The Role of Judges to “Say What the Law Is”: Judicial Oversight of Immigration Adjudication

by ramon — Posted in blog on January 31, 2020

By Tess Hellgren, Staff Attorney and Justice Catalyst Legal Fellow

January 31, 2020

Since the beginning of the Trump Administration, the immigration court system has been used as a tool to further the executive branch’s anti-immigrant agenda. The Attorney General and other executive officials have enabled widespread due process violations and skyrocketing case backlogs while imposing case quotas and docketing rules that prevent judges from serving as impartial adjudicators.[1]

Last week, the Seventh Circuit highlighted a new abuse of power: the refusal of executive officials in the Board of Immigration Appeals (BIA) to follow a direct order from a federal court.

The BIA is the administrative body responsible for reviewing decisions that are appealed from sixty-eight immigration courts across the country. Like these immigration courts, the BIA is part of the Executive Office for Immigration Review (EOIR) – the immigration court system, located in the executive branch, that is ultimately overseen by the Attorney General of the United States. Despite the serious flaws inherent in the design of this system, BIA decisions may at least be appealed up to the appropriate federal circuit court, providing a crucial layer of independent judicial review in individual cases.[2]

In the case of Baez-Sanchez v. Barr, the Seventh Circuit had previously held that the immigration laws unambiguously grant immigration judges the power to waive a noncitizen’s inadmissibility to the United States, overruling the BIA’s prior decision to the contrary.[3] On remand, the BIA “flatly refused to implement” the court’s direct order.[4] Writing that the BIA’s decision “beggars belief,” the Seventh Circuit stated that

We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that [the Respondent] has not asked us to hold them in contempt, with all the consequences that possibility entails.[5]

This language is an extraordinary rebuke: it is very rare for a circuit court to issue an implicit threat to hold members of an administrative agency in contempt for directly disregarding a court order. The Seventh Circuit was clear that the BIA was mistaken if it thought that “faced with a conflict between our views and those of the Attorney General it should follow the latter.”[6] Affirming foundational separation of powers principles, the Seventh Circuit admonished that

[I]t should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government . . . Once we reached a conclusion, both the Constitution and the statute required the Board to implement it.[7]

The Seventh Circuit’s decision also noted that the Attorney General had submitted a brief asking the court to give the BIA another opportunity to issue “an authoritative decision” on this issue, arguing that such a decision could be entitled to judicial deference.[8] The court aptly responded that this “request is bizarre,” as the court had already held that the applicable regulation was unambiguous – and an agency “cannot rewrite an unambiguous [law] through the guise of interpretation.”[9] As the Supreme Court made clear in Kisor v. Wilkie, “if the law gives an answer—if there is only one reasonable construction of a regulation—then a court has no business deferring to any other reading, no matter how much the agency insists it would make more sense.”[10]

Notably, even if the Seventh Circuit had found the laws in question to be ambiguous, the Attorney General and members of the BIA do not have free reign to impose any interpretation they choose. It is true that federal courts must defer to the reasoned decisions of administrative agencies when Congress has left the agency’s discretion to interpret an ambiguous provision of law, under the doctrine of Chevron deference.[11] But this deference is not boundless. As the Supreme Court made clear in Chevron, courts should defer to agencies’ interpretation of ambiguous statutes when the agency interpretation is “a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute.”[12] The agency’s interpretation must thus still fall “within the bounds of reasonable interpretation.”[13]

This standard, and the Seventh Circuit’s reprimand, is especially important as the Attorney General attempts to aggressively expand his control of immigration court adjudication. Under the Trump Administration, the Attorneys General have issued a number of “certified” decisions that attempt to restrict eligibility for asylum based on factors such as domestic violence, gang violence, or past persecution due to family membership.[14] In these decisions, which upend years of established immigration precedent, the Attorney General has pointedly asserted his authority to construe the terms of the Immigration and Nationality Act and implied that federal courts must fall in line with his interpretations.[15]

Yet the Attorney General’s reasoning holds only if his interpretations are actually entitled to judicial deference: if the laws in question are ambiguous and the federal courts find his interpretations reasonable.[16] And as the Supreme Court has admonished, “let there be no mistake: That is a requirement an agency can fail.”[17] Indeed, in addressing the application of the Attorney General’s certified decision in Matter of A-B-, at least one federal court has already held that a “general rule against domestic violence and gang-related claims during a credible fear determination is arbitrary and capricious and violates the immigration laws.”[18]

Faced with the Trump Administration’s weaponization of the immigration courts against asylum-seeking individuals, the role of the federal courts is more important than ever. As the Attorney General and other executive officials attempt to expand their authority to define the terms of immigration adjudication, federal courts should heed the Seventh Circuit’s decision – and remember the foundational legal principle that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”[19]


[1] See generally Innovation Law Lab and Southern Poverty Law Center, The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool, 14–15 (June 2019), https://innovationlawlab.org/reports/the-attorney-generals-judges/; Complaint, Las Americas v. Trump, No. 3:19-cv-02051-SB (D. Or. Dec. 18, 2019), https://innovationlawlab.org/wp-content/uploads/2019/12/ECF-1-Las-Americas-v.-Trump-No.-19-cv-02051-SB-D.-Or..pdf.

