More on the Spouses of Soldiers from Tennessee

BROKEN PROMISES, BROKEN HEARTS: "Outraged lawmakers promised to intervene when they heard the story of a young Japanese widow who was being forced to return to her native country, despite her American Marine-husband's wishes that she raise their son in Tennessee.
But more than a half-year later, the young mother and her baby son have gone back to Japan, her Tennessee in-laws are heartbroken, and the legislation that was supposed to keep the family together has stalled in Congress."

See, http://www.knoxnews.com/news/2010/may/08/broken-promises-break-hearts/ Read more!

Our Soldiers' Undocumented Families

Last week, I won the appeal in a case involving the foreign born husband of a woman who was set to deploy to Afghanistan over a year ago. She is now serving with the U.S. Army in Iraq. Until we were victorious on our appeal, her husband was subject to removal from the United States because he had been illegally here since childhood when his parents brought him over the border from Mexico. Last Friday, the New York Times, ran a story about other soldiers whose spouses are not documented and the constant fear of deportation that looms over them. As my client's wife argued before the Immigration Court, which denied her husband legal permanent residence, how can I properly serve my country if I do not have the peace of mind of knowing that my husband and our child, who was born in the U.S., are safe from the threat of being separated?

So the Times article rang familiar to me when I read it. It profiles a Filipino-born, U.S. naturalized lieutenant, his Filipino wife, who is not here legally, and their three year old American-born daughter. This man had never before wanted to reveal his wife's undocumented status since he believed no one would understand, although the situation undoubtedly affects many people in the U.S. Armed Forces. He pointed out that people's biases against illegal immigrants had made it uncomfortable for him tell his wife's story. The Times also confirmed that, "the legal boomerang that snared her and many others was created in 1996, when Congress imposed automatic restrictions on illegal immigrants, barring them from returning for periods of 3 to 10 years after they leave the country, regardless of whether they were deported or left voluntarily. However, in many cases the law also requires immigrants who are approved for legal documents to complete their paperwork at American consulates in their home countries." This is the same situation which my client faced. If he left the the country to process at the U.S. consulate to obtain the visa that would make him a permanent resident through his marriage to a citizen, he would trigger a ten year bar from returning because he had lived in this country illegally for more than one year. At the time of its passage, we called this provision the "illegal Mexican" law because it clearly affected Mexicans (and Central Americans) disproportionately. Most other nationals who are present in the United States illegally have overstayed a visa, which, although a violation of immigration law as well, still allows them to obtain their "green cards" inside the U.S. when they marry a U.S. citizen, without ever leaving and hence triggering the burdensome 3 or 10 year bars to return.

The difference in my case is that the immigration authorities had caught up with my client and so he had another means by which to gain lawful permanent residency (LPR) called "cancellation of removal," which is available only as a defense against removal. It is a defense that allows one to gain status if he can prove to an immigration court that he has lived continuously in this country or ten years; has "good moral character"; and his or her U.S. citizen or LPR spouse, child or parent would suffer exceptional and extremely unusual hardship were the relative deported. As you can imagine, this is a very difficult standard for people to meet. To assess a claim, I often ask a potential applicant whether his or her spouse has a terrible illness, or whether his or her child is disabled, and find myself saying, "too bad," when a person gladly reports that his or her family's health is just fine, thank God. It is a cynical legal provision that generally allows only those families who who have experienced pain and suffering from gaining its benefits. As such, I come across few meritorious cases.

When I met my client, who was detained outside of Buffalo, although he grew up in California, I thought I had the perfect case. After all, my client had been his child's primary caretaker in these first few years of life, and it was clear in my mind that if his wife was about to deploy to a war zone, leaving behind the couple's young child, both mother and child would suffer the requisite hardship if my client were deported. Who would care for the child if one parent was serving abroad and the other had been deported? And what if the mother were killed in combat? The child's grandparents were not authorized to live in the U.S. either so having them care for the child was a tenuous option. But the immigration judge did not see it that way. He ordered my client deported, and we appealed. Fortunately, the Board of Immigration Appeals agreed with us and granted my client cancellation of removal. He will get a "green card.".

However, while my client is back in California with his child, sadly, the lieutenant in the news article is waiting for immigration reform to keep his wife in the United States. Read more!

Citizenship at Risk

The most recent piece of legislation being considered by our more foolish politicians is a bill which would allow the U.S. State Department to strip the citizenship of any American engaged in terrorism. Specifically, this law could be invoked if one serves in the Armed Forces of a foreign state engaged in warfare against the U.S., commits treason against the U.S., or provides material support to a terrorist organization. The legislation was motivated by the recent arrest of a Pakistani-American for allegedly plotting to bomb Times Square.

Many commentators have pointed out other serious flaws in the bill based on solid legal precedent and the Constitution, including Supreme Court decisions that have rejected such attempts to take away one's citizenship. I will not spend time on those arguments since they are readily available.

The first thing that strikes me about this proposed law is that it is a covert way of threatening naturalized citizens. While its sponsors may argue that any American could be affected, I highly question such a proposition. After all, if you strip the citizenship of someone born in the United States, they become stateless. So then to where will you deport them once you’ve succeeded in taking away their citizenship? Obviously, deportation is the unltimate goal in taking away a person's citizenship. And if you cannot deport a suspected terrorist then they remain a risk to our communities unless, of course, you indefinitely lock up him or her. However, the U.S. Supreme Court ruled several years ago that the indefinite detention of a noncitizen is unconstitutional. Since there are much too many problematic legal issues with the proposition that this proposal would affect all Americans, I contend that this bill, whose primary sponsors are Joe Lieberman and the new Republican hero of Massachusetts, Scott Brown, is only directed at immigrants. Immigrants who have naturalized.

I am also concerned with the very fluid definition of providing "material support to a terrorist organization" and the fact that the Government clearly makes mistakes in determining who are terrorist and who are their supporters. Watch Strange Culture, an excellent film about the ordeal of University of Buffalo Art Professor Steve Kurtz, who waged a four year battle against the U.S. Attorney’s Office after he was accused being a “bioterrorist.” Kurtz ultimately prevailed in the case, but his colleague from the University of Pittsburgh pled guilty to a related offense because the stress of the lengthy prosecution was severely affecting his health and well-being. You may also want to watch Rendition. Although it is not a magnificent movie, this Hollywood thriller very strikingly depicts how innocent people can get caught up in the web of the “war on terror.” It also reminds us that under torture, one will say anything, and presumably, do anything, to avoid the pain. Which brings me to the second critique I have read about this bill.

According to a CNN. com article, Lieberman has announced that citizenship will be stripped when a person declares the intent to renounce it or if the State Department is “led” to make such conclusion. I cannot help but wonder the conditions under which someone might “voluntarily” renounce his or her citizenship. I know U.S. citizens who confortably live abroad and wish to avoid tax liability in this country do so. But what about when one accused of terrorist acts claims innocence Could it be that when the stress of defending his or her innocence affects their mental and physical well-being so that they finally give in? Or might the Government engage in more volatile tactics like waterboarding to convince an alleged terrorist to renounce citizenship?

It seems to me that this bill embarks on a very dangerous course as do many knee-jerk reactions. Fortunately, other attempts to easily strip a person of his or her U.S citizenship have failed, as I assume this one will. There is already a legal procedure to denaturalize individuals. The lengthy litigation against Ukrainian-born John Demjanjuk, a U.S. citizen accused of being a member of the German SS and a camp guard at Sobibor, is a clear example that the current procedures is effective and respects due process. Why do we need something else? Read more!

A Pardon is not Enough

Two news items ran across my desk at about the same time this past week, and both made an impression on me. One was a press release announcing that Governor Paterson of New York was convening a panel to determine whether certain lawful permanent residents with criminal convictions might deserve a pardon in order to avoid deportation from the United States. The second was in the local paper’s gossip column, and addressed the recent conviction of actor Michael Douglas’s son for selling drugs.

I very much welcome Governor Paterson’s decision. It’s a compassionate and just thing to do, and I know that he was motivated by the compelling case of Qing Wong Hu, which was posted below in March 2010 (“Once and Aggravated Felon, Always an Aggravated Felon” and “Immigrant Released After Pardon”). According to the press release, the Governor would consider the cases of those who have minor or old convictions, and have shown extensive efforts toward rehabilitation. He affirmed that he wanted to inject fairness into an “embarrassingly and wrongly inflexible” system that expels immigrants without discretion, without considering the circumstances of a person’s life or family, or even holding hearings to consider the possibility that deportation might be unwise or unjust.

Unfortunately, I also realize that the Governor’s proposal will affect few of my clients because under immigration law, a governor’s pardon (or a president’s pardon for that matter) will not eliminate a criminal conviction for immigration purposes if the offense involves a controlled substance (though it could eliminate a violent crime!). Most of my clients face removal from this country for drug-related convictions. Notwithstanding this legal “technicality,” dozens upon dozens of immigrant detainees at the detention facility in Batavia, where I work providing “Know Your Right’s presentations, have been requesting Governor Patterson’s address and the “form” for a pardon in the past week. There is no form, and unfortunately, many of these men have been given only a false hope.

Drug crimes are considered the worst of the worst. The president declared a war on drugs some 22 years ago, and despite the fact that this country is losing virtually every battle in that war, Congress continues its zealous policy of incarceration and deportation, while giving short shrift to rehabilitation and forgiveness. Permanent residents of the United States pay the highest price for our myopia. The U.S. Supreme Court reiterated its concern about the harshness of deportation, which it likened to exile or banishment, in its recent decision according a 6th Amendment constitutional right to noncitizen defendants to ensure that they received sound legal advice about the immigration consequences of a criminal plea.

