Nationwide Class Action in the U.S. Protects the Right to Seek Asylum

A Seattle-based federal court has stepped in to protect the right to seek asylum, deciding in favor of a nationwide class constituting thousands of asylum-seekers in a case with important implications for the Trump administration’s recently-announced quota policy for U.S. Immigration Courts. On March 29, 2018, Chief U.S. District Judge for the Western District of Washington Ricardo S. Martinez issued an 18-page order granting the plaintiffs’ motion for summary judgment in the Mendez Rojas v. DHS case. Judge Martinez’s forceful decision shores up the due process rights of asylum-seekers under the Fifth Amendment to the U.S. Constitution and statutory rights grounded in the federal Immigration and Naturalization Act and Administrative Procedure Act, as well as protections enshrined in international refugee law more broadly.

The named plaintiffs in the suit are asylum seekers from Guatemala, Honduras, Mexico, and the Dominican Republic. Collectively, they stand in for two classes of individuals certified by the Court last year, those who declared a fear of return to their home countries and have undergone a credible fear interview and been released to pursue their asylum claims, and, second, those released without first undergoing the credible fear interview. None of the named plaintiffs received notice of the one-year filing deadline or a meaningful mechanism to timely file their asylum applications. Asylum seekers must file their asylum applications within one year in order to receive asylum protection.

The class action lawsuit, brought by counsel from the American Immigration Council, Northwest Immigrants Rights Project, and Dobrin & Han, PC, included asylum seekers released from detention who are in removal proceedings in immigration court and who have yet to be placed into removal proceedings and who were not given notice of the one-year filing deadline to apply for asylum.

The Court agreed with the plaintiffs that the lack of notice to asylum seekers violates the congressional intent behind the one-year filing deadline. Created by Congress in 1996, the one-year filing deadline was ostensibly designed to guard against fraudulent asylum claims. The law’s most ardent supporters, however, made clear that the implementation of the deadline should not impede protection for genuine asylum-seekers. During discussions on the Senate floor, for instance, Sen. Orrin Hatch (R-Utah) stated:

Like you, I am committed to ensuring that those with legitimate claims of asylum are not returned to persecution, particularly for technical deficiencies. If the time limit is not implemented fairly, or cannot be implemented fairly, I will be prepared to revisit this issue in a later Congress.

The Court also relied on U.S. Supreme Court precedent, specifically Mullanenoting that procedural due process requires that notice be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” In this case, the Court found that the publically available DHS documents discussing the one-year filing deadline were not reasonably calculated to provide adequate notice to the asylum-seeking plaintiffs. The Court note that some of the asylum seekers in the class believed they had actually applied for asylum by virtue of undergoing a credible fear interview, in which they explained their fear of return to their home country in great detail to a USCIS asylum officer.

The Court also highlighted the problems caused by informing someone that they will be instructed on how to apply for asylum in court in the future, while the court dates referenced often take place well beyond the one-year filing deadline imposed. My 2016 article in the Wisconsin Law Reviewexamines the problems at the intersection of our burgeoning immigration court backlog and the one-year filing deadline in greater detail.

Judge Martinez signaled his sympathy regarding the extreme vulnerability of asylum-seekers, grounding his decision in the fact that “many class members have suffered severe trauma, do not speak English, are unfamiliar with the United States’ complicated immigration legal system, and do not have access to counsel.”He went on to conclude that DHS’ failure to provide adequate notice is a violation of the Due Process Clause of the U.S. Constitution.

Responding to DHS’ argument that the Court owed deference to agency “procedure,” the Court stated simply, “no deference is owed to procedures that violate a statute or the Constitution.” Currently, there is a ping pong back and forth between the agencies overseeing the asylum process. Until a Notice to Appear is filed with U.S. Immigration Court, the court will not accept an asylum application. If a case appears likely to be headed for a court appearance, however, USCIS, which includes the asylum office, routinely denies jurisdiction. There is currently no actual deadline for ICE to file a Notice to Appear with immigration court, leaving asylum-seekers and attorneys in limbo and unable to meet the deadline–a “technical deficiency” in the purest sense.

Importantly, while declining to reach the constitutional argument for a meaningful application mechanism, the Court found that defendants’ failure to provide a uniform mechanism by which an asylum-seeker could actually timely apply for asylum, assuming she gained knowledge of the deadline, violated the asylum statute and the Administrative Procedure Act. The Court concluded by ordering DHS to provide notice of the one-year filing deadline to class members who have already been released. Further, Judge Martinez ordered that DHS give notice to future asylum-seekers prior to or at the time of release them from detention. DHS is also required to adopt and publicize uniform procedural mechanisms to ensure class members can timely file their asylum applications. Implementation and the reception from immigration judges nationwide to the decision remains to be seen. Already, advocates shared a report of a judge at the Arlington immigration court refusing to enter the Mendez Rojas decision into the record because he stated that the Executive Office for Immigration Review is not bound by the Administrative Procedure Act.

Assuming implementation is successful, this decision represents a win for asylum-seekers and brings greater clarity and organization to an already-overwhelmed and backlogged immigration court system. Judge Martinez’s order represents yet another instance in which the federal courts have intervened in administrative confusion to ensure constitutional due process and justice for immigrants. The decision is a step forward in upholding American values and adhering to our domestic and international legal obligations to protect refugees from return to countries where they would face a threat to their life or freedom.

