JUDGE SAYS U.S. CANNOT JAIL ASYLUM SEEKERS INDEFINITELY

JUDGE SAYS U.S. CANNOT JAIL ASYLUM SEEKERS INDEFINITELY.  Today, a federal judge in Seattle blocked the Trump administration from denying bond hearings to asylum seekers.

US District Judge Marsha Pechman ruled that people who are detained after seeking asylum protection are entitled to bond hearings and the chance to be released from custody. "It is the finding of this Court that it is unconstitutional to deny these class members a bond hearing while they await a final determination of their asylum request," Pechman wrote.

The Justice Department announced a policy in April that some asylum seekers cannot be released on bond by immigration judge—even if they have already proven a credible fear of persecution in their home countries.  The policy would have effectively blocked immigration lawyers and immigrant rights advocates from asking judges to release detained asylum seekers on payment of a bond.

The judge ordered the Justice Department to resume bond hearings for asylum seekers within two weeks. 

RESTRICTIONS ON ASYLUM BLOCKED.  A San Francisco judge issued a temporary restraining order last night, preventing the Trump Administration from implementing its new limitations on asylum.  Those regulations sought to deny access to asylum to many refugees at our Southern border.  Judge Michael Tigar of the U.S. District Court held that the law appears to violate the U.S. Refugee Act of 1980, as well as other provisions of law.

The United States Refugee Act (Public Law 96-212) was passed by Congress in 1980 to provide an established procedure for the admission to the United States of refugees of special humanitarian concern to the U.S.   That statute guarantees individuals the right to seek asylum whether at the U.S. border, a port of entry or even from the interior of the country. https://www.thoughtco.com/united-states-refugee-act-1980-1952018

Many of the refugees arriving as part of the caravans seek to apply for asylum at the U.S. border port of entry.   As reported in the Washington Post, some of those and others have gone to the wrong port of entry or crossed the border in desperation when they were turned away at a port of entry.  The U.S. Customs and Border Patrol has limited access to ports of entry and closed lanes of access routinely, greatly restricting the numbers of asylum seekers who may apply through the port of entry.   

The Trump Administration was attempting to limit access to asylum to only those persons applying at the port of entry.  Those who crossed the border at other points would be ineligible.   But the judge held that this limitation runs contrary to the express terms of the 1980 law.

 “If what Defendants intend to say is that the President by proclamation can override Congress’s clearly expressed legislative intent, simply because a statute conflicts with the President’s policy goals, the Court rejects that argument also,” the judge found

“This ban is illegal, will put people’s lives in danger, and raises the alarm about President Trump’s disregard for separation of powers, “ stated the ACLU lawyer who brought the case.   “There is no justifiable reason to flatly deny people the right to apply for asylum, and we cannot send them back to danger based on the manner of their entry. Congress has been clear on this point for decades.” https://www.washingtonpost.com/nation/2018/11/20/blow-trumps-immigration-agenda-federal-judge-blocks-asylum-ban-migrants-who-enter-illegally-mexico/?utm_term=.10c4a89558a2

TRUMP’S NEW EXECUTIVE ORDER issued yesterday denying access to asylum to many refugees at our Southern border will surely be challenged in Court.  The law appears to violate the U.S. Refugee Act of 1980, which guarantees individuals the right to seek asylum whether at the U.S. border, a port of entry or even from the interior of the country. https://en.wikipedia.org/wiki/Refugee_Act

Also, Donald Trump has justified his new Order on many “alternative facts” about these asylum seekers.  Here’s a couple examples contradicted by his own Justice Department:

Donald Trump claimed last week that only 3% of asylum seekers show up for court.  The false myth is that asylum seekers disappear once they arrive and don’t appear for their Court hearings.  But the U.S. Department of Justice (which operates the immigration courts) reports that the overwhelming majority of individuals requesting asylum appear in court, including 89% of those who file an application for asylum. See their statistics at: https://www.justice.gov/eoir/page/file/1107056/download

We work on a daily basis with asylum seekers from Central America and Mexico and I can tell you that most are fleeing terror at the hands of cartels, gangs and other criminal elements in their country. They wish to tell their story and the small fraction that don’t appear for their hearings generally don’t understand the process or don’t have a lawyer or are just simply afraid of deportation. 

Another myth is that only a small number win their asylum cases.  To prevail in court, they must convince a judge that they have a well-founded fear of persecution based on race, religion, nationality, political opinion or social group.  Nonetheless, in 2017, 40% of asylum applicants succeeded in doing so and obtaining asylum from an immigration court.

To read more:

https://kpblawfirm.blogspot.com/2018/06/the-truthabout-immigrant-families-at.html

https://kpblawfirm.blogspot.com/2018/10/seeking-asylum-part-1-credible-fear.html

SEEKING ASYLUM: PART 1

The Credible Fear Process at the U.S. Border.

By Christopher Kerosky

The asylum process has received increased attention lately with the Trump Administration’s decision to separate parents from their children at the border.  But now that Donald Trump has reversed his policy, once again the spotlight has moved away from the many refugees at our border seeking asylum.