There is no immigration reform proposal that I have come across which addresses the injustice of summarily deporting an immigrant for a conviction. As I have repeatedly stated, I believe we should roll back immigration law to a time where most “green card” holders with drug related convictions could present their equities to an immigration court to avoid deportation. The best proposal currently comes from a group of Democratic legislators and is called Real Enforcement with Practical Answers for Immigration Reform (REPAIR). It proposes limiting the definition of “aggravated felony” under the immigration law to actual felony convictions. This is a logical and positive step, but it would still not eliminate the severe consequences for many of those convicted of a controlled substance offense.

The sad reality is that drug addiction almost inevitably leads to criminal behavior such as the possession of controlled substances and the sale of drugs, which is often done to support the habit. Most of my clients, like hundreds of others in our criminal justice system, are not part of any international trafficking cartel or violent street gang. They are substance abusers whose addictions have never been adequately treated and have led them to a criminal act.

This brings me to the second article I mentioned earlier—the story of Cameron Douglas, the 31 year old son of the actor Michael Douglas. Earlier this month, he was convicted and sentenced to five years of imprisonment for selling drugs. His father commented publicly and stated the sentence would serve to save his son’s life. The young man was either going to end up dead or someone was going to kill him, the elder Douglas stated to the media. He added that Cameron would rebuild his life, and the father would support the son through his ordeal. He also took responsibility for his son’s addiction by admitting he’d been an “absentee father,” too concerned with building his career. Ultimately, Douglas said that his son was a great young man despite his mistakes and the disease of addiction from which he suffers.

I was struck by this little piece because it reminded me of my client’s families and the countless statements I’ve heard from the witness stand when a parent, spouse or sibling attempts to explain to an immigration judge why their relative did not deserve deportation after serving their time for the crime he or she committed.
I guess I feel about some of my clients the way Michael Douglas feels about his son. Many people deserve a second chance. Read more!

Am I illegal?

There has been quite a bit of immigration law activity since I last posted over one month ago. At first, I was just trying to take it all in. Now, I’m ready to comment on it.

The State of Arizona has decided to enforce immigration law by granting state and local police the authority to question someone whom they reasonably suspect is illegally in the United States. Advocates are justly concerned about racial profiling. After all, it is not unlikely that the color of one’s skin or the language one speaks will lead a law enforcement officer to believe a person is not legally in this country. Yet let me assure you that there are plenty of white Europeans who are also illegally present in the U.S. after entering illegally or overstaying a temporary visa. Thus if law enforcement is considering only brown skin and Spanish language, then they may not be doing their job effectively. They may need to visit a French restaurant or two to determine that the waiter with the charming accent is there to lend authenticity to the place, regardless of whether he’s authorized to work here or not.

In addition, I have a concern about this new legislation as well. Simply said, it is difficult for someone who is not well versed in immigration law to determine whether a person is legally in this country, and I’ve seen even the U.S. Border Patrol struggle with this issue.

For example, did you know that someone with an expired visa can still be present legally because they are in lawful status? And, on the other hand, someone whose visa is valid can be out of status, and hence, illegally present in this country? This issue alone has caused some disagreements between Border Patrol and foreign student advisors in our region of the country.

A foreign-born student may enter the United States with a visa to study. However, the visa itself is simply an entry document authorizing one’s admission to the country. It does not authorize a period of stay. In fact, most students are admitted for the “duration of their status.” That is, the time they require to complete their program of study whether that is a summer language course or a PhD. In order to be deemed in status, a foreign student must have another document, called an I-20, which is issued by the school which he or she attends. The I-20, which is merely a sheet of paper or two, confirms that a student is complying with the requirements of student status, such as following a full-time course study. Authorities who have never encountered such a document may believe a student is illegally in the country if his or her visa is no longer valid. However, as long as the I-20 is valid, the student is legally present.

By the same token, foreign born tourists may get a visitor visa that is valid for one year or ten years, or like Canadians and many Europeans, may not even require a visa to enter the U.S. However, the visa does not reflect how long a tourist is authorized to remain in this country. Another document, an I-94, that is issued by immigration officials at the airport or other port-of-entry (except to Canadian citizens), determines how long one is allowed to stay. Once a visitor’s period of stay lapses, he or she may be illegally present in the U.S. despite what the visa may indicate.

In both the case of the tourist and the student, working without authorization may also render him or her out-of-status. Therefore, both the visa and the accompanying documentation may indicate legal presence, but the act of working illegally has rendered the foreign national “illegal.”

Those are a lot of technicalities, yet I could go on about the subtleties of determining whether one is legal or not. I wonder if Arizona’s law enforcement community can catch up in the few months remaining before the law goes into effect. Read more!

A Great Victory for "Green Card" Holders

Today, the United States Supreme Court, in a 7-2 decision (Justices Scalia and Thomas dissenting), issued a ruling which will have profound effect on lawful permanent residents of this country who face criminal prosecution.

The Court held that the 6th Amendment of the Constitution grants immigrant defendants who are considering a plea agreement the right to accurate advice from their defense lawyers on how a plea might affect their immigration status. This is critically important as I set forth in my December post, The Price of Justice.

I will excerpt some important passages from the decision which was written by Justice John Paul Stevens. I sincerely hope that this insightful ruling will convince Congress to address the “aggravated felony” issue in its attempts at comprehensive immigration reform.

Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this Nation with honor as a member of the U. S. Armed Forces during the Vietnam War. He now faces deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky.

We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.

The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The “drastic measure” of deportation or removal, Fong Haw Tan v. Phelan, 333 U. S. 6, 10 (1948), is now virtually inevitable for a vast number of noncitizens convicted of crimes.

In 1996, Congress also eliminated the Attorney General’s authority to grant discretionary relief from deportation, 110 Stat. 3009–596, an authority that had been exercised to prevent the deportation of over 10,000 noncitizens during the 5-year period prior to 1996, INS v. St. Cyr, 533
U. S. 289, 296 (2001). Under contemporary law, if a noncitizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses. See 8 U. S. C. §1229b. Subject to limited exceptions, this discretionary relief is not available for an offense related to trafficking in a controlled substance. See §1101(a)(43)(B); §1228.

These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.

We have long recognized that deportation is a particularly severe “penalty,” Fong Yue Ting v. United States, 149 U. S. 698, 740 (1893); but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, see INS v. Lopez-Mendoza, 468 U. S. 1032, 1038 (1984), deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century, see Part I, supra, at 2–7. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. United States v. Russell, 686 F. 2d 35, 38 (CADC 1982).Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult. See St. Cyr, 533 U. S., at 322 (“There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions”). Read more!

Hurray for Nina Bernstein!

Nina Bernstein from The New York Times has been exposing the public to the darker side of immigration law and policy. A couple of years ago, she was one of the reporters who broke the story about the tragic deaths of immigrants held in detention. Now she covers this critical issue, about which I often blog, and which will be heard by the U.S. Supreme Court today.

It is a story profiling Jerry Lemaine, a young man facing mandatory deportation for marijuana possession like countless other permanent residents in the United States. The article serves as a preview to today's Supreme Court argument in Carachuri-Rosendo v. Holder. In this case, the Court will consider whether a second or subsequent drug possession offense is automatically a drug trafficking aggravated felony.

http://www.nytimes.com/2010/03/31/nyregion/31drug.html?pagewanted=2&ref=nyregion



March 30, 2010
How One Marijuana Cigarette May Lead to Deportation
By NINA BERNSTEIN
NEW YORK TIMES

ELMONT, N.Y. — When a police officer in this Long Island suburb found a marijuana cigarette in Jerry Lemaine’s pocket one night in January 2007, a Legal Aid lawyer counseled him to plead guilty. Under state statutes, the penalty was only a $100 fine, and though Mr. Lemaine had been caught with a small amount of marijuana years earlier as a teenager, that case had been dismissed.

But Mr. Lemaine, a legal permanent resident, soon discovered that his quick guilty plea had dire consequences. Immigration authorities flew him in shackles to Texas, where he spent three years behind bars, including 10 months in solitary confinement, as he fought deportation to Haiti, the country he had left at age 3.

Under federal rulings that prevailed in Texas, Mr. Lemaine had lost the legal opportunity that rulings in New York would have allowed: to have an immigration judge weigh his offenses, including earlier misdemeanors resolved without jail time, against other aspects of his life, like his nursing studies at Hunter Business School; his care for his little sister, a United States citizen with a brain disorder; and the help he gave his divorced mother, who had worked double shifts to move the family out of a dangerous Brooklyn neighborhood.

Now Mr. Lemaine, 28, is among thousands of noncitizens whose fate may hinge on a case to be argued on Wednesday before the United States Supreme Court, in a challenge to the way the government interprets immigration laws about drug-related convictions. The government maintains that for deportation purposes, two convictions for drug possession add up to the equivalent of drug trafficking, an “aggravated felony” that requires expulsion and prohibits immigration courts from granting exceptions based on individual life circumstances.

That interpretation of laws passed in 1996 has been rejected by four judicial circuits, including New York’s. But two circuits have upheld it, most notably the United States Court of Appeals for the Fifth Circuit, which covers Louisiana and Texas — states where the government routinely transfers tens of thousands of immigration detainees each year, mainly from the Northeast.

The case before the Supreme Court, Carachuri-Rosendo v. Holder, involves a longtime legal resident of Texas who was deported to Mexico based on convictions for possession of marijuana and a tablet of Xanax, an anti-anxiety drug. His fiancée and four children, all United States citizens, were left behind.

But Mr. Lemaine’s case, cited in amicus briefs by several defense lawyers’ associations, illustrates the chaotic effect of the split among the circuits, coupled with the increased use of transfers in the nation’s network of detention centers.

Unlike the criminal justice system, which must deal with defendants in the jurisdiction where their offenses occurred, immigration authorities can send detainees anywhere in the country, without notice or legal counsel, and start deportation proceedings wherever they choose. And the Obama administration has stepped up detention and deportation of so-called criminal aliens, including many legal immigrants with low-level drug convictions.

