Washington, D.C.— Yesterday, a class action lawsuit was filed by three immigration attorneys and eleven noncitizens challenging U.S. Customs and Border Protection’s (CBP) nationwide practice of failing to timely respond to requests for case information under the Freedom of Information Act (FOIA). FOIA gives an individual the right to access information that the federal government possesses about him or her within 20 business days of making the request. CBP routinely fails to provide requested documents within 20 days, but instead takes months—and in many cases more than a year—to provide documents. Plaintiffs and others like them are forced to delay filing applications for lawful permanent residence while they wait for necessary documents from their own case files. By bringing this case as a class action, the plaintiffs seek to remedy CBP’s system-wide failures in its management of FOIA requests. The case was filed by the Law Offices of Stacy Tolchin, Northwest Immigrant Rights Project, National Immigration Project of the National Lawyers Guild, and the American Immigration Council.
The complaint in Brown et al. v. U.S. Customs and Border Protection alleges that such routine and excessive delays are unjustified from CBP, the agency with the largest budget within the Department of Homeland Security. The lawsuit was filed on Friday, March 13, in federal court in San Francisco.
Lawyers for the plaintiffs are asking the Court to issue a nationwide injunction ordering CBP to respond to pending FOIA requests within 60 business days of the Court’s order and to respond to future FOIA requests within the statutory period.
“We filed this class-action lawsuit against CBP out of sheer frustration. FOIA requests are literally languishing for years, and this affects thousands of individuals with United States citizen families who cannot file for permanent residency until they get responses from CBP regarding their FOIA requests,” said Los Angeles immigration attorney Stacy Tolchin. “As advocates, we felt there was no other option but to file a lawsuit because every year the backlog just gets worse.”
“Thousands of persons are left in limbo, unable to move forward on their immigration cases because CBP refuses to comply with the law and provide them timely access to their files,” said Matt Adams, legal director at the Northwest Immigrant Rights Project. “This backlog is all the more remarkable given the dramatic expansion of resources Congress has bestowed on CBP over the last eight years. Yet their efforts to comply with the law are far behind their counterparts in USCIS and ICE.”
“Individuals and attorneys desperately need responses to these FOIA requests. They are essential to determining whether a person is eligible to remain in the country with family or to apply for a visa to reunite with their family,” said Trina Realmuto, litigation director at the National Immigration Project of the National Lawyers Guild. “This is not a matter of common bureaucratic delay; CBP receives one third of the FOIA requests received by USCIS, yet CBP’s backlog is ten times larger. This backlog has been growing exponentially over the past couple of years despite a commensurate rise in CBP funding.”
“It is time for CBP to be accountable to individuals who file FOIA requests for documents from their own immigration case files,” stated Senior Attorney Mary Kenney of the American Immigration Council. “The FOIA statute includes a 20 day time frame for the production of records for a reason – to ensure that the records produced are timely. CBP’s delay in responding to FOIA requests is unacceptable.”
A copy of the complaint is here and a copy of the exhibits is here.
Here are but a few of my observations after doing some pro bono work at the Artesia Federal Law Enforcement Training Center (FLETC) in late August 2014, along with some suggestions as to how you can help to close down this deportation mill.
CUSTOMS AND BODER PROTECTION (CBP):
CBP Officers falsified records and / or truncated client testimony. There were huge contradictions in the Customs and Border Protection (CBP) report and the Credible Fear Interview (CFI) done by USCIS asylum officers–which itself would be fraught with contradictions, given the sheer volume of work by the Asylum Officers taking these CFIs. In the CBP reports, there was no mention of the client’s fear of return to their country even though the woman in question was severely beaten in her home country by gangs, or by an abusive husband. I only wish that the recent ACLU CBP lawsuit could be nation-wide, and that it could include Central Americans. See: Yahoo News Article: “Border Patrol revamps practices to settle lawsuit”
Children and women complained about being held in the “La congeladora” (refrigerator) for long periods after CBP officers had detained them.
