San Francisco, CA 一 Innovation Law Lab, East Bay Sanctuary Covenant, Al Otro Lado, and Central American Resource Center in Los Angeles have filed a federal lawsuit challenging the Trump Administration’s latest attack on asylum and people fleeing persecution. The organizations are represented by the American Civil Liberties Union, Southern Poverty Law Center, and Center for Constitutional Rights. The lawsuit, filed before the U.S. District Court in San Francisco, charges the administration with violating U.S. and international law.
“This horrific new rule is but the latest chapter in the Trump Administration’s hate-fueled campaign against refugees and immigrants of color”, says Ian Philabaum, Program Director at Innovation Law Lab.
This new rule intends to block people fleeing persecution from seeking safety and lawfully applying for asylum in the United States. Federal immigration law requires that the person be physically present in order to apply for asylum. Under the new rule, individuals who did not apply for asylum in the countries through which they traveled would not be eligible to request asylum in the United States; regardless of their physical presence. This shift in policy comes after the Trump Administration failed to reach a proposed “safe third country” agreement with Guatemala.
The Trump Administration’s dangerous and blatantly unlawful new rule ignores the fact that many countries in the Americas through which asylum-seekers travel do not meet the international standards required to enter a safe third-country agreement. Individuals who flee dangerous situations by land are often unable to apply for asylum prior to arriving to the United States’ southern border due to well-documented violence against migrants and the looming risk of refoulement, the legal term for being returned to a place where you may be persecuted.
Innovation Law Lab is a nonprofit organization that uses technology, collaboration, and constitutional principles to empower lawyers and volunteers to provide effective representation to immigrants in hostile judicial jurisdictions and detention centers so that every claim that should win, does win, every time, everywhere. The vast majority of those served by Innovation Law Lab are asylum seekers.
This new policy will require Innovation Law Lab to divert its limited resources in order to entirely rework its large-scale pro bono legal representation projects, templates, guides, training videos, self-help videos, and other resources used by attorneys around the country. This new policy would also require Innovation Law Lab to divert its limited engineering resources to recode its software in order to create new analytical modeling. “Every single one of the Law Lab’s existing programs will be significantly affected, irrevocably damaged, and immediately diverted by the new rule”, stated Stephen Manning, Executive Director of Innovation Law Lab.
Five amicus briefs were filed this week in support of plaintiffs in Innovation Law Lab v. McAleenan, Innovation Law Lab’s legal challenge to the Trump Administration’s policy of forcibly returning asylum seekers to Mexico to await their U.S. immigration court hearings. The briefs were filed on behalf of the labor organization representing current US Asylum Officers and other members of the United States Citizenship and Immigration Services (USCIS); former US government officials, including former leaders in the Departments of State and Homeland Security; the United Nations High Commissioner for Refugees (UNHCR); Human Rights First; and Amnesty International USA, the Washington Office on Latin America, the Latin America Working Group, and the Institute for Women in Migration (IMUMI).
The amicus briefs describe how the “Remain in Mexico” program violates binding domestic and international laws that protect the rights of immigrants seeking refuge from persecution. By forcing asylum seekers to wait in dangerous conditions along the Mexican border, the policy undermines the United States’ commitment to the principle of “non-refoulement”, which forbids any government from sending individuals back to a country where they are likely to face persecution or human rights violations.
“By forcing a vulnerable population to return to a hostile territory where they are likely to face persecution, the MPP abandons our tradition of providing a safe haven to the persecuted and violates our international and domestic legal obligations,” explained the American Federation of Government Employees Local 1924 in their brief to the 9th Circuit Court of Appeals.
These filings provide further support for what asylum seekers waiting on the Mexican border already know ー that the unlawful policy, dubbed the “Migrant Persecution Protocols” by advocates, jeopardizes the lives of thousands of asylum seekers and undermines the United States’ commitment to refugee protection. These amicus briefs also come in the wake of the devastating news of the death of multiple asylum seekers after being forced to wait in Mexico in order to request asylum in the United States, including a father and 23-month-old daughter whose horrific drowning death was captured and shared publicly this week.
Massive Collaborative Representation: what it is and how it can be operationalized at specific sites of resistance;
the Big Immigration Law theory;
Oregon’s Rights Architecture and how innovation is fostered within the architecture.
