U.S. Immigration Policy

FASKIANOS: Good afternoon from New York and welcome to the Council on Foreign Relations Religion and Foreign Policy Conference Call Series. I’m Irina Faskianos, vice president for the National Program and Outreach here at CFR. As a reminder, today’s call is on the record and the audio and transcript will be available on our website, CFR.org, and on our iTunes podcast channel, Religion and Foreign Policy.

We are delighted to have Michelle Mendez with us today. Michelle Mendez is a training, litigation, and support managing attorney and the manager of the Defending Vulnerable Populations Project at Catholic Legal Immigration Services, Inc., or CLINIC. Before leading this project, Ms. Mendez oversaw CLINIC’s role in the CARA Pro Bono Project in Dilley, Texas, which focuses on providing legal assistance to detained asylum-seeking mothers and children. Prior to joining CLINIC, she served as senior managing attorney in the Immigration Legal Services Project at Catholic Charities for the Archdiocese of Washington, where she began as an Equal Justice Works fellow. She has taught the Immigration Litigation Clinic at Catholic University’s Columbus School of Law, served as a lecturer at Yale Law School, and assisted the Immigrant Right Clinic at the University of Baltimore School of Law.

So, Michelle Mendez, thanks very much for being with us today. We really appreciate your taking the time out of your schedule. It would be great if you could give us an overview of the family separation policy that the Trump administration has put into place, and how different agencies are managing it.

MENDEZ: Definitely. Thank you so much for that warm introduction. So, yes, the Trump administration’s most recent policy of separating children from their parents at the border caused enough of a public outcry to force the reversal of that policy. However, what most of the public does not realize is that this was only the latest in a series of executive orders, policies, and attorney general decisions that have been dividing families and, to use a sports analogy, moving the goalposts on immigrants who have been playing by the rules.

So let’s start with the Executive Office for Immigration Review (EIOR), the agency within the Department of Justice that administers the U.S. immigration court system, and houses immigration judges that basically preside over the removal proceedings or deportation proceedings parochially. During these removal proceedings, the immigration judges decide if the person must be deported or if the person can remain in the United States. So since this agency is housed within the Department of Justice, which is part of the executive branch, not the judicial branch, Attorney General Sessions is the boss to immigration judges and the Board of Immigration Appeals. And the board reviews appeals from immigration judges’ decisions.

Now, although the Board of Immigration Appeals reviews appeals from immigration judges’ decisions, the attorney general has authority via regulation to refer cases on appeal to the board to himself or herself for basically a unilateral presidential decision. Historically, it’s a relatively rare thing for an attorney general to do, to exercise this authority. However, the attorney general now—Attorney General Sessions—referred to himself and issued two decisions within a month of each other, with serious implications on those in immigration removal proceedings before an immigration judge.

The first is Matter of A-B- and the second is Matter of Castro-Tum. Now, the AG’s Matter of A-B- decision overruled this decision previously from the Board of Immigration Appeals in 2014 called Matter of A-R-C-G-. A-R-C-G- is for the person’s, foreign national’s, initials of her name. And this involved a victim of domestic violence, in which the board had held that depending on the facts and evidence of an individual case married women in Guatemala who were unable to leave the relationship could constitute a recognizable particular social group. And particular social group is one of the protected grounds through which one can receive asylum. Now, through Matter of A-B- Attorney General Sessions made clear his desire to close the door on domestic violence asylum claims, notwithstanding well-documented conditions in certain countries.

The second decision, Matter of Castro-Tum, that decision led to Attorney General Sessions revoking immigration judges’ and the Board of Immigration Appeals’ general authority to administratively close cases. There are some exceptions, but they’re narrow. And administrative closure has been a procedural mechanism to temporarily pause removal proceedings by removing the case from the active judge’s docket or scheduling calendar of the immigration judge, or the Board of Immigration Appeals, again. So in recent years the immigration judges administratively closed cases to allow for an event outside of the control of the party to occur, particularly where an event was not expected to take place for years.

So for example, there are applications and petitions for immigration benefits over which U.S. Citizenship and Immigration Services (USCIS), which is part of DHS, Department of Homeland Security, exercises exclusive jurisdiction, such as humanitarian relief for victims of domestic violence, victims of serious crimes, or seeking new visas, abused and abandoned or neglected children that are subject to long waiting periods. And these are some of those application petitions that are subject to long waiting periods before USCIS. And immigration judges would commonly administratively close cases to allow USCIS to adjudicate such applications or petitions. They could wait also for—if they needed to—the availability of the visa number, because some of these are subject to a visa number and therefore long delay.

