[aesop_chapter title=”I. Silence in the Court” bgtype=”img” full=”off”]
You are a mute observer. You may not speak on the record,” the Immigration Judge says. “I know you attorneys think you have a role here. But you do not.”
The attorney tilts his head and begins, “Your honor—”
“No.” The judge’s image flickers; his voice sounds distant. “If you begin to speak, I will stop the recording. You may watch. I will not hear argument from you.” The judge is a floating image, 8 inches diagonal, on a computer screen.
In the courtroom, the guard glances at the lawyer. The lawyer turns to M-, his client, and starts to whisper in her ear. The lawyer means to explain what has just happened.
“Stop that counsel. You may not speak to her,” the image says.
“But she is my client, Your Honor.”
On the computer screen, the image shakes its head. It simply scolds, “No.”
It is the morning of August 5, 2014 and it is 88 degrees outside the corrugated steel trailer in which a lawyer, his client M-, her child A-, and a guard sit watching the computer screen. This is a hearing to determine if M- will be deported. The woman, M-, is from Honduras. A- is her child squirming on her lap. Her lawyer is a volunteer with the American Immigration Lawyers Association – American Immigration Council Pro Bono Project in Artesia. The guard is an immigration detention guard from the U.S. Department of Homeland Security. The corrugated steel trailer is located at the federal detention center in Artesia, New Mexico where the average age of the detained children is 6 years old.
Artesia came to life on June 27, 2014. Seventeen days later, the deportations began.
[aesop_chapter title=”II. The Summer of 2014″ bgtype=”img” full=”off”]
The summer of 2014 was extraordinary. The geopolitics of Central America created a humanitarian crisis that the domestic politics of the United States converted into an inhumane mass deportation policy. By May 2014, the crisis in Central America had fueled a notable migration of women and children who were seeking safety—literally fleeing for their very lives. Murders committed by third-generation gangs such as the MS-13 and M-18 soared, violence against women—scholars have labeled it a vast femicide—continued its push into epidemic proportions, and the rule of law that would ordinarily be expected to constrain the violence and protect civilians disintegrated.
Anyone following the regional reporting from 2011, 2012, and 2013 on Central America could see the factors coalescing into a humanitarian crisis for the region, including along the United States’ southern border. As explained below, the Obama Administration saw it differently. The very real humanitarian crisis in May 2014 was officially recognized as a national security threat in June 2014 — not because there was any change in the actual facts on the ground — rather because there was a change in the political viewpoint of the Administration. The viewpoint that the humanitarian crisis constituted a national security threat—a threat comprised of children and women, by and large—became an optical filter that bent normal principles of justice and fairness into a tiny void where a cynical governmental response formed: the women and children, regardless of the particular facts in their particular lives, must be deported for political purposes. Indeed, the Administration’s decision to deport them was made before any of the women sent to Artesia had been interviewed.
Why did women and children leave Central America? The most obvious explanation – to save their lives – was the one explanation that the Obama Administration refused to acknowledge. The first map, based on data collected by the U.S. Department of Homeland Security, shows the origins of the children and families who arrived in the United States in the summer of 2014. The second map, based on homicide data compiled by Diego Valle-Jones, documents the spikes in violent deaths that occurred contemporaneously in those same regions. The deeper the red, the higher the violent death rate.
The summer of 2014 was also extraordinary because lawyers of all stripes from all across the nation, clergy of all denominations, and citizens of commonsense character stood up and said “No, our country is – we are – better than that.” They committed to rule of law principles, human rights, and fairness to stop the political deportations. This mobilization took place all across the country in different ways and in different forums. See, e.g., Texas Interfaith Center for Public Policy, How You Can Help: Humanitarian Crisis on the Border (last visited 1/9/2015) (describing statewide faith and legal efforts); Crystal Williams, Help, not detention needed at border, (The Hill, July 23, 2014) (last visited 1/9/2015) (describing how “[c]hurches, families and local leaders have stepped forward with the spirit of welcome.”).
This article focuses on a singular effort by volunteers coordinated by AILA and the Immigration Council at the family detention center in Artesia, New Mexico — the AILA-AIC Artesia Pro Bono Project. It is based on review of data collected from June 2014 through December 2014 by volunteers with the project. The scope of the data collected by the project is unique in its granularity and its breadth. It includes extensive information about the clients of the project– the mothers and children detained in Artesia, the on-the-ground effect of DHS detention and deportation policies, and a detailed understanding of how the political and legal practices of the Obama Administration unfolded in real time. This is a preliminary report intended to highlight what happened in Artesia. It does this by describing how the project happened, the grassroots volunteers who energized it, the technology that stitched the pieces of it together, and the leadership of AILA and AIC in embracing and shepherding the project dynamically to create a new model of pro bono legal services that collectively draws on the strengths of advocates across the nation.
DHS shut down Artesia on December 15, 2014. Even so, the politically-motivated detention of families seeking asylum in the United States continues in places like Karnes, Berks, and Dilley.
[aesop_chapter title=”III. Massive Incidents of Deportation At High Velocity” bgtype=”img” full=”off”]
Section 235(b) of the Immigration and Nationality Act authorizes rapid deportations that bypass court oversight and review. A § 235(b) expedited removal takes place without any hearing before an immigration judge. It applies to any noncitizen apprehended at the border or within 100 miles of a land or sea boundary of the United States who cannot prove they have been here for the last 14 days See U.S. Dep’t Homeland Security, Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877 (Aug. 11, 2004). If two enforcement officers agree that a removal order should be entered, then the noncitizen is deported. No judge. No court. An expedited removal can happen in a couple of hours. It can happen in a matter of minutes. It is arrest, conviction and sentence all at once and all by the same officers. See Karen Lucas & Su Kim, AILA’s Take on No-Process Removal, (AILA InfoNet Doc. No. 14060349, June 3, 2014) (last visited 1/10/2015) (explaining that 83% of all removals bypass the courts); Sarah Mehta, American Exile: Rapid Deportations That Bypass the Courtroom (ACLU, Dec. 2014) (last visited 1/9/2015) (same).
But we aren’t supposed to deport people who will be persecuted in their homeland. See INA § 208(a). If a noncitizen apprehended at the border expresses a fear of returning or an intention to file for asylum, a special abbreviated screening process kicks in. See INA § 235(a)(1)(A)(ii). The screening process is intended to ascertain whether a noncitizen has a “credible fear” of persecution. There are only two short steps to the screening process: first, a screening interview is completed by an asylum officer and, second, if the screening decision is negative, a review of that decision is completed by an immigration judge. The credible fear screening truncates our law’s normal notions of asylum review because the government has written policies that prohibit attorney representation, disfavor witnesses, limit evidentiary submissions, and favor speed over all other considerations.
The precarious nature of the credible fear process is magnified because the asylum screening itself takes place on top of an immediately executable removal order. Before the screening process kicks in, the arresting officers enter an order to deport the noncitizen. The deportation is held in abeyance during the screening process. The removal order’s ability to be immediately executed electrifies every interaction for the noncitizen. A single misunderstanding, a single bad translation, or a single inattentive government official could result in deportation. Detention is a frequent attribute of the credible fear screening process. The isolation of detention intensifies the potential for the screening process to fail.
If and only if the government determines that there is a credible fear of persecution or torture, the expedited removal order is vacated and a full hearing before an immigration judge is authorized. No one can win asylum in the expedited screening process. The best anyone gets is a deportation hearing before a judge to present the application for asylum. If the government determines that there is not a credible fear, then the noncitizen is immediately deported.
A noncitizen can survive the abbreviated screening process if she demonstrates a significant possibility that she could prove asylum eligibility in a regular immigration court. She does not need to prove she is eligible for asylum; rather, only that she might be eligible. This threshold screening standard makes sense because, in instances where deportation might mean death, the standard immigration court hearing—not the abbreviated border screening—should be the forum.
A noncitizen’s claim of credible fear is supposed to be assessed using internationally-recognized standards that have been written into the immigration code and the detention of a bona fide asylum seeker is supposed to be assessed based on an individualized showing of flight risk. Our law protects human beings from being persecuted because of their race, religion, nationality, membership in a particular social group, or political opinion. See INA § 101(a)(48)(A); UNHCR, Convention & Protocol Relating to the Status of Refugees (adopted Dec 1950 & Dec. 1967) (describing international refugee definition). A noncitizen who passed a credible fear screening and was not a danger to the community was considered for release under appropriate conditions. Our nation’s law is clear that noncitizens in removal proceedings should not be detained or required to pay bond unless they posed a demonstrated public safety or flight risk. Matter of Patel, 15 I&N Dec. 666, 666 (BIA 1976).
In June 2014, President Obama made a political decision that the women and children from Central America seeking asylum in the United States were causing problems with his domestic agenda for immigration reform. See Meet the Press, Interview with President Barack Obama at minute 22.49 (NBC News, Sept 7, 2014) (last visited 1/9/2015). So, to solve his political and optical problem, he ordered his administration to detain and deport them.
It was understood at the time, though, that deportation itself wouldn’t solve the Obama Administration’s political and optical problem. After all, President Obama has presided over more deportations than any other prior president in history. But the fact of merely being the “deporter-in-chief” was, in the administration’s view, insignificant because the November election campaigning was soon to start. President Obama’s domestic agenda required getting rid of the women and children right now.
On June 24, 2014, Artesia opened. It was designed by the Obama Administration to deport rapidly. It was the Obama Administration’s carefully orchestrated machine that had been efficiently built to effectuate “waves” of deportations — massive incidents of deportations occurring at a high velocity. Obama’s officials explained that the detention center in Artesia was the tool to achieve the goal of “process[ing] the immigrants and hav[ing] them deported within 10 to 15 days to send a message back to their home countries that there are consequences for illegal immigration.” The detention center, then, was really a deportation center.
[aesop_image imgwidth=”100%” img=”/wp-content/uploads/2014/12/artesia-report-percentjpg.jpg” offset=”-400px” credit=”Image by Jose Cruz-Guadarrma/Innovation Law Lab” align=”center” lightbox=”off” caption=”The credible fear pass rate dropped dramatically as part of the Obama Administration’s response to the humanitarian border crisis. ” captionposition=”center” revealfx=”off”]
To burn through thousands of human beings at the rate required to meet the November 2014 election cycle required purposeful design and planning. See Meet the Press, Interview with President Barack Obama at minute 23.34. And it required breaking the law.
First, the Obama Administration rigged the process substantively. Prior to the creation of Artesia, 77% of noncitizens were found to have a credible fear of persecution. But the administration decided ahead of time — before any screening interviews were conducted — that the mothers coming from the Northern Triangle of Central America were not asylum seekers. Four days before Artesia opened, Vice President Joe Biden determined that “none of these children or women bringing children will be eligible under the existing law in the United States.” See Remarks of Vice President Joe Biden (White House, June 24, 2014) (last visited 1/9/2015).