After being detained, many women could not access phones for nearly one week.
(Picture: Outside of the Federal Law Enforcement Training Center (FLETC) in lovely Artesia, New Mexico with some of the best immigration defense attorneys in the nation: Laura Litcher and Megan Kludt.)
ICE / DETENTION CONDITIONS AT THE ARTESIA FLETC (and this is after incredible advocacy for two months by individuals like Laura Litcher and Stephen Manning):
It was very difficult to figure out how to work with the clients, since the kids were sick, exhausted, losing weight, not eating. I had one client’s child who was recovering from chicken pox, so I pulled two chairs together to allow her to sleep while I prepped the client. Others were sick with flu and colds, which would last for weeks. While I did not want the children to hear the horror stories that their mothers were telling me, it was difficult to prepare the women for their hearings without doing so.
One client had a migraine headache related to the beatings that she had received recently at the hands of her husband in Guatemala. The medical personnel at the detention center did next to nothing to help these women, and the volunteer attorneys were not allowed to donate items to the children and women at the detention center. Of course all of the children and women did not want to be detained for two months, but these actions did not serve as a deterrent: everyone with whom I spoke said that it is would be impossible to return to their country, since they feared persecution or death.
Assuming pro-bono attorneys can make it from Albuquerque to Artesia–it is a three hour trip at least, and the flights into Roswell seem to be difficult to book and expensive. Accessing these children and women detainees is extremely difficult to say the least.
It was equally frustrating that I could do so little to help the women and children with their physical and mental health issues. In each case, I found plenty of non-governmental resources to treat PTSD, for physical health issues, etc. in various parts of the country (depending upon where each client would be received if released), but there was no support for women with these issues at the facility.
Logistics, communications, lack of access to government files (until very recently), quick preparation time, pro-bono attorney turn-over make it nearly impossible to provide excellent representation for these children and women. Yet, AILA volunteers both on and off the ground are doing this (providing excellent representation), and are the finest in our profession.
DEPARTMENT OF JUSTICE: EXECUTIVE OFFICE OF IMMIGRATION REVIEW:
I only made one, brief appearance before an IJ, but I think everyone knows that the video connection with the IJ is horrific, as the IJ image is extremely small, and it is impossible to ascertain non-verbal communications, which is extremely important in my practice–one study at UCLA indicated that up to 93 percent of communication effectiveness is determined by nonverbal cues, and as credibility is critical, the video connection, in addition to the facility itself, should be eliminated. I even laughed at myself when I was prepping a client, and I told her, “try to look into the eyes of the IJ when you tell your story, and do not look at the interpreter…”
IJs are setting abnormally high bonds for both the women and the children, which makes it nearly impossible for these families to be released.
Ms. Litcher had to lodge a formal complaint against one of the Immigration Judges, as the IJ did not allow Ms. Litcher to represent or speak on behalf of her client. It was only when members of the media were allowed to observe this IJ did she change her biased handling of a case as well as her previously unprofessional demeanor in the cyber-courtroom.
WHAT TO DO?
To help, call the White House, your member of Congress & tell them to CLOSE DOWN the Artesia Detention Center in New Mexico. Get involved. Encourage your media contacts to cover the hearings and the conditions inside the Artesia Detention Center. If you can give at least four days of pro bono work, let Susan Timmons of AILA know via (202) 507-7646, or firstname.lastname@example.org . When you return from Artesia, continue to organize others and spread the word. Finally, please click here to make a donation and make a difference today!
Do not confuse a notary public or an immigration consultant with an immigration attorney. The first two cannot give legal advice, nor can they call themselves “notarios” or “licenciados”. In Latin America, a notario is an attorney, which undoubtedly causes confusion here in the US, as a notary is not licensed to practice law or to give legal advice.
Always get a second opinion. Chances are that there is someone who will specialize in an area that will help your case, or that person will charge less than the first attorney with whom you consulted.