Now, aside from these two decisions, there’s a third decision expected any day now. It’s Matter of L-A-B-R-. Again, those are the initials of a respondent, the immigrant in these proceedings. And that case seeks to redefine what is good cause to grant a continuance for a collateral matter to be adjudicated. Collateral matter in this situation means something outside of the control or the jurisdiction of the immigration judges. So we’re waiting to see what happens with that decision. And that’s going to affect immigration judges’ ability to manage their own dockets independently.

Now, staying within the Department of Justice, some of you may have heard retired immigration judges and the National Association of Immigration Judges—which is the union for the immigration judges—express concern over new immigration judge performance metrics. And the National Association of Immigration Judges in particular did actually a press conference the other day related to the stripping of independence of judges that took shape in another way. And this is actually related to the respondent in the Matter of Castro-Tum decision. And that came out of Philadelphia. But beginning October 1, immigration judges will be required to process a minimum of 700 cases annually in order to receive a top rating of satisfactory. A satisfactory rating also requires judges to complete 85 percent of removal cases within three days of merit hearings, which are final trials, if you will, in immigration court.

So this prioritization or efficiency is meant to reduce the backlog of immigration cases according to the Department of Justice. And the number of cases in immigration court has ballooned to more than six hundred thousand under the Trump administration’s increased deportation arrests. And I’ll talk about that in a second. So, however, the concern is whether immigration judges will be able to oversee hearings that comply with due process, as is required. Besides retired immigration judges and the judges’ union, organizations such as the American Bar Association and the National Institute for Trial Advocacy have noted that abiding by quotas and adherence to due process are incompatible goals. And I will also note here that on April 2, CLINIC requested records on performance metrics from immigration judges from EIOR’s general counsel office. And on July 24, we received disclosures and those are posted on our website.

So I want to move on to the Department of State. The Department of State, there the administration—the Trump administration through the Department of State has enacted a travel ban, slashed refugee admissions, and proposed extreme vetting of low income and pending immigrants. Meanwhile, USCIS—which I’ve already discussed a little bit, about how they interplay with the immigration judge’s removal proceedings. But meanwhile, USCIS has ended temporary protected status for people from six countries, issued a memo implementing the Matter of A-B- decision to the expedited removal proceedings that asylum seekers are subject to at the border, finalized its unlawful presence policy for F, J, and M non-immigrant visa holders, these are essentially foreign students and exchange visitors, that incorrectly breaks down the distinction between violating status and being unlawfully present in the United States.

And then issued two memoranda regarding—referring immigration benefit applicants for removal proceeding and requests for further evidence policy, respectively. Those would essentially make USCIS an arm of immigration enforcement instead of agency charged with neutrally adjudicating immigration benefits. And, now, there’s been a lot of federal litigation around some of the stuff that I’ve already mentioned. But the latest is that on August 7, the ACLU and the Center for Gender and Refugee Studies filed a federal complaint for declaratory and injunctive relief challenging USCIS’s application of the Matter of A-B- decision to the credible fear and reasonable fear interview that asylum seekers undergo through the expedited removal process.

Now, for Immigration and Customs Enforcement, moving on to ICE. We know how that has changed—how their work has changed under the Trump administration. Franklin Foer’s article in the September issue of the Atlantic, “How Trump Radicalized ICE,” in my experience really says it all. ICE has gone from an agency beholden to reasonable enforcement priorities to one devoid of prosecutorial discretion in which anyone can be targeted. And to put it another way, in the big picture that I’ve just described and I’m in the process of describing, the Trump administration has taken the handcuffs off of ICE and placed those handcuffs on immigration judges instead.

One point to highlight for ICE that was not included the Foer article, Franklin Foer’s article, but goes back to family separation beyond the U.S.-Mexico border, is that last summer ICE arrested more than 400 people in an operation targeting undocumented parents and guardians who allegedly paid someone to bring their children to the United States seeking safety. Depending on the parents’ immigration history, ICE either placed the parent in removal proceedings or deported the parent. Now, this operation had a chilling effect on parents and other family members stepping up to apply to be the sponsor of an unaccompanied minor. For example, while the share of unaccompanied children being released to parents from the Department of Health and Human Services Office of Refugee Resettlement was nearly 50 percent from 2014 to 2015, that figure has dropped to 41 percent as of earlier this fiscal year.