Prejudging asylum claims for Central Americans isn’t a new concept for the U.S. Government. See National Immigration Project, ABC v. Thornburgh: 20 Years Later (Jan. 31, 2011). Even though it was illegal back then when the U.S. Government did it in the 1980s (and it is just as illegal now), the available evidence shows that’s what the U.S. Government did again. All the adjudicators in the Artesia system — the border officers, the detention officers, the asylum officers, the immigration judges — are executive branch employees. The Executive Branch acted on its leaders’ cues: by August 7, 2014, the credible fear rate plummeted to 38%.
[aesop_document type=”pdf” src=”https://innovationlawlab.org/wp-content/uploads/2014/12/Hiskey-affidavit-9.22.14-FINAL-2.pdf” caption=”A central feature of the Obama Administration’s family detention regime is based on a report that studies Central American migration patterns. The author of the report explains in this affidavit why the U.S. Government’s interpretation and use of the migration report are flawed and unsupportable. “]
Second, the Obama Administration engineered a no-release-detention policy. Thirty-eight percent of the asylum seekers were passing the credible fear screening. That was too many. That is, a nearly two-thirds deportation rate was insufficient for the Obama Administration. Everyone was supposed to be deported — not almost everyone. And those deportations were supposed to happen really fast. Velocity mattered a great deal to the Obama Administration. See Jeh Johnson, Statement Before the Senate Committee on Appropriations (DHS, July 10, 2014) (last visited 1/9/2015). The administration’s theory was that if the government detains these women and children, then these women and children will give up and it will send a message to other women and children elsewhere in Central America not to seek asylum. The Fifth Amendment doesn’t authorize that theory, of course.
To solve their Fifth Amendment problem the Obama Administration called on an immigration decision written by former U.S. Attorney General John Ashcroft called Matter of D-J-, 23 I&N Dec. 572 (AG 2003). Under Matter of D-J-, if there is a threat to national security, then the Executive Branch’s initial decision to detain is effectively mandatory and permanent. Matter of D-J- originated in the atmospherics of September 11 and was predicated on the declaration of a national emergency related to national security terror threats. The thinking, it appears, was that if a national security threat rubric were deployed, then the Fifth Amendment problem posed by the detention-as-deterrent theory would vanish.
The theoretical problem of the Obama Administration also had a fact problem, too. The facts on the ground didn’t match the national security threat rubric — breast-feeding mothers and 6-year olds lacked that realistic tingle of fear necessary to invoke the September 11th-precedent of Matter of D-J-, therefore, making it impossible to cloak their detention policy under the Matter of D-J- terror blanket. To get to Matter of D-J-‘s detention power, the Obama Administration needed a hook to tie the 6-year olds and their mothers to terrorism. One imagines the administration’s lawyers googled for something — anything– and found a report on the internet by Vanderbilt University called Americas Barometer Insights: 2014, Violence and Migration in Central America.
But there was still a fact problem because the Vanderbilt report did not actually say what the administration’s lawyers wanted it to say. The report explains that men are more likely to be “pulled” to migrate whereas women and children are “pushed” to migrate because of violence and danger. Remember that velocity was paramount so the administration did not actually stop to think about why these particular women and children were leaving Central America. The deportations needed to begin now. So the Obama Administration took the report of out of context, distorted its findings and enshrined the distortion in two affidavits from key administration officials, Philip Miller and Traci Lembke. Thus, the “connection” was made between terror and children. The Fifth Amendment’s requirement of due process vanished in the administration’s mind. The detention-as-deterrent theory was born. And the Obama Administration filed the Miller and Lembke affidavits in case after case after case.
[aesop_image img=”/wp-content/uploads/2014/12/artesia-report-graphics-small.jpg” offset=”-400px” credit=”Infographic by Jose Cruz-Guadarrama/Innovation Law Lab” align=”center” lightbox=”off” caption=”When the Obama Administration selected Artesia as the site of its new detention center, there were 10 lawyers in the whole town.” captionposition=”center” revealfx=”off”]
Finally, the Obama Administration needed a place, an actual physical space to put its machine. The ideal place would be far away from public scrutiny and public access. There is no other apparent explanation why the administration would build a detention center from scratch in a place where there had never before been a detention center. There was (and is) no legal services infrastructure there. There were no lawyers to speak of. There weren’t even buildings yet for the detention. There was only land owned by the Department of Homeland Security. And there was its isolation. The very fact that there was nothing there made it attractive. Three-hours from anything meant everything to the administration. No lawyers, no human rights groups, and no community based organizations—there would be no one watching which is always good when what you are doing is wrong.
When fully operational, the three parts of the government’s Artesia strategy proved very effective. The first deportations took place 17-days after arrest. The Department of Homeland Security remarked “[t]his is just the initial wave. We expect additional adults with children will be returned to Honduras, Guatemala and El Salvador soon, based on the results of removal proceedings or expedited removal.” With its three prongs in place, the Obama Administration could churn through 20 removal orders a day — and the machine was just getting started.
[aesop_chapter title=”IV. The Artesia Family Detention Center” bgtype=”img” full=”off”]
There are different ways of describing the detention center in Artesia.
Geographically, it is just above the 32d parallel in Eddy County, New Mexico. Eddy County has a population of about 52,000; Artesia has about 11,500 people. Almost all of Eddy County, including Artesia, sits atop Permian sedimentary deposits—which means it is a rich oil and gas field.
Physically, it was built on undeveloped land inside the perimeter of the Federal Law Enforcement Training Center—a Department of Homeland Security facility that is the primary location for border patrol officer training. State roads 110 and 357 run along the east and south edge, a crop circle along the north, and barren land to the west. There is a barbed-wire fence and a perimeter security road that enclose the entire FLETC facility. There is a secondary razor-wire fence interlaced with plastic slats the color of sand that surrounds the detention center itself. The plastic slats made the detention center invisible. It isn’t that the sand-color slats actually blend into the surrounding landscape, rather they have the effect of preventing anyone from seeing the detention center. While FLETC is signed; the detention center is not. No one from the outside would have ever known that inside FLETC some 1200 women and children would be imprisoned.
[aesop_image imgwidth=”80%” img=”/wp-content/uploads/2015/01/artesia-building.jpg” credit=”Image illustration by Jose Cruz-Guadarrama/Innovation Law Lab” align=”center” lightbox=”off” caption=”The border patrol’s main training facility is at the Federal Law Enforcement Training Center in Artesia, New Mexico. From the main entrance there is no indication that hundreds of women and children were held in detention behind the secured fencing. ” captionposition=”center” revealfx=”off”]
Structurally, the detention center consists of several corrugated metal trailers. The trailers are raised several feet above the ground because the area is prone to flash floods. The trailers themselves are indistinguishable from each other but for their numerical designations, like a home address, stenciled on the doors. ICE officers walk the streets and dirt “roads” that connect the trailers. They also drive golf carts. There are prison transport vans with metal cages, modified passenger vans without interior handles, and conventional passenger vans. The women and children slept in trailers that were called “dorms”. Some of the dorms had cribs for the infants and toddlers. All of them had bunks. On a tour, an ICE public relations officer lamented the presence of the cribs because “they take up so much space”.
Psychologically, the detention center is an enormous well of grief. All of the women and children professionally evaluated through the Pro Bono Project presented with symptoms of depression or trauma. Eighty-eight percent were diagnosed with Post-Traumatic Stress Disorder based on their past experiences of violence, including sexual violence. Several children engaged in self-harm and displayed erratic and disturbing behaviors that private mental health professionals attributed to the past violent trauma being aggravated by the trauma induced by the detention setting. The ICE Health Service Corps operates a trailer in the detention center that offered wellness checks for the women and children with off-site social workers via a video-link. Another trailer functioned as a school for the children for a few brief weeks in October and November.
Euphemistically, the detention center is the Artesia Residential Family Center. It is as if it were a tourist attraction–a destination detention center for families who want to enjoy the razor wire and lock-down experience.
[aesop_chapter title=”V. The Origins of the AILA-AIC Pro Bono Project ” bgtype=”img” full=”off”]
Summer is very hot in Artesia and the sun is very bright. Inside the law library, the lawyers bundled up with jackets and long pants because the air conditioning inside is very cold. The women and children, dressed in shorts and short sleeves, are draped with hand towels for warmth. Extremes are a feature of the detention center.
The law library is the front half of a double-wide trailer divided longwise. In the summer, the law library consists of two desktop computers, two printers, and one copier. The computers do not have internet access and one of the computers is not connected to any printer. There are no books. There are two desks, a few chairs, an ICE guard station, a refrigerator and a credenza with nothing in it. The back half of the trailer is cordoned off by a child-proof gate. The child-proof gate is also a lawyer-proof gate.
“You cannot go back there,” the ICE guard says to a volunteer lawyer. “That’s just for the residents.”
The back half was used to stage the women to be seen by the judges, the asylum officers, and now, the lawyers. There are two card tables and some chairs.
In the front half, the volunteer lawyer sits on a chair in the middle of the space. A mother sits in a chair. There is no desk between them. “He is not eating,” the mother says to the lawyer, her eyes on her son. He is hanging on her neck. Another son lies on the floor between the lawyer and her client. The lawyer has crayons and paper to keep the children distracted. Crayongate hasn’t yet erupted. Her sons look lethargic. They look hungry. The lawyers cannot give food to the children. All the children are losing weight because they are not eating.
“They are so skinny now,” the mother says. Tears are forming in her eyes. The lawyer sets his pen down.
“Please don’t let them deport them. I came here to save them.” She is crying now. Fear walks across her face. She wrings her hands. The son on the floor rises to his knees and pats his mother to comfort her. The lawyer thinks that the son has maybe lost 20% of his body weight since his detention started. Her words crowd together as they escape between sobs, “You have to help him. Please. You have to help us, please.”
Help him. Help her. Please.
Her words float up in the gap between her and the lawyer. The words suspend themselves in the air as the lawyer thinks, You are going to be deported and so are your kids. It puzzles him how she could not see what was so obvious to everyone. It was an inalienable truth. It was obvious to the women cowering in the corner crying while their consulate prepared travel documents to speed their removal. It was obvious to her son who patted her back. It was obvious to everyone. Everyone knows that she and her children will be deported. Everyone knows that all of the women and all of the children will be deported. How can it be that she doesn’t know this? Everything was rigged against her and the hundreds of women like her. At that moment, the full weight of the government’s deportation machine pressed so hard on that tiny, freezing trailer that there was no room to breathe. The attorney should have told her that it was hopeless. The attorney should have said to her: you are going to lose. The attorney should have instructed her to prepare herself now because deportation was inevitable. Her plaintive words that had been suspended between them finally, thankfully, quietly faded away.
