Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top tier immigration practices with years of expertise and a comprehensive understanding of immigration law. For more information on ABIL, including a map of ABIL attorneys worldwide, visit their website.
The following articles are excerpts from ABIL’s monthly Immigration Insider, available here on their website.
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Attorney General Delivers Remarks to Largest IJ Class in History
On September 10, 2018, Attorney General Jeff Sessions delivered remarks to 44 new Immigration Judges (IJs), the largest class of IJs in history.
Among other things, Mr. Sessions said more IJs will be added by the end of this calendar year, “with a goal of seeing a 50 percent increase in the number” of IJs since the beginning of the Trump administration.
He also said that “[g]ood lawyers, using all of their talents and skill, work every day—like water seeping through an earthen dam—to get around the plain words of the [Immigration and Nationality Act] to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty.” He called attention to the fact that earlier in 2018, the Department of Homeland Security (DHS) “announced that it would seek to refer 100 percent of illegal border crossers to the Department of Justice for criminal prosecution in Federal courts.” He said that U.S. Attorneys are prosecuting over 90 percent of those cases referred to the Department of Justice, which he noted is a “two to threefold increase” and is the ” ‘zero tolerance’ policy you have heard about. You don’t get to enter the border unlawfully, between ports of entry, and place our [Customs and Border Protection] officers at risk without consequences.”
Mr. Sessions said that the asylum system “has been abused for years to the detriment of the rule of law, sound public policy, and public safety.” He said that “[s]aying a few simple words—claiming a fear of return—has transformed a straightforward arrest for illegal entry and immediate return…too often into a prolonged legal process, where an alien may be released from custody into the United States and possibly never show up for an immigration hearing.” He asserted that “the vast majority of the current asylum claims are not valid under the law.” He said that for the past five years, only 20 percent of claims have been found to be meritorious after a hearing before an IJ, and that in addition, roughly 15 percent are found invalid by U.S. Citizenship and Immigration Services as a part of their initial credible fear screenings. “Further illustrating this point,” Mr. Sessions said, “in 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, only seven years later, that number had increased to 94,000. The number of these aliens placed in immigration court proceedings went from fewer than 4,000 to more than 73,000 by 2016—nearly a 19-fold increase—overwhelming the system and leaving legitimate claims buried.”
Mr. Sessions also said it is the duty of the IJs to carry out his ruling on the principles of asylum and immigration law, and said “there will be more still to come.” “When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation. Your job is to apply the law—even in tough cases. As we work to restore rule of law in our immigration system, we will send a clear message to the world that the lawless practices of the past are over. The world will know what our rules are, and great numbers will no longer undertake this dangerous journey.”
The full text of Mr. Sessions’ speech.
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Pro Bono: Visit to a Remote Detention Facility in Georgia
Sophia Genovese, an attorney with Cyrus D. Mehta and Associates, PLLC, traveled to a remote detention facility in Folkston, Georgia, along with several others to provide pro bono legal assistance to detained asylum-seekers in their bond and parole proceedings. The program was organized and led by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI). SIFI currently only represents detained asylum-seekers in their bond and parole proceedings to assist as many as possible in obtaining release. Ms. Genovese noted that their rationale is that since bond and parole representation take up substantially less time than asylum representation, they can have a far greater impact in successfully obtaining release for several hundred asylum-seekers, who can hopefully thereafter obtain counsel to represent them in their asylum proceedings.
Folkston is extremely remote. It is about 50 miles northwest of Jacksonville, Florida, and nearly 300 miles from Atlanta, Georgia, where the cases from the Folkston ICE Processing Center are heard. Instead of transporting detained asylum-seekers and migrants to their hearings at the Atlanta Immigration Court, Immigration Judges (IJs) appear via teleconference. These proceedings lack due process, Ms. Genovese said. Rather, through assembly-line adjudication, IJs hear several dozen cases within the span of a few hours.
Even with the tireless efforts of the staff attorneys and volunteers at SIFI, she noted, there are too few attorneys to help every detainee at the Folkston ICE Processing Center, which houses almost 900 immigrants at any given time, leaving hundreds to navigate the confusing waters of immigration court alone.