To add to this chilling effect, in May 2018, the Office of Refugee Resettlement (ORR), ICE, and Customs and Border Protection (CBP) entered into a memorandum of agreement (MOA) mandating continuous information sharing of unaccompanied immigrant minors, beginning when CBP or ICE takes them into custody through their release from ORR custody. So this includes information on the children’s potential sponsors, who ware usually family members as well as anyone else living with a sponsor in the household. And the MOA fails to place any limitations on the use of that data by ICE and by CBP. So without these limitations, the concern is that forthcoming that the family reunification process will transform into a mechanism for immigration enforcement, rather than a safe placement screening for unaccompanied minors, as it was intended.

And finally, for purposes of today’s discussion, acting directly and not through an agency per se, as we all know, on September 7, 2017, the Trump administration chose to terminate DACA for DREAMers who were brought to the United States before reaching the age of legal consent, meaning that they had no choice in coming here to the United States. The Trump administration claimed that the president did not have the power to continue with the DACA program, so the administration instead urged Congress to create a permanent legislative solution. But when the Senate introduced a bill that month that would have remedied the situation, the president said that he would only therefore sign legislation funding the Mexican border wall, increased enforcement personnel, eliminating the diversity lottery visa program, and a vast reduction in family-based immigration.

Now, where we stand on this legal response is that two federal courts have found the termination of DACA to be illegal and ordered USCIS to continue accepting renewal applications from people who previously had DACA. A third federal court gave the government until July 23, 2018, to justify the decision to cancel DACA, but the government did not submit any new legal analysis at that point. In fact, a judge in that case held that a conclusory assertion that a prior policy is illegal accompanied by a hodgepodge of illogical or post-hoc policy assertions simply will not do. And so on August 3, this judge vacated the government’s rescission of the DACA program, but put the order on hold for twenty days, that’s until August 23, to give the government an opportunity to seek the stay while appealing to the circuit court of appeals. And if the government fails to obtain a stay, then the government would be required to start accepting new DACA applications, not just renewal applications, after August 23, as well, like I said, as processing—continuing to process those renewal applications that the two other courts already ruled upon.

So this is a big picture overview of what’s happening. A couple of the federal litigation responses. These cases were not brought by CLINIC, but they were brought by CLINIC allies. And so that’s why we are, of course, all in the know as to how these legal responses have gone, at least in these two cases that I mentioned. And with that, I’m happy to take any questions.

FASKIANOS: Wonderful, Michelle. Thank you very much for that detail in how that it is all working. And we’d love to take questions from the group.

OPERATOR: Our first question comes from Cecilia Gonzalez from Loyola Marymount University.

GONZALEZ: Yes, hi. Loyola Marymount University here.

I had a question regarding the order about DACA. If we indeed receive an order that restarts the program and requires renewal, how can we deal with that with our students when we know that right now we’re still fearful for all of the ones who turned in their information and that it’s now in databases? How could we counsel students to do new applications under these circumstances? Thank you.

MENDEZ: Yes, definitely. It’s a very good question. And it’s a question that’s on the minds of many attorneys, both private and nonprofit, also just everybody in the community. They’re very concerned about providing the information if the person otherwise has not come into contact with the immigration system previously. That’s going to really just be a person-to-person assessment. It’s not anything that we can decide there is a risk or there isn’t a risk. It’s really going to be up for the person to decide, is it worth the risk for me? I remember when I was working at Catholic Services of DC doing direct services when the DACA program was announced. And that was something that we talked about with the potential DACA requesters at the time, was, you know, this is going to be information that you are providing to the government. And because this is an executive order, then this is really—or executive action, rather, right, because executive orders are different technically. But because this is an executive action by President Obama, who knows what the next president is going to do with this. So it’s a matter of talking to every single student individually and allowing that individual student to have competent access for legal services and for legal counsel, really.

GONZALEZ: Thank you.

FASKIANOS: Thank you. Next question.

OPERATOR: Our next question comes from Donald Kerwin, Center for Migration Studies.

KERWIN: Hi, Michelle. I wonder if you could speak about how some of these AG directives and decisions related to the courts are affecting backlogs in the court system.

MENDEZ: Yeah. So thank you, Don. That is a great question. The AG decisions that we have seen in Matter of Castro-Tum and Matter of A-B- and now forthcoming Matter of L-A-B-R-, as I noted, they are really adding a lot more to the judges’ dockets, from what I am hearing. And I also have a small docket of pro bono cases. But it’s also been in part because finally it seems now we’re getting the judges that have been waiting on the sidelines to be inducted and to come onto the immigration court where they’re supposed to be serving. So, for example, where I’m based, in the Baltimore area, we finally are getting our two new immigration judges at the end of the month.