Meanwhile, this humanitarian tragedy continues.  A large number of those pursuing asylum eventually come to California and the North Bay specifically.  Beginning in the first days at the border, the Department of Homeland Security starts a lengthy process to consider any arguments and evidence the asylum applicant might have to support their claim of asylum.

I felt it would be useful to describe the process for those in the public who are interested and to provide some guidance to persons going through it.  This segment covers the first step of the process, known as the “Credible Fear Interview” (CFI).

Credible Fear Process.

A person detained at the border without proper documents to enter generally does not  have the right to stay in the United States or file an application for immigration benefits. The only exception is if that individual has “a well-founded fear of persecution based on race, religion, nationality, political opinion or social group”.   The person also needs to prove that the persecution was by the government or that the government could not stop it.

If a person at the border declares they are afraid to return, ICE will ask them some preliminary questions to determine if they are afraid and then the US asylum office will conduct a formal interview to determine if they  have "credible fear" of returning. to their country.

The purpose of the credible fear interview is to determine if there is a significant possibility that the immigrant could be eligible for asylum. During the credible fear interview, the officer will ask the asylum applicant many questions about their fear, who they are afraid of and why. 

The interview is typically conducted by the an asylum officer, often by video. A lawyer can be participate, typically by telephone.   

If the the asylum officer finds that there is not a sufficient credible fear of harm based on one of the five statutory grounds, the applicant can ask for the opportunity to appeal the ruling before an immigration court.  However, the asylum seeker will remain in custody while he or she goes through further appeals of the denial of asylum.  Typically future courts affirm the denial of credible fear and the person is ultimately deported. 

Even if the applicant is successful and convinces the asylum officer that he or she has a credible fear of persecution during the CFI interview, they are still placed in deportation proceedings before an immigration court, where they must convince a judge that their “credible fear” rises to the level of a “well-founded fear”, a higher standard of proof.  If they fail to do so, they are also deported. 

Part Two of this series will cover the asylum process before an immigration judge.

THE TRUTH  ABOUT THE IMMIGRANT FAMILIES AT THE BORDER

By Christopher Kerosky

There is so much misinformation about the asylum seekers coming to our Mexican border, including a plethora of “alternative facts” put forth by Donald Trump. 

Our office has represented many families who went through the same process like those incarcerated at the border now and so I will try to address here some of the most common fallacies and provide some accurate information.  It’s important that the public understand why this is happening and who is to blame for a policy of separating children from their parents in our name.   

Are these immigrants all coming in illegally?

No, a large portion of these refugees are entering the U.S. border legally, seeking asylum through a legal procedure established by the U.S, by statute in 1980, and in accordance with the UN Human Rights Treaty.  This is true of all of those coming in the caravans of desperate refugees from Central America, organized by humanitarian organizations.  Donald Trump has condemned these caravans, but the fact is these people are following our own laws that provide a procedure for refugees to seek asylum at our border.

According to the Washington Post, some of the others who have been separated from their children were also seeking asylum but were apprehended because they went to the wrong port of entry or crossed the border in desperation when they were turned away at a port of entry.   

The majority of those seeking asylum are from Mexico, Honduras and El Salvador, all countries ravaged by violence at the hands of criminal organizations.  Extortion, kidnappings and even murder are very common in many of the areas from which these refugees come.  Virtually all of the asylum seekers I’ve met reported that their families were targets of this violence and were threatened with more violence if they stayed in their communities.

Are these immigrants able to stay forever in the U.S. just by coming to the border?

No, all applicants for asylum have to go through a rigorous interview process to establish they have a credible fear of persecution in their home country before they are ever allowed to leave the custody of the border officials.

Those who fail these interviews are deported. 

Those who succeed in proving to a DHS official that they credible fear of persecution still have to go through a trial before an immigration judge in deportation proceedings.  There, they are subject to a higher standard of proof, requiring that they prove have a well-founded fear of persecution based on religion, race, nationality, political opinion or social group; if they fail to prove this to a judge, they are deported.

Are the Democrats responsible for this family separation policy?

Donald Trump continues to falsely blame Democrats for an administration policy that has led to more than 2,000 children being separated from their parents at the U.S. border.

The family separations began earlier this year after the Administration announced a so-called “zero tolerance” policy of referring all border crossings for federal criminal prosecution, which leads to children being separated as their parents are sent to jail.

A law intended to protect children from trafficking was  passed by a Democratic Congress and signed into law by George W. Bush in 2008.  It establishes certain due process rights for unaccompanied minors .  That is apparently the law Donald Trump is referring to; however that law does just the opposite. 

Isn’t there an alternative to incarcerating them and separating them from their children?

Yes, even if the U.S. government insists on criminally prosecuting all these immigrants, I believe these families could be given electronic ankle bracelets or other devices commonly used by immigration or law enforcement to ensure a person will attend future court hearings and not disappear. 

There has never been an adequate explanation from the Trump Administration why these refugees cannot be given electronic devices to track their whereabouts, instead of incarcerating them at greater cost to our government, not to mention the cost to their children who are taken away from them.