[2] See Immigration and Nationality Act § 242; 8 U.S.C. § 1252.

[3] Baez-Sanchez v. Sessions, 872 F.3d 854, 856 (7th Cir. 2017); Baez-Sanchez v. Barr, No. 19-1642, slip op. at 2–3 (7th Cir. Jan. 23, 2020).

[4] Baez-Sanchez, slip op. at 3.

[5] Id. at 3–4.

[6] Id. at 4.

[7] Id.

[8] Id. at 4–5.

[9] Id. at 5.

[10] Kisor v. Wilkie, 139 S.Ct. 2400, 2415 (2019).

[11] Chevron  v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).

[12] Id. at 844–45; see also 5 U.S.C. § 706(2) (a reviewing court shall set aside agency action, findings, and conclusions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).

[13] See Kisor, 139 S.Ct. at 2416, quoting Arlington v. FCC, 569 U.S. 290, 296 (2013).

[14] See Matter of A-B-, 27 I&N Dec. 316 (2018); Matter of L-E-A-, 27 I&N Dec. 581 (2019). Note inconsistencies

[15] See Matter of A-B-, 27 I&N at 326–27; Matter of L-E-A-, 27 I&N at 591–92.

[16] See Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (allowing for agency interpretation to override judicial interpretation in certain circumstances, when the agency interpretation is “otherwise entitled to Chevron deference”).

[17] See Kisor, 139 S.Ct. at 2416.

[18] Grace v. Whitaker, 344 F. Supp. 3d 96, 127 (D.D.C. 2018).

[19] See Marbury v. Madison, 5 U.S. 137, 177 (1803).

Oregon Immigrant Rights Organizations File Amicus Brief In Support of State of Washington’s Request to Halt Courthouse ICE Arrests

by ramon — Posted in Press Release on January 17, 2020

FOR IMMEDIATE RELEASE
January 17, 2020 

MEDIA CONTACT:
Ramon Valdez, Innovation Law Lab, ramon@innovationlawlab.org, m – 971.238-1804
Doug Brown, ACLU of Oregon, dbrown@aclu-or.org, m – 734.239.2706

Portland, Ore.一Yesterday evening, a broad coalition of community-based advocacy, legal defense, policy development, and social services organizations filed a brief in federal district court in Washington in which they describe how ICE’s terrifying arrest tactics in state courthouses across the Pacific Northwest limit access to courts and fundamentally compromises our justice system.

The organizations, working in both Oregon and Southwest Washington, filed an amicus brief (meaning “friend of the court”) in support of the State of Washington’s effort to ban Immigration and Customs Enforcement (ICE) agents from conducting arrests at state courthouses, a lawsuit filed in U.S. District Court in Seattle, Washington.

The organizations describe first-hand accounts of litigants, witnesses, victims, and other community members choosing not to file protective orders, seek marriage licenses, serve as witnesses, or protect their workplace rights due to fear of ICE activity; driving them further into the shadows of civil society. On several occasions, volunteer legal observers have witnessed and captured video footage of ICE engaging in racial profiling and using physical force against individuals, their families, and bystanders, often in the middle of a pending case. 

“ICE’s unlawful and destructive courthouse arrest policy has fundamentally compromised our court system and prevented citizens and noncitizens alike from seeking justice,” said Nadia Dahab, Senior Staff Attorney with Innovation Law Lab.  “In Oregon, we have seen the impacts of this policy in communities statewide. We are optimistic that the federal district court in Washington, like our state supreme court, will put an end to it.”

The organizations include Causa Oregon, Adelante Mujeres, Metropolitan Public Defender (MPD), Northwest Workers’ Justice Project (NWJP), Immigration Counseling Service (ICS), Interfaith Movement for Immigrant Justice (IMIrJ), Latino Network, VIVA Inclusive Migrant Network (VIVA), Pueblo Unido, American Immigration Lawyers Association of Oregon (AILA Oregon), Immigrant and Refugee Community Organization (IRCO), Rural Organizing Project (ROP), and Unite Oregon.  The organizations are represented by Innovation Law Lab, the ACLU of Oregon, and Miller Nash Graham & Dunn.