Check the California State Bar web site to see if the attorney in question has a record of discipline: http://www.calbar.ca.gov
If you hire an attorney, you must be given a copy of a contract in your native language, which specifies the terms and the costs involved. You should always get a receipt for any and all funds paid to your attorney.
If you have an appointment with an Immigration Judge, you must attend that appointment. If you do not, you will be ordered deported in your absence.
Your file is your property. An immigration attorney cannot hold your file for payment, and the attorney must return the file to you if you request it. The attorney can only charge you for the cost of photocopying the file.
If you have any criminal convictions, you must disclose all information relating to your criminal matters to your attorney. Even a misdemeanor could have serious repercussions on your immigration matter, and being a Legal Permanent Resident does not insulate you from being deported if you have committed certain crimes.
The US government does not charge to provide you with your file under the Freedom of Information Act (FOIA). Look for those attorneys who do not charge an arm and a leg for this service.
If someone is saying that you can get your immigration papers easily or based on the number of years you have lived in the US, it is probably a scam. If you would like to report someone who has taken your money without really helping you with your immigration matter, you can contact either the Department of Consumer Affairs (for non-attorneys) or the California State Bar (for attorneys) at their respective web sites: http://dca.lacounty.gov/wps/portal/dca or http://www.calbar.ca.gov/Attorneys/LawyerRegulation.aspx
As of the writing of this article (May 23, 2014), USCIS has not released the form needed to renew one’s DACA status, but there are steps that an applicant can take to prepare. Immigration authorities will require newer documentation of one’s physical presence in the US–that is, applicants will need to show that they remained in the US since the time of the mailing of their last DACA application to the present. In addition, people will need to pay $465, show “measurable progress” in their studies towards a GED (or their high school diploma) if needed, they will need to take their biometric fingerprints, and they will need to present certified criminal court dispositions in the event that the applicant had been before a judge on a non-traffic and / or non-juvenile matter. USCIS will ONLY accept renewals sent within the 150 day window of the work authorization or DACA expiration date. It is important not to change the basic information originally listed on your first application (your date of arrival to the US, your legal name, etc.) when you are in the process of renewing your application for DACA.
Some people may be struggling to come up with the fee to renew their DACA status and may decide not to renew their application. Given our experience with other programs that have involved deferred or temporary status, it is critical that people renew their status before it expires. If not, the applicant will return to his or her previous, undocumented status and could be vulnerable to physical removal in the event of an ICE detention. There are many affordable immigration attorneys and non-profit organizations that could help you, so please renew your DACA status.
Many people have asked if they need an attorney to apply for DACA or to renew their status. For me, the answer is simple: everyone should at least consult with a good immigration attorney–not only for their DACA case, but also to see if you, or someone in your family, is eligible for some immigration benefit. Often, immigration attorneys can connect you with affordable, quality services that might help you on your journey towards legalization, including family attorneys, criminal defense lawyers, counselors, and the like. In my own practice, I always screen each person to see if they are eligible for any additional benefits, such as a U visa, or if they are already US citizens through transmission of their parent’s or grandparent’s citizenship, or if they could otherwise gain legal permanent residency through other means. If a person has DACA, for example, and travels with the permission of the US government through an Advanced Parole permit, they might be eligible to become legal permanent residents (LPRs) if they are married to a US citizen.
For those who are not eligible for DACA due to their age (they were over 31 as of June 15, 2012) or criminal convictions, there is hope! I would strongly suggest that a person with certain criminal convictions try to hire a good criminal defense attorney and try for “post conviction” relief. This means, for example, if you were wrongfully convicted due to ineffective assistance of criminal defense counsel, or because you did not understand the ramifications of pleading guilty, you may be able to reopen your criminal matter and re-negotiate your plea with the prosecuting attorney. This is a complex process, and you should be careful NOT to hire someone who will merely “expunge” your criminal matter, as that will not be helpful (with the exception of a simple, one-time drug possession conviction before July 14, 2011–please consult with an immigration attorney to see if your case applies.).