Mr. Lemaine, whose father is a United States citizen, faced an immigration judge in Harlingen, Tex., almost 2,000 miles from this blue-collar community just east of the Queens border. The judge decided that under Fifth Circuit rulings, two marijuana violations made Mr. Lemaine a “recidivist felon” ineligible for bond or for any relief from deportation, even though his first marijuana offense had been dismissed.

The government’s own Board of Immigration Appeals rejects that interpretation of the law, but says it is bound by it when deciding cases from circuits where it prevails, including the Seventh, covering Illinois, Indiana and Wisconsin. Proponents argue that their view reflects Congressional intent to be tougher on all drug offenses, and to sharply narrow judicial discretion.

In a sense, Mr. Lemaine was lucky. Unlike 86 percent of immigration detainees who face deportation in Texas, he had a lawyer. And though his mother, a nurse’s aide, could not pay an additional $10,000 for a federal appeal, someone referred the case to Gibson Dunn & Crutcher in New York, one of the few corporate law firms willing to fight a criminal deportation without a fee. Lawyers there filed a federal appeal.

Aaron D. Simowitz, 31, who shouldered part of the legal work, said the case often seemed surreal. For example, the New York criminal court refused to vacate, or erase, Mr. Lemaine’s first marijuana conviction, reasoning that there was nothing to vacate because the conviction did not exist; the case had been dismissed, as planned, after a six-month adjournment. But in Texas, the federal government still counted that as a conviction.

Such twists are part of a system that requires immigration authorities to match the elements of a variety of state criminal statutes with federal criminal laws, and proceed as though the noncitizen had been convicted of the federal crime.

Three times Mr. Simowitz sought Mr. Lemaine’s release on an order of supervision while the appeal was pending. Three times, Immigration and Customs Enforcement officials refused, moving Mr. Lemaine from the government-run Port Isabel Detention Center near Los Fresnos, to private prisons run by the GEO Group in Pearsall and Karnes City, Tex.

Then, early on Jan. 11 — hours before an earthquake devastated Haiti — a new deportation officer suddenly decided that Mr. Lemaine was a good candidate for supervised release, and let him make his way back to New York on a Greyhound bus.

After a three-day journey, he said, he emerged in Times Square, found Mr. Simowitz in an office on the 48th floor of the MetLife building, hugged him, then stood gazing down at New York, marveling, “This is my home.”

At his mother’s dining room table on a recent afternoon, he tried to convey the shock of his Texas experience, starting with his first night in a holding tank in Harlingen: “Fifty people, nowhere to sleep, huddled up with a few blankets.”

At the Port Isabel detention center, where he shrank to 145 pounds from 190 while waiting for his deportation case to be decided, he said, “they barely feed you.” But after a year, he found that leaving was worse.

As he recalled being awakened by guards and ordered to pack, Mr. Lemaine, a sunny, open-faced man, choked up, grabbed a paper napkin and pressed his eyes to stop his tears. “You try not to think about it anymore,” he said apologetically. “Two, three in the morning, pack your things, you’ve got to go — it basically means you’re being deported.”

He left a goodbye on his mother’s answering machine, only to learn at the last minute that he was not being dispatched to Haiti, but transferred to the South Texas Detention Center in Pearsall. When his mother, Marie Admettre, 57, finally reached him there, he urged her not even to try to pay for another appeal.

“She worked hard to get us to Long Island to provide a better life, and I screwed it up,” he explained, referring to youthful scrapes that did not make him deportable, like a bar fight, as well as the winter night he crashed into a parked car on his way home from a party with a joint in his pocket. “But my mom told me, ‘Don’t give up.’ ”

His lowest point, he said, came in the private Karnes County Correctional Center, which houses a mix of immigration detainees and federal prisoners. As he tells it, guards there let inmate gangs impose their own pecking order, and as the only black detainee in his dormitory, he seemed especially vulnerable. In the first days, the guards refused him utensils at mealtime, he said, leaving him alone eating stew and cereal with his hands. Later, half a dozen inmates beat him up in a racially motivated attack, he and his lawyers said.

Early on, after he wrote the medical staff that he was depressed, he was placed on a 10-day suicide watch in a filthy segregation unit where he did not see a psychiatrist for a week, he said.

“They just break you down so much,” Mr. Lemaine said. “They just forget about you. Basically, you fend for yourself.”

He was returned to isolation for his own protection after being beaten up, and chose to stay there, he said, locked in a tiny cell 23 hours a day, rather than go back to the same dorm.

What helped him survive, Mr. Lemaine said, was a gift from Mr. Simowitz: “Gideon’s Trumpet,” the 1964 account of how a penciled petition to the Supreme Court by a poor prisoner led to a landmark decision: that criminal defendants, even when they cannot pay, have the right to counsel.

“I love that book,” he said. “I love Aaron. How do you not give people lawyers in immigration court?”

In his case, the Fifth Circuit recently said it would wait for the Supreme Court decision in Carachuri before ruling. Even if those decisions go in his favor, however, he is likely to return to the same immigration judge, who could still order him deported.

With deportations to Haiti suspended since the earthquake, that is likely to mean more detention in Texas.

An earlier version of this article misstated the distance between Queens and Harlingen as "thousands of miles." Read more!

Que viva El Diario!

I would like to see more editorials like this one from the press. It doesn't surprise me that the Spanish-language media may find this issue more compelling than the English-language media since one in every 36 Latinos in the U.S. is in jail. Nonetheless, it is an issue with which we should all be concerned.

The right to be heard
2010-03-30

El Diario NY
This week, the Supreme Court is expected to hear a case that will affect thousands of immigrants with legal status and their families. The Court should recognize that tying the hands of immigration judges pushes beyond the scope of Congressional intent and undermines our judicial system.

In Carachuri-Rosendo v. Holder, the Supreme Court will consider whether immigrants with legal status, or those petitioning for asylum, with two or more drug possession offenses should be treated as “drug trafficking aggravated felony” offenders. This would subject them to a mandatory deportation statute—and remove judicial discretion in doing so.

Drug trafficking and minor drug possession offenses are not the same. But if the Court were to side with the federal government, immigrants with legal status, who barely know their country of origin, who have already paid their debt to society, would be swept into the harshest penalties of immigration law.

The Justice Department is pushing for an aggressive over interpretation of the mandatory deportation statute. Under this statute, we doubt that Congress intended to channel, for example, U.S. military veterans using drugs to cope with post traumatic stress disorder into deportation, especially without a hearing.

Yet, these are among the people with families here who are vulnerable to the government’s wrongheaded position.

Immigrant and legal advocates are raising more issues with this case. They say that the Board of Immigration Appeals and most federal judges have sided with their position and that the government’s position runs contrary to legal precedent. They cite the Supreme Court’s ruling in Lopez v. Gonzales, where the Court rejected a claim that a single drug possession conviction could be treated as an aggravated felony under immigration law.

While immigrants with drug possession offenses are generally deportable, what this case stands to do is deny many lawful permanent residents the right to a hearing. This kind of gag is shameful. It grossly departs from Constitutional values and a history of legal precedents that have long established the right to a fair defense.

The Supreme Court should see through this attempt to escalate minor drug offenses into felonies and to strip lawfully permanent residents of the right to have their day in court. Read more!

I pledge allegiance...

In February, I posted Support Our Troops: Your Tax Dollars At Work, in which I wrote about a young man-- a lawful permanent resident-- who is subject to deportation from the United States for a drug conviction despite the fact that he was honorably discharged from the military after serving in Iraq. Similarly, in another case I once handled, the client had immigrated to the U.S. in 1958 as a child and served during the Vietnam War. Not surprisingly, his experiences in that controversial war led to a heroin addiction, which later resulted in a drug sale conviction arising out of his need to support the habit. Ultimately, fifty years after immigrating, he was deported from this country because of the offense.

An ABC-affiliated news station in San Diego, CA recently covered this issue. See, http://www.10news.com/index.html . Their reporters went to Tijuana, Mexico and interviewed deported military veterans. According to the story, the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) branch deported 16 veterans in 2007, 29 in 2008 and 57 in 2009. Additionally, the ICE official in San Diego with the power to stop the removal of veterans from the United States has never exercised prosecutorial discretion to halt such removals, and most probably the same holds true for ICE officials across the country. When asked why he did not do so, the San Diego officer simply responded that the crimes committed by these former soldiers were too serious to warrant favorable treatment. Obviously, he does not believe that honorable military service, combined with other positive equities, might outweigh a criminal offense. My guess is that he doesn’t consider any humane factors when approaching these cases

The irony in all of this is that my local newspaper, The Buffalo News, published a piece on March 25, 2010 about advocates for veterans who are raising funds to assist ailing servicemen and their families when they are in need of mental health care. The article mentions an Army sniper who had a breakdown after his combat tours in Iraq. He threatened and assaulted employees of the Veterans Administration and went to jail for the offense. A leading advocate for area veterans asks, "how can you say the answer for [this man] is federal prison?" That is indeed a fine point. Yet I cannot help but ask why the same sympathy is not shown toward noncitizen veterans. Why does ICE not consider whether the psychological trauma of military service might have caused a veteran a mental health issue, such as substance abuse, which then led to the unlawful conduct which in the end results in his or her potential deportation?

In a documentary entitled Lost Souls (Animas Perdidas), which aired this past week on PBS, filmmaker Monika Navarro explores this critical issue as well. Her uncles had been raised and educated in the United States since childhood, and were proud veterans of the U.S. military. Tragically in 1999, the two brothers were forced to leave the only country they'd ever known - and one they'd sworn to protect by serving in the U.S. military. They were deported to Mexico, and had to start over and forge new lives in an unfamiliar "homeland." Within two weeks, one of the brothers overdosed on heroin in a Tijuana hotel room. His body was left unclaimed for two months in a mass grave.

