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!

Very Lost in Translation

As a follow-up to post below, "Lost in Translation," please take a look at this troubling report on translation in immigration courts across the nation from the National Language Access Advocates Network (February 2, 2010). The conclusion is that immigration courts fall far short of the requirement to provide competent interpretation to those with limited English proficiency by failing to provide interpretation for critical encounters, and by providing inaccurate interpretation. http://brennan.3cdn.net/5c3459d5d38a1553e3_e3m6bxf8z.pdf. I would also note that I received a comment to my post from a certified translator who confirmed my perceptions about the sometimes poor quality of courtroom translation, and quite correctly pointed out that professional translation is much more that simply being bilingual. As someone who has done some translation work in the past, I can attest to that!

The above-cited report concludes:

Language Access Problems in Immigration Court

The Immigration Courts run by the Executive Office of Immigration Review (“EOIR”) at the

Department of Justice are bound by the language access requirements set out in DOJ’s 2002

Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against

National Origin Discrimination Affecting Limited English Proficient (“LEP”) Persons.1 At a

minimum, they must provide competent interpretation for LEP individuals during all courtroom

proceedings, and during all critical encounters outside the courtroom.2 Immigration Courts fall

far short of this requirement by failing to provide interpretation for critical encounters, and by

providing inaccurate interpretation.

● No interpretation for exchanges between non-LEP individuals Interpreters convey only the

statements of non-English-speaking respondents and witnesses, and questions or statements

addressed directly to them by the court or attorneys.3 The result is that LEP individuals cannot

comprehend the testimony of English-speaking witnesses and exchanges between the

Immigration Judge and the Department of Homeland Security Trial Attorney or their counsel.

Failure to interpret exchanges between a lawyer and judge

almost led an attorney to accept a removal order without his

client’s consent

“The attorney of one man from El Salvador almost accepted an

order for removal rather than the voluntary departure, which has

much less dire consequences, because none of the exchanges

between the lawyer and the judge were translated.”4

● No interpretation outside the courtroom In many Immigration Courts, LEP individuals are

not given information in any language other than English when they arrive at the court for the

first time. The EOIR employees who interact with the public often do not speak to people in any

languages other than English, and they do not provide interpretation of any kind. As a result,

many people arriving at court for the first time do not understand what they need to do or where

they need to go.

● Interpreters translate incorrectly

Immigration Judge found that a Buddhist woman’s testimony

was not credible, because of interpreter error

“[A]n interpreter . . . paraphrased a Buddhist woman’s reaction to

being persecuted as ‘Oh, my God.’ The Immigration Judge relied

on this inaccurate translation of her reaction in finding that she

2

was not credible, stating that Buddhists do not believe in God and,

therefore, a Buddhist would not have used that phrase.”5

Interpreter error gave an Immigration Judge the mistaken

impression that a respondent had started fires at a demonstration

“[A]n inaccurate translation led an Immigration Judge to believe

mistakenly that the immigrant had started fires at a demonstration,

when in fact the immigrant testified that fire trucks were called to

hose down political demonstrators.”6

A respondent had a miscarriage after her husband beat her; the

interpreter wrongly stated that the woman had an abortion

“[A] Spanish interpreter from Spain, while interpreting for a

Honduran woman, made an important error. She was using a

word in Spanish that can mean either ‘miscarriage’ or ‘abortion.’

He simply stated in English that she had an abortion, rather than

clarifying with her which meaning was correct. She had actually

had a miscarriage, after being beaten by her husband. This

difference in meaning was actually quite important to her case.”7

● Interpretation is conducted in the wrong language

Immigration Court forced to reopen Kanjobal speaker’s removal

proceeding because interpretation was provided in Spanish

Francisco Juan Martin, who was born in Guatemala, appeared

pro se at a master calendar hearing on August 16, 2007. Although

Mr. Martin’s native language is Kanjobal, the court interpreter

interpreted the proceedings into Spanish only. Consequently, Mr.

Martin was unable to understand the judge’s order that he must

apply for cancellation of removal by September 25, 2007. When

he failed to apply by that date, he was ordered removed from the

country. It was only after the BIA heard his appeal that he was

allowed to apply for cancellation.8

Immigration Judge called French interpreter for Mooréspeaking

man

In a case at the Varick Street Immigration Court in New York City,

“a man . . . spoke Mooré, a dialect from Burkina Faso. The

immigration judge attempted to call a Mooré interpreter, but was

unable to work the phone system to contact one. Instead, the

immigration judge called a French interpreter. The detainee

barely spoke French, and the difficulty of communication over the

phone only exacerbated the misunderstanding and inability to

effectively convey questions and answers.”9

3

Detainee languished in detention while Immigration Court tried

to find a Mam-speaking interpreter

In a case at the Varick Street Immigration Court in New York City,

“a Mam-speaking detainee was provided with only a Spanish

interpreter and was therefore unable to comprehend basic

questions. The case was continued and the detainee was returned

to detention until the later date.”10

● Interpreters act unprofessionally Law students observing the Varick St. Immigration Court

in New York City have seen interpreters engaging in “audible private cell phone conversations

while court was in session; tardiness by over an hour; flipping through magazines while

interpreting; and, inappropriate comments about cases and detainees after detainees were taken

from the courtroom.”11

Interpreter refused to interpret respondent’s testimony

“[A]n interpreter . . . flatly refused to translate his client’s

testimony about being attacked and disfigured by anti-Semites in

the Ukraine; the interpreter opined, ‘that sort of stuff doesn’t

happen in the Ukraine.’”12

● Inadequate telephone and videoconference technology exacerbate problems Even the

most sophisticated telephone technology makes it impossible to catch the visual cues on which

interpreters rely to determine the meaning, style and tone of the speech to be translated.13

Speaker phones, the least expensive and most commonly used forms of courtroom remote

interpretation technology,14 have the additional drawbacks of poor sound quality.15 Without the

proper equipment, speaker phone interpreting also prevents respondents from communicating

confidentially with counsel through an interpreter.16

Immigration Judge slams telephone interpreter system

“In one instance, the telephone interpreter simply became

unresponsive midway through the hearing. After repeated attempts

to call out to her, the immigration judge hung up and tried several

times to dial back into the service, getting a busy signal each time.

Frustrated, the judge scheduled a continuance and promised to

arrange for a live Korean interpreter on that date. Months later,

the same judge colorfully expressed his annoyance with the

telephone interpreter service, referring to it as ‘crap’ and ‘a

waste.’”17

While interpreting through videoconferencing has the potential to address some of these

concerns, its implementation in Immigration Court been problematic. In many courts,

videoconferencing technology consists of a webcam stream, fed to a television monitor split into

several frames.18 Often, the resulting image is small, grainy, blurry, and does not convey the

visual cues on which interpreters rely. Many videoconferencing systems also preclude

confidential attorney-client communication. Immigrants using interpreters are more likely to

4

experience problems with videoconferencing and to have a higher rate of removal orders during

Master Calendar Hearings.19

What DOJ Should Do

A. Require interpreters to interpret all speech occurring in an immigration proceeding.

B. Ensure that Immigration Court personnel who deal with the public can communicate with

LEP individuals.20

C. Update the Immigration Judge Benchbook regarding the following issues, and train all judges

in those protocols:

1. the prohibitions on interpreter paraphrasing or opining;

2. the need to ensure that the interpreter speaks the specific language and dialect spoken by

the LEP individual;

3. the importance of interpreters’ adhering to ethics requirements such as conflicts rules;

and

4. how to ensure that interpretation is effective in videoconferences and over the telephone.