The attorney tells her: “You must be strong. We are here. And we will not leave you.”
[aesop_chapter title=”VI. A New Model for Pro Bono Service” subtitle=”Team Artesia” bgtype=”img” full=”off”]
The AILA-AIC Pro Bono Project was improbable the same way string-theory is. It is hard to understand and irrational to believe in.
There were hundreds of reasons why it should never have existed or come into being. The detention center was exceedingly remote. There was no funding for anyone or anything. There were literally hundreds and hundreds of detainees. The court docket and asylum screening system were due process black holes. It was one legal crisis among so many in the summer of 2014. It was clear that the Obama Administration was focused on the singular goal of pre-judged massive deportations and there was nothing to be done about it.
Improbable is not impossible. By July 24, a short ten days after the first deportations, a dozen and some lawyers materialized from nowhere. These first attorneys to arrive on-the-ground engaged in a triage of immense proportions. Between 400 to 500 women and children were in the detention center. None of them had been screened by attorneys to evaluate their cases. There was no telephone access. The only facility for meeting with the detainees was the front half of a double-wide trailer. The children were sick. The guards were hostile. There was no infrastructure. There was nothing, really, at all, but hopelessness and children wasting away because of the detention and a clock counting down to the next wave of deportations.
Under a traditional pro bono model in the immigration field, a non-profit service provider would typically screen a designated client population and place meritorious cases with individual volunteer lawyers. One lawyer per client; one client per lawyer. The traditional pro bono model is a good model. It has a long and strong pedigree.
But it doesn’t scale rapidly. Using the traditional pro bono model, the project would need 500 lawyers. It didn’t have that. There were little more than a dozen on-the-ground. There was no time. There was no designated leader. There was no designated decision-maker. There was no one telling them what to do. More significantly: there was no one telling them what not to do. They had no precedent at all to guide their response. And so, they made a promise to that mother and to every mother and to every child detained in Artesia: we shall not leave you.
The project’s screening criteria were simple: if you are detained in Artesia, we will be your lawyers. Every woman and every child. If you want a lawyer, we promised, we will be your lawyer.
The project did not screen only for strong cases. It did not screen for difficulty. It did not screen out weak cases. Indeed, the cases least likely to win, were exactly the cases that the project wanted. The most vulnerable. The most defenseless.
Shock. Silence. The sound of paper drifting to floor.
That promise was the singular most powerful thing the Pro Bono project did because the promise transformed the volunteer work from a traditional system of direct client services into a movement that could create fundamental change in Artesia. It was a direct, clear response to the Obama Administration’s political intentions to deport without due process of law. The volunteer project became a change agent aimed at shutting down Artesia. The lawyers realized then that the best way to shut Artesia down was to win cases. A lot of them.
And so the lawyers, all volunteer and all pro bono, built a system from scratch to win cases and free people from detention.
The AILA-AIC Pro Bono Project built a new model for delivering pro bono legal services: a total and true team approach. Over 21-weeks, the Pro Bono Project evolved organically from a loose coalition of attorneys faintly affiliated by their common AILA membership into Team Artesia — the concept that no one goes it alone. The team formation became a feature that imprinted itself onto every part of the project. It is the most credible explanation for the project’s wildly successful client outcomes, volunteer recruitment, and policy advocacy.
[aesop_chapter title=”VII. Power, Proportionality & Speed” subtitle=”Building A New Model For Pro Bono Law” bgtype=”img” full=”off”]
The problems the lawyers faced in Artesia were essentially two: one of proportion and one of power. The detainee-to-attorney ratio was out of proportion and the lawyers had no power. As a result, the removals were massive and fast. The lawyers on-the-ground realized early on that they could not sustain the project alone. That is, Artesia couldn’t just be a border problem for the border lawyers to address, rather it had to become every lawyer’s problem anywhere in the United States to solve.
[aesop_image img=”/wp-content/uploads/2014/12/artesia-report-otg.jpg” credit=”Infographic by Jose Cruz Guadarrama/Innovation Law Lab” align=”center” lightbox=”off” caption=”Traditional pro bono models would have required hundreds of lawyers. In Artesia, the average number of lawyers on the ground was 14.” captionposition=”left” revealfx=”off”]
To address the proportionality problem, the project did three things. First, it created an on-the-ground team to serve as a physical portal to the project for lawyers venturing to Artesia and as a logistical portal for the remote volunteer teams that would be organized to support the on-the-ground lawyers. Second, it created those smaller, shifting teams that worked remotely to support the attorneys on-the-ground. Third, it crafted detailed protocols to guide case development.
The thinking was that if the project could create a consistent, focused on-the-ground presence, it wouldn’t need to ask for a volunteer lawyer to take one case. It could, instead, ask a volunteer to be on-the-ground for a week or more and handle twenty cases. That was math we could work with. That was math that scaled. That was math that made the immensity of the promise to represent everyone seem slightly less insane. A volunteer lawyer would commit to being on-the-ground for 3, 5, 7 or more days. When the volunteer’s time on-the-ground ended, so would the commitment. The next team to arrive on-the-ground would pick up where things were left off and carry the cases forward.
The power imbalance was more nuanced. The promise to represent everyone for free built moral power. Moral power does not stop deportations, though. We needed to transform the moral power into actual power by fulfilling our insane and immense promise. After all, if we represent everyone in the facility, we immediately become a player at the table because our ability to defend en masse was a direct counterweight to the government’s ability to deport en masse. Knowing all of the cases and all of details meant that we could confront the Obama Administration with facts – lots of them. We could collect rich and detailed data like we had never been able to do before. The data would give us powerful knowledge about the administration’s deportation practices and the asylum unit’s credible fear screenings. Indeed, having a persistent ground game that knew in real time the practices in Artesia meant that the project would almost always know more than the policy-makers in the capital about what was happening in Artesia.
In the end, Team Artesia numbered about 300 lawyers, paralegals, interpreters, document translators, and clerks organized into a rotating on-the-ground team and four remote teams: the Remote Bond Team, the AILA-AIC HQ Team, the Technology Team and the Remote Lawyers.
Team Artesia included a core group of allied partners — lawyers for the lawyers — who litigated for additional power and leverage to slow the velocity of the deportations. The lawyers for the lawyers came from the American Civil Liberties Union, the American Immigration Council, the National Immigration Project and the National Immigration Law Center, Van Der Hout, Brigagliano & Nightingale and Jenner & Block.
[aesop_chapter title=”VIII. On The Ground” subtitle=”A Smuggling Ring In The Law Library” bgtype=”img” full=”off”]
A smuggling ring was afoot in the Artesia detention center. On August 3, 2014 in the law library, a woman detained in Artesia secretly slipped from her bra a small green piece of paper. Out of sight from the ICE guards, she smuggled the paper to a lawyer who slipped it in his pocket. The transaction complete, she signaled the guard she was ready to leave and left.
That evening in the Artesia Chamber of Commerce’s conference room, safely outside the detention center, the lawyer pulled the paper from his pocket. It was folded in half and in half again. It was torn along one edge. He placed it in the pile in the middle of the big conference table with several others. Some were stained. Others were folded crisply into triangles. Some had been passed to a lawyer in the bathroom stalls. Others slipped under the tables in the law library. One had even been secreted in the palm of a handshake. On each of them, a woman detained in Artesia had scrawled her name and her case number. She was asking for help.
To get access to the free lawyers on site — the AILA-AIC project, the detained women had to smuggle their pleas for help to the project. If a detained woman was caught with the know-your-rights flyer distributed by the project, she would get yelled at and the flyers would be confiscated. The women had no access to telephones. And the project had no telephone line to call at first. The lawyers could not move about in the facility and the women could not come to the law library freely.
On that particular evening, a project volunteer collected all the little papers, typed in the names to the project database, created a file, and added each woman’s name to The List. Around 11.00pm, a project volunteer emailed The List to the Artesia detention officers. And that is how Sofia, a woman from El Salvador detained in Artesia with her two small children, got called to the law library the next morning to start preparing her asylum claim.
At about 5.30am the next day, ICE guards woke her and her children in their dorm. They brought them to the law library to see a project lawyer. There were dozens and dozens of women and children in the trailer that morning. White noise machines played in the background to mask the content of the conversations because it is hard to talk about rape, decapitation, and murder in front of small children. “They hurt my daughter,” she whispered in Spanish. They being the MS-13, a powerful insurgent group in El Salvador. In fact, the MS-13 had raped and kidnapped her daughter to politically avenge themselves against her and her family’s support of anti-gang policies. ICE refused to release her under its no-release policy. Her second hearing before an immigration judge was that very morning. At her first hearing she was by herself and an Immigration Judge accepted the Matter of D-J- national security threat theory and effectively ordered her detained until her final deportation hearing.
[aesop_document type=”pdf” src=”/wp-content/uploads/2014/12/AILA-Political-Opinion-Amicus-Public-Version.pdf” caption=”Many experts worked with the Pro Bono Project to develop a political theory of violence in Central America. Under this theory, many of the detained women qualified for asylum. This amicus brief from AILA explains how.”]
Between August 3, 2014 and November 5, 2014, twenty-five different project volunteers participated in Sofia’s case taking it from her first request for help to a final immigration court hearing. Volunteers on-the-ground in Artesia would meet with her and her children. They would interview her, review her statements, and collect information about her claim. The on-the ground team would pass the information to a remote team of volunteers who would investigate the claim, comb through news sources, contact family members, and locate records to substantiate her claim. The project coordinated with experts — professors, political scientists, legal theorists — to develop the framework and background information for Sofia’s case and all the cases. Again, lawyers on-the-ground would meet with Sofia to prepare her for her final hearing. Remote lawyers would draft final pleadings and, one thousand miles away, yet other lawyers would finalize the pleadings and submit them to the court. By the conclusion of her trial, Team Artesia had compiled a persuasive record that showed that over the course of several years, the MS-13 in conjunction with the El Salvadoran government engaged in a pattern of terror aimed at Sofia and her family. The MS-13 twice attempted to murder her husband, engaged in years of taxes-via-extortion, closely confronted the family with death and harm, demonstrated their ability to pursue them throughout the country, and kidnapped and raped her daughter. On November 5, 2014, an immigration judge granted asylum to Sofia because she had been persecuted in the past on account of her political opinion by the MS-13. Finally, she was released and reunited with her family in the United States.
This report gives the impression that Team Artesia was a well-organized corps of attorney-volunteers that rappelled deep into the pit of a due process darkness with beacons of hope harnessed to our law books. That was not the case. On that morning in August, when Sofia came to the law library, no one could see where we were going with her claim. At that moment, everything in Artesia was so raw and everyone was so wounded, it was nearly impossible to figure out what was going to happen the next day.
