by Farhad Sethna, Attorney, © 2015
Both the Wall Street Journal and the New York Times reported on Christmas Eve (how ironic!) that the US Department of Homeland Security (DHS) has announced a plan for ICE (Immigration and Customs Enforcement) to conduct immigration raids across the country starting January 2016.
Children and families who entered the USA at the Southern Border in 2014 and 2015, and who failed to show up for immigration court hearings.
Tens of thousands, if not over a hundred thousand undocumented aliens – both minors and families – have been estimated to have entered the USA during 2014 and 2015 across the southern border. A majority of these people are coming from countries with endemic criminal and human rights violations – Guatemala, Honduras, and El Salvador. They are seeking asylum in the USA. Individuals and families who are apprehended at the southern border are detained by ICE in prison facilities in border states including Texas, New Mexico, and Arizona. Some are even held (believe it or not), at a detention facility in Pennsylvania!
I had volunteered at a detention facility in Dilley, Texas in June 2015. I wrote about the deplorable conditions at the facility, including summary removals, lack of legal representation, and horrible due process violations, in a prior article on my blog. I have witnessed many of these issues first-hand.
Many of these people are removed from the USA for failing to convince an asylum officer – within the space of 20-30 minutes – of their claim for asylum. Keep in mind, many of these individuals are not even native Spanish speakers. Many come from Guatemala, and speak indigenous languages like Mam, Quiche, and Ka’kichel for which competent translators are frequently unavailable. These confused, scared, and battered women and children are very timid and compliant. They are afraid to admit that they do not understand or speak sufficient Spanish to competently address the asylum officer’s questions.
WHAT HAPPENS TO ASYLUM SEEKERS WHO ARE ADMITTED INTO THE USA?
Those who make it through the asylum officer gauntlet are paroled into the USA to appear in immigration court.
Others do not run the gauntlet, but can be paroled into the USA at the discretion of ICE. In order to be released, these individuals must prove they can pay their substantial bond (usually at least $ 5,000 – $ 8,000), provide an address where they will stay, and a US person who will provide their name, contact information, and proof of income to act as a “guarantor” for the asylum seeker.
WHAT IS THE PERCIEVED PROBLEM DRIVING THE ICE RAIDS?
ICE alleges that many of these asylum seekers who leave the detention facilities to reside with their friends or families within the USA do not subsequently appear for court hearings at immigration courts in the USA. If an alien fails to appear for court, he or she can – and often is – ordered removed “in absentia” (in their absence).
Thus, for whatever reason, if an alien fails to appear for court, he or she can be ordered removed from the USA, his or her bond is revoked by ICE and he or she becomes a fugitive, subject to arrest, imprisonment, and expedited removal from the USA.
WHY WOULD AN ALIEN NOT APPEAR FOR COURT?
Once an alien is released, his or her case is supposed to be transferred to an immigration court that has jurisdiction over the location where the alien will reside, as stated in the bond release documentation. That immigration court then issues a notice of a “master calendar” hearing at which the alien must appear, and mails it to the address that the court has on file.
There are many legitimate reasons an asylum seeker may not appear for court, including:
- the notice was delivered to the incorrect address;
- there was a typographic error in addressing the notice;
- the notice was lost in the mail and never returned to the issuing court for re-delivery;
- the asylum seeker never received the notice even though it may have been delivered;
- the person who received the notice never gave it to the asylum seeker;
- the asylum seeker no longer resides at that address;
- the asylum seeker could not obtain legal representation or could not afford representation;
- the asylum seeker does not understand the process and is scared to appear in court for fear of being immediately detained and removed;
- the asylum seeker cannot get transportation to the immigration court (for instance, in the entire state of Ohio, there is only 1 immigration court, in Cleveland.);
- the asylum seeker cannot understand the notice and has nobody who can assist him or her;
- the asylum seeker is a minor who has nobody to assist him or her.
Of course, there is always a small percentage of individuals who wilfully choose not to appear in court, preferring to evade the authorities so that they can remain illegally in the USA to work and send money back home to support their families.
But – it is my professional experience that the vast majority of asylum seekers crossing the southern border have credible claims that they should be able to present to an immigration judge.
HOW WILL ICE FIND THESE ALIENS:
The asylum seeker has provided ICE with a trove of personal information in order to be granted release on bond – an address where he or she will reside, names and addresses of the sponsor or relatives in the USA, phone numbers, employment records and employer’s names and addresses, tax returns and social security numbers, and the like. Information is power, and ICE now holds that power in its grasp.
Keep in mind – even if the asylum seeker no longer resides at the address that he or she provided ICE, other individuals probably live there – those individuals may or may not be documented. So these ICE raids will ensnare not only the asylum seeker but even more likely – other undocumented aliens as well. This will result in other aliens being placed in removal proceedings. Thus, there is a significant probability of collateral damage if ICE raids the last known address / workplace of the asylum seeker or the sponsor.
OVERCOMING AN IN-ABSENTIA ORDER
If the asylum seeker can convince the Immigration Court that he or she has a good reason for failing to appear at the hearing, the Immigration court could revoke the in-absentia order and reopen the case. Generally, immigration judges have been fairly lenient on granting such motions, especially if filed by Unaccompanied Minors (UAC) asylum applicants. However, the asylum seeker must act promptly as soon as he or she finds out that she missed an appearance in court.
THE NEED FOR PRO-BONO ASSISTANCE:
There is a desperate need for attorneys to provide pro-bono assistance. Many of these asylum seekers have a credible fear of torture, death, kidnaping or rape if they were to be returned to their home countries. However, they are scared, do not understand the American justice system, lack language skills and are unable to tell their stories. They need knowledgeable and patient assistance to extract their histories and then present these compelling cases to an immigration court. And – best of all – you don’t need to be an immigration attorney or expert to prepare and present an asylum case. Your skills as an attorney – collecting and reviewing evidence, preparing a witness, and legal strategy – work just as well in immigration court as they do before any other tribunal. Please consider helping. You can contact me at firstname.lastname@example.org and I will put you in touch with individuals who desperately need your help.
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.