D. Improve interpreter training and screening.

E. Improve the monitoring of court interpreters by:

1. asking for additional types of feedback on the Contract Interpreter Performance form;

2. soliciting feedback from attorneys; and

3. using trained, impartial personnel to conduct spot checks of interpreter performance.21

F. Curtail the use of telephone interpreting, and of videoconferencing when interpretation is

necessary.22 Ensure that when they are used appropriate equipment is provided.23

G. Update EOIR’s Language Assistance Plan as required by Executive Order 13166 (and

contemplated by EOIR’s initial Language Assistance Plan), to incorporate standards for

Immigration Court language access that are at least as high as the standards DOJ has set out

for state court language access in its LEP guidance for DOJ recipients.24

1 Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin

Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41455, 41459 n.4 (Dep’t of Justice

June 18, 2002) (“DOJ LEP Guidance”) (noting that “[p]ursuant to Executive Order 13166, the meaningful access

requirement of the Title VI regulations and the four-factor analysis set forth in the DOJ LEP Guidance are to

additionally apply to the programs and activities of Federal agencies, including the Department of Justice.”); DOJ

Coordination & Review Section, Departmental Plan Implementing Executive Order 13166, § 4.23, available at

http://www.justice.gov/crt/cor/lep/dojimp.php#6.%20Executive%20Office%20for%20Immigration%20Review

(web page last updated Jan. 10, 2001) (“EOIR will review its existing language assistance services to ensure that

its LEP practices are consistent with the compliance standards for adjudicatory systems receiving federal financial

assistance as set forth in the LEP Guidance for DOJ Recipients”).

2 See, .e.g., 67 Fed. Reg. at 41471.

5

3 See Muneer Ahmad, Interpreting Communities: Lawyering Across Language Difference, 54 UCLA L. REV. 999,

1026 n.87 (2007); Chicago Appleseed, Assembly Line Injustice (2009), p. 19, available at

http://www.appleseeds.net/Portals/0/Documents/Publications/Assembly%20Line%20Injustice.pdf.

4 Detainee Working Group of the New York University Chapter of the National Lawyers Guild, Broken Justice: A

Report on the Failures of the Court System for Immigration Detainees in New York City (Vol. I: Sep. 2006-May

2007), p. 18.

5 Appleseed, Assembly Line Justice (2009), p. 19, available at

http://www.chicagoappleseed.org/programs/immigration_court_reform.

6 Appleseed, Assembly Line Justice (2009), p. 19, available at

http://www.chicagoappleseed.org/programs/immigration_court_reform.

7 Email from Meredith Rapkin, Villanova School of Law (Jan. 7, 2010).

8 In re Francisco Juan Martin, No. A091 418 436, 2009 WL 263117 (BIA Jan. 2, 2009).

9 Detainee Working Group of the New York University Chapter of the National Lawyers Guild, Broken Justice: A

Report on the Failures of the Court System for Immigration Detainees in New York City (Vol. I: Sep. 2006-May

2007), p. 18.

10 Id.

11 Id.

12 Appleseed, Assembly Line Justice (2009), p. 21, available at

http://www.chicagoappleseed.org/programs/immigration_court_reform.

13 67 Fed. Reg. at 41462. See also National Center for State Courts, Future Trends in State Courts (2009), p. 37,

available at www.ncsc.org/Web%20Documents/FutureTrends2009.pdf; National Association of Judiciary

Translators and Interpreters, Position Paper: Telephone Interpreting in Legal Settings (2009), at 3, available at

http://www.najit.org/Publications/Position%20Papers/Telephone%20Interpreting.pdf.

14 See EOIR, Immigration Judge Benchbook, Introduction to the Master Calendar, available at

http://www.justice.gov/eoir/vll/benchbook/tools/Purpose%20and%20History%20of%20MC.htm (“It is often

necessary at master calendar hearing to use the services of the contract interpreter by means of the telephone

which is located on the bench. . . . If the interpreter is not on hand, the immigration judge must use the telephone

to contact the interpreter, who will then assist by speaker phone.”).

15 National Association of Judiciary Translators and Interpreters, Position Paper: Telephone Interpreting in Legal

Settings (2009), at 3, available at

http://www.najit.org/Publications/Position%20Papers/Telephone%20Interpreting.pdf.

16 National Center for State Courts, Future Trends in State Courts (2009), p. 37, available at

http://www.ncsc.org/Web%20Documents/FutureTrends2009.pdf. In federal judicial proceedings, the respondent’s

right to confidential attorney-client communication through the aid of an interpreter is guaranteed by federal law.

28 U.S.C. § 1827(d) (requiring courts to provide interpreter services where the respondent’s LEP status inhibits his

“comprehension of the proceedings or communication with counsel or the presiding judicial officer.”). Some

states, including New Jersey and Wisconsin, also require telephone interpreting equipment that enables

confidential attorney-client communication. See Wisconsin State Courts, Guide to Telephone and Video

Interpreting (Sept. 6, 2006), available at www.wicourts.gov/services/interpreter/docs/telephoneinterpet.pdf; New

Jersey State Courts, Operational Standards for Telephone Interpreting (Jan. 2001), at 5, available at

https://njcourts.judiciary.state.nj.us/web0/directive/vicops/timan1.pdf.

17 Findings of National Lawyers Guild Detainee Working Group regarding observations of Varick Street

Immigration Court 2008-2009 (provided by Gene Smilansky 10-16-09).

18 See Assembly Line Injustice, p. 22.

19 Legal Assistance Foundation of Metropolitan Chicago & Chicago Appleseed Fund for Justice, Videoconferencing

in Removal Hearings: A Case Study of the Chicago Immigration Court (2005), p. 41, available at

http://appleseeds.net/Portals/0/Documents/Publications/Center%20Pubs/Chicago%20Videoconferencing%20Repo

rt.pdf.

20 To assess the ability of Immigration Court staff to communicate with LEP individuals, EOIR could send bilingual

testers into the public areas of Immigration Court. For successful examples of such language access testing in

New York City, Washington, D.C.’s Office of Human Rights, and the social services agencies of Wisconsin and

Washington State, see Laureen Laglagaron, Is This Working? Assessment and Evaluation Methods Used to Build

and Assess Language Access Services in Social Services Agencies (2009), pp. 25-28,

http://www.migrationinformation.org/integration/language_portal/files/Language-Access-in-Social-Services.pdf;

Washington, D.C. Office of Human Rights, Implementation of the D.C. Language Access Act of 2004: A

6
Read more!

Lost in Translation

Translation is a frustrating topic for me, and given that many of my clients or their family members speak a language other than English, Spanish or French-- the three languages I am able to speak-- I must deal with translators quite often in my work.

Obviously, a translator is essential to developing and preparing a case for someone with whom I cannot communicate. I have had the luck of finding excellent interpreters at times when I've needed them, and all have been generous enough to volunteer their time. However, more often than not I must rely on family or friends of client's to assist me, and this causes almost inevitable problems.

Among my greatest frustrations is when a translator, and it is usually a male relative in such circumstances, interferes with the statements made by an older woman, believing she cannot explain herself well enough to me to satisfy my legal objectives. Unfortunately, legal strategy is not always common sense, and despite good intentions, when a translator attempts to analyze and interpret potential testimony, or help refresh the memory of a hesitant witness, the effect can be counterproductive, if not completely detrimental to the goal.

Here is an example of an all too common scenario I've faced over the years:


I am preparing the testimony of the elderly mother of a client who faces deportation. Her testimony is critical in some way or another to her son's case and I need her to testify in court. Perhaps she will suffer if he is deported because he takes care of or financially supports her; or perhaps she can simply create a sympathetic image of a son who has been convicted of a criminal offense. The mother is often uneducated and functionally or completely illiterate in her own language, and neither speaks nor understands English at all. A younger male relative will step in to translate, and will emphasize to me that this woman hardly attended school and has a poor memory as well. I tell him not to worry, and instruct, "let me work with her; just translate everything she says. Do not interpret any of her words; simply translate them verbatim even if they seem to make no sense." And then I begin. I ask the first question which requires a brief response. Instead, the nervous mother launches into a quick paced dialogue with the interpreting relative. After a few minutes, I tell them to stop the conversation. "What did she say?" I ask. His answer is usually something like, "well, I was telling her that she needed to be more precise because you wanted to know.... and since she cannot recall, I told her...." Ultimately, he never tells me what it was that she actually said, just what he wanted her to say. I want to scream. Instead, I remain calm and repeat, "please just let her say whatever comes to mind and tell me what she says. Let me attempt to obtain a clarification if one is needed. That is my role as a lawyer conducting a direct examination." We begin again and perhaps get through one or two more questions when the back-and-forth between my witness and the relative repeats itself. In the end, I truly have no clue what this woman will be like as a witness in the courtroom.