After years of ICE agents stalking court-goers in Oregon, the Chief Justice of the Oregon Supreme Court, Martha Walters, approved a new court rule in November 2019 that prohibits warrantless, civil arrests in Oregon courts.  

In December 2019, State of Washington Attorney General Bob Ferguson filed a lawsuit to halt ICE arrests in and around Washington’s state courthouses.  Shortly after the lawsuit was filed, Washington requested a preliminary injunction, asking the court to halt courthouse arrests entirely while the suit is pending.  The amicus brief filed by Oregon’s immigrant rights advocacy groups supports Washington’s request for an immediate statewide injunction barring ICE arrests at and around all state courts. The ICE Field Office in Seattle oversees the arrest practices of ICE agents in both Washington and Oregon.

Washington’s lawsuit follows similar suits in New York and Massachusetts, where federal courts have issued statewide injunctions barring ICE from making arrests of individuals when they seek to use courthouse services.  The lawsuits have been filed in response to ICE’s increased targeting of state courthouses for immigration enforcement, often by means that are disruptive to pending judicial proceedings.  

The Washington Supreme Court has also posted a proposed trial court rule, currently open for public comment, that is similar to the rule issued by Oregon’s Chief Justice.  The public comment period on Washington’s proposed rule closes on February 3, 2020.

Read the group’s amici brief online here: http://bit.ly/oregon-ready-amicus

Video of ICE arrests at Oregon courts in Clackamas, Clatsop, Multnomah, and Washington counties is online here: https://www.youtube.com/watch?v=0MCSWthEFqU&feature=youtu.be

5 steps to end the assaults on immigrants in the coming decade

by ramon — Posted in blog Uncategorized on December 31, 2019

As this decade comes to a close, it is heartbreaking to review the damage done to immigrant rights and civil liberties. Especially in recent years. U.S. immigration policy has prismed into three prongs that work to deny immigrants from having equal access to justice. 

  1. Increased public stigmatization and criminalization of the human act of migration. 
  2. Expansion of the detention apparatus which cages immigrant children and adults. 
  3. Elimination of meaningful immigrant access to courts and lawyers. 

Refugees are being deported back to danger. Children are torn from the arms of their parents. Entire communities destroyed. 

Innovation Law Lab is a nonprofit organization that harnesses technology, law, and activism to advance immigrant justice. Together, we can win the fight for immigrant justice and inclusion. 

1. Move lawyers and activists into position at the hotspots.

Where the threat is grave and humans are forced to flee, get lawyers and activists on-the-ground to work (and work hard). Within days of the start of Trump’s horrific “Remain in Mexico” program that intentionally forced those fleeing persecution to live on the streets of some of the most dangerous cities in the world, our team was on-the-ground; lawyers and activists gathering intelligence, offering free legal help, and building a transnational support network for those stuck in perpetual danger. Innovation Law Lab organized volunteers with our regional partners to represent and defend asylum-seekers marooned far from home and on the doorsteps of safety. 

2. Deploy technology that harnesses the power of lawyers & activists

Technology can help lawyers and activists scale their ability to create more just pathways. The situation at the US-Mexico border is hard to fathom. Since October 2018, U.S. Customs and Border Protection (CBP) officers have unlawfully prevented thousands of refugees from accessing the U.S. asylum system.  Even though people are fleeing extreme violence in El Salvador, Guatemala, and Honduras with valid claims under international and domestic law, CBP has created a crisis where vital documents are destroyed, children and families are detained in inhumane conditions, and the immigration court system is dysfunctional to the point of collapse. 

As a nonprofit that consists of activists, lawyers, and software engineers, Innovation Law Lab is uniquely positioned to develop tools that empower immigrants and their advocates in moments of crisis. Innovation Law Lab’s new tech tools help migrants better navigate the harrowing journey north and the complex immigration system that awaits them in America.

3. File lawsuits that defend activism in motion.

The courts can channel the power of activists working for just and fair outcomes. After Trump announced a rule that would deny immigrants’ fair access to health insurance (!) while simultaneously shutting down our nation’s long-standing tradition of family reunification, Innovation Law Lab filed a lawsuit in federal court to defend the activists and people in motion like our colleagues Latino Network.

Just hours before the health care ban was scheduled to go into effect, during an emergency Saturday hearing, a federal judge issued a Temporary Restraining Order (TRO) against the government. We were recently granted a preliminary injunction halting the policy from going into effect as we continue to litigate. By litigating strategically, we are able to keep harmful immigration policies from going into effect. 

4. Play the Long Game

We have to play the long game to permanently exit this state of urgency. The President’s unrelenting assaults on immigrant communities have already taken a toll on our communities and economy, both locally and nationwide. Increasingly aggressive immigration enforcement actions have caused many law-abiding residents to fear sending their children to school or even leaving the house to buy groceries.