The Sheridan Pro Bono project used a new mode of representation called Massive Collaborative Representation to intentionally exert power on the deportation system so that it might more fairly and more consistently adhere to the laws of the United States. The Sheridan Pro Bono Project relied on Oregon’s Rights Architecture to situate the massive collaborative representation in order to rapidly implement and scale the response
The report, based on over two years of research and focus group interviews with attorneys and former immigration judges from around the country, links the current crisis of accountability to the Attorney General’s absolute control over the immigration court system.
In conjunction with the report, the groups also announced the launch of an Immigration Court Watch app, which enables court observers to record and upload information on immigration judge conduct to create greater judicial accountability.
Under the Immigration and Nationality Act, the attorney general is required to create an immigration court system in which independent judges decide cases by applying law to the evidence on the record following a full and fair hearing. According to the report, however, today’s immigration courts are plagued by systemic bias and neglect.
“Despite the life-and-death stakes of many immigration cases within the current system, case outcomes have less to do with the rule of law than with the luck of the draw,” said Melissa Crow, Southern Poverty Law Center senior supervising attorney. “Under the Trump administration, the attorneys general have gone even further by actively weaponizing the immigration court system against asylum-seekers.”
The report explains how the Office of Attorney General has created an immigration court system that is biased, inconsistent and driven by political whims. It also examines the conflict that arises when immigration judges, who are expected to be neutral arbiters, are supervised by the United States’ chief law enforcement officer who prioritizes deterrence and deportation of immigrants, instead of an impartial review process.
The report recommends removing the immigration courts from the attorney general’s control and recreating them as Article I courts. To ensure that immigration judges are insulated from political pressures, they must be selected based on merit, receive tenure and be removed only for good cause. The immigration courts must also include more effective mechanisms of internal and appellate accountability.
“One of the key factors driving the immigration court crisis is the failure of judicial accountability,” said Stephen Manning, executive director of Innovation Law Lab. “The new Immigration Court Watch app addresses that lack of accountability, ensures greater transparency and will be a valuable resource for collecting and storing usable data on the pervasive abuses in the immigration court system.”
The new tool will allow data on immigration judge conduct to be gathered and stored in both individual and aggregate forms. This will provide advocates with valuable information to fight systemic patterns of bias and other unlawful court practices. This data can be used to bolster policy recommendations, advocacy and legal strategies.
Advocates, attorneys and other court watchers are encouraged to access the app available here.
“By establishing a presence in immigration courts within their communities and sharing their observations and information, advocates can help us leverage the power of technology, collaboration and strategic alignment to create the first interconnected information system which captures data about due process issues in U.S. immigration courts in real-time,” Manning said.
Marion Steinfels email@example.com / 202-557-0430
Ramon Valdez firstname.lastname@example.org / 971-238-1804
The Southern Poverty Law Center, based in Alabama with offices in Florida, Georgia, Louisiana, Mississippi and Washington, DC, is a nonprofit civil rights organization dedicated to fighting hate and bigotry, and to seeking justice for the most vulnerable members of society. For more information, visit www.splcenter.org.
Innovation Law Lab is a nonprofit organization dedicated to upholding the rights of immigrants and refugees. By bringing technology to the fight for justice, Law Lab builds power for lawyers, human rights advocates, and immigrants in hostile immigration court jurisdictions, remote immigration detention facilities, and along the U.S.-Mexico border. For more information, visit www.innovationlawlab.org.
May 7, 2019 – In a disappointing decision, the United States Court of Appeals for the Ninth Circuit granted the federal government’s emergency motion for a stay pending decision of the so-called “Migrant Protection Protocols,” also known as the “Remain in Mexico” policy.
This ruling means that, for now, the government may continue to forcibly return asylum seekers to dangerous conditions in Mexico while the federal case, Innovation Law Lab v. McAleenan, is fought in court.
“We disagree with the court’s characterization of Mexico’s commitment to protecting the human rights of those returned under MPP,” said Stephen Manning, Executive Director. “Our experience everyday on the ground at the border, in court, and in the shelters confirms what is apparent to everyone: Remain in Mexico is a lethal policy that pushes vulnerable people into a dangerous places without any due process.”