But for Matter of A-B-, I think there’s a lot more that judges are being asked to do to assess whether the individual, the respondent, has a valid case still. And remember that a lot of these cases before Matter of A-B- were being adjudicated and were being granted. It’s a matter of a case-by-case basis and assuring that that respondent provides all the proof and all the legal reasoning that is needed to meet the three-part standard for a particular social group. So now judges are being asked to delve deeper into the case at the master calendar hearing level because of Matter of A-B-, right? Because now they’re doing this balancing act of due process and ensuring that the case is adequately developed, especially for pro se respondents. They’re the most disadvantaged by this. They’re trying to balance due process requirements—that includes a lot of requirements for the judges—with also figuring out, is this a case that should be going forward? If it should be going forward but there’s also another case that was issued by the board that some judges are interpreting differently.

So that’s how that’s playing out on judges. Castro-Tum—what is happening with Castro-Tum is that as a result of Castro-Tum, we’re hearing nationwide about Department of Homeland Security Office of Chief Counsel. They are submitting motions to re-calendar—so, basically taking the case off of the administrative docket—so administrative closure docket—and putting them on the active docket. And this is adding cases to the active docket that is already—you know, it’s pushing on the seams and ready to burst. So DHS is in the process of doing that, despite what Attorney General Sessions wrote in Matter of Castro-Tum, that it should be done carefully before—that DHS should consider carefully before they put a case back on the docket with a motion to re-calendar. Attorney General Sessions can’t really tell the Department of Homeland Security what to do. And Department of Homeland Security is still, nonetheless, submitting a lot of motions to re-calendar.

And then what’s happening now with Matter of L-A-B-R-, I mean, we will wait to see what that decision says. But basically, if that’s going to tie the hands of judges to issue continuances, well, that might not be necessarily something that is going to add to those judges’ docket. But it will lead to a lot of appeals to the Board of Immigration Appeals. So one way or the other, the system is going to be affected.

FASKIANOS: Thank you. Next question.

OPERATOR: Our next question comes from Nancy Powers, Kenyon College.

POWERS: Hello. I wondered if you could explain more about what’s going on since they’ve decided that children and families—children and parents could not be separated. Are they detaining more families as a whole? Or could you clarify what’s been going on?

MENDEZ: Sure. So family detention has been happening since President Obama was in office. So President Obama brought back family detention, right? So basically we’re just back to that de facto, default situation, is that families are being placed back into family detention facilities together. And you probably heard of some of the ACLU litigation, where there were two—there was a mother and a child who were almost deported, and the judge basically said—actually if they were deported bring them back ASAP and mentioned holding Sessions potentially in contempt for not following the orders to not remove any of the individuals that were—that weren’t through the family reunification process. But basically the families, those who are coming through that are together, they are still being placed in family detention.

Dilley, Texas, is still very much still moving forward. We still have a staff—a wonderful staff of advocates that are on the ground in both Dilley and in Karnes who have been there for all the families who are detained. And then on the other end of family reunification—I’ll just go ahead and jump to that very quickly—for family reunification cases what we are now seeing are families moving to their final destinations, to their loved ones throughout the country. And CLINIC, we issued a fact sheet on what’s happening next for those families, but a lot of those families are going to face really exactly the same issues that the family—detention families, those who are released from family detention—have undergone, which is that they’re going to be moving from place to place potentially, depending on how stable their situation is. And all the while, trying to abide by all the requirements that DHS has set for them.

So they’re going to be checking into ICE. They’re going to be awaiting their immigration court hearings, right? They’re going to be enrolling their children in school. That’s obviously not an ICE requirement, but that’s a requirement that they’re going to want to make sure that they go through. But these families have been through so much that making sure that they have counsel is something that CLINIC is working on, as well as these other allies. We’re trying to place our affiliate—our network of over 330 affiliates, to get them in a place where they can represent the families, depending on if the location is compatible. So if the family is moving to the place where that particular affiliate is located, we are asking the affiliate to step up and represent these cases. And we’ve been very lucky that we’ve had a good amount of affiliates—nonprofit affiliates step up and say: We are going to represent these families.

And the reason why that’s so important—it’s not just because they have been through the incredible trauma of being separated from their children, but it’s really also because the statistics show that those individuals who have counsel have a much greater chance of winning their case. But if they have counsel and they have some type of legal orientation, doesn’t even have to be counsel just legal orientation, they are more likely to be able to actually abide by the requirements that have been set for them—whether it’s a DHS requirement of showing up to an ICE check in, or attending the first master calendar hearing with the immigration judge.