Since 2017, for example, ICE has executed or planned enforcement actions at state courthouses that serve nearly millions of people  As one school superintendent explained, “[a]lmost everybody in town is impacted” by the fear of immigration raids. Within weeks of Trump’s election, Innovation Law Lab designed and began organizing a long game of developing organizational infrastructure to build permanent pathways to immigrant inclusion. Called the Rights Architecture, it is a holistic system that allows activists to self-organize, identify spaces for collaboration, and rapidly foster innovation. It has successfully created the nation’s first statewide universal representation program for immigrants facing imminent deportation called Equity Corps of Oregon

5. Give to Support the Work

Not only is our small team of lawyers, activists, and software engineers working to defend against Trump’s anti-immigrant attacks, Innovation Law Lab is at the forefront of creating universal representation programs for immigrants facing deportation proceedings. 

Communities around the country and along our nation’s borders are coming together to create an accessible support system for some of the most vulnerable members of our society. Innovation Law Lab is here to design the programs, technology, and forward-thinking legal strategies. As a nonprofit organization, we depend on your philanthropic support to continue this important work! 

Civil Rights Coalition Successfully Enjoins Presidential Health Insurance Proclamation

by ramon — Posted in Press Release on November 26, 2019


FOR IMMEDIATE RELEASE


November 26, 2019  – Today, litigators from the Justice Action Center (JAC), the American Immigration Lawyers Association (AILA), and the Innovation Law Lab, with pro bono counsel Sidley Austin LLP, and Latino Network as the organizational plaintiff, obtained a preliminary nationwide injunction in Doe v. Trump, thereby ensuring that the administration’s attempt to ban immigrants based on their ability to obtain health insurance upon arrival to the U.S. will not be implemented while litigation continues. With this injunction, the court recognized the urgent and irreparable harm that would have been inflicted in the absence of an injunction. The health insurance proclamation is an unconstitutional effort that would permanently separate families and damage employers; a coalition of state’s Attorney Generals filed an amicus brief describing the harm it would cause. 

“During this Thanksgiving week, we are so grateful for this court ruling that will keep families together and allow other families to reunite. This decision is an important check on the Trump administration’s effort to rewrite our nation’s immigration and health care laws in violation of the boundaries set out in the Constitution,” says Esther Sung, Senior Litigator at the Justice Action Center.

Jesse Bless, Director of Federal Litigation for AILA stated, “The egregiousness of the Proclamation demanded urgent action to save so many affected immigrants and their loved ones. We are tremendously grateful that our efforts have stopped the President from harming so many immigrant families.”

“Today’s decision protects our Nation’s immigrant families from suffering irreparable harm as a result of the President’s harmful and unlawful proclamation. We are encouraged by the Court’s decision to enforce the rule of law, which does not allow the President to rewrite our immigration laws this way,” added Nadia Dahab, Senior Staff Attorney at Innovation Law Lab.

“We are deeply grateful we had an opportunity to be heard and relieved by the court’s decision. Our families belong together and our program participants deserve to have their dignity and rights respected, no matter where they come from. Today we can assure our families, staff, and program participants that for now their families are safe from the effects of this discriminatory and abusive health care ban,” said Carmen Rubio, Latino Network’s Executive Director.

A temporary restraining order (TRO) issued by the U.S. District Court in Portland, OR, on November 2, 2019, had stopped the federal government from implementing the policy. During that month, approximately 25,000 visas were granted that would otherwise have been denied. The preliminary injunction now solidifies that bar, ensuring the administration cannot move forward with this ban while the litigation continues. 

The government has the ability to seek immediate review of the injunction by the Ninth Circuit while the underlying case moves forward in the District Court.

Background
On October 4, 2019, President Trump signed a proclamation barring qualified immigrants from receiving visas unless they could prove they would be covered by “approved” health insurance within 30 days of arriving in the U.S., or are healthy and wealthy enough to pay for “reasonably foreseeable medical costs” upon arrival. The proclamation, labeled a ban because of its tremendous reach and impact, limited “approved” health insurance to plans that many immigrants do not qualify for; are unavailable in large states like New York and California; or would be impossible to obtain within 30 days of arrival. The proclamation was to go into effect on November 3, 2019.