In February 2019, the Innovation Law Lab and others sued in federal court to prevent the forcible return of asylum seekers without due process. Though a lower court found MPP to be in violation of U.S. law nearly a month ago and issued a preliminary injunction, the injunction was subsequently stayed, allowing the program to move forward. The Trump Administration appealed to the Ninth Circuit seeking permission to continue implementing the MPP.
Even while ultimately granting the government’s motion for a stay, the panel’s three separate opinions each acknowledged the grim reality that the asylum-seeking plaintiffs in this case “fear substantial injury upon return to Mexico.”
In separate concurrences, Judges William Fletcher and Paul Watford expressed serious reservations about the legality of MPP. Judge Fletcher forcefully explained that the “Government is wrong. Not just arguably wrong, but clearly and flagrantly wrong.” He characterized the government’s arguments as “unprecedented” and based on “an unnatural” and “impossible” reading of the law.
Judge Watford expressed his view that “DHS has adopted procedures so ill-suited to achieving that stated goal as to render them arbitrary and capricious” under the law, and even concluded that “it seems likely that the plaintiffs will succeed in establishing that DHS’s procedures for implementing the MPP are arbitrary and capricious” in certain aspects.
Under Remain in Mexico, thousands of individuals, including families, have been forcibly returned to Mexico without due process. Though the federal government claims asylum seekers are screened for safety concerns prior to return, advocates and asylum officers alike have raised concerns about this process.
A recent report confirms what Innovation Law Lab staff have experienced on the ground: asylum officers are pressured into signing paperwork indicating the asylum seeker will be safe in Mexico. As one officer said, “I’m not adjudicating that case. It’s like someone else sticking their hand inside me, like a glove.” Furthermore, there is no avenue for asylum seekers affected by MPP to challenge the U.S. government’s decision to send them back.
The Trump Administration continues to push other policies to dismantle the asylum process, such as using border patrol officers to screen asylum applicants, instead of trained asylum officers. These policies are cruel and needlessly place the lives of migrants in danger.
Plaintiffs in Innovation Law Lab v. McAleenan include Innovation Law Lab, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Al Otro Lado, Tahirih Justice Center, and 11 asylum seekers affected by the policy in question. Legal counsel is provided by the American Civil Liberties Union (ACLU), the Southern Poverty Law Center (SPLC) and the Center for Gender and Refugee Studies (CGRS).
On September 18, 2017, ICE agents trailed and detained a county employee, father, and U.S. citizen as he and his wife left the Washington County courthouse. Mr. Isirdro Andrade Tafolla grew up in Washington County in the small community of Hillsboro. Once a sleepy rural town, Hillsboro now boasts a growing tech sector and one of the most diverse populations in Oregon. A star soccer player in high school, Mr. Andrade Tafolla is now a cherished soccer coach and has worked as a dedicated county road maintenance employee for over twenty years.
A team of ICE agents were present in the courtroom when Mr. Andrade Tafolla and his wife, Mrs. Renee Selden Andrade, arrived for a routine appearance. The agents then followed the couple and detained Mr. Andrade Tafolla just outside of the courthouse.
The agents were wearing street clothes, including college sweatshirts and jeans, and offered no badges, warrants or other identification. Driving three unmarked white minivans, they blocked the street to prevent Mr. Andrade Tafolla from leaving in his own vehicle. Here is the exchange:
ACLU Legal Observer [to first ICE agent]:Do you have a warrant? Are you with ICE? Do you have a warrant for arrest? Do you have any identification; do you have any identification that you can show them? [No response– second ICE agent steps in front of the Legal Observer] ICE Agent (continues to Mr. Andrade Tafolla): What is your last name?… This picture right here [showing a photo of another man] is you. … Mrs. Selden Andrade:You are not a part of the Court. We do not know you. Please back away from my husband, please back away from our car before we call the cops… That is not my husband. … ACLU Legal Observer:Does anybody have ID? Does anybody have a warrant? Mrs. Selden Andrade:No. … Mrs. Selden Andrade:We need to call the police… these random people are approaching us. We have no idea who these people are; we literally walked out of the courtroom and we are being approached.