Sadly, I bet most ICE officials simply look at the conviction records and forget about the human beings behind the documents. Read more!

Join Us!

Voices From The Community:
A Discussion on Comprehensive Immigration Reform

March 30th, 2010 at 7:00 pm
Unitarian Universalist Church of Buffalo
695 Elmwood Avenue, Buffalo NY

Opening Remarks By:
John A. Curr III
Executive Director
Western Regional Office
New York Civil Liberties Union

Featuring:

Sophie Feal, Esq.
Supervising Immigration Attorney
Erie County Bar Association
Volunteer Lawyers Project, Inc.

Deacon Jim Anderson
The Network of Religious Communities
Chair, Western New York Peace Center

Mario Ezekiel Hernandez
Organizer
Western Regional Office
New York Civil Liberties Union

Lourdes Iglesias
Executive Director
Hispanics United of Buffalo Read more!

"The Voice of Wisdom and Freedom"

Last Friday, as I posted below, Attorney General Eric Holder praised the legal orientations that agencies such as mine perform in the nation's detention facilities. He emphasized the practicality of our programs and their great cost savings to the US Government.

Yesterday, I received this incredibly touching email from a client, Ahmed from Sudan, whom I met after he participated in such a legal orientation. Ahmed was detained at the federal detention facility in Batavia, NY where I, along with a pro bono lawyer, was able to obtain his release. Our agency then filed an asylum application on his behalf. He now lives in Virginia and hopes to eventually immigrate to Canada where his Canadian wife is waiting anxiously for him. Ahmed is working on a book about his days in Batavia, in cell block C-3, bed #380, from May 6, 2008 to August 23, 2008. I look forward very much to reading this book one day.


Ahmed asked me to correct his grammar before posting this. I did so reluctantly because I find his English impressive. While he was in Batavia, he served us as an interpreter and helped us communicate with two young Somali brothers whose freedom from detention we were also able to obtain with the help of a very dedicated pro bono attorney. My law school intern that summer, Heather, whom Ahmed refers to in his story as the “young woman volunteer” tells me she remembers Ahmed perfectly given his invaluable assistance with the Somalis and others.

Below you will read the edited version of his email to me. I will keep the original for myself and peek at it when I feel burnt-out.

It is notes like these that brighten my day and keep me going despite the obstacles.



Dear Sophie

Thank you for your e-mail.

There is something I want to write on your blog, but I am not sure about my grammar and I want to ask you first before I do it. You can help me with the grammar if you don't mind
It starts like this:

Sophie, the voice of wisdom and freedom.

In May 2008, I was detained in Batavia. It was the most shocking experience in my life; the first time I had been in jail or detention. I had strongly believed that jail and detention were always for bad people. While I was in the processing unit, waiting to go to the cell, a nurse came to check me. She found me scared, shaking and crying. I had high blood pressure and she asked me to relax and stay calm because if I was not relaxed, it was not going to get me anywhere; it would just cause me problems. Then she said, “you can always speak to Sophie. She will tell you what to do.” “Sophie !!!!!! Who is Sophie ????” The nurse said, “she is lawyer.” I said, “they gave me list of lawyers’ names and phone numbers.” She looked at me and said, “Sophie is different,” and then she left.

My only concern at that point was to speak to Sophie. When I went to my cell block, which I shared with 64 people, I luckily found someone who spoke my language. My first questions to him were who, how, and when can I speak to Sophie? He explained to me what Sophie did at the detention facility, but told me I would have to wait until she called to see me. I waited on pins and needles until the week was over, and then I was finally called for a lawyer visit. I was so excited to go to this visit. I knew it was an orientation given by the Volunteer Lawyers Project. After the orientation finished, I was so happy because they had given me hope. My first question to the young woman volunteer was, “are you Sophie?” She said no, “but I work for her.” I asked many questions and got the answers from the volunteers. They told me that they would call me during their next visit to provide me with some documents. When I returned to my cell after the orientation, I had a strong feeling that there was a way out of detention. I said to myself that this is why Sophie is different. I started to help the Volunteer Lawyers Project to communicate with other detainees who did not speak English. I helped translate, and started to hope that I would get out. I began to go to the law library to find out more about the law and ask questions to the volunteer lawyers when they visited.

What Sophie is doing in the detention facility is more than great. Imagine if you were in this situation and suddenly someone came from nowhere and gave you hope for your freedom. It is a feeling I can't express in writing. My heart is full, but words are not enough. Sophie was hope for me from day one until I left the detention facility after six month. Still today she is handling my case, and like she helped me to get my freedom back, she is helping more than 600 detainees. She is the light and the voice for freedom and wisdom. She does an unbelievable job.

Sophie, you are great and what you are doing is tremendous. God bless you and keep it up. God will help you more and give you strength. Read more!

Meeting the Legal Needs of the Poor

On Friday, March 19th, U.S. Attorney General Eric Holder gave a speech at the Pro Bono Institute in Washington, DC in which he emphasized the value of pro bono legal services for the poor in this country. During the speech, he praised the work that my office does, as well as other non-profit agencies nationwide, in providing legal orientations and other “self-help” services to immigrant men and women detained throughout the United States. Of course, it is wonderful as public interest lawyers to be praised publicly by a prominent person since we often do our work under trying circumstances and with limited resources. I am also proud to be part of this great effort.

Here is the relevant excerpt of the Attorney General’s speech:

Today, I'm also proud to announce that our Legal Orientation Program will be expanding next month to the New York City area. The LOP is a great success story. It provides key funding to local nonprofit organizations that assist non-citizens in detention and helps to improve the efficiency of our legal system. Since its establishment in 2003, this program has been an excellent example of public-private cooperation between the Departments of Justice and Homeland Security, leading immigrant advocacy groups, and the private bar. This partnership helps make our justice system more fair, and more transparent, to those who come before our immigration courts. And, by drastically reducing the length and cost of court proceedings, the program has also proved to be a critical tool for saving precious taxpayer dollars. In fact, LOP has reduced the average duration of detention by nearly two weeks. And, for every person served – at a cost of about $100 each – the government saves upwards of $1,300. For a program that currently serves 50,000 detained people each year – and will soon serve two thousand more – the economic benefits are tremendous.

For more information on this exemplary initiative, visit: http://www.vera.org/project/legal-orientation-program

The need for pro bono services for non-citizens should not be underestimated. The Honorable Robert Katzmann of the U.S. Court of Appeals for the Second Circuit made a striking public statement in support of meeting the legal needs of the immigrant poor.

In a presentation before the Bar of the City of New York on February 28, 2007, Judge Katzmann announced that, “all too often immigrants are deprived of adequate legal representation, essential if they and their families are to live openly and with security.” He discussed the “immigrant’s plight,”and praised non-profit organizations like mine in meeting some of the demand, but urged more involvement from the profession. It is estimated that 85% of detained immigrants have no counsel, and 65% of all immigrants have no counsel, when they appear before immigration courts, and as the judge correctly pointed out, creating a solid legal record is critical to a case. Legal points must be preserved for review, especially when the immigrant has the burden of coming forward with the evidence and the burden of proof of entitlement to status or relief. Only quality legal representation can serve such a need.

Judge Katzmann closed his remarks that evening with a quote by John Adams from 1761:

“to what greater object, to what greater character, can we aspire as lawyers that to assist the helpless and friendless in a worthy cause [?] I say there is none. To devote your skill and energy to the plight of another, without promise of a material reward for oneself, is what sets us apart as professionals.”

Similarly, AG Holder, called forth the pleas of previous presidents in his remarks last Friday:

“Today, our challenge is to extend our nation's – and our profession's – tradition of public service - for the call issued by President Kennedy and echoed by President Clinton has not been fully heard. As a result, the work they asked us to do is not yet finished. But many of you are leading the way forward. And I'm encouraged by your commitment to do pro bono work.” Read more!

Reform is Definitely Needed

Perhaps it is finally time for immigration reform. It is estimated that 200,000 marchers gathered in Washington, DC this past Sunday to call for comprehensive immigration legislation. Last Friday, Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) wrote an op-ed piece in the Washington Post setting forth their vision of immigration reform as presented in a bill that they have jointly sponsored. A week earlier, in celebration of the 30th anniversary of the Refugee Act of 1980, the Refugee Act of 2010 was introduced in Congress by Senator Patrick Leahy (D-VT). Even President Obama was present at the demonstration in Washington, DC this weekend. In a videotaped message that aired on huge screens on the National Mall, the president affirmed that the immigration system was “broken” and that it resulted in families being torn apart, employers gaming the system and police officers struggling to keep communities safe. I certainly agree with his first point, but the solution I would support does not appear to be part of the immigration reform proposal now under consideration.

The Refugee Act of 2010 is a welcome piece of legislation. As I wrote in my blog post, Happy New Year?, detention clearly frustrates an asylum-seeker’s ability to file for protection. The Act addresses this concern, and a summary of the bill is printed below.

According to its sponsors, the Schumer-Graham bill on immigration reform has four “pillars”: requiring biometric Social Security cards to ensure that those present unlawfully in the U.S. cannot obtain jobs; fulfilling the commitment to strengthen the U.S. border and continue internal enforcement of immigration laws; creating a process for admitting temporary workers, both skilled and unskilled; and implementing a process for the legalization of those 11 million people who are already here without authorization. The bill does not appear to address the issues I have repeatedly written about in this blog, and outlined in my posts, Message to Congress and The Myth of the Aggravated Felon. In fact, the senators call for a “zero-tolerance policy” for those who commit felonies. As well, the issue of detention does not appear to be a primary concern in this reform legislation despite the ABA Report’s conclusion that alternatives to detention were warranted. See my posts, Bad News for the Government and Support Dignity not Detention. I again challenge immigration reformers to consider their position on these issues carefully, and examine the impact of the wholesale detention and removal of those who have been convicted of crimes. A colleague who recently wrote to Congress with his concerns set forth the issue very eloquently:

Restore Due Process, Judicial Review, and Basic Fairness to the Immigration System

The U.S. Constitution guarantees every person in the U.S. due process under the law—regardless of immigration status. Yet current law strips immigration judges and officials of the discretion they need to evaluate cases on an individual basis and grant relief to deserving immigrants and their families.