# # #

PRESS CONTACTS:
Justice Action Center: Christine Chen, christine@christinechen.com
American Immigration Lawyers Association: Belle Woods, bwoods@aila.org
Innovation Law Lab: Ramon Valdez, ramon@innovationlawlab.org 
Martina Bialek, Communications Manager, martina@latnet.org

AG Rosenblum, Advocates Applaud Chief Justice Walters for Issuing Rule to Protect Oregon Courthouses

by ramon — Posted in Press Release on November 14, 2019

FOR IMMEDIATE RELEASE
November 14, 2019 

CONTACT:
Ramon Valdez, Innovation Law Lab, ramon@innovationlawlab.org, m – 971.238-1804
Sarah Armstrong, sarmstrong@aclu-or.org, m – 503.756.3147

Salem, Ore.一 Chief Justice of the Oregon Supreme Court Martha Walters today announced a new rule to stop warrantless, civil arrests in Oregon’s courts. Community groups and immigration advocates petitioned the Chief Justice to adopt the rule in response to rising concern over increased immigration arrests at Oregon’s courthouses. The rule prohibits arrests inside any state courthouse and in public entryways, walkways, sidewalks, driveways, and parking areas around the courthouses. 

“This rule will bring an end to ICE’s destructive policy of courthouse intrusions making immigration arrests inside Oregon’s courts without judicial warrants and often without identifying themselves or producing any documentation at all,” said Stephen Manning, executive director of Innovation Law Lab, a national immigrants’ rights group based in Portland. 

“Our courthouses, like our schools, places of worship, and hospitals, are by their very nature sensitive places where all Oregonians must be able to enter without fear,” said Oregon Attorney General Ellen Rosenblum. “These courthouses, located throughout the state, are centers of civic life, and are absolutely critical for everything from marriage to divorce, to filing for a restraining order, to pursuing justice in our courtrooms. Unfortunately, until now, many of our community members could not use our courthouses without constant fear.  With this Uniform Trial Court Rule, courthouses in Oregon will now be included as sensitive spaces prohibiting civil arrests unless the arresting agency has a judicial arrest warrant. This protects our witnesses, victims, jurors, defendants and other members of the public from interference while they conduct the business of our legal and justice systems. Thank you to our Chief Justice Martha Walters for issuing this important emergency rule, and to the broad coalition of stakeholders who worked to ensure that this critical issue was given the priority it deserves. Thanks to this new rule, Oregon will be a safer and more welcoming place for all.”

Community members and advocates have raised alarm that agents with Immigration and Customs Enforcement (ICE) are frequently present at Oregon’s county and municipal courthouses, profiling and targeting community members to make non-criminal, civil immigration arrests. 

“We hear too often from devastated family members whose loved ones have been snatched up out of Oregon courthouses by people in street clothes and stuffed into unmarked cars and driven off,” said Cristina Marquez, interim executive director of Causa Oregon. “People have been afraid to go to the courthouses.”

“ACLU of Oregon legal observers have repeatedly witnessed ICE officers profile, stalk, and violently arrest community members in Oregon courthouses,” said Katherine McDowell, attorney and board member of the ACLU of Oregon. “The courthouse rule stops these frightening practices and ensures that everyone can seek justice in our courts.” 

Carl McPherson, executive director of Metropolitan Public Defender said he was thankful to the Chief Justice for addressing the problem. “As a result, our clients, witnesses, and other court-goers can participate in our judicial system without fear of being arrested and detained by ICE. By issuing this rule, the Chief Justice has ensured that access to our courts is protected for all people regardless of their immigration status.”

The rise in ICE arrests at Oregon courthouses is a direct byproduct of two executive orders issued by President Trump, early in his presidency, which made anyone subject to removal a priority for immigration enforcement. The ICE detentions often involved racial profiling and the use of physical force against individuals, their families, and bystanders. 

Oregon is the third state in the country, after New Jersey and New York state, to issue a statewide court rule prohibiting ICE from making civil arrests at state courthouses without a judicial warrant or judicial order. California provides similar protection through a recently enacted statute, and other rules prohibiting civil or immigration arrests exist in Bernalillo County, New Mexico, and King County, Washington. A federal judge has also prohibited ICE’s courthouse arrests in Middlesex and Suffolk counties, in Massachusetts. 

Innovation Law Lab, with assistance from Stoll Berne, formally petitioned the Chief Justice to issue an emergency rule prohibiting ICE arrests at or near state courthouses on the basis of Oregon’s common-law rule last year.  The petitioners were Adelante Mujeres, Causa Oregon, Immigration Counseling Service, Metropolitan Public Defender, Northwest Workers’ Justice Project, Unite Oregon, and Victim Rights Law Center. The ACLU of Oregon supported the petition and assisted Innovation Law Lab and Stoll Berne in seeking the court rule.

ICE agents have targeted county and municipal courthouses statewide, with planned or executed ICE arrests occurring, at a minimum, at courthouses serving Multnomah County, Washington County, Clackamas County, Lane County, Marion County, Umatilla County, Morrow County, Sherman County, Gilliam County, Wheeler County, Wasco County, Hood River County, Josephine County, Yamhill County, Lincoln County, Clatsop County, and the municipal courts in Beaverton and Molalla. Those courthouses combined serve nearly 3 million Oregonians, citizen and noncitizen alike.

