Immigration Law Summaries

Two guest speakers at our UU/Quaker Social Change Ministry Group presented overviews of the legal process immigrants must navigate.

1) Betty Guthrie, a BIA (Bureau of Immigration Appeals) certified representative, spoke on July 10, 2018. Arthur Kegerreis arranged for her presentation with us.

2) Sarah Zelcer, a San Bernardino attorney with Esperanza, spoke with us on July 24, 2018. Cate Smith arranged for her presentation to us.

Thanks to Cate Smith for these minutes.


July 10, 2018

Betty Guthrie of Orange County Monthly Meeting, an accredited Department of Justice representative who helps detainees, is our special guest at this meeting.

–Betty gives us a summary of her background. Her interest in detainees has developed in part because she spent a portion of her childhood in the Republic of Cameroon. She started visiting detainees some time ago and, in an effort to help them, has developed some expertise in the legal process through a series of webinars and a clinic sponsored by a Catholic group. Because she speaks French, she often works with French-speaking African immigrants.

–She provides an overall summary of the legal challenges immigrants face.

–All those who are held in ICE detention are involved in removal proceedings and a number of these detainees are sent out of the country very quickly. Some of those in detention have been “swept up” in home or workplace ICE visits. Others are caught by customs and border protection while sneaking across the border, or they are detained after traffic stops. Sometimes detainees are brought into detention because they have been found during sweeps for other suspected illegal immigrants. Others are referred by a private complainants, such as an angry neighbor, or swept up when they apply for green cards.

–Upstanding people without documentation who have lived in the US a long time and raised a family here who are swept up by ICE may have no means of avoiding deportation.

–But some who have had bad luck can sometimes avoid deportation and obtain special visas that give them the right to work in this country and a pathway to citizenship. Examples of people in this category are victims of crimes in the US, or those who have reported crimes to the police, battered spouses or children (if the perpetrator has documentation) or victims of trafficking. The government goal here is not to help unfortunate illegal immigrants but rather to encourage people to come forward to testify against criminals.

–Some illegal immigrants who have been in the US seven or ten years without traveling back home for any length of time, who can show good moral character and have no major crimes on their record may be allowed to stay in this country. But the success of these cases depends on the discretion of the particular immigration judge who is presiding. It can help if these people have family members who depend on them or others in their family who are citizens, but neither circumstance guarantees success.

–In lower level immigration court, it is always a single judge who makes the decision. And denial/approval rates vary enormously between judges.

–The DACA program allowed some individuals who were brought into the US illegally as children to receive renewable two-year periods of deferred action from deportation and eligibility for work permits or dispensation for schooling. The program has technically been ended and DACA recipients now face the possibility of deportation. Another program, DAPA, for parents of citizen children, is also stalled now.

— In the past some immigrants have received temporary protective status. For example, Haitians received this after an earthquake, Salvadorians received this after war there.

–Quotas for for various nationalities allow what is called family chain migration. But this process involves long waiting times that can extend to 22 years. Only a limited number of close family members are eligible and a lot of red tape is involved.

–Seeking asylum. It is not illegal to come to the border and declare that you are afraid to return to your home country. People who do this are taken into detention and are given credible fear interviews fairly quickly. Border control agents can not make any decision on these cases.

–Those who seek asylum successfully need to show past persecution or a legitimate fear of persecution. And this persecution must be on the basis of their race, religion, national origin, political opinion, or because the applicant is part of a particular social group.

–Currently, fleeing poverty not an adequate basis for asylum. Also US Attorney Jeff Sessions recently declared that victims of domestic violence and gang violence would no longer be considered eligible for asylum. Attorneys are looking to challenge this recent decision. Betty believes those who fear genital mutilation and forced marriage are still eligible for asylum.

–How do immigrants get to the US illegally? A first step for many is to go to a country such as Brazil, which can be entered without a visa. Then they are smuggled north to the US border.

–Another path to asylum is called the affirmative asylum applications process. This allows one to avoid detention but one is not allowed to work. This is available to those who tend to have more education, money and time to plan their path and they come into the country on a legitimate visa — business, student or tourist. These people can file an application for asylum within a one-year period. They go to an asylum office and meet with an official there. Two results are possible: They are granted asylum or they are referred to an immigration court that rules on the case. Nowadays, Betty says, she hears anecdotally that more of these cases are being sent to judges.

–Family separation at the border has been going on for quite some time, although it has been stepped up lately and received much more attention.

–Those who present themselves at the border receive credible fear interviews soon after detention.

–They then go to a master hearing where basic information is exchanged.

— Detainees who are housed someplace with a legal orientation program may receive an attorney referral. Unfortunately, there are a lot of shyster attorneys who take advantage of people in detention. Detainees need good attorneys because a successful asylum application requires hours of research on country conditions and on case law in similar cases. Documents must all be consistent with what defendant claims.