[aesop_quote background=”#282828″ text=”#FFFFFF” align=”center” size=”1″ quote=”I am not the same person leaving Artesia as I was when I came. I thought after spending a year with the Florence Project and working with detainees every day at the Eloy Detention Center that I had a strong stomach, that I knew just how messed up our immigration system was. That was nothing compared to one week here. I have been gutted by what I saw at Artesia, and I am still trying to process this experience and find the best way to share it” cite=”Eileen Sterlock, Oregon volunteer” parallax=”off” direction=”left”]
[aesop_chapter title=”IX. The Mechanics of Team Artesia” subtitle=”On The Ground” bgtype=”img” full=”off”]
Team Artesia was successful because it had a persistent and meaningful ground game that gave the project a daily presence in the detention center and a mechanism to distribute the most difficult work to accomplish in a detention setting to other legal volunteers across the country. With an average of 14 lawyers on any given day, the On-The-Ground team could do the work that it did because of a few, simple tweaks: centralized volunteer registration, case management protocols applied to all claims, a simplified system for accessing clients, and open participatory strategic decision-making.
For the volunteer lawyers, the On-The-Ground team was successful because it provided a concrete entry and exit point for volunteering in a meaningful way. Under a traditional model, a volunteer attorney would commit to a single case over a span of time or participate in a single workshop or clinical experience. In Artesia, to be successful the project had to roll with a different model because lawyering on-the-ground in Artesia meant advocating in a visceral way. The acute liminality of the law and the advocate’s role shocked volunteers, even those already hardened and accustomed to detention settings. Rules changed daily, procedures were fluid. A federal regulation or statute only became the law if one had the negotiating finesse to summon it into being like from a magic lantern.
For the Pro Bono Project, the On-The-Ground team was successful because it provided a daily measure of the reality in Artesia. The project’s consistent, daily presence inside the detention center meant it could measure impacts, gather intelligence and data, and advocate for systemic changes that benefited every woman and child.
For the women and children detained in Artesia, the On-The-Ground team was a fulfillment of the original promise that the project would not abandon them. The regularity — to the extent that anything in Artesia obtained any sense of regularity — of the ground team’s presence from 7am every morning until 7pm every evening built trust and confidence. In the dorms, the women would share their experiences with the project and shared their sense of trust with others.
[aesop_parallax img=”https://innovationlawlab.org/wp-content/uploads/2014/12/d1.jpg” parallaxbg=”off” caption=”An aerial view of the Federal Law Enforcement Training Center. The Artesia Detention Center is in yellow.” captionposition=”bottom-left” lightbox=”off” floater=”on” floaterposition=”center” floaterdirection=”none”]
Volunteer registration was centralized and management logically divided between the AILA National Office in Washington DC and the ground coordinator in Artesia. Volunteer registration was managed by the AILA National Office. Staff from AILA’s Practice and Professionalism Center and the Advocacy Department grassroots coordinator handled initial volunteer contacts and then grouped volunteers into weekly teams, or less ideally, partial weekly teams. AILA kept track of logistics such as when particular volunteers were arriving and departing as well as more substantive attributes such as skills and knowledge of particular volunteers. Any competent person could volunteer, not just AILA members, not just immigration attorneys, and not just attorneys.
There were two formal orientations for volunteers on-the-ground. First, the AILA National Office convened a conference call before volunteers hit the ground with the purpose to introduce volunteers to each other, provide an in-depth review of the logistics of volunteering in Artesia, describe the best ways to physically arrive in Artesia and identify background resources on the law and technology used in Artesia.
[aesop_video width=”content” align=”center” src=”self” caption=”This video provided a backdrop for the lawyers OTG to the credible fear screening that took place in Artesia.” hosted=”/wp-content/uploads/2014/12/Credible-Fear-Process-101-for-Artesia-Karnes-Lawyers-SD.mp4″ loop=”off” autoplay=”off” controls=”on” viewstart=”off” viewend=”off”]
Once arriving on-the-ground in Artesia, volunteers assembled as a physical team for the first time and the second orientation took place. The team lead and the ground coordinator took over day to day management of volunteers. At the beginning of the volunteer week, there was a crash course on credible fear law, asylum law, a hands-on tutorial for using the project’s client database and document systems, and a training on the two basic protocols the project used for case processing: the Credible Fear Protocol and the Bond Protocol.
[aesop_document type=”pdf” src=”/wp-content/uploads/2014/12/235-protocol.pdf” caption=”The Credible Fear Protocol guided volunteers in representing clients.”]
The project implemented two protocols on-the-ground to successfully manage cases in the credible fear process and bond hearings.
At the beginning, the transitions between volunteer teams were incredibly rough. One could literally hear the grinding of the gears in the exasperation of the lawyers, judges, and clients as the attorneys shifted from one week to the next. Early on, the project lost critical momentum after each attorney-team transition which forced project volunteers to duplicate work, re-interview clients, and miss filing deadlines. To remedy this, the project implemented a Credible Fear Protocol and a Bond Protocol. The protocols were developed in collaboration with the Innovation Law Lab to structure the case work so that during her time on-the-ground, a volunteer lawyer could focus on the strategic decision making necessary to advance each client’s claim as far as possible each week rather than the management of the case. The protocols mitigated the challenges of a constantly rotating band of attorneys.
For example, the Credible Fear Protocol focused on the credible fear screening — the truncated crucial screening under INA § 235 that would determine if the woman would be immediately deported or win a chance to claim asylum in a deportation hearing. The protocol broke each part of the process down into its smallest components and organized them by major task. An on-the-ground lawyer would ascertain how far in the protocol the client had advanced and pick up the case tasks right where they were left off. The protocol provided detailed instructions on note taking and data entry. Helpful client-oriented materials were associated with major steps of the protocol to engage the client to her maximum ability to develop the case. When the internet bandwidth in the law library permitted, a short video on the credible fear process was shown to orient the client. Client materials were prepared for the Bond Protocol, too.
What the protocols did not do was dictate the content of the lawyer’s case-specific decision-making or client interactions. When a lawyer on-the-ground worked a case, she worked the case like any other case in her private capacity. The protocols provided concrete steps common for good case management, the team lead and ground coordinator provided context and information, and the project provided strategic and logistical support. The volunteer lawyer, though, was really and truly the lawyer for that case with all the attendant strategic considerations. For example, the decisions a lawyer made in her week on-the-ground were built on top of all the decisions made by lawyers from each previous week — lawyers she did not know. She also understood that her strategic decisions this week would fundamentally impact the decisions made in the next week.
[aesop_content color=”#FFFFFF” background=”#333333″ columns=”3″ position=”none” imgrepeat=”no-repeat” floaterposition=”left” floaterdirection=”up”]Excerpts from Artesia: A Day in the Tour of Duty by Victor Nieblas, AILA President-Elect. So the day begins: 4:50 am. The alarm goes off. I need several snooze button sessions to finally get up. I prepared my clothing the night before to save a couple of minutes. I need to be out of the hotel by 6:15 am if I am to make it on time to the Federal Law Enforcement Training Center …6:00 am. I am out the door with my bag and laptop. In my bag are several oat and honey bars and two bottles of water. I was instructed to bring some and will discover later why this is important. I am wearing a suit and tie to instill confidence in the detained mothers and kids I will be seeing throughout the day. I stop by the hotel breakfast bar. The buffet offers eggs, bacon, and toast with some apples and bananas on the side. …I turn right on 26th Street and follow it down several miles. I pass the town’s Walmart store. I will discover later, that this is where some released detainees will be brought for modest clothing sprees. I make a right on Richey Road and it takes me straight to the Detention Center. 6:45 am. As I pull into the parking lot, I notice a van already waiting for the volunteers. I need to hurry. Before I can get in the van, I have to go into the security building for a picture and security badge. This is a daily routine. I enter the van and see most of the morning’s volunteers carefully arranged inside. Several crates with files also share the confined space. I manage to fit in a small spot. The van is filled to capacity. Yet, four other volunteers are still making their way to the vehicle. 7:00 am sharp. The driver makes the final call. If you miss it, you may have to wait until 10:00 am to make the next trip. The van takes off. Several feet ahead we stop at the guard station. The security guard wants to see all of our badges. He opens the door and several of the file crates almost fall out. We are a tightly packed van of attorney sardines. He is satisfied and lets us through. We travel 500 feet at 10 mph. The speed is regulation. I notice a sports field with a running track. We finally reach our destination. We enter what looks like a small city block filled with light brown trailers along both sides of the street. I count at least 4-5 on each side. As we enter the gated village, I see there are other trailers to the side. I also observe countless Department of Homeland Security officers walking around or sitting on chairs. It is clear; they are the authority in this place. We cannot wander around. We have to be escorted at all times. We unload our crates, grab our bags and are escorted to the attorney trailer. …We are asked to sign in by the duty guard. We finally reach our space. It is the far end of the building. We have a column of small tables and chairs facing a wall. A tall divider separates the attorney workspace from the area where the mothers and children will be meeting with the attorneys. All of the attorneys scramble for a table, chair, and an outlet. For the next several days, every morning will feature this non-choreographed attorney dance a la musical chairs. 7:15 am. Once we set up our laptops, the mothers and children start filtering into the trailer. The previous night, our lead attorney and administrative assistant prepared the list of the mothers we will be seeing. Each mother is already assigned to a particular attorney. We are ready to go. The onsite assistant starts calling out names. When you hear your assigned client, you are on. Some attorneys start prepping their clients for bond hearings that will take place at 8:00 am. Others start prepping clients for credible fear interviews or negative credible fear determinations that will also follow. Others will do intakes.
Because deportations could happen at any time, the pro bono project needed to have a simple way to schedule clients. The scheduling system also needed to align with our volunteer assets on-the-ground and respond to the ICE management concerns. To do this, the project developed The List. The List developed organically by each successive week of attorneys. Every evening, the team lead and ground coordinator would decide based on (1) the available volunteers, (2) scheduled (and unscheduled) hearings, (3) remote attorney requests, and (4) known (and unknown) asylum screening interviews how to populate The List with all the clients to be seen the following day. Remote attorneys could access clients by entering data in the project’s computer system. The List staged clients into five sessions: two in the morning and up to three in the afternoon. New clients were added to The List and triaged based on anticipated removal dates, upcoming hearings or credible fear interviews during the last session. Every evening, The List was emailed to ICE personnel in Artesia.