“Tasked with the administration of justice over criminal issues, domestic relationships, probate, and many other important matters, Oregon state courts form a critical component of our civil society,” said Leland Baxter-Neal, staff attorney at the ACLU of Oregon. “As such, it is imperative that they be open to all Oregonians, including immigrants and persons of color.”

The Chief Justice’s announcement is online here https://www.courts.oregon.gov/news/Lists/ArticleNews/Attachments/1213/acd3fb79befadf4982b20ceba127ffd0-Media-Release-New-UTCR-Limiting-Civil-Arrests-in-Court-Facilities-effective-2019-11-14.pdf

The rule is online here https://www.courts.oregon.gov/rules/UTCR/CJO_2019-095.pdf.
Video of ICE arrests at Oregon courts in Clackamas, Clatsop, Multnomah, and Washington counties is online here:

Advocates Ask Oregon Courts to Ban ICE Arrests at Courthouses

by ramon — Posted in Press Release on October 18, 2019

The Oregon Uniform Trial Court Rules Committee hearing will be live streamed at 2 p.m. Friday.


FOR IMMEDIATE RELEASE
October 18, 2019

Media Contacts: 
Ramon Valdez, Innovation Law Lab, ramon@innovationlawlab.org, m – 971.238-1804
Sarah Armstrong, ACLU of Oregon, sarmstrong@aclu-or.org, m – 503.756.3147;

SALEM, Ore. — Attorneys with the ACLU of Oregon, Innovation Law Lab, and Stoll Berne will ask Oregon’s Uniform Trial Court Rules Committee Friday to adopt a rule prohibiting civil immigration arrests in and around Oregon’s state courthouses without a judicial warrant. The attorneys submitted the proposed rule on behalf of immigrants’ rights and court advocates including Adelante Mujeres, Causa Oregon, Immigration Counseling Service, Metropolitan Public Defender, Northwest Workers’ Justice Project, Unite Oregon, and the Victim Rights Law Center. 

“ICE intrusions in and around Oregon courthouses jeopardize the court’s ability to administer justice as required under the Oregon Constitution,” said Nadia Dahab, attorney at Stoll Berne. “Fear of deportation keeps immigrants from reporting crimes and participating in court proceedings.”

VIDEO: Watch the ACLU’s video which reveals ICE activity in Oregon courts, spotlighting incidents at courts in Clackamas, Clatsop, Multnomah, and Washington counties.

In years prior, immigration enforcement prioritized the removal of persons convicted of serious crimes. However, in 2017, the President Trump issued two executive orders making anyone subject to removal a priority for immigration enforcement. Since then, as part of its mass deportation campaign, Immigration and Customs Enforcement (ICE) has included state courthouses as a focus for conducting immigration enforcement. 

In Massachusetts, New York, New Jersey, New Mexico, and Washington, courts recognized the harm caused by immigration enforcement at courthouses and limited or  blocked ICE from conducting courthouse arrests. In California, a law was signed this week that will prohibit ICE arrests at courts.

“Courthouses should be a ‘sensitive location’ where immigration enforcement is generally disallowed like hospitals and schools,” said Leland Baxter-Neal, staff attorney at the ACLU of Oregon. “It is in the interest of every Oregonian that our courthouses are a place where individuals, regardless of immigration status, can come to seek protection, file a lawsuit, or attend a court appearance.”

In their request, the lawyers write that ICE enforcement at state courthouses has an “impact on the individuals arrested, their families, and the community’s view of Oregon’s courts as safe and accessible places…every time a community member is forcibly taken by ICE from the courthouse, thousands of individuals begin to feel the very real threat that they might be next.”

“We have heard from so many people who are afraid that if they go to court, even just to pay their parking tickets or be a witness, they may be separated from their family,” said Cristina Delgado, the Immigrant Solidarity Project Coordinator for Adelante Mujeres. 

Last year, the same groups petitioned Chief Justice of the Oregon Supreme Court Martha Walters to protect the safety, welfare, and trust of Oregon’s immigrant community by issuing a rule blocking immigration civil arrests at courthouses. Over 750 Oregon lawyers sent their own letter to the Chief Justice in support of the change, including Multnomah County District Attorney Rod Underhill, the president of the Oregon Trial Lawyers Association, and the executive directors of the Oregon Criminal Defense Lawyers Association, Oregon Law Center, and Legal Aid Services of Oregon. Similarly, the 1,400-member lawyers’ organization, Oregon Women Lawyers (OWLS) and over 300 faith leaders from across the state through the through the Interfaith Movement for Immigrant Justice (IMIrJ) also sent letters to the Chief Justice requesting she issue a rule blocking ICE arrests at Oregon’s courts. 