I once had such an encounter with a kind and supportive mother whose testimony was critical to the case I was handling at the time. The woman did not know exactly how old she was, or how old her children were. This is not uncommon in her country where birthdates seem irrelevant to many, and I've dealt with the obstacle before. I also knew it was not all that important to know these exact facts. There were documents we could use to prove those points. However, the translating relative felt it was his obligation to give her the answers when I asked similar questions, such as where does so-and-so live. The mother only knew whether her children lived in the U.S. or somewhere abroad and that was good enough for me. I politely explained to my translator that he would not be able to testify on her behalf in the courtroom, so if she did not know an answer, she should simply say so. I would work around the dilemma. I further told him that, on the other hand, if I did not know everything she was telling me, I could not properly prepare follow-up questions to lead her along in the testimony in a way that would feel comfortable and logical to her. "I know," he said, "but you have to understand..." "No, no, I do get it!" I wanted to exclaim, "but it does not matter." Instead, I remained agreeable, and assured him that I could work around cultural and other sorts of limitations. They key was knowing what my witness said.

A few days later, I again met with my client's mother, along with a young female and an older male relative. I was informed immediately that the young woman would serve as the interpreter since she was a better speaker of English than he. This was fine by me. We started the mock direct examination, and much to my delight, the young woman told me exactly what the mother was saying. "Where does your daughter live?" "Minnesota," my witness answered without trouble. "Describe the day you had surgery," I asked a bit later, and she launched into a clear explanation of her fear and pain, and the fact that her devoted son had been at her side the entire time. Her responses were perfect! No, they were not necessarily sophisticated, but she was relevantly answering the question in her own words and I was getting the testimony that I needed to prove my point. I was thrilled. And then, after four or five questions and answers, I heard the male voice interrupt. He was beginning a dialogue with the mother, undoubtedly telling her to be more detailed about this or that, or reminding her that something really had not occurred that way, but this way. The young woman scolded him, "shhhh," she said, which she probably followed with a "let her speak," that I could not understand in the ensuing exchange between the three of them. I was quite happy to have an ally.

This is not to presume that a female interpreter will necessarily be an ally. One of the worst experiences I've ever had with a translator involved an asylum case from a region of the world with a small population, but one that is very vocal and united in light of the persecution they have suffered. The translator was not related to my client, although she nonetheless felt quite personally committed to his asylum claim. Her solidarity was such that she fed him a story of past persecution that he had never experienced in an attempt to guarantee his success at gaining asylum. Thus, unbeknownst to me, I was preparing a case based on a fact that was untrue, but one that would, from the translator's perspective, make an otherwise weak claim more viable. The preparation of this case had been frustrating precisely because the interpreter and my client had engaged in a lot of conversation together from which I was totally excluded, and when she would finally give me my client's response to the question I'd posed, it invariably seemed much shorter and less descriptive than what I'd heard. As much as I urged her to tell me everything my client had stated, she insisted on giving me a history of her people's plight and why the client would suffer if deported. Her explanations were filled with examples of what might happen to this man if he were returned, but none seemed to refelect his own testimony. Thankfully, when my client and I appeared in court, without the translator's presence, and I was just about to file the asylum application, the client stopped me. He admitted that the application contained a statement that was untrue; one that the translator had urged him to make. While the timing of this admission was not ideal, I was glad to have had the opportunity to correct the application. In the end, this client was granted asylum based on the strength of his own story and the fear of future persecution.

Immigration courts use translating services to fill the need for communication with non-speakers of English. I honestly have no idea what kind of education or qualifications these interpreters have, or what training they obtain prior to be sent into a courtroom where their language skills may determine the outcome of a case deeply affecting another's life; but I have consistently had doubts about the abilities of some of them.I am fortunate to speak two "foreign" languages, so I can monitor interpretation in French and Spanish, and have noted inaccuracies on several occasions. I recall one French translator called to testify in a case involving an African client. She had overheard my client and I speaking French in the lobby while we waited for the proceedings to begin. Thus when we were in the courtroom, I noted that each time she translated his words, she looked at me for approval. A couple of times, when she saw my eyebrows furrow at her translation, she became flustered. Once I had to intervene, telling the immigration judge that the translator had made an error and I wanted the exchange repeated for the record. After a bit more testimony had been taken, and within less than fifteen minutes into the hearing, the translator admitted to the judge that she was incapable of the task. I was shocked. What if I had not been there? What if an attorney who did not speak French had entrusted this woman with his client's fate? A pro bono attorney who has handled two French-speaking African asylum cases for my agency, has twice asked for the disqualification of the same French translator, sensing immediately that something was not right in the testimony. The translator often stumbled on words, and asked the court for permission to look up basic vocabulary in the dictionary. This keen lawyer, without knowing a word of French, knew that the translation differed from what he knew about the case, and was wise enough to intervene.

I represented a Somali speaker in an asylum case before the immigration court. He testified that in the course of the torture he'd endured, he had been burnt with a sword that had been heated in the flames of a fire. The court-appointed translator, obviously not knowing the word for sword, interpreted the word as "a long knife used in olden days." When my client, who also spoke French, stated that he knew someone who had traveled to "Cote d'Ivoire," and the translator did not understand this French word, the judge allowed me to clarify for the record that my client was referring to the French-speaking West African nation of Ivory Coast. Sadly, when my client later used the term "Cote d'Ivoire" once more in his testimony, the translator again paused in confusion.The judge then admonished her that she'd already been told this meant Ivory Coast. In an attempt to clarify the matter, I asked the translator to tell my client to use, from then on, only the Somali word for Ivory Coast. She looked at me and said, "we do not have that word in Somali." I was dumbstruck and could no longer contain my frustration, and I responded sarcastically, "You have no word for a fellow country on the West Coast of Africa?" "No," she affirmed.

When I explain to the men who are detained by Immigration and Customs Enforcement their rights in the courtroom, I tell them that the court will provide them a translator if they do not speak English. I consistently advise them to advise the judge if they do not understand the translator, or for example, if she or he speaks an incomprehensible dialect of their language. "Do not be shy about this," I warn them since the interpreter serves as their voice in the court, and if the message to or from the judge is not clear, it could have a serious impact on the outcome of their cases. I only wish that translators were given the same warning. While immigration attorneys are permitted to examine an interpreter about his or her competency to translate in court, they rarely ever do so. Hence it is even difficult to predict whether a judge would react favorably to such lengthy questioning during each hearing, as it would take time away from an already burdensome docket. Instead, lawyers tend to react when courtroom communication is obviously suffering, as did the volunteer attorney in the French-speaking African asylum cases. Of course, this strategy assumes that we can recognize a flaw. For now, however, it is as though the entire immigration court system, including defense lawyers, is confident that the agencies which provide translation services and interpreters are competent to assess and hire a legal interpreter based on his or her linguistic capabalities in English and a second language. Experience tells me that this premise sorely needs to be addressed. Read more!

Once an "aggravated felon," always an...

I have written numerous times about the the aggravated felony provision in U.S. immigration law on this blog (See My Message to Congress, below). The consequences of being deemed an "aggravated felon" are drastic, and have caused upheaval in too many lives.

I am very pleased that the press has now addressed this issue in such a thoughtful way as the article posted here. Indeed, Nina Bernstein of the New York Times has, in the past, written about immigration law and revealed the more shameful aspects of the law and the system. http://www.nytimes.com/2010/02/19/nyregion/19judge.html?ref=todayspaper

Judge Keeps His Word to Immigrant Who Kept His
By NINA BERNSTEIN
Published: February 18, 2010

"The judge and the juvenile had grown up on the same mean streets, 40 years apart. And in fall 1996, they faced each other in a New York court where children are prosecuted as adults, but sentenced like candidates for redemption."


February 18, 2010
Judge Keeps His Word to Immigrant Who Kept His
By NINA BERNSTEIN
The judge and the juvenile had grown up on the same mean streets, 40 years apart. And in fall 1996, they faced each other in a New York court where children are prosecuted as adults, but sentenced like candidates for redemption.

The teenager, a gifted student, was pleading guilty to a string of muggings committed at 15 with an eclectic crew in Manhattan’s Chinatown. The judge, who remembered the pitfalls of Little Italy in the 1950s, urged him to use his sentence — three to nine years in a reformatory — as a chance to turn his life around.