During initial screenings, Ms. Genovese encountered numerous individuals who filled out their asylum applications on their own, using the Internet in the library to translate the application into their native language, translate their answers into English, and then hand in their I-589s to the IJ. While these asylum seekers are smart and resourceful, it is nearly impossible for them to successfully pursue their own asylum claims, she said. To make matters worse, if these asylum-seekers do not obtain release from detention ahead of their merits hearings where IJs will adjudicate their asylum claims, they will be left to argue their claims in the Atlanta Immigration Court, where the vast majority of asylum claims are denied. For those detained and/or unrepresented, that number is nearly 100%.
Ms. Genovese summarizes below the stories of some of the asylum-seekers she met in Folkston. If these individuals do not obtain counsel for the bond or parole proceedings, and/or if they are denied release, she said, they will be forced to adjudicate their claims in the Atlanta Immigration Court where they will almost certainly be ordered removed. Below are their stories, edited for conciseness:
Twenty-Five Year Old From Honduras Who Had Been Sexually Assaulted on Account of His Sexual Orientation
At the end of my first day in Folkston, I was asked to inform an individual, Mr. J-, that SIFI would be representing him in his bond proceedings. He’s been in detention since March 2018 and cried when I told him that we were going to try and get him out on bond.
Mr. J- looks like he’s about sixteen, and maybe weighs about 100 pounds. Back home in Honduras, he was frequently ridiculed because of his sexual orientation. Because he is rather small, this ridicule often turned into physical assault by other members of his community, including the police. One day when Mr. J- was returning from the store, he was stopped by five men from his neighborhood who started berating him on account of his sexual orientation. These men proceeded to sexually assault him, one by one, until he passed out. These men warned Mr. J- not to go to the police, or else they would find him and kill him. Mr. J- knew that the police would not help him even if he did report the incident. These men later tracked down Mr. J-’s cellphone number, and continued to harass and threaten him. Fearing for his life, Mr. J- fled to the United States.
Mr. J-’s asylum claim is textbook and ought to be readily granted. However, given [Attorney General Jeff] Sessions’ recent unilateral change in asylum law based on private acts of violence, Mr. J- will have to fight an uphill battle to ultimately prevail. See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). If released on bond, Mr. J- plans to move in with his uncle, a U.S. citizen, who resides in Florida. Mr. J-’s case will then be transferred to the immigration court in Miami. Although the Immigration Court in Miami similarly has high denial rates, where nearly 90% of all asylum claims are ultimately denied, Mr. J- will at least have a better chance of prevailing there than he would in Atlanta.
Indigenous Mayan from Guatemala Who Was Targeted on Account of His Success as a Businessman
During my second day, I met with an indigenous Mayan from Guatemala, Mr. S-. He holds a master’s degree in Education, owned a restaurant back home, and was the minister at his local church. He had previously worked in agriculture pursuant to an H-2B visa in Iowa, and then returned to Guatemala when the visa expired to open his business.
He fled Guatemala earlier this year on account of his membership in a particular social group. One night after closing his restaurant, he was thrown off his motorcycle by several men who he believes were part of a local gang. They beat him and threatened to kill him and his family if he did not give them a large sum of money. They specifically targeted Mr. S- because he was a successful businessman. They warned him not to go to the police or else they would find out and kill him. The client knew that the police would not protect him from this harm on account of his ethnic background as an indigenous Mayan. The day of the extortionists’ deadline to pay, Mr. S- didn’t have the money to pay them off, and was forced to flee or face a certain death.
Mr. S- has been in immigration detention since March. The day I met with him at the end of August was the first time he had been able to speak to an attorney.
Mr. S-‘s prospects for success are uncertain. Even prior to the recent decision in Matter of A-B-, asylum claims based on the particular social group of “wealthy businessmen” were seldom granted. However, if Mr. S- can show that he was also targeted on account of his indigenous Mayan ancestry, he can perhaps also raise an asylum claim based on his ethnicity. The combination of his particular social group and ethnicity may be enough to entitle him to relief.
As business immigration attorneys may also point out, if Mr. S- can somehow locate an employer in the United States to sponsor him, he may be eligible for employment-based relief based on his master’s degree, prior experience working in agriculture, and/or his business acumen on account of his successful restaurant management. Especially if Mr. S- is not released on bond and forced to adjudicate his claims in the Atlanta Immigration Court where asylum denial rates are high, his future attorney may also want to explore these unorthodox strategies.