”As people of faith and conscience, we have a moral obligation to work for justice for all people, ensuring that no matter the situation, people feel safe to seek justice without fear. We need to stop ICE from targeting our courthouses,” said Rev. Adam Hange, United Church of Christ pastor from Washington County and leader with IMIrJ.

The ACLU of Oregon says since 2017, hundreds  of volunteers from the ACLU and community groups have been trained as courthouse legal observers in Oregon. The blue-vested volunteers regularly observe court proceedings and accompany people to court. They have documented federal immigration agents in plainclothes sitting in on county court proceedings and following people out or waiting inside the hallways or on the grounds. The legal observers have witnessed numerous courthouse arrests, including at least one arrest inside a courtroom and multiple arrests in which ICE agents are physically violent. The ICE agents generally have refused to present any warrant for making an arrest, or to provide individuals with access to an attorney, even if one is present.  

“It is terrifying when people in street clothes are grabbing community members from inside and outside the courthouse, stuffing them in unmarked cars, and speeding off,” said Cristina Marquez, interim executive director of Causa Oregon. “These agents don’t answer questions and they don’t produce any documents. What is the difference between what they are doing and a kidnapping?”

The volunteer legal observers also documented the detention of a Latino U.S. citizen and Washington County worker, Isidro Andrade-Tafolla, outside of Washington County Court in 2017. Video of the incident, captured on the ACLU of Oregon’s Mobile Justice app, was widely reported on and viewed across the country. Following the incident, Representative Suzanne Bonamici and Washington County Sheriff Pat Garret criticized ICE’s practices, and Senators Wyden and Merkely called for a congressional inquiry. The agency cleared its agents of wrong-doing and did not apologize to Andrade-Tafolla. In August, Andrade-Tafolla filed an administrative complaint against the agency, seeking $100,000 for “humiliation, emotional distress, and psychological harm” as a result of ICE’s actions that day.

The ACLU of Oregon filed a FOIA request in 2017 seeking documents relating to ICE arrests at state courthouses and ICE’s communications with local government bodies and law enforcement. In August, DHS concluded production releasing more than 35,000 documents to the group. Review of the heavily-redacted and voluminous documents is ongoing, but the ACLU of Oregon says they have found that since 2017, ICE has executed or planned courthouse intrusions at state courthouses serving Clackamas, Clatsop, Gilliam, Hood River, Josephine, Lane, Lincoln, Marion, Morrow, Multnomah, Sherman, Wasco, Wheeler, Umatilla, Washington, and Yamhill counties and at the municipal courts in Beaverton and Molalla. Those courthouses combined serve nearly three million Oregonians or 71 percent of the state’s residents.

Statewide Expansion of Oregon’s Universal Representation Program For Immigrants Begins

by ramon — Posted in Press Release on September 30, 2019

FOR IMMEDIATE RELEASE
Monday, September 30, 2019

Portland, OR ー On October 01, 2019, the Equity Corps of Oregon, a trailblazing universal representation program that provides lawyers for immigrants in removal proceedings who cannot afford private legal representation, will begin providing legal services statewide. Equity Corps launched on October 1, 2018 with support from the City of Portland and Multnomah County, but is now able to expand statewide thanks to the State of Oregon’s $2 million investment in the innovative program. 

Legal defense for those facing deportation proceedings remains an urgent need throughout Oregon.  In a 2018 survey conducted by the Oregon Law Foundation, 70% of participants identified immigration as a civil legal issue that had a very or extremely negative effect on their lives. Unlike in criminal proceedings, respondents appearing before the U.S. immigration court do not have the right to court-appointed counsel. Meanwhile, the federal government is always represented by an attorney.  Those going before the Portland Immigration Court without legal representation are nearly five-and-a-half times more likely to lose their cases and be ordered deported from the United States; many to situations where their lives are in immediate danger. 

“No one should have to navigate our country’s highly complex immigration system without an attorney, especially when the consequences can include permanent family separation and removal to a country where they may face serious harms,” said Jordan Cunnings, managing Equity Corps attorney at Innovation Law Lab.  “Equity Corps aims to remedy the injustice wrought by this representation crisis by providing all income-eligible immigrant Oregonians with high quality legal services and representation.” 

Equity Corps is specifically designed to address this representation gap.  By leveraging the power of collaborative representation and innovative technology, Oregon’s universal representation program allows Oregonians in deportation proceedings to enter the pro bono legal services structure through a Community Navigator. Community navigators are trained to conduct a free, confidential, and secure referral into the program’s case clearinghouse database which is developed and maintained by software engineers at Innovation Law Lab, a Portland-based nonprofit. Those eligible for legal support through Equity Corps will then have access to free legal orientations, limited scope legal service workshops, legal representation, and connections to medical or mental health resources. 