Our experience with the families that were detained in Dilley and in Karnes, too, who were released is that not that they wanted to be fugitives, and it was not that they did not want to show up to their court hearings and present their cases, it was that they actually didn’t know how to. Nobody explained anything to them, right? So they didn’t have enough information and they were utterly lost trying to navigate this very complex maze, especially in another language. CLINIC and our partner in a lot of these efforts, ASAP, Asylum Seeker Advocacy Project, we issued a report on this very issue, on the in absentia numbers. And we represent a number of mothers who are seeking asylum. And we represent them on motions to reopen specifically because they had, what was called, these in absentia orders. And just in case in absentia orders are not clear, this is—these are removal orders—so deportation orders that the immigration judge issues when the person does not appear in immigration court and DHS can meet their burden of proof that they have statutorily.

So we have a lot of families that we were successful in reopening their cases on a motion to reopen. And all of those mothers did not show up to their hearing because they did not know how to navigate the process, or somebody made it very difficult. There were a lot of different reasons, including unauthorized practitioners of law taking advantage of them. And that’s all outlined in our report that’s also available on our CLINIC website. But that’s why we are emphasizing very much counsel, especially for these families who have just been reunited and released and have been through so much.

FASKIANOS: Thank you. Next question.

OPERATOR: Our next question comes from Tom Getman with Getman Group.

GETMAN: Michelle, thank you. What have you heard through your affiliates about the special visa applicants who are at risk because they worked for American military or embassies? And we had twenty families resettled by our good neighbor group here in the last calendar year. And we’ve had none in the last four months because State Department and the resettlement organizations have had no people sent to us. Is that commonplace? And what about these people who are at severe risk?

And then, secondly, do we have anybody in the attorney general’s office who is an advocate for people like us? Is there somebody who we can be in contact with to give information to, for instance, in the solicitor general’s office? Thank you.

MENDEZ: Yeah. That’s a great question. We have also noted that there has been significant drop in this area. And right now, we can only assume what’s happening, but we’re not really—we’re not really sure. We’ve just seen the drop in the numbers as well. A lot of our affiliates do not have these types of special visas. It’s only a certain amount of affiliates that have these cases. What I would suggest to you is to contact me offline so that we can work together on getting you to a potentially helpful person on this because you’re totally right that this is an issue that is definitely part of how the Department of State has been responding under this administration. And it’s one that needs more attention.

And you’ve probably heard within the military sphere that there are a lot of—at least there’s a lot of media that there are enough—that say there are individuals that have been told that the MAVNI [Military Accessions Vital to the National Interest] program is no longer going to be covering them, and that too bad, so sad, you’re not going to be able to your citizenship through the military. And there has been some litigation that has been put forth. Margaret Stock, who is really the—I think the foremost expert in this area. We’re lucky to have her in this area. But I think it is just part of that big picture within what’s happening with the military that we need to push back on. So please do feel free to contact me and I’d be happy to help you connect to the right people.

GETMAN: Irina, will you give us those details offline? Or, Michelle, will you give them to all of us?

FASKIANOS: Michelle, do you want to give it now and then we can send them a follow-up email as well?

MENDEZ: Sure. Sure. So you could just email me at [email protected].

GETMAN: Thank you.

MENDEZ: Thank you.

FASKIANOS: Great. Next question.

OPERATOR: Our next question comes from Laura Alexander, University of Nebraska.

ALEXANDER: Hi. I just wondered if you could say a little bit more about asylum seekers at the border. And specifically when people are coming to seek asylum and they’re seeking the border, and they’re having problems either with being turned away or in some way denied kind of the opportunity to make their case. Is it fair to say, or is it more complicated than this, that our government is actually in a sense either breaking or ignoring international law and U.S. law related to asylum seekers? Thanks.

MENDEZ: Yeah. Thanks for that question. I think a lot of people would agree that it’s a fair assessment to make and that it’s fair to say that.

On issues of the border, I really [inaudible] my attention to and seek the guidance of an organization called Al Otro Lado—On the Other Side, translated in English. They have a project based out of Tijuana, Mexico, and the attorneys there document the asylum seekers who are presenting themselves to the port of entry saying that they want to claim asylum. So they document where CBP basically tells them we’re full, or not today, or basically just turns them away. And they have very good documentation. They also have pending litigation on this very issue. I believe its Al Otro Lado v. Nielsen. But yes, there is a lot of this happening where we have been hearing, anecdotally, and we have gotten information from Al Otro Lado documented that asylum seekers are actually doing what Attorney General Sessions has asked for, which is to come the right way, to come legally.

