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These Lives Matter: “Detainee Not Found”

Port Isabel Detention Center

Guestblogger:Claudia Valenzuela, Associate Director of Litigation for Heartland Alliance’s National Immigrant Justice Center

This post is the second in a new series titled “These Lives Matter,” in which NIJC staff, clients, and volunteers will share their unique perspectives on immigration stories that do not always make the news.

I began my legal career working with Guatemalan asylum seekers looking to become lawful permanent residents of the United States. In working with this community, I heard stories time and again about loved ones who had been disappeared and saw firsthand how having a husband, son, or daughter disappeared can create a special kind of guilt, fear and grief. Working with detained immigrants many years later, I cannot help but notice parallels between individuals who were purposely disappeared in 1980s Guatemala and individuals who disappear when taken into ICE custody – mainly in the ways that family members left behind are affected by not knowing the immediate fate of their loved ones.

When an individual is detained by ICE, he or she can in fact be disappeared. It can take family members days, or in some cases weeks or even months, to locate loved ones arrested by ICE. Sometimes, a family does not learn of a loved one’s whereabouts until that person calls home after they are deported.

Locating a loved one relatively quickly does not necessarily lessen the trauma of witnessing the arrest in the first place. Take the case of Viviana and Martin*—mother and son. ICE officers came to their home and misled Viviana into believing that they were local police officers who only wanted to talk to Martin. They convinced Viviana to call her son home. She was devastated after witnessing the officers take her son into custody without further explanation. Martin—who had just turned 18,had diagnosed learning disabilities, had no previous encounters with the immigration authorities, and had engaged in no wrongdoing—was taken away, surrounded by armed men, while Viviana watched helplessly. The hours following Martin’s arrest were harrowing. Viviana spent that night calling every police station in town, only to be told there was no one by her son’s name in custody. Throughout the ordeal, Viviana was overcome with grief at the thought that she had turned in her own son.

There are countless stories like Viviana and Martin’s—sometimes it’s mothers, sometimes fathers, sons or daughters, taken away while loved ones, including children, stand by helplessly. In the aftermath, there usually are frantic calls to numbers that lead nowhere. It takes luck to reach an ICE officer who will answer any questions. The ICE Online Detainee Locator System—a public relations initiative ICE instituted following a series of wide-scale raids that resulted in mass “disappearances” —is hit or miss, more often a miss. If loved ones can get online—and most of the family members we encounter every day do not have access to the internet—they must either have the person’s “alien number” or the exact spelling of their name, date of birth and country of nationality. Then they must pass a “captcha” security check by typing in a word that appears in a box. Even lawyers have a difficult time getting the system to work. Despite having the necessary, accurate information, we still frequently get the message “detainee not found” if it is less than 24 hours since the arrest. It also takes the system a while to be updated following a transfer to a new detention center. This delay makes the first 24 hours or so following a person’s arrest all the more distressing for loved ones who realize a family member has gone missing.

Martin eventually reached his mother, after a collect call finally made it through to Viviana. He was later released from ICE custody after posting a bond. But months later, Viviana lives with the fear and guilt of those critical hours after Martin was taken away, when she believed her son to be missing and felt that she was responsible.

*Names have been changed to protect identity.

Picture Courtesy of http://www.texasobserver.org

Temporary bandage or a real step towards reform and reprieve for DREAMers?

In a desperately needed positive move, the Department of Homeland Security (DHS) and the office of Immigration and Customs Enforcement (ICE) announced on August 18 some significant administrative repairs to the country’s broken immigration system. Responding to the tsunami of criticism over their increasingly harsh and unjust immigration policies, including blindly deporting hundreds of thousands of immigrants without due process, the DHS announced a few changes to their policy.

Under the new policy, the DHS and ICE will review and suspend the low-priority deportation cases – around 300,000 of them – that primarily involve younger immigrants and those who are not deemed a threat to public security. This new move especially benefits the DREAMers, who have been fighting tirelessly for their right to remain in the country. The main stipulations of the DHS policy shift, as highlighted by Campus Progress, are the following:

The DHS will create a joint-commission with the Department of Justice (DOJ) to review 300,000 existing deportation cases to identify immigrants that are not high priority cases for removal;

Those that are not high priority individuals for removal —DREAMers, primary caregivers, veterans or relatives of persons in armed services, among others identified in an agency memo (PDF) — will have their cases closed. These individuals should then become eligible to apply for work permits.