An early negotiation position taken by the project essentially allowed it to build a functioning law office inside the detention center. This was a benefit primarily to the lawyers but also to the ICE management. The project was permitted to have a functioning printer, scanner, project-sponsored wireless internet access, and mobile telephones. The recording features of the personal devices were blocked as part of the negotiation. All laptop computer cameras were taped over and mobile telephones were permitted only in an attorney-only space. With access to our client management system, the volunteers could use an on-line intake to speed and regularize data collection, instantly update client records, create declarations and applications on the spot, copy new client records and all the other things lawyers need to do that are typically stymied in other detention centers. The project could do these things right then and right there.
It was apparent early on that the project needed to create and sustain a project different than what anyone expected because Artesia’s relentlessness was unlike anything the lawyers had expected. No one lawyer had the answer to all of the day-to-day dilemmas. The solution was found in making certain that everyone’s ideas mattered. Open, team-wide participation in strategic decision-making took place every night in Artesia. While on-the-ground, a volunteer averaged 17 hour work days everyday. A volunteer would work in the detention center from 7am to 7pm every day. Part of the day would be in immigration court arguing bond cases, motions, and continuances. Part of the day would be spent in credible fear interviews. Most of the day was spent meeting with clients, collecting information, preparing testimony, and tracking down witnesses. It was exhausting and exhilarating. By 7.30pm each night, the lawyers would gather for the Big Table conference.
Named after the enormous table in the Artesia Chamber of Commerce, the first off-site location of the project’s war room, the Big Table was a nightly meeting of all the advocates on-the-ground that would last until the early morning hours. It was a meeting held in round-table fashion in which each advocate at the table spoke in equal measure on the day’s successes and failures, on critiques of the arguments and case theories, on mapping strategy for difficult fact patterns, and on setting a plan for the next day.
[aesop_image img=”/wp-content/uploads/2015/01/BigTableBlueprint.jpg” credit=”Illustration by Jim Wilson/Innovation Law Lab” align=”center” lightbox=”on” caption=”Every evening, volunteers on the ground in Artesia gathered together to discuss the day and plan the next.” captionposition=”center”]
The volunteer recruitment for Artesia was highly successful. Recruiting for pro bono projects can be notoriously difficult in the best of circumstances. If one adds to those normal difficulties the fact that an on-the-ground volunteer in Artesia would spend an average of $360 of her own money for each day she volunteers for the pro bono activity, it would seem that a volunteer disaster was in the making for Artesia. Without the ground presence, the project would not — could not — function. The math of the project required at least 12 lawyers on-the-ground each week to work in a reasonable, manageable fashion. During the 21-weeks that the project operated an on-the-ground team in Artesia, 235 volunteers made the trek. The largest team was 24 and the smallest was 4. The project had on average 14 volunteers on-the-ground each week. Individual AILA chapters began a grassroots campaign to raise funds for their members to volunteer. The American Immigration Council organized a fundraising portal to support on-the-ground volunteers.
[aesop_chapter title=”X. Breathing Space” bgtype=”img” full=”off”]
By activating the on-the-ground team and a series of remote teams, the project reached three milestones in arresting the brutal pace of removals — partly aided by a chicken pox quarantine that gave the volunteers a blessed 21-day space to file motions to undo previously staged removal orders.
[aesop_image img=”/wp-content/uploads/2014/12/artesia-report-rate-of-deportations.jpg” credit=”Infographic by Jose Cruz-Guadarrama/Innovation Law Lab” align=”center” lightbox=”on” caption=”The pace of removals fell in direct proportion to the attorney presence on the ground. ” captionposition=”center”]
The pace of removals fell 80% within one month and, within two months, it had fallen 97%. The sense of impending doom that permeated the detention center had evaporated by October. The waves of deportation stopped because the lawyers had insisted that the government follow the law on credible fear screening. See, e.g., Motion to Reconsider Negative Credible Fear Finding (Artesia Pro Bono Project). A raw emotional space had opened for the women and the volunteers.
It was now time to unveil the release strategy.
[aesop_chapter title=”XI. The Bond Team” subtitle=”Mechanics Of The Remote Teams” bgtype=”img” full=”off”]
Because resources were stretched so thin on-the-ground, anything that didn’t have to be done in Artesia was done remotely and that included assembling bond motions.
After passing a credible fear screening, the detention of the women and children in Artesia was a result of political expediency, not law. By law, section 236(a) of the INA authorized the release of a mother and children who were not public safety or flight risks.
Getting released from Artesia was, at the beginning of the Pro Bono Project, a fool’s game. The regulations that govern who makes the release decision are exceedingly complicated and convoluted. The opacity of the rules, a vestige of two decades of anti-immigrant sentiment, make political manipulation of the system easier. In almost every case in Artesia, an ICE officer had the authority to release a mother and her children after passing a credible fear screening. The rules require the ICE officer to make an individualized determination about whether a particular mother and a particular child were community dangers. If they were not community dangers, the ICE officer ought to have released the mother and children under appropriate conditions, including the posting of an appearance bond.
This, of course, rarely happened in Artesia. The politicization of the detention process meant that ICE initially denied release in nearly 100% of the cases represented by the project. Most times, but not all times, a mother in Artesia could go to immigration court and make her case for release to a judge. We say most times because there were several mothers who were denied bond hearings before any judge because of the complexity of the rules.
Theoretically, immigration judges are independent decision-makers who are supposed to be free from the political desires of the administration. Our experience in Artesia demonstrated that the independence of the immigration judges is not guaranteed.
[aesop_document type=”pdf” src=”/wp-content/uploads/2015/01/Redacted-Artesia-IJ-Complaint_Redacted.pdf” caption=”Most of the immigration judges in Arlington were hostile to the AILA-AIC pro bono project. This complaint about an immigration judge describes how one judge presided over negative credible fear reviews. No formal determination on the complaint was ever made.”]
A bond hearing in a typical detention setting is an informal review where offers of proof are common and an immigration judge renders an oral decision. See Immigration Court Practice Manual Chap. 9.3(e)(vi). Average bond amounts are notoriously difficult to calculate because the data has never been consistently aggregated. Research conducted by the project indicated that nationwide, an average bond was a few thousand dollars in a typical detention setting. Twenty- or thirty-minute bond hearings are also the norm in a typical detention setting.
In Artesia, a typical bond hearing was turned into a multi-hour bludgeoning.
[aesop_quote background=”#282828″ text=”#FFFFFF” align=”center” size=”1″ quote=”Today’s bond hearing involved almost two hours of testimony, and ended with a canned decision from the judge granting bond of $20,000. His decision did not appear to be uniquely tailored to the facts of the case. Later in the day, she recalled that her client’s daughter kept waving at the judge, the DHS attorney and the Spanish interpreter over the video, but only the interpreter returned a smile.” cite=”Megan Klundt, New England volunteer from her blog, http://immigrationartesia.blogspot.com” parallax=”off” direction=”left”]
Recall that the Obama Administration for its own political ends had ordered the detention of these women and children without regard to the facts in their particular cases. The Obama Administration also erected evidentiary, procedural and logistical barricades that forced the project’s pro bono lawyers to expend enormous resources just to get into immigration court and make release requests. For example, the Obama Administration originally placed the removal docket before the Headquarters Immigration Court. The Headquarters Immigration Court is an immigration court based in Arlington, Virginia. It was an unusual court to pick for the Artesia docket for many reasons: the time zone difference, the physical distance, and the inexperience of most of the judges in a family detention setting. The volunteers were skeptical about the independence of the court from possible political interference. Their skepticism was well-founded: filing procedures changed daily and all but one of immigration judges denied counsel the opportunity to speak (let alone argue) at critical hearings. The Headquarters court personnel lost files and filings including asylum applications, among other complaints. A preliminary review of bond data maintained by the project indicates that the mean bond amount set by the Headquarters immigration judges was $17,000. Project data does not include any of the women who were deported in the first waves of removals.
From the lawyers perspective, the Obama Administration was intentionally distorting the typical bond process. As a result, the project’s resources were being consumed by the distortions. It was clear very quickly to the lawyers that this was going to destroy the project’s very delicate equilibrium.
[aesop_document type=”pdf” src=”/wp-content/uploads/2014/12/Bond-Protocol-New.pdf” caption=”By carefully mapping our process, the project could effectively represent hundreds of women simultaneously. The Bond Protocol breaks down each step in the process volunteers used to present motions for release.”]
So we created our first remote team, the Bond Team. The Bond Team was an ad hoc, highly trained team of attorneys from all across the country. Some of them had formerly been on-the-ground in Artesia. Most of them were volunteers who wanted to assist in the project but could not travel to New Mexico. The project developed a detailed protocol that connected the bond team with translators, clerks, and the on-the-ground force to process almost all of the release requests off-site. The logistics were daunting: the on-the-ground team would conduct bond intakes and initiate the bond protocol. Evidence collection was done remotely by volunteers, volunteer law firms, and eventually, a single bond clerk. Translating documents was a constant challenge and the project relied on a team of volunteer translators. Documents were compiled into proper court-filing format and transmitted to the court using yet other volunteers. It was a constantly changing structure that dynamically evolved as the bond process shifted. In the end, the Bond Team produced hundreds of motions for filing. Although all 1200 immigrants detained at Artesia were supposed to have been deported, in fact, almost 70% were released.
[aesop_image img=”/wp-content/uploads/2015/01/artesia-report-cons.jpg” credit=”Infographic by Jose Cruz-Guadarrama/Innovation Law Lab” align=”center” lightbox=”on” caption=”With just 235 total volunteers on the ground during the whole project and an average of just 14 in any one week, the AILA-AIC project completed 3200 client appointments and more than 600 hearings. This was possible because of the unique team approach of the AILA-AIC Pro Bono Project. ” captionposition=”center”]
Relying again on discredited facts, the DHS filed notices of appeal in nearly every case in which a bond was authorized by an immigration judge. The Obama Administration’s strategy—still underway as of this writing— was to obtain appellate authority to re-incarcerate the women and children who had been released. That is, the Obama Administration wanted to jail the women and children again. And again, the project was faced with the prospect that the hundreds of appeals filed by the DHS would overwhelm the individual volunteer lawyers. Similar to the Bond Team, a Bond Appeals Team convened to respond to the Obama Administration’s appellate strategy.
[aesop_document type=”pdf” src=”/wp-content/uploads/2015/01/DHS-Brief-on-Appeal-REDACTED.pdf” caption=”The DHS strategy is to redetain the women and children who were released from Artesia. This is an appeal it filed in a bond case. It has filed nearly identical briefs in numerous other cases.”]
The Bond Appeals team allowed the project volunteers to consolidate strategy and tracking in a single group of volunteers. Indeed, as this report is being written, the team is tracking the DHS appeals, analyzing DHS arguments, and developing a comprehensive brief for use by the project. The team worked across detention centers, collaborating with the volunteers operating at the family detention center in Karnes.