Well, they presented themselves at the port entry; that’s what the caravans did as well, and yet they were painted as individuals who were trying to not go through the port of entry but go in between ports and come in undocumented, right? And yet when they present themselves at the border, they are told, you know, we are full, or not today, and being essentially turned away.

FASKIANOS: Thank you. Next question.

OPERATOR: Our next question comes from Will Martin.

MARTIN: OK. I would just like to ask on amnesty hearings, the credible threat portion, is the petitioner actually able to present his or her evidence and to be represented by an attorney? Or is the hearing—and is the hearing held before DHS rather than the Justice Department? And what happens if the petitioner succeeds in establishing a credible threat? Is that petitioner released? Or does ICE still retain the discretion as to whether they are released or not?

MENDEZ: Yeah, so the credible fear interviews and the reasonable fear interviews, those are conducted by the Asylum Office, so this is why USCIS issued an implementing memo for the Matter of A-B- decisions for USCIS because the Asylum Office and asylum officers are part of USCIS. So that’s how these interviews are held.

Now more often than not, these asylum seekers don’t have much proof with them; one, because when you are fleeing for your life, it is very hard to get your—if you have any proof, take your proof with you, and if—along the way if you are coming through miles and miles that you are walking, it’s likely going to be destroyed or damaged.

But the other thing is that, as we all know who handle these cases, it’s usually not that the persecutor is going to give you a note that says, I am persecuting you on account of whatever it might be. It’s not that cut and dry; it’s not that overt a lot of the time.

And the other thing is that a lot of the asylum seekers coming from Central America and Mexico—a lot of them don’t know what asylum is or does or who it protects. In Spanish, it’s called asilo politico—translated means political asylum. And this is a bit of misnomer and it can be very confusing because if you say asilo politico—political asylum—you’re thinking I have to have a political opinion of some sort or my claim has to be related to politics, but I’m not really involved in politics. I don’t get involved in that stuff. So people don’t really know who is going to be covered and what could be helpful.

So when they are having this interview with an asylum officer, it’s really helpful to have asylum officers who want to ask questions, and want to prod, and want to say, you know, well, what happened here and what happened there, and not just spend a short amount of time doing a very superficial assessment. It’s very important to ask questions and go and ask a question many times in a different way to really know if that asylum seeker has a claim.

Now if they pass what’s called the credible fear interview or the reasonable fear interview—so if they pass the credible fear interview, they’re placed before an immigration judge into 240 proceedings. If they pass a reasonable fear interview, they are going to be limited in not being able to seek asylum, but be able to seek something called withholding of removal or protection under the Convention Against Torture, so they would then be able to move on to the next part of the process.

Traditionally, once the asylum seeker passes the credible fear interview—or rather establishes a credible fear, or establishes a reasonable fear, they do tend to be released, and so that’s where we get, for example, the family detention cases at Dilley or Karnes traditionally where they passed so they have usually been released.

FASKIANOS: Thank you. Next question.

OPERATOR: Our next question comes from Paul Rutgers, Council of Religious Leaders of Metropolitan Chicago.

RUTGERS: Thank you. There have been times in the past when there has been a great deal of activity at a local level; for instance, here in Chicago, where a wide variety of groups have taken to the street, if you will, and tried to seek some change in the policies that currently are in place.

What can we say to those who have somewhat dropped out, if you will, and are waiting for something to energize again an effort to not only tolerate this situation, but also to find ways to move beyond it?

MENDEZ: Yes, it’s a great question, and if I’m understanding correctly, it’s what can people do locally, and how can we ensure that we keep up the momentum and seeking for protection of families and other vulnerable individuals. Is that correct?

RUTGERS: Yes.

MENDEZ: Yeah. No, I think it’s a great question. I think a lot of people are asking themselves this very thing—a lot of people who are not necessarily, you know, attorneys or in a position where they feel like they can really make the difference. And I’ll tell you, I think a lot of attorneys are also feeling like they’re not making too much of a difference under this administration; hence all the federal litigation that has ensued.

But that’s not true. I think that every individual who at this moment in time can be a kind person to somebody else who is from another country that they know of, I think that in itself means the world to that family. So even a small act of kindness in your own neighborhood, or somebody else that you know is fearful because their immigration status is not such that they are citizens, I think that means the world to them.

I think as far as going beyond that in what you can do to provide assistance and to show that the United States is a compassionate country full of wonderful people who care about vulnerable individuals and who want to stay true to that history and that tradition, I think making your voice heard and not feeling like it’s futile to make your voice heard.