“If you do that, I am here to stand behind you,” the judge, Michael A. Corriero, promised. The youth, Qing Hong Wu, vowed to change.

Mr. Wu kept his word. He was a model inmate, earning release after three years. He became the main support of his immigrant mother, studying and working his way up from data entry clerk to vice president for Internet technology at a national company.

But almost 15 years after his crimes, by applying for citizenship, Mr. Wu, 29, came to the attention of immigration authorities in a parallel law enforcement system that makes no allowances for rehabilitation. He was abruptly locked up in November as a “criminal alien,” subject to mandatory deportation to China — the nation he left at 5, when his family immigrated legally to the United States.

Now Judge Corriero, 67, retired from the bench, is trying to keep his side of the bargain.

“Mr. Wu earned his second chance,” the judge wrote in a letter supporting a petition to Gov. David A. Paterson for a pardon that would erase Mr. Wu’s criminal record and stop the deportation proceedings. “He should have the opportunity to remain in this country.”

The letter is one of dozens of testimonials, including appeals from Mr. Wu’s fiancée, mother and sisters, who are all citizens; from the Police Benevolent Association, where Mr. Wu used to work; and from his employers at the Centerline Capital Group, a real estate financial and management company, where his boss, Tom Pope, calls Mr. Wu “a shining star.”

But under laws enacted in 1996, the same year Mr. Wu was sentenced, the immigration judge hearing the deportation case has no discretion to consider any of it. For Mr. Wu, who remains in a cell in the Monmouth County Correctional Institute in Freehold, N.J., the best hope may be that the Manhattan district attorney will retroactively allow him the “youthful offender” status that would scrub his record clean.

“The law is so inflexible,” said Judge Corriero, now executive director of Big Brothers Big Sisters of New York City and the author of “Judging Children as Children: A Proposal for a Juvenile Justice System.” The 2006 book calls for a justice system that reduces future crime rates by nurturing those who can learn from their mistakes, instead of turning them into career criminals.

That was his aim, he said, when he presided over the special court known as the Manhattan Youth Part, his views shaped by his own childhood. The son of a longshoreman and a factory seamstress, he grew up in a tenement across the street from the Tombs — the Manhattan House of Detention — and was schooled by both Roman Catholic missionaries in Chinatown and the Mulberry Street Boys. While he avoided serious trouble, he saw how easily a careless choice could lead to culpability instead of accomplishment.

The neighborhood pressures were not so different decades later, when Mr. Wu hung out at video arcades while his mother worked long hours in a garment factory and his father cooked at Chinese restaurants out of state. A friend from that period recalls seeing a shoe print on the teenager’s back from a street beating. He looked to his pals for self-defense that turned predatory.

In December 1995, he and two other teenagers, one of them pretending to have a gun, took a jacket from a young boy. In two episodes in April 1996, he and others robbed elderly men of money, knocking one down and punching another; he took part in a fourth mugging that June, records show.

“I’m sorry and I really hope that you will forgive me for all the pain and trouble I made them go through,” the teenager said when he was sentenced.

The judge called the case a tragedy, according to the court transcript. “But this is not the end,” he told the youth, who had scored in the 98th percentile in mathematics. “This is really the beginning of a new period for you. I want you to educate yourself. Continue to read, follow the rules.”

“You will want to get a job and become a meaningful, constructive member of society to help your family,” he added. “I will be there to make sure that you can.”

Long after Judge Corriero had forgotten the case, Mr. Wu remembered those words. In 2007, confident that he had redeemed himself, he applied for citizenship, disclosing his record. Later, learning he was not only ineligible but also deportable, he tried to withdraw his application. But immigration authorities summoned him to their headquarters at 26 Federal Plaza.

“He said, ‘If I don’t show up, I’m going to be labeled a fugitive,’ ” his sister Jenny Gong, 31, recalled.

So he went to the interview, and was led away in shackles.

“Being permanently banned from the U.S., that’s the biggest stress I’m under,” Mr. Wu said in a telephone interview from jail. “That’s the harshest penalty any person can ever receive.”

Under the 19th-century legal doctrine still at the heart of much of modern immigration law, however, neither detention nor deportation counts as punishment, just as administrative remedies for the failure to exclude an undesirable foreigner in the first place, experts say. The definition of undesirability has changed over time, but the 1996 laws eliminated most case-by-case judgment in favor of expanded categories of criminal convictions.

The shift was part of a national crackdown on crime, and the perception that immigration judges had been too lenient, allowing noncitizen felons to remain in the country and sometimes commit new offenses.

“This administration is committed to smart and effective immigration policies that place an emphasis on the deportation of criminal aliens,” Brian P. Hale, a spokesman for Immigration and Customs Enforcement, said Thursday. “While we are not able to discuss any individual cases, ICE will enforce the law, and if an individual has been convicted of a serious or dangerous crime, we will take the appropriate action, including deportation.”

But the policy is hard for Mr. Wu’s supporters to understand. “We’re losing a great guy — for nothing,” said Mr. Pope, director of Centerline’s Internet technology operations. “Qing Wu is somebody you’d interview two or three times in your entire career. Nobody works as hard and as well as Qing.”

Mr. Wu’s mother, Floren Wu-Li, 57, blames herself. Interviewed in the tiny sixth-floor walkup on Spring Street where Mr. Wu lived with his fiancée, she acknowledged that he would have derived citizenship if she had secured it for herself while he was still a minor. But she was naturalized only four years ago, when she was allowed to take the test in Chinese.

“We were very poor and worked very hard and had no time to look after Qing when he was a child,” she said, weeping as her daughter translated. “I had no time to learn English back then.”

Now widowed and ailing, she cleans at a casino in Connecticut but relies on her son’s financial help. His fiancée, Anna Ng, 27, a compliance officer for a hedge fund, said they had been scrimping to save for a place large enough for her parents and his mother to move in. Those savings are now going to legal fees.

Ms. Ng said she would want to follow Mr. Wu to China if he were deported, but speaks no Mandarin. “What if we end up homeless?” she asked.

His sister spoke up: “New York City is his home.”

To Judge Corriero, the case shows the long reach of laws that force judges to impose indelible convictions on adolescents — often, as in Mr. Wu’s case, based on guilty pleas made without knowledge of the dire immigration consequences to follow.

Efforts to free Mr. Wu, championed by the New York chapter of OCA, an Asian-American civil rights organization, now include a motion to vacate his 1996 guilty plea as legally defective because his lawyer wrongly advised him that it would not affect his green card. The group’s president, Elizabeth OuYang, also plans on Friday to meet with Peter Kiernan, counsel to the governor, to discuss the petition for a pardon, which Mr. Kiernan said was “being seriously considered.”

The heart of the case lies in a letter Mr. Wu wrote to the judge when he was detained in November, recalling their pledges to each other years ago. When Judge Corriero checked the old court transcript, he said, he felt a mix of pride and anger.

“Here was a young man who did everything we expected of him,” he said. “It really cries out for some kind of justice.”

. Read more!

GOOD COP, BAD COP: Protecting Criminal Informants

Cops are unpredictable. On a frigid winter day, I had the pleasure of having lunch with two very amiable police officers at an all-American diner to discuss the case of one my detained clients who faced deportation from the U.S. Both were very supportive of his plight.

Normally defense attorneys do not have much positive interaction with law enforcement officers. In my twenty-year career I've never had a cop as a witness in a case and, as my lunch companions admitted, they'd never once testified for the defense during their even lengthier careers. But this time, these police officers were up to the task, and I did not need a subpoena to convince them. They were genuinely motivated by a deep sense of commitment to the ideals of their profession--that of saving people from harm. They were going to help me by testifying on behalf of a noncitizen criminal informant who was in removal proceedings and risked deportation to his native country, where he'd likely get killed for cooperating with these men in the arrest and prosecution of some of his compatriots for murder and drug dealing. So there I was preparing two cops as witnesses over a meal of BLT sandwiches and fries.