[aesop_chapter title=”XII. The AILA-AIC HQ Team” subtitle=”Mechanics of the Remote Teams” bgtype=”img” full=”off”]
The stories of women brutalized in their home country seeking asylum in the United States who are then held in captivity without due process of law are shocking. This is happening in the United States? What was happening in Artesia needed to be known and documented. People needed to hear what was happening there. But how would people hear them over the roar of the Artesia deportation machinery? Artesia was too far away and to anyone everywhere else, the Artesia machine’s sound would have been indistinguishable from the oil and gas machinery that animates the town.
The lawyers could be the proxies to tell the story of Artesia and the scandal of family detention. The thought was that if the lawyers could just tell those stories from someplace other than Artesia, maybe someone would listen. AILA and the American Immigration Council committed key personnel and creative energy to the project’s HQ Team to amplify the voices of the women and children. More than that, the HQ team brought a blessed order to the project. The nuts-and-bolts of administering a project that essentially happened overnight are multi-faceted. The efforts of the headquarters teams at AILA and the Immigration Council highlighted the unique strengths of each organization and the power of collaboration.
Funding the project was, of course, essential because a volunteer armada of lawyers crossing the New Mexico desert requires things to function like office space, paper, machines, and, most importantly, oversight. As early as mid-July, the AILA National Office and the American Immigration Council had mobilized: first to determine what was happening in the remote detention facility and later to organize volunteer legal brigades. A fact-finding investigative team was sent as part of a non-governmental organization tour of Artesia in July. By July 22, a semi-formal structure for volunteering in Artesia had emerged under the auspices of the AILA-AIC HQ team. AILA detailed staff from its Practice and Professionalism Center to manage volunteers on-the-ground and to spend time on-the-ground to provide additional assistance to volunteers and shape what would eventually become two temporary staff positions: a team lead and a ground coordinator. On September 4, 2014, the AILA Board of Governors unanimously authorized the funding of a temporary staff position on-the-ground in Artesia to coordinate volunteers. The Immigration Council funded a separate position, an attorney team-lead, to create continuity between the different volunteer attorney teams. The funding of these new positions, outside the normal budgeting process, combined with funding from individual AILA Chapters, made the project’s continuance possible. The Immigration Council created a portal for individual donations that the council managed for the benefit of the individual volunteer lawyers to offset the hard costs of volunteering.
[aesop_content color=”#ffffff” background=”#333333″ width=”1060px” height=”1060px” columns=”1″ position=”none” imgrepeat=”no-repeat” floaterposition=”left” floaterdirection=”up”]
The story of Artesia was carried by the media all across the country. This concept map, still a work in progress, shows how the “story of Artesia” and family detention changed over time. The articles are organized chronologically by source.
The collaborative efforts of AILA and the Immigration Council made possible the funding of the temporary staff roles of the team lead and a ground coordinator. The team lead and the ground coordinator were the points of contact for the project. Each week, they would facilitate team building for the volunteers, implement best practices for case development in the Credible Fear Protocol and Bond Protocol. Later in the project, they led the orientation and mapped client-centered case strategies in collaboration with the volunteer attorneys. Importantly, the team lead and ground coordinator facilitated remote representation.
The AILA-AIC HQ team amplified the power of the volunteers on-the-ground through its liaison work and litigation. The HQ team directly managed relations with the White House, the Department of Homeland Security main office, and the Department of Justice’s Executive Office of Immigration Review, elevating concerns and case examples with members of Congress as well. Volunteers on-the-ground would identify emerging legal issues, systemic errors, and other persistent violations in Artesia and submit the data to the HQ team for liaison efforts. The HQ team’s communications unit magnified the impact and reach of the video postcards, blog posts, and compelling narratives emerging from Artesia.
[aesop_video width=”content” align=”center” src=”self” hosted=”/wp-content/uploads/2014/12/Artesia-Day-6-SD.mp4″ loop=”off” autoplay=”off” controls=”on” viewstart=”off” viewend=”off”]
These narrative pieces reached a wide audience, including mainstream media. The AILA advocacy and liaison teams brought the information to key elected officials and important government agency personnel. The Immigration Council produced academic-level reporting and disseminated it widely through its multiple media channels. Through the individual stories of the attorneys who were giving voice to the women and children detained, the HQ team focused attention on the detention center and its horribly inapt policy of detaining children to deter women from seeking asylum. Important to internal communications and strategy-setting, the HQ team convened a weekly conference call with project staff, key volunteers, and the entire HQ team to plan for shutting down Artesia and ending family detention.
[aesop_document type=”pdf” src=”/wp-content/uploads/2015/01/M.S.P.C.-v.-Johnson.pdf” caption=”The American Immigration Council, the ACLU, the National Immigration Project, the National Immigration Law Center and others collaborated to file a lawsuit challenging the Obama Administration’s violations of due process. The lawsuit is called MSPC v. Johnson.”]
The American Immigration Council’s Legal Action Center became lawyers for the lawyers on-the-ground. First, the Immigration Council was the primary conduit for the project to the litigation team that challenged the expedited removal procedures adopted by the Obama Administration. The litigation team consisted of several key allied organizations such as the ACLU, the National Immigration Project of the National Lawyers Guild and the National Immigration Law Center. The Immigration Council fielded legal queries from the on-the-ground volunteers regularly as did all of the allied organizations.
[aesop_chapter title=”XIII. The Technology & Logistics Team” subtitle=”Mechanics Of The Remote Teams” bgtype=”img” full=”off”]
The challenge of coordinating hundreds of lawyers, hundreds of clients, thousands of pieces of evidence, and countless interviews and hearings with no budget and no resources seems apparent. The challenge was apparent to the project volunteers every day in a real-life meaningful manner: the lives of the women and children in the detention center were at stake. In August, the Innovation Law Lab, a non-profit based in Portland, Oregon, created an electronic cloud-based portal to a client and document management system that would stitch the lawyers together and to keep the stitching intact, the Law Lab donated a Help Desk team to support the project.
[aesop_video width=”content” align=”center” src=”self” caption=”Other videos used during the project are available at www.innovationlawlab.org/immigrant-u” hosted=”/wp-content/uploads/2014/12/Entrevista-de-Miedo-Creible-HD.mp4″ loop=”off” autoplay=”off” controls=”on” viewstart=”off” viewend=”off”]
The case management system was the technological backbone and hidden workhorse of the Pro Bono Project. Project volunteers were granted credentials to the cloud-based case management system called CDB. The case management system provided real-time reporting of case development. It allowed volunteers to create daily task reports, it provided a platform for capturing client data, it permitted remote attorneys to simultaneously work cases in collaboration with on-the-ground attorneys, and it let staff manage the project overall. Each evening, volunteers – on-the-ground and remotely — would enter data to create The List — the comprehensive list of all the clients to be seen by the project volunteers. Likewise, each night, the volunteers could run task reports to identify the next steps in each case. After each client interaction, a volunteer would enter the critical information into the software and set tasks, based on the protocols. Key volunteers would input liaison updates, store the Big Table reports, and monitor case development to create a “memory” for the constantly evolving logistical and political situation.
The AILA-AIC Pro Bono Project built a knowledge-base which contained a series of templates, briefs, motions, expert declarations, expert credentials, cover letters, and many other items that form the toolbox of lawyers. It was housed in a cloud-based system called DMS. Documents in DMS were pegged to each step of the credible fear and bond protocols to make it fast and easy for volunteers to produce pleadings and particularize those pleadings to the facts in an individual case. The templates were constantly updated as strategies evolved. A volunteer could download the latest version of a template, for example a motion for bond, and then use it as the base for building her own motion for filing in court. All the expert declarations were centralized in DMS and coded by country of focus and content.
[aesop_quote background=”#282828″ text=”#FFFFFF” align=”left” size=”1″ quote=”To view an expert declaration from the Artesia knowledge-base, click the hyperlink embedded in the expert’s name. ” parallax=”off” direction=”left”]
Several scholars contributed to the project’s knowledge-base. For example, DMS contained expert declarations by Cecilia Menjivar, a scholar on domestic violence in Central America, who also testified in early merits cases involving Matter of A-R-C-G-‘s application to claims by women in Artesia. Elizabeth Kennedy, a researcher who was based in El Salvador, testified in a merits case and described the political context in which third generation gangs in El Salvador operate. Elliot Young, a professor of history, detailed the sociological motivations driving children and women to flee Central American. Victoria Sanford, a noted scholar on Guatemala and Central American indigenous and gender issues, provided several letters explaining the social and political context in Guatemala and Central American including testifying at a critical withholding-only merits hearing.
The Law Lab’s Help Desk provided dynamic technological support throughout the project. It prepared instructional videos for volunteers to use the software and added immediately needed technology features unique to the needs of Team Artesia. The Help Desk processed incoming mail and faxes off site using a rotating team of volunteers.
[aesop_chapter title=”XIV. Remote Lawyers & Merits” subtitle=”Mechanics Of The Remote Teams” bgtype=”img” full=”off”]
It was never clear to the volunteers why the Vice President of the United States had determined that none of the women and children qualified for asylum. It was patently obvious to anyone that most of, if not nearly all, the women fleeing with their children whom the administration was detaining would eventually be eligible for asylum.
This was clear from the moment the lawyers began interviewing the actual women and the actual children. On-the-ground, the strategy was to win cases to prove the lie behind the Vice President’s judgment. If we could disprove it, then we could create the space to prove why family detention was utterly misguided and wrong.
[aesop_document type=”pdf” src=”/wp-content/uploads/2014/12/AILA-Amicus-Mixed-Motives-Public-2.pdf” caption=”To help shape the presentation of merits claims, AILA filed several amicus briefs on different points of asylum law. This brief addresses mixed-motive asylum claims involving gang persecution.”]
Remote lawyers developed a successful strategy for winning merits cases to prove that the Obama Administration had been incorrect in their assessment that these women were not asylum seekers. For any volunteer who went to Artesia, it is probably fair to say that you never really left. For several lawyers, this meant taking a case through the merits stage.
The Pro Bono Project had promised to represent every woman and child from the credible fear process through a bond hearing. Several of the women who were ordered detained before the lawyers arrived in Artesia had merits hearings scheduled. Our first approach was to obtain new bond hearings. The politicization of their initial detention and the complicated detention rules worked against Team Artesia’s strategy for subsequent bond hearings. Thus, many of them would be required to present a merits hearing in a remote and inhospitable detention center through a video-link hook-up of marginal and technologically-dubious value.
[aesop_document type=”pdf” src=”/wp-content/uploads/2014/12/AILA-CGRS-Amicus-ARCG-Artesia-Public-3.pdf” caption=”AILA and the Center for Gender and Refugee Studies filed an amicus brief explaining how the landmark decision in Matter of A-R-C-G- applied to many of the Artesia claims.”]