This initiative does not provide individuals with an earned path to Legal Permanent Resident (LPR) status or U.S. Citizenship. Work authorization is not guaranteed, either.

These measures have been generally praised by immigration reform activists, DREAMers, organizations and officials that have been fighting for major changes in the immigration system. Representative Luis V. Gutierrez of Illinois, a long time champion for immigration reform – who was also heavily involved in the case with Tony and Janina Wasilewski – reacted positively to the DHS announcement, stating:

This is the Barack Obama I have been waiting for, that Latino and immigrant voters helped put in office to fight for sensible immigration policies.

While the DHS, especially Homeland Security Secretary Janet Napolitano, has been guarded about their own policy shift so as not appear to be making a complete turnaround, immigration reform groups have also reacted with some trepidation. Napolitano, during a press conference after the DHS announcement made it clear that “Nobody’s getting a free pass. Nobody’s getting free admission to citizenship or anything like that under this system. Nobody is getting exempted.” Meanwhile, immigration reform groups have commented on the very small percentage of the approximately 11 million undocumented immigrants that will actually benefit from this policy change.

Furthering this stance, Michelle Fei of the Immigrant Defense Project, wrote an op-ed on behalf of the New York State Working Group Against Deportation (NYSGAD) arguing that immigration reform should include new measures for all undocumented immigrants and not just those deemed innocent or harmless. Pointing to a wider flaw in the current immigration policy of the country, Fei writes:

…we cannot accept that people with criminal convictions should be so easily tossed out of our country. They’ve already paid their price in a criminal justice system that seldomly lives up to its promise of fairness and equality – particularly for those from low-income, of color, and immigrant communities. They don’t deserve a harsh second punishment of permanent exile through a deportation system we all know is patently unjust and broken. And no matter what, they still belong with our families and communities.

Fei’s stance on the extents of the the deportation machinery highlight that much more needs to be done until we have a fair and just immigration system in the country. These moves by the DHS are definitely positive and will bring relief to hundreds of thousands of immigrants – many of them young people with a real chance at a great future – who will get another chance to stay in this country. However, the DHS and President Obama must keep this momentum going and really work towards a positive, lasting and effective overhaul of the immigration system. For more information about this policy, read this fact sheet put together by the National Immigrant Justice Center. Add your voice to the immigration reform movement today. Join Restore Fairness.

Photo courtesy of immigrationimpact.com

We call for dignity, not detention!

When Esmeralda, a transgender asylum seeker from Mexico, came to the US seeking a place that was accepting of her identity, what she received instead was a horrific experience in immigration detention. Kept in a segregated cell with other transgender detainees, Esmeralda never realized that her experience in detention would match the trauma of discrimination she had faced back home. “They would handcuff us as if we were murderers and were trying to escape…. but we were not trying to run away,” she said. While handcuffed in a cell, she was sexually abused by an immigration guard, an experience which caused her deep mental and emotional trauma.

The US immigration detention system is in deep crisis. Since 1994 the number of detention beds has grown from 5,000 to over 33,000 with more than 1.7 million individuals passing through the system since 2003. The government is denying due process and fairness in our communities by detaining immigrants who pose no danger and are not a flight risk to the community in inhumane and unregulated detention centers. Hundreds of thousands of immigrants are detained each year. Transferred far away from their homes and families, there are many stories of detainees such as Esmeralda who are denied basic human rights, such as telephone calls, visitation,access to a lawyer, medical care, and they can be subject to physical and verbal abuse. Even with reported deaths of detained immigrants, detention conditions continue to decline.

Today, human rights groups around the country participated in a National Day of Action organized by Detention Watch Network to mark the one-year anniversary of the Department of Homeland Security (DHS), Immigration Customs and Enforcement’s (ICE) 2009 detention reform announcement. The National Day of Action is part of the, “Dignity, Not Detention: Preserving Human Rights and Restoring Justice,” campaign led by the Detention Watch Network, which calls for an end to the human rights abuses in detention centers, the restoration of due process in the enforcement of immigration laws, and the implementation of cost saving alternatives.

As part of the Day of Action, Detention Watch Network released a joint report, Year One Report Card: Human Rights & the Obama Administration’s Immigration Detention Reforms, that it co-authored with the National Immigrant Justice Center and the Midwest Coalition for Human Rights. The report reveals that many of those detained still suffer egregious human rights violations while in custody. Immigrants continue to be jailed for months or even years under substandard conditions. Mistreatment by guards, grossly deficient medical care, use of solitary of confinement, and limited access to family and counsel remain persistent problems.