Even posts on Facebook—I’m not a huge social media person, I don’t have Twitter, but I think it’s really important to make your voice heard and to show that the silent majority is actually not us; the silent majority is them. We’re a majority and we’re more vocal.

And of course you’ve got opportunities to vote which are around the corner, and that’s probably the best way to ensure that vulnerable individuals in the future are protected, right, because a lot of people may have thought in the past, well, what difference does it make who I vote for president. Well, now we see the power that the executive has over immigration, and what can—how much they control what we do in immigration. I mean, the first couple of days, the travel ban happened, right? That was the first sign of family separation, if you will, from this administration. So voting, making your voice heard, doing any protest or gathering any individuals that you want to gather that also agree with you and just protesting at the—at whatever local place of symbolism is also something that I know a lot of folks here in the Baltimore area have undertaken as well. And at the very least, it makes you feel like you are doing something, and not giving up.

RUTGERS: Thank you, and thank you for the good work that you are doing.

MENDEZ: Oh, thank you so much.

FASKIANOS: Thank you. Next question.

OPERATOR: Our next question comes from Tariq El-Amin, Masjid Al-Taqwa.

EL-AMIN: Yes, thanks for taking my question.

My question is in regard to—in your opening statements you were—you talked about judges now being given basically quotas—if I’m understanding it correctly—quotas on the number of illegal entry cases that they are supposed to hear and judge on. Could you speak a bit more about that?

MENDEZ: Sure. So basically—so these are immigration judges, and they preside over deportation proceedings or—they’re actually removal proceedings. So the charges can vary; it could be that somebody entered unlawfully through the border. It could be that the person was a visa overstay, so the charges will vary. It’s not just going to be somebody who entered undocumented through the border.

But yes, so those quotas have been given by the Department of Justice to the judges as part of a performance metric, so they were told that they had to process—starting October 1, they have to process a minimum of 700 cases annually in order for the judge to receive a satisfactory rating when they are evaluated.

So that’s where it comes in. And then the other satisfactory rating piece comes from where the judges complete 85 percent of their cases within three days of the final trial. So what that means is that when you have the final trial—because you’ve got two hearings usually in immigration court. You’ve got the master calendar hearing, and that’s kind of like a preliminary hearing where you go and you respond or plead to that charging document that’s called a Notice to Appear. And the second hearing, if you move to it that quickly—the second and final hearing is called the merits hearing, or the individual hearing. And so at that individual hearing, the judges have to provide a decision on that case within three days.

Now this puts a lot of pressure on the judges because, as we have discussed, you’ve got cases such as Matter of A-B-, and you’ve got other cases, too, where there is—these legal issues are really, really complex. And for the judge to ensure that they are providing a well-reasoned, well-thought-out, well-explained decision, if it’s going to be in writing, they’re going to need a little bit of time if this is just one of hundreds of cases that they are hearing. So that’s a big push on judges, and that’s a lot of burden on a judge to complete a case, especially if they need to submit a written decision, especially for purposes of the appeal process if the person or DHS—Department of Homeland Security—is going to appeal to the Board of Immigration Appeals, and then, if there is another appeal after that, which would go to the Court of Appeals—the U.S. Court of Appeals with jurisdiction over that particular immigration court where they are located.

EL-AMIN: Well, very disconcerting. Thank you.

MENDEZ: Thank you.

FASKIANOS: Thank you. Next question.

OPERATOR: Our next question comes from Tereska Lynam, University of Oxford.

LYNAM: Hi. You may feel like you answered this question a couple questions ago, but I’m wondering what activists—those that—particularly those in religious communities, can do to feel like they are contributing. There has been a lot—what I’ve been noticing from the activist community is that they are exhausted from making phone calls, kind of feeling to no avail, and doing the protests to no avail, and yes, voting is there, but they want to do more. When we hear this terrible information, it just drives people crazy. But it seems like there’s not much to do but wait.

MENDEZ: I mean, wait until—do you mean the voting for the mid-term elections?

LYNAM: Yeah, exactly—sorry. Yeah, kind of—yeah, until like there—it just seems like we’re just hearing a whole bunch of news, and this is the feedback that I’m getting is that people are getting really discouraged. Particularly on social media, there’s just a—I agree with your point that social media at least lets people know that other people know that people care about this, and making phone calls lets our politicians know that people care about this.

But the partisan voting on this in this situation has been shocking, and I’m feeling a lot of discouragement. So I’m just wondering if there is anything else that has been overlooked that activists can do.

Thank you so much.

MENDEZ: Yeah, yeah, definitely, thank you.