Remote lawyers — that is any lawyer who was not physically on-the-ground in Artesia—were a critical component to the success of the Artesia project. Using the project’s on-the-ground team and the Law Lab’s technology platform, remote lawyers could actually represent clients in a detention center hundreds or thousands of miles away. Detention centers are notoriously difficult settings in which to obtain competent and qualified representation because the logistical difficulties are immense. Telephone access is sporadic, interpretation problems abound, confidentiality is scarce, sharing documents or obtaining signatures is impossible, and most fatally, building trust is compromised. All of these difficulties compounded in Artesia to create a nearly impenetrable wall to remote attorney representation.
[aesop_quote background=”#282828″ text=”#FFFFFF” align=”center” size=”1″ quote=”Scholars such as Elizabeth Kennedy, Cecilia Menjivar, Victoria Sanford, Elliot Young, Nestor Rodriguez, Jonathan Hiskey, and many others contributed to our knowledge-base by providing affidavits and live testimony.” parallax=”off” direction=”left”]
Enter the Remote Lawyers. Unlike the bond team, which was focused exclusively on investigating and preparing bond applications, the Remote Lawyers were working on building the merits of cases or other case specific legal work. The Remote Lawyers were registered in the CDB | DMS system and added to the project-wide listserve. Using these platforms, the remote lawyers could directly schedule client appointments using the on-the-ground team and bypass the inherent obstacles in the detention system. (Also, the on-the-ground team actively negotiated for improved remote attorney access for all attorneys, not just the volunteer attorneys working directly with the project).
WIN - ArlingtonHeidy is a 23-year-old from Honduras. For 6 years, she endured mental and physical abuse from her husband, a drug-trafficker from a powerful family. She was a prisoner in her own home, unable to leave without her husband’s permission. Even when her husband was in prison for taking part in a murder, she couldn’t escape as his friends and family were watching her. She tried filing for divorce, but government officials wouldn’t take the case. She tried to leave him and she and her two children’s lives were threatened at gunpoint. She fled to the United States on the advice of Honduran police who told her that they couldn’t protect her.
WIN - ArlingtonM-C-, 36 years old, fled El Salvador with her 15-year-old daughter to escape her violent partner. In 2003, her husband beat her face until the purple welts glowed. From 2004 and for the next ten years, he beat and serially raped her, about twice a week she remembers. She was not allowed to leave the house; she couldn’t even go to the market alone. He threatened her life and the lives of her family if she attempted to leave him. To prove his point, he beat their daughter in front of her. After a beating and still bloody, M-C- called the police, but the police said it wasn’t their problem since they didn’t catch him in the act. She was granted humanitarian asylum by an immigration judge on September 5.
WIN - ArlingtonD.M.L. fled Honduras with her 17-year-old and 8-month-old daughters. She had been beaten, threatened and raped at gunpoint by her husband. D.M.L., 33 years old, met her husband at 15 and married him at 16. The abuse escalated in the past two years, with her husband beating and threatening to kill her and pointing a gun to her head several times. She tried to leave, but her husband found her and their children. D.M.L. didn’t go to the police because she knew they wouldn’t help and she was unaware of other resources. She fled to the U.S. and was detained in Artesia. She was given a bond of $9,000 which she couldn’t pay. DHS appealed her bond. Still in detention, but with the help of attorneys and expert witness testifying to the high rates of impunity in female-victim crimes in Honduras, D.M.L. was granted asylum by an immigration judge on September 25.
WIN - DenverLaura fled Honduras with her two young children. She was beaten severely by her partner requiring her weeks to heal. After one beating, the police didn’t come when she called and didn’t take a report when she went to the station. When she tried to escape, her partner’s friend found her and threatened her. Another time after a beating, she went to the police to get a restraining order, but the police didn’t do anything to stop her partner and his friends from continuing to stalking and threatening her. With the help of attorneys and evidence including court documents and a letter from a hospital summarizing injuries, she was granted asylum by an immigration judge on October 14.
WIN - DenverRosslyn and her 3-year-old daughter fled Central America because Rosslyn feared for her life as a lesbian living in a country that wouldn’t or couldn’t protect her from abuse because of her sexual orientation. From an early age, Rosslyn was harassed and intimidated because of her sexual orientation. People would stare at her, throw rocks at her, and threaten her harm. She was pressured by family members to engage in sexual activities with men in order to “make her straight” and was raped on several occasions. Rosslyn was eventually forced into a relationship with a man who raped and abused her, but was able to escape when she was 3-months pregnant. She couldn’t risk filing a police report out of fear that the police would also hurt her. Rosslyn fled to the U.S. where she was detained in Artesia. She and her daughter were given a $10,000 bond which they couldn’t pay. On October 22, Rosslyn was granted asylum by an immigration judge who commended her for being “very brave” to testify to her circumstances.
WIN - DenverOlivia, 23 years old, and her 3-year-old son fled Honduras to escape the violence of her son’s father, Hector. On several occasions, he held her at gun point and threatened to take her life. He also raped her and insulted her in front of her son. Olivia attempted about ten times to escape her partner. Each time, Hector would send members of his gang to look for her and force her to return home threatening death. Olivia attempted to call the police, but with one exception, the police did not answer her call. The one time they answered, they never came to her home. Towards the end, Hector was beating and raping her twice a day. During the last incident, Hector beat and raped her and beat their 3-year-old son with a belt when he tried to intervene. He held a gun to her son’s head before forcing the gun into her mouth. Olivia fled with hopes of finding refuge with her sister in New York. They were apprehended and detained in Artesia for over 3 months. Both Olivia and her son have been diagnosed with post-traumatic stress. Their bond was set at $15,000 for posing a danger to national security which became a $30,000 bond. Still in detention, she was granted asylum on October 23 by a judge who found the assaults rising to the level of persecution.
WIN - DenverChristina and her 5-year-old son fled Guatemala and the violence of her husband. When he first beat her, she left with her two sons to live with her parents. She also called the police who said that it wasn’t a serious problem and didn’t help her. For months, she was threatened by phone and in person to return. She returned out of fear when the lives of her parents were threatened. The violence escalated and she was beaten several times a week. Her husband also started hitting their children. She left again with her children. Once, he met her and beat her on the street with a gun. Her mom witnessed the beating and got the police. Christina filed a complaint. Two days later, she found out that the police released her husband after taking a bribe. She returned out of fear for her family and the violence continued to escalate. He started to rape her. He would also shoot at her in the house. He also beat their young son so he was hospitalized for broken bones. Christina took her son and ran to the police. She went to a judge who told her to reconcile with her husband. She went to another judge who just told her to go to a doctor for her injuries. Neither did anything against her husband. After 3+ months of detention, Christina was granted asylum by a judge on October 24.
WIN - DenverSofia and her three children – 14, 7, and 4 years old – fled Central America after a persistent campaign of violence and terror at the hands of a powerful gang which resulted in the death of her brother, shooting of her husband, and kidnapping and rape of her 14-year-old stepdaughter. The family was targeted for their political affiliation. After the gangs attempted to kill her husband and to recruit her stepson on threat of death, the family reported to the police, got a protection order, and fled to another part of the country. But the gang found them after a few days and made threatening phone calls and visits. Her husband and stepson fled. But, the gang didn’t stop. Her 14-year-old stepdaughter was then kidnapped and returned 3 days later after being repeatedly raped. Sofia and the three children fled. At the border, her stepdaughter was separated from her as she wasn’t her biological child and Sofia and her two youngest children were detained in Artesia. DHS claimed that the mother, 7-year-old and 4-year-old were national security risks, denied bond, and opposed their release from custody. On November 5, Sofia was granted asylum by a judge.
WIN - DenverLucia and her one-year-old daughter fled El Salvador and the violence of her common law husband, Max. After they had moved to his village and away from her family support structure, her husband became abusive. He verbally and physically abused her, choking her and threatening her with a gun. He also beat her son from a previous relationship. Lucia tried to go to the police, but she was told that she was Max’s woman and there was nothing she or anyone could do. Max’s father worked in the Mayor’s office and the police were unwilling to take any action. She tried to leave but was dragged back. Lucia eventually escaped again through an unlocked window. But Max soon found her and threatened her. He was also connected to a gang and gang members began to threaten her as “his woman.” Lucia knew she had to flee, but only had enough money to take her youngest child, leaving her older son in the care of her sister. After 4 months of detention in Artesia with her one-year-old, Lucia was granted asylum by a judge on November 5.
WIN - DenverMaribel is a mother of two children from Honduras. She was a political activist and community organizer who began to work within her community to improve living conditions—working to ensure families had access to electricity and potable drinking water, and cleaning and repairing the streets. Unfortunately, her activities brought her to the attention of a local MS gang. By cleaning up her community, Maribel made it harder for the MS gang to act freely. Effectively, she made the gang, and their local front man, look weak, and so the gang decided to take action against Maribel. She was the victim of a continuously escalating barrage of threats and violence. When her close friend was killed by the gang for similar reasons, she made the decision to flee. Telling only close family members, Maribel took her two sons, and left Honduras. The family has been detained in Artesia, New Mexico since mid-July because they were given an impossibly high bond by a Judge in Arlington, VA. On November 25 an Immigration Judge granted the mother asylum based on past persecution because of political opinion.
WIN - DenverMarisol is a 38 year old mother from Honduras currently detained in Artesia, New Mexico. She arrived in the United States with her three year-old twin children on June 25, 2014, and the family has been detained at the Artesia family detention center for the past five months. In December 2011, when the children were less than a year old, gang members brutally murdered her partner—the father of the twins—and then threatened her and her children. One gang member told Marisol that her son would be killed in the same way as they had killed his father. The police were not able to help the family, and did nothing to hold the gang members accountable for their actions. As the threats from the gang continued, and worsened, Marisol decided—against the counseling of her family members already living in the United States—that her only option was to take her young children and flee Honduras. On September 20, 2014 the family’s bond was set at an unimaginably high $15,000 by an Arlington, Virginia Immigration Judge—the family was unable to pay. On December 2 the family was granted asylum by a Denver Immigration Judge.
WIN - DenverDani is a 31 year old mother from a Northern Triangle country in Central America. Dani’s father was an abusive alcoholic who regularly assaulted Dani, her siblings and raped and assaulted her mother. Although Dani did report her father to the police once she was an adult, they were unable to take any action and the abuse became worse. When Dani was older she had three children with her first partner; however, she was forced to leave him after he tried to choke her to death. Subsequently, Dani became involved with another man, Andre, but she soon found out that he was high-up in the human smuggling operations of a cartel. While Dani was pregnant Andre often abused her, threatened her, and even shot her when he became angry. Eventually Dani and her son were able to flee from Andre to Mexico. Unfortunately, Andre eventually found her in Mexico and continued to threaten and assault both her and her son, and so eventually they fled again, this time to the United States. Dani and her son have been detained in Artesia since mid-July. On December 3 Dani and her son were granted asylum by an Denver Immigration Judge.