In many ways, Oregonians are leading the country’s effort to establish a scalable, holistic, and high-quality universal legal defense system to ensure justice for immigrant members of its communities. “We are grateful to the people of Oregon for their ongoing trust and support in this essential effort.” said Benjamin Grass of Innovation Law Lab. “This is a watershed moment, a big step towards making inclusion, due process, and justice a reality for all Oregonians.” 

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To access Equity Corps services, start by finding a Community Navigator near you.

Read more about the Equity Corps’ novel representation model in this report “Defend Everyone: Creating the Equity Corps of Oregon to Provide Universal Representation.” 

Equity Corps of Oregon legal service providers include Catholic Charities of Oregon’s Immigration Legal Services, Immigrant and Refugee Community Organization, Immigrant Defense Oregon of Metropolitan Public Defender, Immigration Counseling Service, Innovation Law Lab, Lutheran Community Services Northwest, and Sponsors Organized to Assist Refugees of Ecumenical Ministries of Oregon. Community navigation organizations include El Programa Hispano, Immigrant and Refugee Community Organization, Latino Network, and Pueblo Unido.  

The Universal Representation Committee of Oregon Ready is comprised of representatives from Causa, Catholic Charities of Oregon’s Immigration Legal Services, Immigrant Defense Oregon of Metropolitan Public Defender, Immigration Counseling Service, Lutheran Community Services Northwest, Innovation Law Lab, Sponsors Organized to Assist Refugees of Ecumenical Ministries of Oregon, Navigating Community Organization Pueblo Unido, and Transformative Immigration Law Class at Lewis & Clark Law School.

Trump’s “Remain In Mexico” Policy To Go Before the U.S. Court of Appeals For the Ninth Circuit

by ramon — Posted in Press Release on September 30, 2019

FOR IMMEDIATE RELEASE
Monday, September 30, 2019

San Francisco, CA ー On Tuesday, October 01, 2019, oral arguments will be heard by the U.S. Court of Appeals for the Ninth Circuit in the matter of Innovation Law Lab v. McAleenan, a federal lawsuit challenging the Trump Administration’s policy of forcing thousands of asylum seekers to remain in Mexico until the conclusion of their removal proceedings before a U.S. immigration court. 

In bringing the lawsuit, Innovation Law Lab and its co-plaintiffs allege that Trump’s “Remain in Mexico” policy violates the Immigration and Nationality Act, the Administrative Procedure Act, and the United States’ duty under domestic and international law to not return people to dangerous conditions. A federal court ruled in April that the policy is unlawful and temporarily blocked its implementation; the Ninth Circuit subsequently lifted the lower court’s injunction pending further court proceedings. Subsequently, multiple amicus briefs have been filed in support of plaintiffs, including briefs by current US Asylum Officers, former US government officials in the Departments of State and Homeland Security, and the United Nations High Commissioner for Refugees

“The United States has a longstanding tradition of providing safe haven to people fleeing persecution,” Tess Hellgren, attorney at Innovation Law Lab, explained. “Over the years, Congress has enacted laws to implement our country’s international and humanitarian obligations. In violation of these laws, the Trump Administration’s policy traps asylum seekers in dangerous conditions and impairs their right to seek refuge.” 

Since the implementation of the policy in January, there has been documentation of widespread kidnappings, sexual violence, crime, homelessness, and illegal deportations of migrants trapped in untenable situations along the border. Advocates along the border also report that the policy has severely impeded asylum seekers’ access to legal representation, posing nearly insurmountable logistical barriers to retaining and communicating with legal counsel in the United States.  Many of those targeted by the cruel program are forced into homelessness in Mexico while they have families and friends ready, willing and able to house and support them in the United States.

“The federal government cruelly refers to this program as the ‘Migrant Protection Protocols.’ We call MPP by its more accurate name, the ‘Migrant Persecution Protocols,’” said PJ Podesta of Innovation Law Lab. “We hope the Ninth Circuit puts an end to this xenophobic, violent, and illegal policy, which has already caused immeasurable harm to individuals and families seeking protection and forced to remain in Mexico.”

This lawsuit is brought by Innovation Law Lab along with eleven individual plaintiffs and the Central American Resource Center of Northern California, Centro Legal de la Raza, the University of San Francisco School of Law Immigration and Deportation Defense Clinic, Al Otro Lado, and the Tahirih Justice Center. Plaintiffs are represented by the American Civil Liberties Union (ACLU), Southern Poverty Law Center (SPLC), and Center for Gender & Refugee Studies (CGRS). 

MEDIA CONTACT
Ramon Valdez
971-238-1804
ramon@innovationlawlab.org