The paradox in all of this, of course, is that, over the years, countless clients who've had frequent and unfortunate contact with law enforcement have shared with me their tales about dirty cops who set people up, rough them up, or lie on the witness stand. Added to this is my personal bias with how the police are charged with enforcing certain laws that I consider unfair, such as those that penalize the simple possession of marijuana, when their attention could be directed towards more serious societal problems. I was also clearly baffled by the fact that any law enforcement types would be sympathetic to my client since he had a relatively lengthy criminal history. I found it almost comical that I could not convince the officers, who were extremely sensitive to my client's fate, that other clients of mine with similar rap sheets deserved equal consideration. While I easily argued to them that it was unjust for the federal Government to try to deport a mentally ill Vietnamese refugee who had been convicted of only two petty larcenies his life, they did not agree that someone who'd only once sold a vial of crack should be spared from deportation. Or at least they had a good time kidding me about this because when I brought up the latter scenario, they immediately looked at one another and said "deport 'em," and then laughed heartily at my expense.

Moreover, it even struck me as humorous that neither of the officers considered my client a violent man, even though he'd been convicted of a couple of assaults. When I confronted the two cops about these offenses, they shrugged their shoulders indifferently and said that the injury in question was a minor knife cut on someone's hand that did not even require medical attention; but since they'd had a victim and a weapon, they were required to make an arrest. It goes without saying that the immigration judge who heard this testimony on the witness stand was even more stunned than I by the explanation. The judge stared straight at the cop, raised his voice, and said, "you think he's not violent?" "No," answered the officer without emotion. Honestly, the response pleased me, especially at that moment, because I think that the seriousness of a client's crime is sometimes overblown by judges in proportion to the prospect of his deportation and its severe consequences. When one must regularly consider the spectrum of possibilities, with cold-blooded murder at one end and simple possession of a drug for one's own use at the other, it is easier perhaps to put such things into perspective.

In a striking contrast to the men with whom I shared a lunch, I recently came across a couple of news reports, one from National Public Radio (NPR) and the second from the Associated Press (AP). Both stories portray a different type of law enforcer, one that is quite dissimilar from my own two police witnesses: the one who treats noncitizen informants as mere "commodities" to be used as necessary and then thrown away despite any potential risk to their lives. See, http://www.npr.org/templates/story/story.php?storyId=122357350 and http://www.google.com/hostednews/ap/article/ALeqM5hGqZSpgYyTCZProzX5ulr7vYoTSQD9DRO6V80 The articles confirm that there exists a special non-immigrant, or temporary, visa for those who assist local, state or federal agencies with criminal investigations and prosecutions. These "S" visas must be obtained by a government entity on behalf of an informant who has or will assist in law enforcement activity, and only 200 such visas are available annually. One report cited in the NPR piece divulges that the visas are underutilized. However, the lack of use has clearly more to do with the reluctance, or downright refusal, of the authorities to apply for them than the need for them on the part of criminal informants.

Interestingly, in both of the articles, the local cops, like those with whom I'd had lunch, are relatively sympathetic to the foreign-born informants and believe that they should be immunized from deportation. "I thought I should do right by them," said one police officer quoted in the AP story about Argentinean siblings who served as informants to Immigration and Customs Enforcement agents in Saugerties, NY. The federal agents, in contrast to local police, seemed to completely lack empathy for the informants, and the report underscores how the feds even reneged on past assurances to protect the Argentineans and sponsor them for an S visa. This echoed the situation I faced with my "good" cops, who had sought assistance with my client's case from federal agents, only to have their efforts quite unexpectedly rebuked. The same officer quoted by the AP, though he had never before dealt with ICE, best summarized the reaction, "I assumed it was just another law enforcement agency and the rules would be the same." I myself have certainly learned that law enforcement agencies do not necessarily share the same objectives.

If an "S" visa is not sought for a criminal informant, then the only possible relief from the threat of removal is under immigration laws which protect those who fear persecution or torture if returned to their native country. These provisions are critical to informants since, in most cases, they have betrayed their fellow countrymen or women, and if returned to their homeland, they will not only face severe retribution for collaborating with the police, but also, because of corruption and collusion between cops and criminals in some societies, will not be protected from the harm.

Unfortunately, under immigration law it is very difficult to make a case for protecting criminal informants from deportation to where their lives may be at risk. There are a couple of major hurdles. First, most informants are criminals themselves. It is obvious that a successful informant working for the police is not going to be someone without a criminal record. Such a spotless person could never effectively infiltrate a gang, a drug operation or any other criminal enterprise. Criminals are very apprehensive about whom to trust. However, the law holds that if one has certain criminal convictions, she or he is ineligible for asylum and may only resort to other protective provisions under immigration law. These have higher burdens of proof, and are thus much more difficult to obtain.

Secondly, in a short-sighted, but precedential legal decision, Attorney General Ashcroft ruled in 2001 that criminal informants were not eligible for any special protection from removal when they feared death upon return to their native countries. The A.G.'s decision leaves the clear impression that the life of one who has been involved in crime is of a lesser value, and warrants no protection from harm even if she or he cooperated with law enforcement. This is a troubling precedent. Only one federal court, the 8th Circuit Court of Appeals, has so far challenged the Attorney General's reasoning by affording a criminal informant the right to make a claim for protection in the United States. In that case, the criminal informant had worked closely with U.S. authorities against powerful Mexican drug dealers. He was also able to prove that the Mexican police were so closely aligned with the drug cartels such that he would not receive any protection from the legal authorities in his native country. This scenario is not so uncommon.

I recognize that it may be difficult for some to appreciate the plight of a person who has violated the law; but when a deal is made, it should be respected. Tit for tat as they say. You rub my back and I'll rub yours. If a person puts his well-being on the line to help law enforcement, he or she deserves help in return, especially when one's well-being is a stake on account of their cozy relationship with the police. While cop shows would have us believe that solving crimes is a black and white endeavor-- the good are always good, and the bad always bad-- the real world indicates that the colors are much more blurred and muddy. As summarized in the NPR piece above, if we don't help those who have been informants in the past, how are we going to recruit other people to find drug traffickers and other serious criminals? Or perhaps it's simply about basic human decency.

I might finally add that the good cops paid for my lunch. Read more!

SHAME

A crazed G.I. was arrested for waterboarding his 4-year-old daughter because she wouldn't say her ABCs.

There are so many stories behind this one story. Here are just a few: It confirms the consequences of the offensive notion, which was propagated by the former Administration, that waterboarding is not torture. If it is not torture and it is simply an innocuous tool of interrogration, then isn't it just another means of “discipline” as well?

Who told this man that his four year old child should even know her “ABCs” at this age? We have become so sadly focused on our children’s achievements that we’ve lost sight of what is normal development. Our schools "teach for the test," and we end up with unrealistic expectations that all kids develop at the same rate.

War has extraordinarily severe effects on the emotional well-being of those who fight, and if we choose to wage war, we need to properly address the physical and mental health consequences on soldiers, their families, and our society.

http://www.nydailynews.com/news/national/2010/02/08/2010-02-08_us_soldier_joshua_taber_waterboarded_his_daughter_4_because_she_couldnt_recite_a.html

U.S. soldier Joshua Tabor waterboards his daughter, 4, because she couldn't recite alphabet: police
BY Helen Kennedy DAILY NEWS STAFF WRITER
Originally Published:Monday, February 8th 2010, 9:05



A crazed G.I. was arrested for waterboarding his 4-year-old daughter because she wouldn't say her ABCs.

Cops said Army Sgt. Joshua Tabor, 27, who served 15 months in Iraq, admitted to punishing his daughter by holding her down on the kitchen counter in suburban Washington State and repeatedly pushing her head backward into a full sink.

"He explained she's deathly afraid of water," said Todd Stancil, police chief in Yelm, Wash.

"He would lay her down on her back and push her head into the water right up to her eyeline. He was open about it. He did it all the time. To him, that was an acceptable form of punishment - because she wasn't able to say the alphabet."

Stancil said neighbors told cops that he also ran water over the flailing girl's face, taking her to the edge of drowning, but Tabor denied that.

"It was hot! The water was hot!" the girl said, according to the police report.

Tabor, who was arrested Jan. 31, will be arraigned Feb. 16.

"We originally booked him on third-degree assault, but if he did put the water over her face, that would constitute a more tortuous type of crime," Stancil said. "We are looking into those allegations."