Since 2017, the number of courthouse-related ICE intrusions like this one has skyrocketed. This unfortunate incident sadly repeats itself throughout the country, as unidentified ICE agents in plainclothes and unmarked cars increasingly use courthouses as a primary site for their deportation objectives. As in Mr. Andrade Tafolla’s case, the agency often relies on racial profiling to find its targets. The highly public nature of these arrests, and the attendant reporting, has caused widespread fear.
Communities, judges, and elected officials across the country have condemned the practice, but it continues unabated. Just three weeks ago a single father and legal permanent resident was arrested and forcibly removed from the Oregon state courthouse halls while appearing for a minor charge.
Oregonians now join a growing chorus of voices demanding that state court leadership end ICE arrests in and around the courthouse to ensure that the halls of justice remain open to all by asking for a uniform trial court rule prohibiting civil immigration arrests in and around state courthouses.
Reaching Back to Blackstone
Rewind to over a century ago, when famed trial lawyer Clarence Darrow petitioned the U.S. Supreme Court to recognize a “very ancient” common law doctrine: the privilege against civil arrest at the courthouse.  Appealing to the “dignity and authority” of state and federal courts to administer “efficient and evenhanded administration of law and justice,” Darrow persuaded the Court that these arrests offend the judicial process itself.  The Stewart Court, quoting a case now two hundred years old, confirmed that fact:
“Courts of justice ought everywhere to be open, accessible, free from interruption, and to cast a perfect protection around every man who necessarily approaches them. The citizen in every claim of right which he exhibits, and every defense which he is obliged to make, should be permitted to approach them, not only without subjecting himself to evil, but even free from the fear of molestation or hindrance.” 
Key to the Court’s holding was the recognition that any deterrence of witnesses and parties may be just as damaging to the administration of justice as an arrest itself. Without the privilege against civil arrests, the Court reasoned, “witnesses would be [wary] of coming within our jurisdiction.”  The Court went on to recognize that the privilege extended not only within the walls of the courthouse, but also “in attendance upon court, and during a reasonable time in coming and going.” 
Fourteen years later, Oregon joined the vast majority of states recognizing the common law privilege against civil arrests. Wemme v. Hurlburt affirmed that in Oregon “[p]arties and witnesses are exempt from arrest while going to, in attendance on, and returning from court. This exemption is not prescribed by statute, but is a part of the common law and is a power inherent in courts for the purpose of preventing delay, hindrance, or interference with the orderly administration of justice in the courts.” 
Oregonians Request Prompt Action from the Chief Justice
Now before Chief Justice Martha Walters of the Oregon Supreme Court is a similar petition to keep the state courthouse accessible to all Oregonians, immigrant and non-immigrant alike. Adelante Mujeres, Causa Oregon, Immigration Counseling Service, Metropolitan Public Defender, Northwest Workers’ Justice Project, Unite Oregon, and Victim Rights Law Center, represented by Innovation Law Lab and Nadia Dahab of Stoll Berne, are joined by the ACLU of Oregon and Youth, Rights & Justice in urging the Court to take action to protect the foundational rights of immigrants and, more broadly, every individual utilizing the courthouse.
Drawing from the very same principles raised by attorneys centuries before them, Petitioners and their allies request an order amending the Uniform Trial Court Rules (UTCR) to expressly prohibit civil immigration arrests in and around state courthouses. The petition was filed on December 4, 2018 and is currently pending before the Chief Justice.
The petition responds to growing alarm over the sharp incline of civil immigration arrests in courthouses in Oregon and around the country. The remedy requested reflects similar efforts undertaken by advocates in California, New York, and Massachusetts and by courts in New Mexico and Washington state to counter to a growing national crisis.  These efforts include a lawsuit filed by the District Attorneys in Suffolk County and Middlesex County, Massachusetts to enjoin federal immigration officials from engaging in courthouse intrusions.
In support of their motion, Petitioners submitted extensive evidence of the disruption caused by civil immigration arrests in courthouses in the state of Oregon. For example:
A minor and victim of sexual assault refused to report the crime for fear it would put her family in jeopardy.
An injured worker did not seek workers’ compensation benefits they were entitled to.
A defendant was prevented from introducing exculpatory evidence because witnesses who could prove his innocence were afraid and unwilling to go to court to testify.
