalie is the Director of the Judge Elmo B. Hunter Legal Center for Victims of Crimes Against Women at Southern Methodist University (SMU) Dedman School of Law. Prior to arriving at SMU, Natalie was a Practitioner-in-Residence and the Director of the Domestic Violence Clinic at American University, Washington College of Law (WCL), where she supervised students’ representation of survivors of intimate partner violence in immigration, protective order and related family law cases. She also taught a course in Refugee and Asylum Law.

Before joining the faculty at WCL, Natalie was the Senior Immigration Attorney and Pro Bono Coordinator at the Tahirih Justice Center, where she represented immigrant women and girls fleeing human rights abuses such as female genital mutilation, domestic violence, human trafficking, forced marriage, honor crimes and sexual violence. She also served as counsel in the landmark asylum case of Matter of A-T- and as an Equal Justice Works Fellow from 2007-2009, with a focus on the U visa. Prior to her work at Tahirih, Natalie was a law clerk to the Honorable Lynn Leibovitz of the District of Columbia Superior Court.

Natalie received her J.D. and a Certificate in Refugees and Humanitarian Emergencies from the Georgetown University Law Center. As a law student, she earned an Equal Justice Foundation fellowship for her work at the South Asia Human Rights Documentation Center in New Delhi, India and assisted in the representation of HIV-positive immigrants at Whitman Walker Clinic Legal Services. Prior to her legal career, Natalie was a rape crisis counselor and worked with single teenage mothers at a transitional residence facility in Boston. She is fluent in Spanish and Hungarian.

Natalie’s first post will discuss forced marriage. Heartfelt welcome!

More Good News on Trade: Cracks in US Embargoes

What are two things that Cuba and Iran have in common? First, a US trade embargo which has been in place for decades. Second, emerging cracks in these embargoes that promise new, if limited, trade opportunities.

Iran Embargo

Concerns about Iran’s nuclear ambitions had resulted in multilateral sanctions against Iran, imposed by the United Nations, the European Union, and the United States. It is these sanctions that are credited with bringing Iran to finally conclude a deal.

The just-concluded nuclear pact with Iran indicates that the rest of the world should soon be lifting their embargoes against doing trade with Iran. Not so with the United States. US sanctions against Iran, unfortunately, go beyond these security concerns. They also have to do with regime change – the hope that pressure on the Iranian economy will lead to political change.

So, while the rest of the world can expect to begin resuming normal business activities with Iran, US sanctions imposed by the US Congress will remain in place. US trade with Iran will be limited to imports from Iran of food and carpets and the export to Iran of replacement parts for civilian airplanes. In the words of this Washington Post reporter,

. . . for US firms, the agreement means pistachios, airplane parts and carpets.

Persian Rug at the Louvre  (Courtesy of Wikipedia)

Persian Rug at the Louvre (Courtesy of Wikipedia)

Cuban Embargo

Unlike the Iran sanctions, the US embargo against Cuba has been unilateral in nature. The United States is the only country in the world which maintains this outdated cold war stance against Cuba. On October 29, 2014, the UN General Assembly voted for the consecutive 22nd year in support of a resolution urging an end to the US blockade of Cuba.

Like the Iran sanctions, the US embargo against Cuba is driven by a desire for regime change. Nevertheless, with the congressionally-imposed embargo still in place, Executive action has carved out limited opportunities for US-Cuba trade and travel. A limited list of commercial goods and services – primarily those of independent craft producers can also now be imported from Cuba into the United States. In fact, it’s easier to produce the list of items, including alcohol and tobacco products, which cannot be imported for commercial use from Cuba. However, if you fall within the category of persons allowed to travel to Cuba, you can bring back your own, limited, supply of Cuban cigars and rum.

The Future

Should the US Congress fail to ratify the Iran deal, the United States will, as it does in its relations with Cuba, again be isolated on this issue. Diplomatic ties are key to fostering and smoothing commercial relationships. These are just being re-established with Cuba, and remain broken with Iran. Still, we can hope that more cracks will continue to appear in these sanctions barriers to trade until they are entirely whittled away.

The World Cup Spotlight: (The Lack of) Women in Charge

(see previous posts in this series herehere, here, here, and here)

Plenty of issues plagued the Fédération Internationale de Football Association (FIFA) before and during the Women’s World Cup earlier this month. From field conditions to unequal prize money to FIFA president Sepp Blatter’s absence from the final game for the first time in twenty years, it seemed that each day brought negative attention to international soccer’s governing body.

Of course, these issues are just symptoms of a bigger problem: the corruption that has permeated FIFA for years. Various groups, including the U.S. and Swiss governments, are now taking a closer look at how the nonprofit FIFA functions. The U.S. Department of Justice issued indictments for fourteen FIFA officials in May of this year; the U.S. Senate Committee on Commerce, Science and Transportation will hold a hearing today on the governance and integrity of international soccer.

Isha Johansen (photo credit)

Isha Johansen
(photo credit)

What hasn’t been mentioned much, if at all, is the lack of female representation at FIFA and in international soccer generally. The FIFA Congress, which elects the President, approves the annual report, and elects the members of the Executive Committee, is made up of representatives of the affiliated member associations. Of the 209 associations, only Sierra Leone (Isha Johansen) and Turks & Caicos (Sonia Bien Aime) have women occupying the position of association president.

Sonia Bien Aime (photo credit)

Sonia Bien Aime
(photo credit)

Lydia Nsekera (photo caption)

Lydia Nsekera
(photo credit)

The main decision making body at FIFA is the Executive Committee, which is made up of the president, eight vice presidents, fifteen appointed members, and one female member elected by the FIFA Congress. Currently, the Executive Committee includes only three women:

Moya Dodd (photo credit)

Moya Dodd
(photo credit)

  • Lydia Nsekera (Brundi) – Member
  • Sonia Bien Aime (Turks & Caicos) – Member
  • Moya Dodd (Australia) – Co-opted Member for special tasks

In an era where the Women’s World Cup broke viewing records and where some people posit that FIFA would be less corrupt of there were more women at the helm, FIFA and the 209 soccer associations could stand to reevaluate the level of female participation in the governance of the world’s most popular sport, and how women might be able to turn the current corrupt structure around.

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