Waterboarding, in which water is poured into an immobilized target's nose and mouth, was used by the CIA on prisoners in Iraq until President Obama banned it in January 2009.

Tabor is out on $10,000 bail and restricted to his base, Ft. Lewis, in Tacoma, Wash.

He was arrested after his girlfriend called the cops at 2 a.m. to say he was drunkenly stalking around the neighborhood brandishing his Kevlar helmet and threatening to break windows.

The girlfriend then told cops Tabor beat his daughter. Cops found the little girl hiding in the bathroom.

"She had just multiple bruises all over her body, from the ears to the legs," Stancil said. "She said, 'Daddy did this.'"

The child had only been in her father's court-ordered custody for two months.

Her father had barred her from contacting her mother's parents, who had raised her. When police put the worried grandma on the phone, the little girl cried from happiness, the police report says. Read more!

Studying Arabic is a National Security Threat

I previously posted a piece about my cyberspace Arabic studies, as well as one on "flying-while-Arab", so when I came upon this article, I knew I had to share it. Thank goodness I never pulled out my "Arabic for Dummies" book at an aiport.

http://www.post-gazette.com/pg/10042/1035098-84.stm

TSA sued for detention over Arabic flashcards
Thursday, February 11, 2010
By Spencer S. Hsu, The Washington Post




WASHINGTON -- A student at Southern California's Pomona College filed a federal lawsuit Wednesday alleging that he was abusively interrogated, handcuffed and detained for five hours at Philadelphia International Airport in August because he carried a set of English-Arabic flashcards as part of his college language studies.

Nicholas George, 22, represented by the American Civil Liberties Union and its Pennsylvania chapter, charged that three Transportation Security Administration officers, two Philadelphia police officers and two FBI agents violated his constitutional rights to free speech and freedom from unreasonable seizure.

"I want TSA agents to do their job to keep flights safe. ... I don't understand how locking me up and harassing me just because I was carrying the flashcards made anybody safer," Mr. George said in statement released by the ACLU. "No one should be treated like a criminal for simply learning one of the most widely spoken languages in the world."

TSA spokeswoman Ann Davis said she could not comment on pending litigation. FBI and Justice Department representatives in Washington, where most of the federal government was closed because of a severe winter storm, did not immediately respond to requests for comment on the suit, filed in the U.S. District Court in Philadelphia.

Philadelphia police, who also were dealing with the storm, had no immediate comment.

According to the suit, Mr. George, 22, a college senior from Pennsylvania's Montgomery County, majoring in physics and Middle Eastern studies, was returning to school when TSA screeners randomly selected him for extra screening. When Mr. George emptied his pockets, he took out the flashcards.

Authorities detained him in the screening area for 30 minutes before he was questioned by a TSA supervisor, the suit states.

At one point, the supervisor asked him if he knew who committed the 9/11 terrorist attacks, according to the suit. Mr. George answered, "Osama bin Laden." The supervisor asked, "Do you know what language he spoke?" Mr. George replied, "Arabic." The supervisor held up the flashcards and said, "Do you see why these cards are suspicious?"

Mr. George said he was handcuffed and held for almost five hours, during which time he was questioned by two FBI agents, who asked if Mr. George was "Islamic" or a member of a "communist group," the suit said.

One agent concluded that Mr. George was "not a real threat," the suit states.

The Los Angeles Times contributed to this report.


Read more: http://www.post-gazette.com/pg/10042/1035098-84.stm#ixzz0fQqza3J6
And this is where to type the full blog post. Read more!

The Unknown

This piece was originally published in Bender's Immigration Bulletin (Vol. 13, No. 7) on April 1, 2008.

"I've never been apart from him," she said, trying to hold back the flood of tears gathering in the back of her throat and apologizing to me for the show of emotion. I was instantly struck by her statement since I'd rarely ever heard such vulnerability expressed by the detained men I counseled regularly about being deported. Although half of all migrants in the world are women, I now almost exclusively represent men, and they are stoic, or at least act invincible around me. "Let 'em deport me. I don't wanna be here anyway," they might say, though the incomprehension is visible in their frozen stare or nervous smile. Undoubtedly they tell their women not to worry while they struggle alone to make sense of what is happening. It's what men do best under pressure and it's exactly what her husband had told Aracely. "Everything's fine," he'd said to her persuasively when she visted him at the detention facility that afternoon, and those words clearly baffled her now. "How can it be fine if you told him what you have just told me-- that he will be deported?! That there's no solution." she asked me after I told her he'd already been advised about the situation. "He's trying to be strong and not worry you," I answered gently.

At first it was hard for me to understand that a woman might never have been separated from her man. I've been on my own for so long that I maneuver through daily life emotionally and economically, raising two kids, without a man and I seldom have a reason to cry. From the men at the facility I rarely hear about how life will be forever changed for a woman when he's gone. The men seem to talk only about themselves and how deportation will alter their world. I don't often hear about what sacrifices their women will have to make to keep the relationship intact when they are gone. Women always see things more broadly, and we communicate differently. I know that. We know about the domino effect, so it didn't take me long to register Aracely's fear.

I see the resilient women who visit men in detention. They come almost daily for several months, often with young children or infants in tow in the dead of our notorious winter. They drive for hours to this unknown farming town forty miles east of Buffalo where an unassuming, yet state-of-the-art, immigration prison was built. There they wait patiently in the lobby until their names are called just for a thirty minute conversation with the man of their lives, separated from him by a wall of plexiglass. Many of these women have also emptied their modest bank accounts to pay hefty attorneys' fees in a desperate hope of keeping their family together, not realizing that redemption is not a word in the immigration vocabulary. Then one day, I no longer see a familiar woman in the lobby and I know her man is gone, most likely forever.

It's clear that some men stopped playing a pivotal role in their partner's life long ago, and all they bring her is heartache. These women don't have a lot to lose anymore and they tell me so in no uncertain terms. They're fed up with the bullshit. But this sweet woman, Aracely, loved her man. He was probably devoted to her the way a man should be, or at least I hoped so given the tenderness she obviously felt for him. It was in her voice, in her breath, in her tears. I envied her feelings, and was deeply saddened by her predicament, especially since I was the one bringing such bad news to her. But I also felt relieved when I made her giggle by telling her that Marcos was being a typical macho when he confidently told her it would all work out. "You know how men are," I said "he doesn't want to worry you further." I realized it was his way of showing a commitment to her. As the man, he's supposed to ensure her well-being, and he knew instinctively how to handle it. That's how I knew he was devoted to her and she was right in feeling lost without him.

I told Aracely the choices she and Marcos had. They could both go back to El Salvador together, or she could remain in the U.S. for a while since her hearing would not be scheduled as quickly as his. She might be here another six months, and could stay with her family in Denver making plans for whatever came next. I knew the couple wanted to go back to Canada, where'd they'd lived the past few years, and six months might be enough time for her to accomplish that goal. Marcos could join her in Canada from El Salvador when his visa became available. Aracely didn't much like the second option. It meant time apart and she wasn't sure she could be alone for so long. They'd always been together she emphasized to me again. I understood and told her she had a few days to think it through. For now, she needed to get out of the dark motel room near the detention center where she'd holed herself up, sobbing and desperately dialing lawyers who didn't return her phone calls. It was time to go to Denver and surround herself with family. I had no doubt Marcos would be okay, and I could take messages back and forth between them. She seemed calmer and more lucid when she hung up the phone.

I wonder if I will ever hear from Aracely again. Usually I have little idea about the lives people have led in their native countries and during their migration. I'm told bits and pieces, as needed, to prepare a solid case for a defense against deportation. As a lawyer I see facts narrowly and sort through them quickly to find what I deem relevant. Sometimes I fear that knowing too much may overwhelm me in the end. Today though, like other times, I wish I could follow a person's story until the end. Until she reaches that point where everything truly is fine, but that is unlikely. I'm called to solve the problem facing a person in a particular moment, and when the crisis is over, so is our contact. It makes sense, even if it doesn't always sit well with me because I've become invested and am left wondering how someone I've met, even briefly, has sorted out her pain and confusion. Did another door really open when this one cruelly slammed shut behind her? Maybe I'll never really know, but the unknown is one of the hazards of this work. Read more!