For those who were over 31 as of June 15, 2012, but who have proof that they entered the US prior to their 16th birthday, many people are advocating that President Obama get rid of this arbitrary age cap for DACA applicants. The thinking is that “older” Dreamers should not be punished for being in the US for so many years; rather, they should be allowed to apply for DACA benefits as the main “qualifiers” for this benefit is one’s long-term presence in the US, a clean record, and the fact that a child under 16 years of age should not be punished for having entered the US as such a young age.
As such, even if a person does not necessarily qualify for DACA right now, it is not a bad idea to get one’s school transcripts, and to organize one’s proof of long-term physical presence in the US. As always, if a person has a criminal issue, it is highly recommended that one seek out legal counsel–even before getting one’s criminal court disposition, as there might be a warrant for an arrest waiting for the person requesting the court document. Who knows? Maybe you qualify for an immigration benefit, and all you need to do is to consult with an immigration attorney who will fight for you and your family!
Feel free to contact our office for an initial consultation on your case, or for your DACA renewal at 818-541-9999.
Law Office of Meredith R. Brown
2013 Broadview Dr.
As many of you know, President Obama is attempting to simply the process of obtaining one’s green card through a family member. If an immigrant is in the US illegally for more than one year, when that person leaves the US for a consular appointment to get his or her legal permanent resident status, they are subject to a ten year penalty in which they cannot return to the US—unless they can show that their documented spouse and / or parents will suffer extreme hardship because of this separation.
Under the old rules, an applicant had to depart the US first, and then file for this waiver (known as the “I-601 waiver”, as that is the name of the form used for this pardon) at the US consulate. The difficult thing about this was that an immigrant could never know if the waiver would be approved or denied, until they already were outside the US, thus subject to the 10 year penalty outside the US.
As such, the Obama Administration has said that applicants still have to leave the US, but now they can file the waiver in the US, wait in the US for the answer, and if it is granted, then they would leave for a short time to be interviewed at the US consulate. Instead of waiting months and in some cases, years, the consular process should take about 3 to 4 weeks, between getting the medical exam done in advance, going to the consular interview, then waiting for the decision to be processed and sent to the applicant. The final rule for this new waiver process should be ready by August 2012 (more or less), as it is currently under review.
Activists and analysts have said that this is a step in the right direction, since families will be able to remain united, and the waiver process will be more efficient, saving the US government more resources. However, there must be some changes to this proposed process, and the American Immigration Lawyers Association (AILA), along with other organizations, will be presenting some comments to the Obama Administration over the next two month comment period, with some possible suggestions being:
The new waiver process should not be limited only to US citizen spouses and to US citizen parents who are petitioning their children (who in this case must be between 17 and 20 years of age). The waiver process should include all beneficiaries to a family-based petition, regardless of who is petitioning for them.
The new waiver process should allow for an appeal or a motion to reopen if needed. The proposed regulations state that in order to streamline this new waiver process, no appeals or motions to reopen will be accepted.
If a person has filed an I-601 previously, they should be allowed to try again under the new regulations. Again, the proposed regulations state (unnecessarily) that if an applicant has already filed for an I-601, they cannot file again under this process.
The new waiver process should not demand that an applicant have a finalized immigration court case before they file the I-601. For example, an applicant who is requesting voluntary departure will have either two or four months to depart the US, and this invariably will notbe sufficient time for the I-601 to be decided in the US before the applicant must leave.
In closing, people should not file their family-based petitions (I-130) without consulting with an immigration attorney first. Even if the I-601 waiver is approved, there could be unforeseen complications at the consular interview, and as such an applicant should always consult with a reputable attorney before filing any applications with immigration authorities!
For more information or for a consultation, feel free to contact Meredith Brown at 818-541-9999.