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U.S. Government Sued Over Illegally Turning Away Asylum Seekers

Today several groups filed suit against the U.S. government’s Department of Homeland Security and the Customs and Border Protection (CBP) agency for turning away asylum seekers, contrary to domestic and international law.

Along the U.S.-Mexico border, asylum seekers arrived from all over the world to present themselves to CBP to ask for protection. The right to seek asylum is enshrined in Article 33 of the United Nations Convention on the Status of Refugees, which came into being in 1951 and was expanded by the 1967 Protocol. The United States signed the Protocol in 1968, enacting domestic law to implement the international agreement in 1980.  The U.S. is thus bound by the terms of the Protocol and the Convention itself, including, critically, the principle of non-refoulement — non-return of individuals to a place where they would  face persecution on account of one of the five protected grounds.

In recent years, however, CBP has been routinely turning away vulnerable asylum seekers, forcing them to return to Mexico without allowing them to pursue their right to claim asylum.  This illegal practice has worsened as CBP officers became emboldened following the election and inauguration of Donald Trump as U.S. President. Indeed, in January 2017, several groups filed a complaint with the Department of Homeland Security’s Offices of Civil Rights and Civil Liberties and Inspector General, alleging systemic abuses at the border. In March, the U.S. government failed to even show up to defend their practices before the Inter-American Commission for Human Rights, a session which included testimony from multiple groups on the illegal turning away of asylum seekers at the border.

To challenge the unlawful practice of turning away asylum seekers, today the American Immigration Council, the Center for Constitutional Rights, and Latham & Watkins LLP filed suit in federal court in California’s Central District. The plaintiffs are Al Otro Lado, a “national, direct legal services organization serving indigent deportees, migrants, and refugees in Tijuana, Mexico” and six of their clients. The lawsuit alleges that DHS and CBP have violated asylum seeker’s rights to seek protection, along with their due process rights under the Fifth Amendment to the U.S. Constitution, and violations of international law.

The plaintiffs’ stories are all too familiar to asylum lawyers based in the U.S. Personally, I Co-Direct the Immigration and Human Rights Clinic at the University of the District of Columbia’s David A. Clarke School of Law. Our current clients include several mothers fleeing violence in Central America who eventually made it into the U.S. after being illegally turned away. We work with survivors of extreme domestic violence and persecution at the hands of transnational criminal organizations, known as “maras,” were turned away at the border by officials with statements such as “There’s no asylum for people from Honduras…” or “You can’t get asylum because you’re scared of your husband.” These statements are patently false, of course, and the precedential Board of Immigration Appeals decision, Matter of A-R-C-G-made clear that individuals fleeing domestic abuse can meet the asylum definition.

As Karolina Walters of the American Immigration Council summarizes from the Complaint today, on their blog, “[o]ther examples of the tactics used by CBP officers against asylum seekers, include:

  • Misrepresenting that visas are required to cross at a POE or that asylum seekers must obtain a “ticket” from a Mexican government agency before they will be allowed to enter the United States to seek asylum;
  • Yelling profanities at an asylum-seeking mother and her 5-year-old son, throwing her to the ground, and forcefully pressing her cheek into the pavement; and
  • Coercing asylum seekers into recanting their fear on video and into withdrawing their applications for admission to the United States.”

The Washington Post quotes legal fellow, Katie Shepherd, also with the American Immigration Council  “‘[CBP officers are] getting very creative; we keep hearing new ways they’re turning people away. . . ‘If a single asylum seeker is denied in a day, that’s one too many.’”

It is, of course, a sad state of affairs that a lawsuit to protect the rights of asylum seekers is necessary. We can only hope that the Court will hold the government to account and the government will honor their legal obligations to protect refugees.

 

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)

 

Australia’s Increasingly Restrictive Policies Block Asylum Seekers From Entry

Australian Prime Minister, Kevin Rudd, recently announced a strict new policy mandating that all asylum seekers arriving by boat would be sent to a refugee-processing center in Papua New Guinea. This policy change has been covered widely in the media, through the New York Times, the BBC, and other news outlets. According to the Australian Prime Minister’s announcement, asylum seekers, by arriving by boat without a valid visa, will forfeit any right to claim asylum in Australia. Rather, if an asylum seeker is determined to have a genuine claim to refugee status, she will be resettled in Papua New Guinea. Australia is, of course, a signatory to the 1951 United Nations Refugee Convention and the 1967 Protocol. While this development is disheartening, it is not shocking given the political arena and the long history of restrictive asylum policies in Australia. Australia’s policies with regards to asylum seekers arriving by sea have long been controversial. In August 2001, Australia turned away a Norwegian vessel in distress carrying over 400 asylum seekers, focusing international attention on the intersection of maritime rescue law and refugee law. For coverage of this incident and in depth coverage on related issues, see Professor Niels W. Frenzen’s Migrants at Sea blog. Amnesty International’s Australia Chapter also provides regular reports and coverage on the treatment of asylum seekers and refugees in Australia.

Australia is, of course, is only one of several countries to turn away asylum seekers arriving by sea. Indeed, the United States also participates in interdiction at sea. In fact, our own Supreme Court explicitly found this practice to be in line with our international obligations even where, in that case, the US was interdicting Haitians and returning them to the country of feared persecution. See Sale v. Haitian Centers Council, 509 U.S. 155 (1993). Whether Australia’s evolving interdiction policy will be judged by its own courts remains to be seen.