The Immigration and Nationality Act provides that a noncitizen is removable if he or she has been convicted of an aggravated felony; however, in recent years the definition of "aggravated" has been expanded so significantly that the Department of Homeland Security has unfairly initiated removal proceedings on the basis of convictions for misdemeanors and other minor offenses, such as shoplifting, that are not consistent with any common understanding of the term "aggravated felony." Moreover, these provisions have been applied to non-citizens retroactively to target lawful permanent residents who were convicted or plead “no contest” to misdemeanors or other minor infractions without any reason to believe that deportation was a potential consequence at the time.

Under the INA's aggravated felony provision, immigration judges and officials don’t have the discretion to consider the facts of a case, including the length of time the person has lived in the U.S., and the individual’s contributions to the community when ruling on whether to detain or deport an individual. The pursuit of lawful permanent residents and other noncitizens by DHS under the aggravated felony provision has resulted in the automatic removal of thousands of tax-paying individuals with extensive ties to the United States and disrupted the economic and social stability of immigrant communities across the nation.

The policies of mandatory detention and deportation are fundamentally contrary to traditional American notions of fairness and justice and must be ended. Restoring judicial and administrative discretion and revising the definition and application of “aggravated felonies” is crucial to restoring integrity to and the public’s faith in the immigration system.

Here is a summary of the Refugee Act of 2010:

The Refugee Protection Act of 2010

Increased Protections for Asylum Seekers:
 Eliminates the requirement that asylum applicants file their claim within one-year of
arrival.
 Protects particularly vulnerable asylum seekers by ensuring they can pursue a claim even
where their persecution was not socially visible.
 Ensures fair process by requiring an immigration judge to give notice and an opportunity
to respond when the judge requires corroborating evidence of the asylum claim.
 Gives an applicant the opportunity to explain and clarify inconsistencies in a claim.
 Enables minors who seek asylum to have an initial interview with an asylum officer in a
non-adversarial setting.
 Allows the Attorney General to appoint counsel where fair resolution or effective
adjudication of the proceedings would be served by appointment of counsel.
Reforms to the Expedited Removal Process:
 Requires the referral of asylum seekers to an asylum officer for a credible fear interview,
and, if credible fear is found, for an asylum interview.
 Authorizes the United States Commission on International Religious Freedom to conduct
a new study on the effects of expedited removal authority on asylum seekers.
Parole of Asylum Seekers:
 Codifies the current DHS policy that asylum seekers be considered for release (“parole”)
and requires DHS to issue regulations establishing criteria for parole.
 Establishes a nation-wide, secure “alternatives to detention” program.
 Requires changes in the immigration detention system to ensure asylum seekers and
others have access to counsel, medical care, religious practice, and visits from family.
Terrorism Bar to Admissibility:
 Modifies definitions in the statute to ensure that innocent asylum seekers and refugees are
not unfairly denied protection as a result of the material support and terrorism bars in the
law, while ensuring that those with legitimate ties to terrorist activity will continue to be
denied entry to the United States.
Protection for Refugees and Asylees:
 Eliminates the one-year waiting period for refugees and asylees to apply for a green card.
 Allows certain children and family members of refugees to be considered as derivative
applicants for refugee status. All such applicants must pass standard security checks.
 Authorizes the Secretary of State to designate certain groups as eligible for expedited
adjudication as refugees.
 Prevents newly resettled refugees from slipping into poverty by adjusting the per capita
refugee resettlement grant level annually for inflation and the cost of living. Read more!

Promoting STEM Professions to Our Girls

This past weekend, I attended the "Tech Savvy" Conference that the American Association of University Women (AAUW) sponsors to promote the fields of science, technology, engineering and math (STEM) to girls in middle and high school. It is the second time I have gone to this inspiring event with one of my daughters. The conference gives girls a wonderful opportunity to meet women who are employed in STEM professions and to learn about their valuable work. There is a parallel track for parents to understand how to best motivate and encourage their daughters to pursue higher education in STEM, and to help them launch a career in these well-paying, but male-dominated professions.

At the conference, parents were provided with the result of an intensive study conducted by the AAUW entitled Why So Few? to determine why women are still terribly underrepresented in the STEM professions and how the problem might be addressed. This very interesting report concludes that, while there have been significant strides for women in the STEM fields, there are still striking disparities between men and women which must be addressed. Among the critical findings of the report are that although girls' interests in math and science are developed early in life, it is in college that they choose to pursue a STEM career, or by the same token, choose not to become scientists, engineers or doctors. Thus universities must develop programs which interest and retain female students including a broad range of survey-type courses. Secondly, the AAUW research also found percentage of women earning bachelor's degrees in computer science has actually declined since the mid-1980's and that women earned only 21% of the doctorates awarded in this field in 2006. A third finding contained in the report confirms that men are not biologically more capable than women at math and science, but rather sociocultural factors still play a strong role in the gap that exists in representation in STEM fields between the sexes. And finally the report concludes that unfortunately, women leave the STEM professions because of unfavorable work environments.

As an immigration lawyer, I am well aware that many technology companies and universities in the U.S. rely on foreign-born professionals to fill a void that exists in the STEM occupations. They claim that there is a dearth of Americans who are educated and trained in these areas and, consequently, they must recruit and hire foreign nationals to meet the demand.

The H1B visa for skilled workers is the means by which U.S. employers can temporarily employ foreign professionals in STEM fields, such as engineers and computer specialists. These visas exist precisely because of the lack of qualified Americans, both women and men, in various professions, although predominantly the STEM fields. As such, the U.S. fears lagging behind other rich nations and thus, not maintaining a favorable competitive edge in the global economy. The recipient of such a visa must have four years of university level education or its equivalent, and must also secure a job offer from a U.S. employer. The employer is not required to prove that there are no ready, willing and able Americans to conduct the type of work for which they require a foreign national, but the employer must promise to pay the employee the prevailing wage in the profession. To meet the need during the technology boom, 195,000 H1B visas were made available in fiscal years 2001, 2002 and 2003, but since then, the limit has returned to 65,000 (with an additional 20,000for individuals with master’s degrees or doctorates.

At various times in the recent past there have been huge outcries by the technology and other industries about the need to raise the 65,000 cap on the availability of the visa to meet the growing demand for STEM professionals. Microsoft and Silicon Valley corporations, for example, have quite actively lobbied Congress to increase the number of foreigners permitted to obtain H1B visas, and undoubtedly these companies spent millions of dollars on those efforts. On the other hand, critics of the program argue that these companies simply want access to cheaper skilled labor in order to keep down wages and salaries in lucrative but competitive industries, such as technology and engineering.

I have another concern to raise about this issue-- and I recognize I am fueling an aspect of the delicate anti-immigrant debate by doing so-- but I wonder whether the relatively easy access to foreign-born skilled labor eliminates the incentive to promote the STEM professions to U.S. girls and women? I also cannot help but wonder what might happen if technology companies, universities, and others who vigorously lobby for increased amounts of H1B visas were to put the same amount of money and resources into creating programs for girls and young women which would encourage them to enter a STEM field. Could they help bridge the unjustifiable gap between men and women in these professions, as well as create a well-trained pool of prospective employees to meet their need for qualified labor? Imagine the intensive summer camps and special educational programs Microsoft alone could afford to sponsor to motivate American girls to explore math, science, computers, engineering and medicine. Imagine if every tech company in Silicon Valley sponsored a conference like the one I attended in a community in the United States. Imagine if colleges and universities established special scholarships to help finance an education in a STEM major for girls of limited economic means and adopted an educational program for female students like the one suggested by AAUW. Additionally, if, as the report determined, women are leaving such professions at some point in their careers, then why are these employers not expending more resources to explore why this happens, and to find concrete solutions to stop the attrition of talented women from the field? These are just my simple thoughts without much investigation into the issue. However, when I wrote this piece I googled “tech companies promote STEM for girls,” and didn’t come up with much. I noted that there exist several small organizations which design programs similar to the AAUW’s conference, but I did not immediately note that any major companies were associated with these endeavors. On the other hand, when I googled, “lobbying for H1B cap,” Bill Gates’ name, and those of other well-known technology companies, came up in virtually every entry.

Based on their research, AAUW has very concrete suggestions for improving the landscape for girls , many of which could be undertaken by prospective employers in the STEM professions. They include: more active outreach and recruitment of girls by colleges and universities and development of a curriculum specifically tailored to interest girls and keep them engaged in STEM majors; exposure of girls to more women in the field to serve as role models; support work-life balance in the workplace which is essential to the retention of professional women; and of course, eliminate stereotypes and bias. To this I might suggest that there be a shift in resources in the STEM industries toward promoting the fields to our girls instead of further opening the door to foreign employees. Read more!

Immigrant Released After Pardon!!

From the New York Times, this is a great update to my post below entitled, Once and Aggravated Felon, Always an Aggravated Felon. See, http://www.nytimes.com/2010/03/11/nyregion/11release.html Qing Hong Wu's sister was kind enough to comment on my post with information on how we could petition Governor Patterson to pardon her brother. Thanks to those who responded to the plea. This man is one of the lucky few, and for others like Qing Hong Wu, there is not yet a remedy.