APPEAL FILEDFor several years, Josefina, an indigenous Guatemala woman, was captured and held in servitude by a Ladino family. On a daily basis, she was taunted with ethnic-slurs. He would beat her severely. The Ladino family patriarch would slap, punch, and drag her around by her hair. He also made use of objects lying around the house to beat her with whatever he thought would inflict the most pain. He branded her by searing her flesh with a flaming stick. She engaged in a political movement to end the race-based destruction of sacred indigenous land by the majority Guatemalan Ladino-government. A Denver immigration judge denied asylum on December 10 finding that she did not suffer “persecution” because her harm did not involve sexual violence.
WIN - DenverKira is a 23-year-old indigenous Guatemalan Mayan woman who has a four-year-old son. They fled Guatemala after suffering four years of horrific violence and constant threats at the hands of a prominent gang, the de facto government in Guatemala. The gang had previously targeted Kira’s husband, Andre, a deacon in the local church, for preaching his religious message of non-violence—in their eyes, a message of disloyalty and dissidence. Kira and Andre decided that he should flee in an attempt to save the family and protect their unborn son. They believed and hoped that Andre was their target; they were wrong. Immediately following Andre’s escape, the gang began its relentless pursuit and persecution of Kira and their son because the gang believes that families breed disloyalty. They threatened her with rape and murder, restrained her and beat her face bloody on multiple occasions, threatened to cut her unborn child out of her belly, threatened to kidnap her son after he was born, and grabbed and held her son at knifepoint on multiple occasions. Kira went to the police twice, begging for help, but they turned her away, refusing to provide meaningful protection. After first escaping to her sister’s home, the gang pursued and found Kira there, held her four-year-old son at knifepoint, and threatened them again. She and her son then fled to the United States in search of protection. On December 12 Kira was granted asylum by a Denver Immigration Judge.
WIN - Denver - Withholding OnlyJuliza is an indigenous Guatemalan woman who suffered persecution throughout her whole life due to her indigenous ethnicity. Beginning at the age of 13, Juliza was raped by her father’s family members, who referred to her as a “dirty indian” while they assaulted her. When she finally gained the courage to go to the police, she was sexually propositioned by the officers. After a family member continued to threaten her with death and more sexual violence, Juliza fled to the United States. When she told the Border Patrol officer that she feared returning, he said she was lying and deported her without a credible fear interview. Within a month of being back in her country of origin, Juliza was drugged, raped, and thrown into a river by the ladino family member who had been threatening her. Juliza fled to the United States again. She told the CBP officer again that she was scared, but was deported anyway. Back in Guatemala and caring for her 8 year old son, gang members attempted to kidnap him. Juliza fled again, this time taking her son on the perilous journey with her. On January 5, 2015, Juliza was granted a form of humanitarian relief related to asylum (“Withholding of Removal”) by an Immigration Judge – but her 8 year old son remains in removal proceedings.
A remote lawyer could access the assistance of an on-the-ground volunteer to engage in direct face-to-face client communication, develop declarations and facts, and build trust through human contact. A remote lawyer could request the presence of an on-the-ground volunteer at specific credible fear screenings. By default, an on-the-ground volunteer was present at all remote lawyer hearings to provide person-to-person assistance to the detainee.
During the 21-weeks the project operated in Artesia, remote lawyers developed 15 cases to try on the merits of their asylum claims. The project won 14 of its merits claims. Its sole loss is being appealed.
[aesop_chapter title=”XV. Ending Family Detention Forever” bgtype=”img” full=”off” bgcolor=”#888888″ revealfx=”off”]
Why does the Obama Administration detain women and their children? It is not a radical truth to say that jailing infants and toddlers is wrong. The moral incorrectness is plain on the face of the Obama Administration’s family detention policy. See Women’s Refugee Commission & Lutheran Immigration & Refugee Service, Locking Up Family Values, Again, (Oct. 2014); Detention Watch Network, Expose and Close: Artesia Family Residential Center (2014). What was it about the scandalous and infamous T. Don Hutto facility that the administration thought worked so well that our nation needed to try it again?
This summer, the Obama Administration judged badly. The Vice President judged badly. He was very wrong when he said that none of these women qualify for asylum. Indeed, in the fullness of time it is almost certainly likely that most of the women will qualify for asylum. The Obama Administration continues to judge badly: Dilley is merely a replacement for Artesia. See Jeh Johnson, Statement by Secretary Johnson Regarding Today’s Trip to Texas (Dec. 15, 2014) (last visited 1/25/2015)
There is no point in detaining the women after having passed a credible fear screening unless the detention is aimed to punish. The former policy, pre-2014 policy, recognized this point that there is no point to detaining after a successful credible fear interview. See, e.g., U.S. Immigration Customs Enforcement, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (effective Jan. 4, 2010) (last visited 1/25/2015). There is no empirical evidence offered by the administration that family detention works. The available evidence indicates that the Obama Administration uses family detention against women. The message they have sent to women is that we will jail your children if you seek asylum. That is so very wrong.
As this report explains, the Obama Administration revived family detention for its own politically cynical calculus. The points they have offered thus far have been soundly proven wrong. It is time to end family detention forever. #ENDFAMILYDETENTION
To help end family detention:
- Volunteer. To volunteer in Texas at the Karnes or Dilley Detention Centers, go to Volunteer in San Antonio.
- Donate to fund lawyers On-the-Ground. Donate to provide travel stipends to volunteer attorneys at Support Volunteer Attorneys via the American Immigration Council. The American Immigration Council is a non-profit, non-partisan organization based in Washington DC. The Immigration Council also needs support to fund its advocacy and litigation against family detention.
- Subscribe to the Innovation Law Lab client management software. The Law Lab is a non-profit organization based in Portland, Oregon that is making the client management system and document management system used in Artesia available to qualified immigration lawyers. The proceeds support the Law Lab’s work in providing technological resources, directed staff support and materials to the attorney family detention teams.
- Advocate & Support & Donate. Partner organizations such as the ACLU Immigrant Rights Project – who has recently filed a lawsuit challenging the no-release detention policy, the National Immigration Project, the National Immigration Law Center, Detention Watch Network, the Refugee and Immigrant Center for Education and Legal Services of Texas (RAICES), the Catholic Legal Immigration Network, the Women’s Refugee Commission need help funding advocacy and litigation campaigns to end family detention.
[aesop_chapter title=”Acknowledgements” bgtype=”img” full=”off”]
This report was written by Stephen W Manning, an attorney in Portland, Oregon with Immigrant Law Group PC and a volunteer in Artesia. The website was designed by Jose Cruz-Guadarrama, the media savant at the Innovation Law Lab. This report is subject to revision. It is based on data collected by the volunteers of the AILA-AIC Pro Bono Project in Artesia. This report reflects his ideas, opinions, speculation and judgment — not AILA’s, the American Immigration Council, or the other volunteers. Juliet Stumpf, Melissa Crow, Belle Woods, Karen Lucas , Ryan Fleming, Karen McMahon and Chris Rickerd made many fine editorial suggestions to earlier versions of this report. The author, though, is responsible for errors in analysis, poor writing, and bad ideas. M- and Sofia are real women who were detained in Artesia. The author was the lawyer in the mute observer hearing and the smuggling ring in the law library. The text in the report is based on journal entries he made contemporaneously. His experience was the norm in Artesia. To contact the author, report problems with the website, suggest corrections to the text or learn more about the Innovation Law Lab go to http://innovationlawlab.org.
Team Artesia owes its existence to many. The first responders, of course, with a special note to Shelly Wittevrongel and Christina Fiflis who were the first on-the-ground. The Colorado Chapter of AILA was incredibly generous throughout the entire project. The Oregon AILA Chapter sent two early teams to Artesia and helped to lay the framework for the team approach. The AILA Chapters from Ohio (who donated big bucks to pay for internet coverage inside the detention center plus many strong advocates) Missouri, Chicago, Washington DC, New England, Southern California, Northern California, and everywhere else sent teams of amazing volunteers. Rachel Bloomekatz was there at the beginning and navigated several novel legal issues including unpacking the Flores Settlement Agreement for use in Artesia. The extremely talented Irene Gan coordinated the ground work for several weeks very early in the project before anyone understood what we were really doing. CLINIC sent Silvana Arista to the project for several weeks in August and September. Immigrant Law Group PC made available Karen McMahon to support the Innovation Law Lab in its Artesia work and funded and supervised the remote bond coordinator positions. Noah Magram and Jose Cruz Guadarrama of the Innovation Law Lab built CDB | DMS for Artesia. Law students from New Mexico, Denver, Washington D.C., and Maine brought good student energy at critical moments in the project and provided a watchful eye at the Denver Immigration Court. The Denver Immigration Court staff were model public servants who provided exemplary attention and courtesy to the volunteer lawyers and with the Project as a whole in a systematic manner. The National Immigration Project organized court watchers for key hearings in Arlington. Taylor Levy and Marlene Perrotte came most every week to Artesia. Thank you to Allegra Love for inventive and fun fundraising. Thank you to the good people of Artesia for your support of the women and children (and the lawyers!). The Center for Gender and Refugee Studies sent us Blaine Bookey during our first series of merits hearings; CGRS provided amicus briefs at the drop of a hat (or an email). Leslie Holman, AILA President, organized expert AILA committees for legal theory development and research. Barbara Hines, Denise Gilman, and Steven Schulman of Team Karnes collaborated deeply with Team Artesia and for that we are very grateful.
Christina Brown and Vanessa Sischo are the Pro Bono Project’s temporary staff. It is impossible to overstate their immense personal contributions to the project’s success. Their combined thousands of hours of work towards shutting down Artesia speaks for itself. No doubt that it felt like 40,000 hours. Laura Lichter and her firm gave generously over and over and over and over again – she gave money, time, and strategic insight to picking up and managing the ever-expanding pieces of the project. Nearly every last minute filing (and there were many) was taken care of by Laura’s fabulous team. Laura’s leadership was critical in forcing the project into existence. The AILA Board of Governors went out on a limb and embraced the project very early because ending family detention is the right thing to do and because it trusted its membership to think big and do big.
All the lawyers and advocates who volunteered on-the-ground, remotely, or with an allied organization to bring litigation were amazing colleagues and collaborators. Team Artesia was a collaboration of trust unique among advocates that successfully altered a foregone political conclusion. A final note to the women and children of Artesia to recognize their courage in asserting the right to asylum in spite of overwhelming obstacles.