The crazy system

As a follow-up to the post below on the prosecution of illegal entry, I am posting this critique, from a federal judge, on prosecuting immigration law violations. See, http://www.statesman.com/news/local/federal-judge-questions-immigration-prosecutions-216667.html.

From The American-Statesman of Austin, TX:

In an order filed Friday, a federal judge in Austin questioned U.S. prosecutors for seeking criminal convictions in court against some illegal immigrants, writing that the practice "presents a cost to the American taxpayer ... that is neither meritorious nor reasonable."

U.S. District Judge Sam Sparks wrote in a decision that it has cost more than $13,350to jail three men and noted that charging them criminally means additional costs and work for prosecutors, defense lawyers, court personnel and others.

"The expenses of prosecuting illegal entry and re-entry cases (rather than deportation) on aliens without any significant criminal history is simply mind-boggling."

He said the assistant U.S. attorney who prosecuted the case could not state "a reason that these three defendants were prosecuted rather than simply removing them from the United States." Read more!

Hikers: Crossing the Border Illegally is Unlawful

The story of the three Americans who are currently incarcerated and facing prosecution in Iran for allegedly crossing illegally into the country raises an interesting issue. Secretary of State Hillary Clinton and the hikers' families have stated to the media that the two men and one woman were innocently hiking through the rough terrain that separates Iraq from Iran, and inadvertently crossed the unmarked border into Iran. I believe that it's true they were hiking, but whether or not they accidently crossed the border, and whether it was indeed unmarked, no one but they will ever truly know, and I do not know what the Iranian law requires to prove this violation was intentional. Nonetheless, the trio seems like a group of young people who thrive on the adrenaline of adventure, given their imprudent choice to travel to Iraq at a time of war, so who knows whether they intended or not to enter Iran and take a look around. On the other hand, I do not believe, as the government of Iran accuses, that they were spies.

Moreover, I certainly understand the fear the three must feel about being incarcerated in a foreign country known currently for its human rights abuses against anti-government protestors. I also sympathize with their families' anxiety since the three are held so far away, in a country with which the U.S. has no diplomatic relations, and it appears little can be done other than patiently await a resolution of the cases. Having said this, one should also be clear about an important fact. The United States also detains and prosecutes those who allegedly cross our borders illegally. In fact, a recent report by Syracuse University's Transactional Records Access Clearinghouse (TRAC) indicates that the rate of prosecution in this country for victimless immigration violations is rising at an astonishing rate, while the prosecution of violent and other serious crimes is diminishing. (See, http://trac.syr.edu/whatsnew/email.091218.htm and excerpt below). These prosecutions allow law enforcement to blame a high crime rate on noncitizens, while failing to report the relative harmlessness of these offenses. Further, there has been an apparently disturbing decision made by the Governmentto dedicate fewer law enforcement resources to violent crimes and white collar crimes, such as securities and mortgage fraud. Curiously, this does not make the headlines the way the arrest of the three hikers in Iran does, even though it affects many more people who are likely to be equally confused and frightened about their predicament. In fact, 92% of immigration law violations prosecuted in fiscal year 2009 involved cases of illegal entry to the U.S.

Our 3000-plus mile border with Canada is mostly unmarked except at the various ports-of-entry maintained by Customs and Border Protection. If a noncitizen crosses that border at an undesignated location, he or she will set off a sensor which alerts Border Patrol of a potential illegal entry into the U.S. Once apprehended, the noncitizen is arrested and detained. Some are prosecuted for illegal entry and serve a jail sentence. Ultimately, the person falls back into the hands of the immigration authorities and is detained and deported, except for perhaps the very few who have a defense against removal, such as asylum. And their incarceration might last many months. So I must ask, why would another sovereign nation not be justified in detaining and prosecuting foreign citizens for the same offense? And why would Iran's sensitivity towards the United States' interference in its domestic laws be any less justified than if the situation had been reversed?

Several years ago I represented a very bright and accomplished woman, a permanent resident, who had been accused of smuggling two men into the U.S. The men, friends of hers, had been passengers in her car during a trip to Canada, and on the way back, they unexpectedly asked her to drop them off a few miles before the border so they could take a walk to get some fresh air. They told her that they would cross into the U.S. on foot at the required checkpoint. She had no reason to doubt their sincerity, so the three then agreed to meet inside the U.S. at a designated spot to conclude the trip home. The men, though they had visas to come to the U.S., ended up crossing into the U.S. at an unmarked point in the woods and were immediately arrested by Border Patrol. They then turned in my client and disclosed the location where she was waiting for them. For over six years this woman determinedly fought the charge that she had knowingly aided and abetted the men to enter the country illegally. I know that the emotional toll, financial expense, and the agony of never knowing how the complicated case would conclude overwhelmed her many times. During the pendency of the case, she could not travel abroad to visit her elderly, ailing parents. Fortunately, in the end, the charge was dismissed and the removal proceedings against her were terminated because the Government could not meet its burden of proof. This woman's story has never been told by press, has never been in the media, and I know that she's not alone in having felt that her life was turned upside down by an accusation which, ultimately, proved unfounded.

From the TRAC report:

"(21 Dec 2009) The latest Justice Department data show that federal prosecutions reached an all time high in FY 2009. The surge was driven by a sharp increase in immigration filings. According to timely case-by-case data obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC), overall federal prosecutions peaked at 169,612, up nearly 9 percent from the previous year.

But the increase in immigration filings was much sharper -- 15.7 percent. This means that such prosecutions now make up well over half of all criminal cases brought by the government. Meanwhile, the prosecution of other major crime categories such as drugs, weapons and white collar crime was up only slightly or had actually declined...

Because of the financial crisis that continues to grip the nation, the Obama Administration has sought to emphasize its concern about securities fraud, mortgage fraud and other such illegal activities. On November 17, for example, Attorney General Eric Holder held a news conference to announce the creation of a new Financial Fraud Enforcement Task Force to coordinate the government's response. (The Bush Administration had appointed a similar task force with little visible impact during a period when the public was concerned about the Enron abuses.)
The prosecutions of these kinds of white-collar crimes, however, have never appeared to have been a major concern of the Justice Department and the investigative agencies like the FBI and the Securities and Exchange Commission. In FY 2009, for example, Justice Department data showed there were only 178 securities fraud prosecutions. While up 22 percent from 2008, this figure still only represents about a third of what it was in 2002, when there were 513 such prosecutions. For another business category, corporate fraud, the data indicate a grand total of 82 prosecutions, down to about a quarter of what it was — 322 prosecutions — in 2003, the first year this category was used. Although such cases obviously are among the most difficult for the government to prove, they seem infinitesimal when compared to the 91,899 immigration prosecutions." Read more!

Sometimes I just don't get it...

My colleagues and I always get a kick out of the fact that when a woman calls us seeking assistance on behalf of a boyfriend; she always refers to him as her fiancé, whether or not there has actually been a marriage proposal. When I meet the “fiancé” at the detention facility where I work, I inevitably learn that the couple has been together for several years but have never wed, and probably never will. I then wonder whether I have lost touch of what this word means, or whether women use the term with me believing that I am more likely to take sympathy, and represent him in his deportation case, if she is his fiancée.  I suppose I can’t blame them for trying. They certainly seem genuinely dedicated to helping their man and that is a great asset to have.

On the other hand, it consistently baffles me when a family member spends an inordinate amount of time trying to convince me of how very busy he is, and how he may not be able to assist in collecting the supporting documents I need to mount a defense on the relative’s behalf. I just don’t get this. Do such people believe that deportation is not really possible? Or do they simply not care? I have certainly had family members who contact me in tears after a relative has been ordered removed to ask what more “we” can do, and whether this or that paperwork or witness might not help the case. When I tell them it’s too late, and ask where they were when I was repeatedly seeking their assistance, they sound dumbfounded. What is more, even when I do give a clear explanation that removal proceedings present a concrete risk, it's obvious that this news is still insufficient to motivate certain relatives to get involved in the matter. Thus I’ve come to believe that some loved ones do not truly comprehend that the threat of deportation is real.