For a Pardoned Detainee, Released but Not Told Why, a Lonely, Happy Trip Home
By NINA BERNSTEIN

After four months locked in a New Jersey immigration jail facing deportation, Qing Hong Wu, 29, was told by guards to pack his things on Tuesday evening. Fearing that he was being abruptly transferred to a detention center in Texas or Louisiana, like many detainees with families in New York City, Mr. Wu asked other inmates to try to alert his fiancée.
Even as guards at the front desk told him to walk out of the Monmouth County Correctional Institute in Freehold, N.J., no one at the jail had told him why.


With no way for his lawyers or family to call him, he was unaware of the news that they and a widening circle of supporters around the world had been celebrating since Saturday: Gov. David A. Paterson had pardoned Mr. Wu, an information technology executive whose rise from poverty and street crime in Chinatown had almost ended in deportation to China, a country he left at 5, and where he knew no one.

“I can’t thank him enough,” said Mr. Wu, 29, Wednesday morning. “I’m very, very lucky.”

After his release on Tuesday, and a two-and-a-half-hour nighttime journey home on foot and by bus, Mr. Wu still had no clue of the governor’s pardon until he reached his Spring Street apartment building at 9:30 p.m., and a cousin, who also lives there, congratulated him.

Mr. Wu’s relatives and fiancée, Anna Ng, had driven to the jail to pick him up, but despite their repeated calls to jail officials, no one informed Mr. Wu they were on their way, so they missed him by a few minutes. They were still driving around New Jersey, trying to find him in the dark, when he called Ms. Ng from his cousin’s apartment.

The case of Mr. Wu, who immigrated to the United States legally as a child, had drawn support from many, including the judge who sentenced him to a reformatory in 1996 for a series of muggings committed at 15, and who promised to stand by him if he redeemed himself. An article in The New York Times last month described how the judge, Michael A. Corriero, now retired, wrote to Governor Paterson appealing for the pardon.

The governor’s action erased the grounds for mandatory detention and deportation, and could open the door to citizenship for Mr. Wu.

After three years in the reformatory, where he earned a high school equivalency diploma, Mr. Wu went on to college and became a vice president at Centerline Capital Group, a real estate financial and management company. His application for citizenship, in which he disclosed his criminal record, brought him to the attention of immigration authorities, who sent him to detention.

Because of publicity about the pardon, Elizabeth R. OuYang, president of OCA-NY, an Asian-American civil rights organization that championed Mr. Wu, said she had expected immigration and jail officials to handle Mr. Wu’s release better than most. Instead, advocates said, it was typical, underscoring the isolation and vulnerability of immigration detainees in a disjointed system with vast power to transfer people out of reach of lawyers and family members.

Without his identification, money or cellphone, Mr. Wu said, he was released from the jail with two bus tickets and the balance of his commissary account — a check for $103 that he had no way to cash. Local criminal inmates released at the same time led him to an express bus stop a half-mile away. He took the bus to the Port Authority Bus Terminal and walked to Spring Street, which took him about an hour.

“It was a great hour,” he said. “Even though I was tired, I was so happy. I thought immigration made a mistake, so I figured I’d enjoy it before they come and get me.”

“It was great to see the city again,” he added, describing a walk through Herald Square and down to Union Square. He had no key for his apartment, but buzzed his cousin, who let him in. By 11 p.m. Tuesday, his mother, fiancée, brother-in-law and Ms. OuYang had made it back from New Jersey for a reunion.

“I couldn’t sleep the whole night,” Mr. Wu said. “Many things were racing through my head.”

Among them, he said, were thoughts of the detainees left behind in the Freehold jail, including “people with mental health problems, two pre-operative transsexuals, elderly folks that can barely walk.”

“It’s just wrong,” he said. “It’s sad.”

But he said he also had grateful thoughts about the encouraging letters he had received “from random strangers” across the country who had read about his case.

On Wednesday, Mr. Wu’s immigration lawyer sent a note to Immigration and Customs Enforcement, thanking the agency for its assistance in his release. And at a noon news conference at the headquarters of Big Brothers Big Sisters of New York City, joy and gratitude prevailed. For the first time since his 1996 sentencing, Mr. Wu found himself face to face with the judge who had fulfilled his promise to stand by him.

“I simply want to say to Qing, ‘Welcome home,’ ” Judge Corriero said. “This has always been your home — New York City has been your home. We’re so proud of what you’ve accomplished and the way you have endured to come back.”

The judge, who grew up in the same Chinatown neighborhood 40 years before Mr. Wu, recalled how the sight of Mr. Wu’s mother, Chang Juan Wu, at the sentencing reinforced his decision not only to hold the teenager responsible for his crimes, but also to give him a chance at redemption. Like his own mother, she was a seamstress in a garment factory, struggling to raise her son in a new land.

“This is an American story,” Judge Corriero said. “And Qing is a model of what America can do.”

This article has been revised to reflect the following correction:

Correction: March 12, 2010


Because of an editing error, an article on Thursday about the release of Qing Hong Wu, an immigrant detainee who was pardoned by Gov. David A. Paterson for offenses committed when Mr. Wu was 15, misstated the timing of his reunion with his mother and other relatives. It was 11 p.m. Tuesday, not Wednesday. Read more!

Migrant Children/Children of Migrants

I remember when I was on maternity leave some eleven years ago and living in Oakland, California. I would take my new baby and her older sister to the park almost every day, and sit on the edge of the sandbox while my toddler ran around and the baby played with the sand. I always found myself observing the half dozen or so Central American women that also came to the park each day along with the little American children whom they cared for so lovingly.I was keenly aware that these women had left behind their own children so that they could set off to the north in search of a better life because if they were better off, so would be their children. I had no doubt that these committed mothers sent home more than half of their modest wages to provide for their children’s food, clothing and education. It broke my heart that they likely had not seen their own offspring in years, and yet cared for the children of strangers as though they were their own without a hint of resentment.

I also recall a few years ago when I represented a live-in nanny from the Philippines. She’d been with the same affluent family for a decade and cared very deeply for her young charges. She meant so much to the American family by whom she was employed that the couple was absolutely committed to finding a way to keep their nanny in the U.S. in spite of the deportation charges she faced. However, the woman had also left behind her own children. She showed me a box full of letters and photos that her kids had sent her over the many years since she’d come to the United States seeking better opportunities. The progression of photos indicated that the children had grown from toddlerhood to adolescence since she’d left her native country. She had her son’s graduation picture from secondary school, and letters in which he thanked her for making his education possible with her remittances from the U.S. Her younger daughter wrote of her achievements as well, and in the photos she showed off the lovely clothes her mother’s income had made it possible for her to wear. But both children longed desperately to see and hold their mother again, and hoped that day would come soon.

I then think of a wonderful film I saw some years ago about an Ethiopian mother, a Christian woman, living in a refugee camp, who turned over her ten year old son to the care of an Ethiopian Jewish mother whose own son of the same age had just died. The Christian mother gave up her boy knowing that if he were Jewish, he would be resettled in Israel with his adoptive mother, and this would guarantee his well-being. So the mothers exchanged their son’s identities and a Christian boy was buried on the day a Jewish boy left the miserable camp for a new life in Israel. The good-bye between the Christian mother and her son was a heartbreaking scene matched only by the deeply moving moment at the end of the film when the adult son, who became a doctor, returns to the refugee camp and immediately recognizes his elderly mother.

It simply amazes me the sacrifices mothers all over the world make so that their children may live a better life than they, even if this means they must leave a beloved child behind. The mothers in Haiti who, after the recent earthquake, were willing to hand over their children to the American missionaries who promised them good lives is yet another example of this selfless act.

Now, I’ve run across an article in the Los Angeles Times about a Mexican mother who sent her four year old girl to the U.S. with a smuggler in the hope that the family would be reunited. The girl’s mother and father had lived in the U.S., having left behind their kids two years earlier, but understandably, this mother missed her children too much and went back to Mexico to retrieve them. She then paid a smuggler $4500 to take her children north. Unfortunately, the greedy smuggler demanded more money and kept the young daughter as ransom for an additional $7,000. He even abused the child. It is every mother’s worst nightmare, though fortunately in this case, the mother wisely contacted the authorities (obviously risking her own deportation) and the girl was located and reunited with her parents.

There is a movie, Which Way Home, I have not yet seen (though I did hear an interview with its director about the difficult circumstances of interviewing and filming an obviously needy child while maintaining an ethical distance from the subject of one’s film). The film addresses the migration of unaccompanied children across the Mexican border, and it was nominated for an Academy Award. According to a press release, “…each year about 8,000 children are apprehended trying to enter the U.S. without their parents, frequently led by smugglers. The trip is long and physically dangerous. Many children do not survive. Those who do are often exploited by police, smugglers, and other adults, … yet these children risk their lives to come to the U.S. in the hopes of finding new parents, their own parents, or a life on their own. They flee abuse, persecution, severe violence, human trafficking, hunger, homelessness and poverty. Frequently both their governments and families have failed to protect and care for these children in their home countries.”

I can’t help but wonder how many tears I’ll shed watching this one. Read more!

The Crisis in Prisons

Imprisonment in this country, whether it is called immigration detention or criminal incarceration, has clearly reached crisis proportions as I’ve pointed out in previous posts. The link below provides similarly troubling information on criminal incarceration pursuant to the “war on drugs,” which the U.S. has waged against its citizens since it was declared some twenty years ago by President George H.W. Bush.

Today, one in every 100 adult Americans is in prison for a criminal offense. We finance a criminal incarceration and immigration detention system that our country cannot afford and have moved further and further away from rehabilitation for those with drug addictions. There are also very disturbing racial disparities in the criminal system which are also apparent in the immigration deportation process. More than 60% of the prison population are from racial and ethnic minorities. One in every 36 Hispanic adults and one in every 15 black adults are in prison. See, http://restorefairness.org/2010/03/want-to-know-whats-wrong-with-the-war-on-drugs/. Read more!