Indigenous Mam-Speaking Guatemalan Persecuted on Account of His Race, Religion, and Particular Social Group
My third day, I met with Mr. G-, an indigenous Mam from Guatemala. Mr. G- is an incredibly devout Evangelical Christian and one of the purest souls I have ever met. He has resisted recruitment by rival gangs in his town and has been severely beaten because of his resistance. He says his belief in God and being a good person is why he has resisted recruitment. He did not want to be responsible for others’ suffering. The local gangs constantly assaulted Mr. G- due to his Mam heritage, his religion, and his resistance of them. He fled to the United States to escape this persecution.
Mr. G- only speaks Mam, an ancient Mayan dialect. He does not speak Spanish. Because of this, he was unable to communicate with immigration officials about his credible fear of return to his country upon his initial arrival in November 2017. Fortunately, the USCIS asylum officer deferred Mr. G-‘s credible fear interview until they could locate a Mam translator. However, one was never located, and he has been in immigration detention ever since.
August 29, 2018, nine months into his detention, was the first time he was able to speak to an attorney through an interpreter who spoke his language. Mr. G- was so out of the loop with what was going on that he did not even know what the word “asylum” meant. For nine months, Mr. G- had to wait to find out what was going on and why he was in detention. My colleague and I spoke with him for almost three hours. We could not provide him with satisfactory answers about whether SIFI would be able to take his case, and when or if he would be let out of detention. Given recent changes in the law, we couldn’t tell him if his asylum claim would ultimately prevail.
Mr. G- firmly stated that he would be killed if he were forced to go back to Guatemala. He said that if his asylum claim is denied, he will have to put his faith in God to protect him from what is a certain death. He said God is all he has.
Even without answers, this client thanked us until he was blue in the face. He said he did not have any money to pay us but wanted us to know how grateful he was for our help and that he would pray for us. Despite the fact that his life was hanging in the balance, he was more concerned about our time and expense helping him. He went on and on for several minutes about his gratitude. It was difficult for us to hold back tears.
Mr. G- is the reason asylum exists, but under our current framework, he will almost certainly be deported, especially if he cannot locate an attorney. Mr. G- has an arguable claim under Ordonez-Quino v. Holder, on account of his Mam heritage, and an arguable claim on account of his evangelical Christianity, given that Mr. G-‘s persecution was compounded by his visible Mam ethnicity and vocal evangelical beliefs. His resistance to gang participation will be difficult to overcome, though, as the case law on the subject is primarily negative. Mr. G-‘s low prospects of success are particularly heart-wrenching.
[Update: Ms. Genovese subsequently received word that Mr. G- had been ordered removed. Despite the fact that his hearing was conducted entirely in Spanish and he has arguable claims to relief, Mr. G- has decided not to appeal his removal order and instead return to Guatemala. Prolonged detention has taken a serious toll on Mr. G-‘s physical and mental health.]
Twenty-Year Old Political Activist From Honduras, Assaulted by Military Police on Account of His Political Opinion
I also assisted in the drafting of a bond motion for a 20-year-old political activist from Honduras, Mr. O-, who had been severely beaten by the military police on account of his political opinion and activism.
Mr. O- was a prominent and vocal member of an opposition political group in Honduras. During the November 2017 Honduran presidential elections, Mr. O- assisted members of his community to travel to the polling stations. When election officials closed the polls too early, Mr. O- reached out to military police patrolling the area to demand that they re-open the polling stations so Hondurans could rightfully cast their votes. The military police became angry with Mr. O-‘s insistence and began to beat him by stomping and kicking him, leaving him severely wounded. Mr. O- reported the incident to the police, but was told there was nothing they could do.
A few weeks later, Mr. O- was specifically targeted again by the military police when he was on his way home from a political meeting. The police pulled him from his car and began to beat him, accusing him of being a rioter. He was told to leave the country or else he would be killed. He was also warned that if he went to the national police, he would be killed. Fearing for his life, Mr. O- fled to the United States in April 2018 and has been in detention ever since.
SIFI was able to take on his bond case in August, and by the end of my trip, the SIFI team had submitted his request for bond. Since Mr. O-‘s asylum claim is particularly strong, and because he has family in the United States, it is highly likely that his bond will be granted. From there, we can only hope that he encounters an IJ who appropriately follows the law and will grant him asylum.
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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers (www.abil.com), of which Lynn Susser is an active member.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.