Detention should only be used as the last possible option and for the shortest amount of time. Currently, many vulnerable people, including asylum seekers, pregnant women, children, lawful permanent residents and even U.S. citizens are among those detained, without knowing how long they will be held or why they are being held. Instead of placing thousands in detention centers that cost tax payers $99 per day, DHS should improve legislation around the cost-saving community-based alternatives to detention such as conditional release, requiring people to check in either in person or by phone, bonds or financial deposits.

Participants in the National Day of Action are calling for the restoration of human rights within the detention system, and an end to programs that indiscriminately channel immigrants into the detention and deportation system. Coordinated actions occurred across the country in cities including Austin, TX, Freehold, NJ, Minneapolis, MN, Seattle, WA and Trenton, NJ.  For more information visit www.dignitynotdetention.org

ICE rolls out detention reforms on one hand, and endorses stun-guns on the other

Immigrations and Customs Enforcement has not been able to keep itself out of hot water recently. Between the agency’s own admissions of mismanagement, a leaked memo, records highs in deportations, and the recent sexual assault cases in detention centers calling for greater oversight, ICE has been under a lot of fire from civil rights advocates to fulfill their delayed promises of overhaul and detention reform.

In the context of ICE’s multiple misadventures, an internal ICE email obtained by the Houston Chronicle a few days ago comes as a huge relief to advocates as it announces a series of concrete changes that ICE is planning to implement at several privately owned detention centers. The 28 changes listed in the email range from superficial changes like “softening the look of the facility” with new paint, new bedding, hanging plants and “fresh carrot sticks,” to more substantive ones like eliminating pat-down searches, lock-downs and lights-out for low risk detainees, providing unmonitored phone calls and email access, extending the duration that visitors can stay, increasing attorney access and allowing low-risk detainees to wear their own clothing or non-penal attire.

Beth Gibson, ICE’s senior counselor to Assistant Secretary John Morton and a leader of the detention reform effort, has committed to some of the changes being carried out within 30 days, while others will take up to 6 months to be effected. The changes outlined in the email are slated to be implemented in nine detention facilities in Texas, Arizona, New Jersey, California and Georgia, all owned and managed by the Corrections Corporations of America, one of the nation’s biggest private contractors that ICE uses for immigrant detainees. It does not seem like a complete coincidence that ICE and CCR decided on these changes while CCR is under investigation for allegations of sexual assault against one of their guards at a Texas facility, who allegedly groped female detainees on their way to being deported.

Most important is the much needed shift in philosophy behind immigrant detention that ICE senior counselor Beth Gibson attested to when speaking about the changes. Speaking about the purpose of detention facilities, she said-

When people come to our custody, we’re detaining them to effect their removal…It’s about deportation. It’s not about punishing people for a crime they committed.

Increasing recreational activities for low-risk detainees and introducing dance, cooking, computer classes as well as movie nights and and a dinner menu that has expanded to include a vegetable bar might seem like minor changes, but are, in fact, hard fought victories for immigrant advocates. Lory Rosenberg, policy and advocacy director for Refugee and Migrants’ Rights for Amnesty International was pleased with the changes. She said-

A lot of these measures are what we’ve been advocating for. Many of these points are very important to changing the system from a penal system, which is inappropriate in an immigration context, to a civil detention system.

As expected, there has already been opposition to the reforms from various quarters. Union members are worried for the safety of the staff at the detention facilities, and feel that the absence of pat-down searches and lock-downs could be potentially dangerous as “some detainees may be classified as low-risk because they have no serious criminal history but still may be gang members that haven’t been caught doing anything wrong yet.”

When it comes to local jails that house immigrant detainees, it is precisely this argument of jail administrators and union members that seems to have won. Ironically, while ICE makes detention reform plans that lean towards a more humane and less penal detention system, the agency has simultaneously relaxed their ban on the use of stun guns or Tasers on detainees in local jails. When a Sheriff’s Deputy in a Sherburne County jail used a stun-gun on Salaad Mahamed (a pre-trial immigrant detainee who had come to the U.S. seeking political asylum) in 2007, the action was in violation of federal immigration standards for the treatment of immigrant detainees. ICE had banned the use of Electro-Muscular Disruption Devices (Tasers) for safety reasons in 2003, and gave the Sherburne County jail in Minnesota an evaluation rating of “deficient” for its use of stun-guns on detainees.