–After the master hearing, detainees must complete an asylum application and submit it with evidence.

–Then they receive what is called a merits or individual hearing. Again, they appear alone or with an attorney before a single judge. A Department of Homeland Security attorney attends as well, to poke holes in the presented case.

–Some of the challenges in presenting a strong case: Asylum statements should be fairly detailed with specific dates, information on who persecuted the detainee, who did he or she report the persecution to in that country and what was the result? Birth and marriage records may be required, or death certificates if someone in the family was killed. It can be hard to get these things when one is in detention. Hospital reports can be useful, as can be online articles about things that were happening in the country at the time being described, and witness statements. The problem with witness statements is that often people in another country do not understand what they need to write. Betty often phones internationally, writes out a detailed statement on the basis of the phone interview, uses Whats Ap to send the statement to them, has them edit it. Then the statement has to be printed out and signed and they have to take a picture of it and send it to her.

–Detainees who lose their cases can apply to an immigration board of appeals consisting of a panel of judges. This is a complicated process that involves sending a transcript. Technical legal arguments must be provided. Preparing an appeal requires a lot of knowledge that most detainees do not have. If the Board of Immigration denies an appeal, a case can be appealed to the Ninth Circuit Court of Appeals.

— Detainees who defend themselves are described as being pro se. They have to do all the research themselves, but some detention facilities have limited or no computer access for detainees to computer systems.

–Betty mentions a Red Cross booklet — Practical Advice for Immigrants. She shows us a version in French and wonders if something similar is available in Spanish or English.


July 24, 2018

Sarah Zelcer, a San Bernardino attorney with Esperanza, is our guest at this meeting.

(We communicate via FaceTime.)

–Sarah works for the Legal Orientation Program (LOP), which is a subset of Esperanza. The LOP is funded by the federal government and can only orient detainees; it can not represent them. The LOP has an agreement with the immigration court allowing them access to detainees at Otay Mesa (in San Diego) and Adelanto.

–Three days a week, Sarah visits the West and East detention centers at Adelanto. She used to be able to put in six-hour sessions at the facilities each day. More recently, Adelanto restricts her to three hours per visit.

–She runs general orientation sessions for detainees, individual orientations with folks who do not have attorneys of their own, group orientation for those without attorneys organized around a particular type of legal challenge, and she also makes some pro bono referrals.

–But pro bono referrals are the smallest part of what her program does. They have a network of attorneys they refer to. (We gather from her that it is small and the number of attorneys accepting pro bono cases is shrinking.) Sarah is the one who coordinates these cases.

–Los Angeles and the state both have funds to help detainees fight their cases, but they severely restrict who can be helped. For example, LA funds are only available to detainees who have lived in LA, so asylum seekers — for example — can not tap into these funds.

–Esperanza itself is taking some detainee cases, but Sarah does not deal with this aspect of the group’s work and does not know how Esperanza chooses those cases.

–It is becoming harder for Sarah to identify detainees who could benefit from her legal guidance services. Before March, Adelanto administrators allowed her access to a general roster of who was currently being detained. But since March, detainees have to sign up on sheets that are supposed to be displayed in their dorm areas in order to be summoned to legal clinics. It seems sometimes these sign up sheets are not posted as they should be.

–Anyone who is in detention at Adelanto who does not have an attorney can attend Legal Orientation Program sessions, but they must themselves put their names on the sign up sheets to be called out of detention into the sessions. This makes it particularly important for those visiting Adelanto detainees to alert those they see that they must register on sign-up sheets in order to be called in for legal orientation presentations.

–Sarah says when she informs detainees that they are, for the most part, responsible for representing themselves in immigration court, most are bewildered and they feel completely unequipped.

–On top of that, detainees who are being helped by the LOP in preparing their own legal cases are facing mounting obstacles. They have very limited access to computers at Adelanto and recently librarians there will not let detainees copy any documents that are not in English.

–All documents that are presented in immigration court must be translated into English and a translator must sign “certifying” that the translation is accurate.

–Theoretically, detainees can either be paroled or bonded. ICE determines who is eligible for parole, but currently the Trump Administration has virtually no parole policy. Currently at Adelanto, something like a 92 percent of parole requests are rejected. People who cross the border illegally are not eligible for bond. If you enter at an entry point you can ask for parole, but the bond option usually is not available Bond has to be authorized by a judge. You have to prove you are not a flight risk. And it is hard to get bond if you have no family in the US.

–Immigration judges are supposed to consider the detainee’s ability to pay before setting bond. But there is little consistency. Sarah has seen a man with a criminal record ordered to post a bond of $8,000, while someone with no record was ordered to post a $10,000 bond.

–Given that the current climate for detained immigrants and asylum seekers is very, very inhospitable, lately Sarah urges detainees to consider any alternatives they have to living in the US — if they do, in fact, have any other options.