A Glimpse at Turn-of-the-Century Immigrant Life

While visiting my family in Greenwich Village on a beautiful, sunny weekend, I walked over to the Lower East Side Tenement Museum for a peek at another era in this working-class neighborhood between the Williamsburg Bridge and the restaurants of Little Italy, and not far from the bustle of Chinatown. It was well worth the time. See, http://www.tenement.org/ (a virtual tour is available). During an extremely informative 75 minute guided tour, I was immersed in the lives of two recently arrived immigrant families who once lived in the simple, three-room apartments on the first floor of a narrow brick tenement. One family, Julius and Nathalie Gumpertz of Germany, survived the Panic of 1873, and the second, Adolfo and Rosaria Baldizzi of Italy, who resided just next door some fifty years later, endured the Great Depression.

While the museum's well-stocked gift shop (which includes posters stating "Irish Need Not Apply") and its ticket office are in a new structure at the corner of Orchard and Delancey Streets, the museum gives tours of 97 Orchard Street, a tenement built in 1863 which was home to 7000 people during its seventy year lifespan in this densely populated immigrant neighborhood. The tenement is four stories high-- not including the basement that was once a thriving German beer pub. Visitors can take a separate tour of each floor where there are four small apartments with a shared water closet in the hall. As our very personable guide informed the tour group immediately, although we associate the term tenement with poverty, it is simply, as defined by New York State law, a building which houses three or more unrelated families. Hence most New Yorkers have always lived in tenements.

In its earliest days, the Orchard Street tenement's dark hallways and windowless rooms were lit only by candlesticks and heated with dusty coal. Tenants relied on a four-stall outhouse behind the building, which they unfortunately shared with the bar's patrons. Water-borne diseases were prevalent, and the Gumpertz' young son died of diarrhea while a resident of the tenement. When gaslight was introduced, the walls of the narrow and stark entry hall were decorated with painted medallions depicting tranquil pastoral scenes which belied the chaotic street view just beyond the front door, as well as with other adornments that served to entice new tenants. By the 1930's, the tenement's residents enjoyed cold running water in their apartments, and were provided with a toilet on each floor. The Baldizzi's apartment was updated with a large interior transom-like window between the sunny front room and the windowless kitchen. This allowed for the much needed flow of air and light in an era when tuberculosis was a constant worry.

The tenement was ultimately abandoned in 1935 when the landlord refused to replace the thick mahogany banister which ran the length of the stairway between the first and second floors with one made of metal in order to conform with a newly enacted building code to prevent fire hazards. Apparently, the required renovation was much too expensive for the owner to incur during the Depression, thus the tenement remained vacant for fifty years, except for the store fronts at street level.

The museum was created and the tenement slowly restored in the second half of the 1980's after its purchase by an enterprising woman dedicated to bringing the immigrant stories back to life. In 1992, it opened its door to guided tours of the three-room flats occupied by an array of hopeful families arriving in the United States during the country's largest waves of immigration. What is perhaps most impressive is that the museum strives to locate the ancestors of the families who resided in the tenement in order to faithfully re-create the lives that existed within the walls of those tiny apartments. Therefore, visitors are privy to sentimental family stories, and glimpse at personal objects. For example, we learn that Julius Gumpertz is presumed to have abandoned his wife and three young daughters, an action that was not so uncommon during this particularly troubled economic period. However, when Nathalie Gumpertz inherited $600 from her father-in-law in Germany, she was able to move her family to the Upper East Side of Manhattan. And a Gumpertz' descendant, who worked for Cantor-Fitzgerald in 2001, was killed in the World Trade Center on 9/11. Similarly, the Baldizzis' now elderly granddaughter, Josephine, donated a photo of herself as a girl playing on the roof of the building, as well as the solemn portraits of her Sicilian great-grandparents, which rest peacefully on a chest of drawers in the living room of the apartment on Orchard Street, long after the family moved on to better opportunities in Bensonhurst, Brooklyn. The museum has also captured Josephine Baldizzi's voice on tape recounting her vivid memories of the cozy kitchen and her grandmother's extraordinary cleanliness.

Perhaps one of the points that most impressed me during the tour was when we were told about Adolfo Baldizzi, a talented cabinetmaker who remained unemployed for over four years during the Depression, and was at the mercy of prejudiced "welfare" workers who treated immigrants with disdain. In order to receive the Government assistance made available by FDR's Administration, Baldizzi had to purchase fake identification to prove his U.S. citizenship, which, of course, he did not have. I looked around the room and saw my fellow tourists nodding with understanding when the tour guide explained Baldizzi's desperation. It seemed obvious to everyone that this poor man's actions were wholly justified under the circumstances. I couldn't help wonder, though, why it is that sometimes current generations of Americans forget the struggles of their heritage, and appear unable to empathize with the sadly similar plights of today's immigrants. Read more!

Cruel and Unusual Punishment

In May 2008, the New York Times and the Washington Post disclosed the tragic, yet potentially avoidable, deaths from inadequate medical care of 83 immigrants held in civil detention by the Department of Homeland Security (DHS). Recent reports confirm that there have now been 107 deaths in detention. As I stated in an article I published on this issue two months after the stories broke, the deaths are not only legally troubling, but must also lead us to wonder about the ethical foundation of a nation where such inhumane tragedies occur. According to one of the articles published in 2008 about the lamentable medical attention in detention facilities, a nurse who had previously worked in such a facility was quoted as saying that “scary medicine” was practiced there. She then emphasized, “You don’t treat people like that. There has to be some kind of moral fiber.”

The deaths in immigration detention centers are very troubling. In one, a Guinean national fell and fractured his skull. Instead of being treated, he was shackled and taken to solitary confinement where he was left unattended for 13 hours, unconscious and foaming at the mouth. He died after four months in a coma. One woman originally from Barbados, but a permanent resident of the U.S. for 30 years, was denied medication for high blood pressure while detained. She died from an enlarged heart due to chronic hypertensive disease. A German citizen, who immigrated legally to the U.S. at the age of six, died when a virulent bacterial infection, easily treatable with antibiotics, attacked his heart. Of course, there are 104 more such tales of pain, misery and death. And all were perhaps treatable had an official paid attention and properly done his or her job.

In a comprehensive report on detention facilities released on October 6, 2009, former senior DHS official, Dr. Dora Schriro, revealed that most detainees are held under circumstances inappropriate for immigration detention’s noncriminal purposes. Consequently, the Obama Administration pledged to reform the system to reflect its true nature as a civil detention system, though this has not yet happened. Moreover, as if the potentially preventable deaths of human beings weren’t abhorrent enough in and of themselves, the ACLU has announced that it, along with the New York Times, obtained documentation through a Freedom of Information Act request which indicates that government officials systematically covered up the abuse that contributed to the untimely deaths of immigrants in federal civil custody.

Now, along with human and civil rights organizations’ demands that DHS be held accountable for the poor conditions in detention facilities, one of the cases involving a death in detention has reached the U.S. Supreme Court. In Hui v Castaneda, the Court is called upon to determine the legal remedy available to sue the federal Government for providing inadequate medical care.

In March 2006, Francisco Castaneda, a citizen of El Salvador, was held by DHS in California when health officials discovered a lesion on his penis and recommended a biopsy. DHS denied the request, and Castaneda was given only ibuprofen to soothe the intense pain he suffered. Ultimately, he was released from detention, but died of penile cancer after his cancer had remained undiagnosed for the year he was in immigration custody.

Castaneda’s estate brought what is called a Bivens action against the federal Government and individual employees of the Public Health Service, which administers health care in detention facilities. A Bivens action allows one to sue the Government for constitutional violations. In this case, Castaneda argued that his Fifth and Eighth Amendment rights were violated given the Government’s deliberate indifference to his health and purposeful denial of treatment. Before a lower court, the Government basically argued that it and its employees, acting within the scope of their employment, were immune from being sued under the U.S. Constitution. Instead, the Government claimed that the only legal remedy available to Castaneda was a medical malpractice action under the Federal Torts Claim Act (FTCA), which limits the damages to which a claimant is entitled. The lower Court disagreed with the Government’s position, so the Government appealed to the U.S. Court of Appeals, but again lost.

The U.S. Supreme Court agreed to hear this important case in September, and it was argued on March 2, 2010. A decision will likely be issued before year’s end, and if favorable to Mr. Castaneda, it may have enormous impact on the issue of health care in detention. In addition, immigrant rights’ advocates will continue to assertively call upon the Government to reform its regime of detaining non-citizens. Read more!

More Thoughts on Detention

As a follow-up to my post below, Support the '"Dignity not Detention" Campaign, I wanted to add some relevant information I came across in a report released in September 2009 by the Migration Policy Institute (MPI).

The authors of the MPI report cite facts obtained from Immigration and Customs Enforcement (ICE) by an Associated Press reporter through a Freedom of Information Act (FOIA) request.

ICE responded to a FOIA request filed by AP reporter Michelle Roberts on January 25, 2009 with the following information, which Ms. Roberts published in an article dated March 16, 2009.

· Of 32,000 ICE detainees held one year ago, 18,690-- or 58%-- did not have criminal convictions. In other words, these individuals were held in immigration custody simply for civil violations of immigration law, such as oversatying a visa or entering the U.S. illegally, and not because they'd been convicted of a criminal offense which, under immigration law, renders a non-citizen deportable. As such, they should not be deemed a danger to society;

· It costs an average of $141 per night to detain an immigrant, a figure that is $50 higher than the figure cited by Detention Watch Network (DWN)on its website a couple of years ago.