A mother avoided going to court to pay a parking ticket for fear that her children would be left without a guardian should ICE arrest her.
A victim of wage theft was afraid to seek the full balance of his legal remedies.
A defendant was deprived of his day in court because he was arrested during the pendency of his case.
The impact of courthouse intrusions is geographically and demographically broad: planned or executed ICE arrests have occurred, at a minimum, at state courthouses in the Second (Lane), Third (Marion), Fourth (Multnomah), Fifth (Clackamas), Sixth (Umatilla, Morrow), Seventh (Sherman, Gilliam, Wheeler, Wasco, Hood River), Fourteenth (Josephine), Seventeenth (Lincoln), Eighteenth (Clatsop), Twentieth (Washington), and Twenty-fifth (Yamhill) Judicial Districts, and at the municipal courts in Beaverton and Molalla. Together these courthouses serve nearly 3 million Oregonians—citizen and noncitizen alike.
In a study cited by Petitioners, 83% of surveyed direct services providers reported that their clients had failed to appear in court due to ICE presence in the state courthouse. Moreover, Petitioners report that ICE arrests do not conform with traditional arrest protocols, raising the specter of violations of the Fourth Amendment, the Due Process clause, and anti-discrimination laws. The real-life examples of the harm that results from courthouse arrests echo the concerns articulated by the U.S. Supreme Court over a century ago and the unease of current and former judges from around the country today. 
A Uniform Trial Court Rule Reflecting an “Ancient” Doctrine
The Petitioners have asked the Chief Justice to issue the following rule:
No person may become subject to civil immigration arrest without a judicial warrant or judicial order while the person is inside a courthouse of this state and the person is present in connection with any judicial proceeding or other business with the court.
No person may become subject to civil immigration arrest without a judicial warrant or judicial order while the person is going to or coming from a courthouse of this state, or while the person is within the environs of a courthouse of this state, if the person is traveling for the purpose of any judicial proceeding or other business with the court.
Oregon courts may issue writs of protection in individual cases when appropriate in order to effectuate the common law.
The proposed rule echoes the common law authority already available to litigants and witnesses under Wemme and prior U.S. Supreme Court authority. Petitioners seek affirmation of this ancient doctrine and its positive application across the state. If Chief Justice Walters issues the rule, it would be effective immediately.
The power of the Oregon courts to govern the fair and equal administration of justice through the issuance of uniform rules is recognized in statute and case law, notably in Smith v. Washington Cty.  In Smith, the Oregon Court of Appeals affirmed the ability of the court to engage in weapons searches and other means of securing the safety the courthouse. The court reasoned that, “if courts are to serve as open forums for the resolution of legal conflicts, the participants and the public must feel safe to enter and remain inside.”  Similarly here, Petitioners seek the Court’s aid in ensuring the safe participation of all Oregonians in the legal system. They hope that this rule will prevent the racial profiling and harassment of people of color, such as what happened in the case of Mr. Andrade Tafolla. They also hope that a courthouse rule will provide real, meaningful assurance to all Oregonians that courthouses, like schools, hospitals and churches are special places that are safe for all, no matter your place of birth or the color of your skin.
In the meantime, parties and witnesses may use the Wemme and Stewart authority to seek individual writs of protection, now and into the future. However, as Petitioners contend, a patchwork, case-by-case approach gives little consistency across trial courts throughout the state, and may create challenges for litigants and witnesses unfamiliar with complex motions practice. Moreover, the writ offers little protection to a first-time seeker of a judicial remedy where there is no pending matter in which to file.
The Petition submitted to Chief Justice Walters can be found here. A subsequent, follow up letter to the Chief Justice can be found here.
If you, your family, your clients, or your constituents have been affected by ICE intrusions in Oregon courthouses, we would like to hear from you and offer additional resources. Comments and questions may be directed to Erin M. Pettigrew, Innovation Law Lab at email@example.com.
Press inquiries may be directed to Victoria Bejarano Muirhead, 971-801-6047, firstname.lastname@example.org.
 Stewart v. Ramsay, 242 US 128, 129, 37 S Ct 44 (1916).
 Stewart, 242 at 129 (1916) (quoting Halsey v. Stewart, 4 NJL 366 (1817) (internal quotation marks omitted)).