However, while Mahammed, who was shot in his hand and testicles for arguing with a guard over a TV channel, suffers from incontinence, impotence, mental trauma and blackouts as a result of his ordeal, in August of 2009, ICE seems to have relaxed its ban on Tasers and reversed its previous “deficient” rating for Sherburne County jail to “acceptable.” This shift seems largely attributable to pressure from local law enforcement that runs these jails, and their insistence on having the same rules apply for “civil detainees and jail inmates who live under the same roof.” Worse still, ICE only communicated this change in policy directly to the individual jails it deals with, without making a public announcement of it. Helen Harnett, director of policy for the National Immigrant Justice Center in Chicago, which monitors detainee treatment was shocked at the change. She said-

It’s a radical shift. I think the reason it’s so surprising is Secretary Napolitano and ICE assistant secretary John Morton announced a series of changes. They called it ‘an overhaul to the immigration system to make it truly civil,’ and there’s a lot of staff at ICE national working on this change right now.

As long as ICE continues to rely on the disparate combination of government-run detention centers, private facilities and local jails to house immigrant detainees, there will continue to be extreme inconsistencies in detention conditions across the board. Moreover, promising reforms supporting a more humane civil detention system, while sanctioning violence against detainees at the same time shows a drastic contradiction in detention policy from within ICE itself that needs to be addressed before more and more people suffer life-long trauma and even death at the hands of immigrant detention.

Photo courtesy of nydailynews.com

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Here’s a chance for us to renew our commitment to protect human rights

This week marks the thirtieth anniversary of the monumental Refugee Protection Act of 1980 marking a historic moment which created a legal status for asylum and a formal process for the resettling of refugees from around the world, affirming that the protection of all victims of persecution is an integral part of U.S. policy. Senator Edward Kennedy, who worked tirelessly for over a decade to secure the passage of this Act ensured an impartial and consistent system of asylum and resettlement for anyone

who is unable or unwilling to return to his country of nationality because of persecution or a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group.

In the thirty years since the passage of the Refugee Protection Act, the U.S. has granted asylum to over half a million people and has been responsible for the resettlement of nearly two and a half million refugees. But these successes have been undermined by national security measures post 9/11 which have practically shut the resettlement system down, leading to President Obama having to sign a Presidential Determination authorizing the admission of 80,000 refugees in 2010 because of failures in the system.

In November 2009, a Human Rights First report reported that since 2001, over 18,000 refugees have faced delays or been denied asylum because of the USA Patriot Act of 2001 and the Real ID Act of 2005 that labeled them “terrorists”. Following 9/11, these acts expanded the scope of laws defining material support to terrorist activity so that thousands of men, women and children who had faced rebel armies and fought for democracy in their countries were denied asylum even while they had fought for causes supported by the U.S.

But this isn’t the only way the system has faltered. Increasing numbers of asylum seekers are locked into detention for months, sometimes years, while pursuing their asylum case. Like Jean Pierre Kamwa, who fought for democracy in Cameroon and facing severe mental and physical abuse came to seek protection in the United States, only to be locked up for four months in a windowless detention center in New Jersey, until he was granted asylum. But Jean Pierre was lucky because he got pro-bono help from a lawyer. Many are deported because they do not have enough access to information in substandard detention centers and are unable to explain their cases to an immigration judge adequately.

That’s what makes Senator Patrick Leahy’s introduction of the Refugee Protection Act 2010 so momentous. If passed, the legislation would strengthen legal protections for those seeking asylum in the United States and ensure that more people who deserve protection can benefit from it. Co-sponsored by Senators Carl Levin, Richard Durbin and Daniel Akaka, the bill addresses flaws in the current system including ensuring a nation-wide alternatives to detention program, access to counsel, medical care and family visits while in detention. The bill also eliminates the requirement that asylum applicants file a claim within one-year of arrival in the U.S. giving more leeway to those needing protection, protects particularly vulnerable asylum seekers like the LGBT community by ensuring they can pursue a claim even where their persecution is not socially visible, and modifies the material support and terrorism bars in the law.

While the bill rallies up support to pass the Senate, the National Immigrant Justice Center and 30 nongovernmental organizations, think tanks, and academics are filing petitions with the Department of Homeland Security and the Department of Justice requesting similar regulations allowing the release of detained asylum seekers who pose no danger to the community so that these can be implemented on an administrative level as well while the bill is being debated.

The act would go a long way to reaffirm the U.S. commitment to the U.N. Refugee convention and provide a safe haven for the persecuted so call on your senators to support it.

Photo courtesy of humanrightsfirst.org