In addition, the MPI report states that in 1994, prior to the passage of the "mandatory detention" provision of law described in the post below, 6785 non-citizens were detained by immigration authorities each night. By 2008, the number had risen to 33,400. In only three years, that the cost to taxpayers of such an overzealous detention policy is $1.72 billion, the same figure cited by DWN. The total number of immigrants detained in 2008 was 378,582.

For more information: The MPI report is entitled, “Immigration detention: Can ICE Meet Its Legal Imperatives and Case Management Responsibilities?” by Donald Kerwin and Serena Yi-Ying Lin

For Michelle Roberts’ article see, “Immigrants Face Long Detention, Few Rights,” Associated Press, March 16, 2009. Read more!

Support the "Dignity not Detention" Campaign

Imagine a legal system in which a person must spend more time incarcerated for civil charges than for criminal offenses. Such a system exists. It's called immigration detention. The Detention Watch Newtork (DWN) has launched a campaign to end this unjust practice, calling on the Government "to halt the expansion of the U.S. immigration detention system and demand that immigrants are treated with full respect for their human rights and dignity." See, http://www.detentionwatchnetwork.org/DND_about

According to DWN, immigration detention costs the Government an annual $1.7 billion, and the practice has resulted in more than 300,000 people being detained each year. Those detained by immigration authorities include individuals who have no criminal background. They are simply held on civil violations of immigration law, such as overstaying a tourist visa or entering the U.S. illegally. However, even those who have been convicted of crimes in the past do not deserve the excessively harsh detention terms which exist under current law. One of my "green-card" holding clients, as an example, was convicted a couple of years ago of a drug possession. The county court ordered him to participate in an intensive drug rehabilitation program instead of serving a term of imprisonment. When he relapsed by smoking a joint, he was sentenced to six months in the county jail, but was released for "good behavior" after serving four months. Unfortunately, he's now been in immigration custody for thirteen months (and counting) while fighting to remain in the United States as a permanent resident. It makes no sense that he should now be held for over one year on a civil deportation charge, when a criminal court deemed that six months of jail was an appropriate sentence for his wrongdoing.

When Congress enacted the "mandatory detention" provision in the 1996 immigration law, it stripped immigration authorities and judges from conducting an individualized assessment of whether a noncitizen subject to deportation constituted a flight risk or a danger to the community. The law demands that even permanent residents with strong ties to the U.S. must be detained during the entire course of their removal proceedings, including any appeals they may take. Yet permanent residents are quite unlikely to abscond. They have strong ties to an American community, having lived here legally-- many since childhood. They often have parents, spouses or children who are citizens or permanent residents of this country. They have nowhere to go but home, where they may even have a job waiting for them. Clearly, if they were released from detention, even on a bond, they'd no longer be burdens to the taxpaying public. In addition, in my experience, most noncitizens detained by immigration authorities on account of a criminal offense have been convicted of non-violent drug charges. As such, they pose no threat to the community. Despite all of these common-sense considerations, permanent residents convicted of most criminal offenses are legally subject to mandatory immigration detention even when they have available to them a defense against deportation.

Asylum seekers are also among those who are detained under our current immigration regime. As I've previously detailed in my January post, Happy New Year?, detention clearly frustrates an asylum applicant's ability to prepare a meritorious claim for protection and defend him or herself against deportation to a country where persecution is feared. Furthermore, the vast majority of those seeking refuge in the U.S. have no criminal background and consequently, present no danger whatsoever to our society. Many also have family or friends in this country willing and able to provide them with shelter, food, and other financial needs such that it is unjustifiably costly to keep them detained at Government expense.

When Congress passed the 1996 law, it seemed convinced that if immigrants were not detained during the deportation process, they would flee and thus frustrate the Government's objective to remove them from the U.S. if an immigration court found them deportable. It's not clear, though, that this notion was based on anything other than pure anecdote from the former Immigration and Naturalization Service. It's now time to reconsider this law and its repercussions.

Today immigration detention is a multi-billion dollar industry and the private sector stands to benefit extraordinarily if this inhumane and nonsensical practice continues (for more on this particular issue, see the excellent website: http://www.businessofdetention.com/ ). Like other powerful special interest groups, the prison-industrial complex would no doubt unleash a ruthless lobbying campaign to keep the current detention system in place. However, it is the only one who would clearly benefit from more detention. We the people, as the DWN Campaign announces, "have a responsibility to uphold our core values: dignity, human rights, and due process of law -- principles that are fundamental to a democracy." Read more!

FGM Comes to America

In a landmark case decided on June 13, 1996, the Board of Immigration Appeals, the appellate tribunal which issues precedential opinions in immigration law, held that the practice of female genital mutilation (FGM) could be the basis for an asylum claim by women who seek refuge in the United States. FGM is a extremely painful and incapacitating procedure, usually crudely administered, in which portions of the female genitalia are cut away as a rite of passage to marriage. As such, the case was enthusiastically heralded by immigration advocates who had been attempting for years, with much resistance, to establish the legal merit of persecution claims which were unique to women. Consequently, I am horrified to know that today in the United States, American women willingly choose to mutilate their own genitalia for mere fashion, and cosmetic surgeons greedily embrace the practice without fully knowing its implications. See, http://womensmediacenter.com/blog/2010/02/cosmetic-vaginal-surgeons-clueless/ ("Cosmetic Vaginal Surgeons Clueless" by Angela Bonavoglia at a "first-ever" conference on what they hope is a growing field, surgeons showed an appalling indifference to how women experience sexual pleasure.)

In the case entitled Matter of Kasinga, Fauziya Kasinga, a Togolese woman whose tribe practiced female genital mutilation, fled her native country before she was subjected to the brutal procedure, which was usually imposed when a girl turned fifteen years of age. Kasinga had initially been fortunate since her father was opposed to the practice and had protected his daughter from circumcision. Unfortunately, when he passed away, her paternal aunt, who became her primary caretaker, planned to force Kasinga, by then seventeen years old, to undergo FGM before the consummation of her marriage to a 45 year old man with three wives. Instead, Kasinga fled Togo and sought protection in the U.S. She claimed asylum as soon as she landed at Newark International Airport in December of 1994.

When Kasinga arrived in the United States, there were no precedent cases involving FGM or other barbarities suffered by women worldwide. While asylum law recognizes that one may be protected if she has a well-founded fear of persecution on account of her social group, women had never been deemed a social group. The concern was that women constituted much too broad a group. A social group, as defined in U.S. asylum law, has common characteristics that members of the group either cannot change, or should not be required to change, because such characteristics are fundamental to their individual identities. Therefore, Kasinga’s attorney had to very carefully craft a social group that was narrow enough to convince an immigration court that her client should be protected from deportation to Togo on account of the suffering that would be inflicted upon her as a result of tribal custom. She did so. The lawyer argued that Kasinga feared persecution because she was a young woman of a certain tribe who had not yet been subjected to the FGM practiced by her tribe, and who opposed the practice. Since then, many more women fleeing FGM have gained protection in the U.S. from this torturous procedure.

Among the evidence presented by Kasinga in her asylum claim was a letter from a cultural anthropologist who was familiar with Togo and Kasinga’s tribe. He opined that her new husband would have expected the young woman to have a clitoridectomy-- requiring complete removal of the clitoris-- prior to marriage. Kasinga testified that the type of FGM practiced by her people involved cutting the genitalia with knives, which caused excessive bleeding and permanent damage. Background material submitted in the case indicated that the FGM procedure causes life-threatening bleeding, infection, urine retention, shock and damage to the urethra and anus. Indeed, I recall once representing a man from Guinea whose daughter, at the age of ten, had died after undergoing this barbaric procedure. He had been opposed to it, but the child’s mother had believed it was an obligatory custom and had stolen her away one day, taking the girl to her native village to be circumcised. The man broke down and cried telling me about his little girl’s tragic death.

FGM may also cause permanent loss of genitalia sensation. In the article cited above, describing the new American trend, the author points out that cosmetic surgeons who are engaged in the practice claim that by carving, burning, cauterizing, and stitching the female labia, clitoris, vaginal canal, and other related areas they create " longed for 'designer' vaginas" which enhance sexual gratification. This notion is contradicted by experts in female sexuality. In addition, the surgeons "insisted that for a labiaplasty to provide 'a complete aesthetic look,' some of the skin around the clitoris has to be excised. Yet, this can be the cruelest cut, leaving the woman to experience pain, not pleasure, when the clitoris swells and she is sexually aroused."

In the Kasinga case, the Board of Immigration Appeals acknowledged that FGM lacks legitimate justification and is condemned by the international community. It could now be argued that the United States, along with several African nations, stands out as an exception to such worlwide condemnation. The astonishing difference between African countries and the U.S., of course, is that while some American women appear to embrace the practice of mutilating their genitalia for a superficial benefit, and surgeons shamefully profit from it, African women have no choice. According to the Board's reasoning in the Kasinga case, human rights organization recognize that women in Africa have little legal recourse and may face threats to their freedom, threats or acts of violence, or ostracism if they refuse to submit to the violent traditional practice of female circumcision, or attempt to protect their daughters from the procedure. The absurd vanity of U.S. women who choose have a labiaplasty or vaginoplasty, as the surgeries are called here, and the greed of doctors who perform them, clearly trivializes this critical issue. The American quest for youthful beauty undermines the severe threat that women abroad face, as well as the concerted effort by human right advocates to outlaw this practice across the globe. In fact, the pathetic comments of the cosmetic surgeons quoted in the article (For example, one says, "that surgery for a vagina that is 'all stretched out…helps and saves relationships.'") remind me of what a colleague once told me about an FGM case she once handled. When the immigration judge denied asylum to her client, who had suffered genital mutilation in her native country, he absurdly reasoned that the procedure was no more serious than when an American girl gets her ears pierced at the mall. Read more!