Other times, it would appear that there are people who naively believe that we lawyers can defend an individual without any outside help, which leads me to conclude that there is a serious misunderstanding about what it is that attorneys do. First of all, we do not perform magic as I often tell my own clients. We apply the relevant law to a set of facts with which we are presented, and make arguments that benefit our client based on the law and the facts. While we must often be creative and determined, we cannot change the facts, and in order to prove our points, we need evidence. That evidence must come from our client and others who are material to the matter, either in the form of testimony or documentation. And when a client is detained, as mine mostly are, we must call upon family and friends to help retrieve the information that our client cannot access from jail. For example, we need names, phone numbers, and addresses. In my field, we also need birth certificates, “green cards” and naturalization certificates, which we do not have the ability to independently obtain. And the list goes on and on. I’d like to think that if one of my family members were ever in a legal predicament as serious as one involving arrest and detention, I would move earth and sky to cooperate in his or her defense. But, as I’ve learned, this sentiment is not always shared by others.

I clearly recognize that some families may be completely fed up with a relative’s behavior. After all, my clients have generally been convicted of a crime, and many times, several crimes, and then they are subject to deportation. I remember a woman I once called at her detained boyfriend’s insistence, and she reacted quite strongly to my request for help. “The only time that ‘s.o.b.’ calls me is when he’s in trouble and I’m just sick and tired of it. I could care less if they deport him.” I certainly understood her position and assured her that I did not expect her help. From what she candidly explained to me, it was obvious that she had been on the losing end of the relationship for several years, and I agreed with her that it was time to move on. Similarly, in another case, my client had ten siblings and not a single one showed up at his trial to show the court they cared about the outcome. Less than half of them had taken the time to even write a letter of support. While I never asked directly, it wasn't difficult to realize that the family had been addressing their brother’s “behavioral” issues (and there were quite a few), including a severe drug addiction, for many, many years. Perhaps they’d simply reached the end of their rope and believed that deportation wouldn’t be so harmful to him. I hope they were correct because he was, indeed, deported.

However, I also recall when a Jamaican mother from the New York City area brought a full van load of church members up to Batavia, some 400 miles away, to support her son’s efforts to remain in the U.S. The immigration judge was clearly impressed by this broad show of support. When he granted the man relief from removal, the courtroom erupted in a unanimous “hallelujah,” and a few “praise the Lord.” In another matter, eight members of a handsome and close-knit Guyanese family arrived at the court in Batavia to testify on behalf of their brother and affirm that he was a kind, caring and helpful person despite his isolated criminal act. And each of them was dressed impeccably for the occasion: suits and ties and dresses, as it should be. For some reason, believe it or not, it is not always obvious to people that one should dress formally to attend court. I was once told about a young man who turned up for a hearing wearing a t-shirt with a marijuana leaf on it. A kindly lawyer in the waiting room suggested to him that it would be wise to turn the shirt inside-out before entering the courtroom.

The role of family and loved ones in the types of cases that I handle can be critical and can never be underestimated. For this reason, I'm so troubled when there is a lack of cooperation for no apparent reason. I'm grateful, though, that the absence of support is an exception and not the rule. Most families, particularly mothers, wives and "fiancees," tend to go well out of their way to help the men in their lives when thet are in removal proceedings. Many must even find rides from neighbors, friends or others who own decent, reliable vehicles to make the eight hour trip from a New York City borrough up to Western New York. An especially charming Dominican mother once called me frantically at 8AM from the State Thruway to explain that her nephew's older model car had broken down on the way to Batavia for her son's 1PM hearing. She then called me every half hour or so to keep me apprized of whether the car had yet been towed, the necessary part located, and of the progress of the required repair. In the end, she never made it for the hearing. She called me in tears when she realized she would not get there on time for her son's "moment of truth." During the trial, I explained all of the mother's efforts to the judge, who was sympathetic and noted on the record her sincere attempt to be present in order to testify. Fortunately, the car was repaired by late afternoon, and both the mother and the cousin were there to greet my client when he was ultimately released from custody.

Not so long ago, a pro bono attorney explained to me how her client's mother, sister and brother-in-law had left their home in Missouri in the early hours of the previous morning to drive all the way to Batavia to testify on behalf of a Mexican man who'd suffered from a drinking problem which led to an arrest. The humble brother-in-law, who had worked in the fields side-by-side with her client for many years, testified that the man had always been praised by employers for his hard work, and that he would undoubtedly be re-hired by the grower if he returned to the town where the family lived. Moreover, stated the brother-in-law solemnly, he himself would take responsibility to ensure that his relative never again indulged in alcohol. The client was granted relief and released to make the two day drive home with his caring family.
Read more!

More on "Flying While Arab"

Does discrimination have to play a part in keeping America safe?
In a response to the December 25th bomb attempt on Northwest flight 253 to Detroit, the Transportation Security Administration announced a new screening policy that requires "enhanced screening" of passengers flying into the United States from 14 countries considered either “state sponsors of terror” or “countries of interest”. Many groups have reacted strongly to the directive, which carries on the pattern of profiling and alienating members of certain communities since 9/11. See, http://restorefairness.org/2010/02/does-discrimination-have-to-play-a-part-in-keeping-america-safe/.

From the Restore Fairness blog: With the exception of Cuba, the rule targets passengers, including U.S. citizens, that are traveling from Muslim-majority or Middle Eastern countries. The additional screening procedures including full body searches, pat-downs, scans and luggage inspections, in addition to the normal processes undertaken at the airport.

Many groups have reacted strongly to the directive, which carries on the pattern of profiling and alienating members of certain communities since 9/11. But the discriminatory rule is also considered an ineffective security measure.

In a briefing aptly called Targeting Needles, or Adding More Hay?,
Jumana Musa from the Rights Working Group pointed out that in the 1990s, when law enforcement began monitoring suspicious behavior instead of profiling based on race, arrests of targeted suspects actually increased even though fewer searches were conducted.
The ACLU shares similar concerns.

Electronic strip-searching of innocent people, racial profiling and bloated, poorly managed terrorist watch lists do not stop terrorist attacks, but they do infringe upon Americans’ rights and waste valuable resources…We must invest our security resources in investigations based upon reasonable suspicion of wrongdoing so we can more effectively identify and stop attackers before they get to any airport.

These strategies are not only smarter but save valuable resources. And they avoid racial and ethnic profiling, an unreliable means of identifying criminal behavior. Similar examples have yielded no results, like the one cited in this advocacy letter.

These new procedures parallel the National Security Entry/Exit Registration System (NSEERS), put into effect shortly after 9/11. Despite tracking at least 83,000 individuals from Middle Eastern and Muslim-majority countries, the NSEERS program did not result in a single terrorism conviction. Neither NSEERS nor the new TSA standards, make us safer because they divert attention and resources away from legitimate leads and identifying suspicious behavior.
But there are other consequences besides profiling. According to the ADC,
During the past decade, similar racial, ethnic and religious profiling tactics and practices have time and again misdirected precious counterterrorism resources, damaged foreign relations with key allies, fueled the fires of extremists by giving them an excuse, stigmatized communities, and most importantly did not have any discernible impact on security. Based on precedent, these new directives will be no different than these past practices and their adverse consequences; and while such directives may appear to make us feel safer, the reality is that they discriminate against innocent persons and divert attention from real threats.

An editorial by Farhana Khera of Muslim Advocates sums it up best,
President Obama has admitted that we didn’t connect the dots in the Abdulmutallab case. Federal authorities overlooked such clues as the alleged bomber’s improper attire for the Detroit winter, purchase of a one-way ticket, the United Kingdom’s rejection of his visa request and his own father’s efforts to alert authorities about his son’s recent extremist tendencies…We shouldn’t focus on what a terrorist looks like, but on what a terrorist acts like.. Read more!

The Impact on Kids of Deporting their Parents

An important Urban Institute study, released today, concludes that the children of deported parents "experienced severe challenges, including separations from parents and economic hardships that likely contributed to adverse behavioral changes..." and "[g]iven that any overall abatement in the need for enforcement is not likely and that in many cases arrested unauthorized immigrants will have children, most of whom are U.S. citizens from birth, the nation must act to protect these children. Balancing enforcement imperatives against the best interests of children is a challenge the country must face squarely, whether or not the immigration system is more comprehensively reformed."

See, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf. Read more!