 Id. at 130 (the word used in the original opinion by the Court was “chary,” a nearly obsolete synonym for “wary” in contemporary English usage).
 Id. at 129.
 Wemme v. Hurlburt, 133 Or 460, 460, 289 P 372 (1930) (citing Mullen v. Sanborn, 29 A 522 (Md Ct App 1894)). A similar privilege against arrests of subpoenaed witnesses is codified in state statute: ORS 44.090. For a summary of similar cases across the U.S., see Christopher N. Lasch, A Common-Law Privilege to Protect State and Local Courts During the Crimmigration Crisis, 127 Yale L J Forum 410, 431–32 (2017).
 See, e.g.,Letter from Thomas A. Balmer, Chief Justice of the State of Oregon, to Jeff Sessions, Attorney General, and John F. Kelly, Secretary of Homeland Security (April 6, 2017); Letter to Acting U.S. Immigration and Customs Enforcement Director (December 12, 2018).
 Smith v. Washington Cty., 180 Or App 505, 521 (2002) (construing the phrase “administrative authority and supervision” in ORS 1.002(1)(i)).
April 24, 2019 – Innovation Law Lab is the lead plaintiff in a case that seeks to overturn the dangerous “Remain in Mexico” policy, which forces asylum seekers to wait in Mexico as their cases wind their way through immigration court.
Earlier this month, a federal court sided with Innovation Law Lab in finding the policy in question to be unlawful. That decision was appealed by the federal government, and the case was heard by the U.S. Court of Appeals for the Ninth Circuit on April 24, 2019.
The courtroom was packed, largely with staff and supporters of the six immigrants’ rights advocacy groups that brought this suit. PJ Podesta, advocacy coordinator at the Innovation Law Lab, was present and shared remarks following the hearing.
We are now awaiting the court’s decision.
Plaintiffs in the suit include Innovation Law Lab, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Al Otro Lado, Tahirih Justice Center, and 11 asylum seekers affected by the “Remain in Mexico” policy. Legal counsel is provided by the American Civil Liberties Union (ACLU), the Southern Poverty Law Center (SPLC) and the Center for Gender and Refugee Studies (CGRS).
For media inquiries about the suit, contact:
Inga Sarda-Sorensen, ACLU, 212-284-7347, email@example.com
Jen Fuson, SPLC, 202-834-6209, firstname.lastname@example.org
April 8, 2019. Today, federal district judge Richard Seeborg granted our request for a nationwide preliminary injunction in Innovation Law Lab v. Nielsen, a case challenging implementation of the so-called “Migrant Protection Protocols.” This new policy forcibly returned certain asylum seekers to Mexico where their lives are in danger. Under Judge Seeborg’s order, which goes into effect on April 12, 2019 at 5 PM PST, the Trump administration is enjoined from continuing to implement or expand the Migrant Protection Protocols, and also must allow the eleven named plaintiffs to return to the United States to continue their asylum cases.
“We are grateful that the court has ended the forcible return policy because it was illegal, inhumane, and, most importantly, put people’s lives in danger” said Stephen W Manning, the Director at Innovation Law Lab. The decision also finds that the Migrant Protection Protocols do not satisfy the United States’ obligations to avoid returning asylum seekers to a country where their life or freedom would be threatened on account of a protected ground.
Program Director Ian Philabaum has been working directly with asylum seekers subject to the program since January 2019. “Over one thousand people have been returned to Mexico under the program since its ill-fated beginning,” he commented. “We remain committed to seeking justice for every person who has been endangered by their unlawful return, and continuing our fight against the broad damage the Trump administration is inflicting on asylum seekers and the rule of the law in the US.”
Plaintiffs in the suit include Innovation Law Lab, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Al Otro Lado, Tahirih Justice Center, and 11 asylum seekers affected by the policy in question. Legal counsel is provided by the American Civil Liberties Union (ACLU), the Southern Poverty Law Center (SPLC) and the Center for Gender and Refugee Studies (CGRS).
For media inquiries about the suit, contact:
Inga Sarda-Sorensen, ACLU, 212-284-7347, email@example.com
Jen Fuson, SPLC, 202-834-6209, firstname.lastname@example.org