OK, so I think, you know, we’re looking—because immigration is a federal issue, and because we talked about how the executive really has so much power and control over immigration matters, we see that—we look at it as a federal issue. However, I think there is a lot that could be done, too, on a local level, be it in your particular city, or town, or on a state level. And we see this come through with the sanctuary cities litigation and what has ensued from that—from sanctuary cities and cities deeming themselves—and of course sanctuary cities means a lot of different things to different people, but first you’ve got to come to whatever the right definition is among who is discussing it, but basically it’s the city is saying we are here, we are a city that is here to welcome and support immigrants, and we know the value and the benefits that an immigrant community brings to the city or the state. If they are to do that, well, that is a good first step obviously, and then if there is any litigation that ensues, as has occurred with the sanctuary city stuff in, for example, Chicago, we’re seeing some good results from that.

So I think getting your local city or local town—your local government, state government to get on board with making a public statement that they are going to be supportive of every resident, no matter what their immigration status is, especially if they have children because children should be protected, I think that’s a—that might be a place that—to go because the federal level, as you have noted, people are just—are tired of making phone calls and don’t want to wait until the mid-term elections, and then after that, they don’t want to wait until the next two years to vote. So demanding action from your local officials will probably make us feel like we’re not banging our heads against the wall a lot of the time.

FASKIANOS: Thank you. Next question.

OPERATOR: Our next question comes from John Pawlikowski, Catholic Theological Union.

PAWLIKOWSKI: Yes, hello.

I have a question because my order, the Servites, runs two parishes in El Paso. Both of those parishes are run by our Mexican province, which means that the people who are working there are basically on workers’ visas—religious workers’ visas.

One of them in particular, which is four blocks from the border, has been very important in terms of providing assistance to many of the immigrants and so on. But I’m just wondering if you could say anything about the vulnerability of such people who might be on a religious worker’s visa providing help to immigrants. Are they in any way bringing about a problem with their own visa status, and if there have been any instances of people like that being deported themselves because of their assistance to immigrants?

MENDEZ: Yeah, that’s a really interesting question. We—or at least I have not heard of any issues with this. I think that this potential issue, though, brings up some potential First Amendment issues. I’m not a First Amendment expert, but I think that that would be the first place that I would look to is—you know, is the First Amendment of that individual, you know, violated as well.

But as far as whether or not they put themselves at risk or in vulnerability for enforcement action against themselves, perhaps, and I would encourage you to contact me offline. I’m at the email I provided before, and I’m happy to provide it again. We have a religious visa program at CLINIC, and so they are the people who I’d like to put you in touch with if you are not in touch with them already so we can discuss these potential issues.

PAWLIKOWSKI: Thank you.

FASKIANOS: Thank you. Next question.

OPERATOR: Our next question comes from Will Martin.

MARTIN: Yes, regarding the AG opinion in the Matter of A-B-, for a domestic violence victim, must the woman now prove that she is part of a social movement in her home country to fight domestic violence, and that her activity as a part of such movement has exposed her to oppression or lawlessness?

And regarding the performance metrics for the judges, if this petitioner could be furnished somehow with a finding of fact and draft opinion, wouldn’t this help the judge who might not otherwise have the time to prepare a well-considered opinion in order for the judge to meet performance metrics?

MENDEZ: So for your first part of the question, which is do the women who have domestic violence claims—what do they have to prove as a result now, well, these cases were being granted on a case-by-case basis before Matter of A-B-. The most important piece—and this is discussed in some of the documentation that has come forward from the government, but you have to meet the particular social group standard, so you’ve got to meet the three-part standard very carefully, and of course that takes counsel usually because of the reasons I noted before. Pro se immigrants—they are not going to be able to do this on their own, especially if they don’t speak English, so they don’t necessarily have to show a social—I think that’s getting into a political opinion basis for asylum, but particular social group has already been given a definition under the case law. It has to be particular, it has to be socially distinct, and it has to prove that it’s immutable. So depending on the case, because these cases are going to vary so much from case to case, they can be adjudicated and approved as long as it meets that three-part requirement and the rest of the asylum requirements.

As for your second question to—that goes to a template, I mean I think we’ve all used a template at one point or another, or we have to write a template in our work to others at one point or another, and there’s always that risk, right? There’s always a risk when we use a template or when we give somebody a template to work off of that it’s not going to be very well-tailored to the facts of that case, that it’s just going to be on automatic pilot, or the person is going to just take that template and think, oh, this is good—especially depending on who provided that template—and just run with it without giving it too much more careful thought or analysis. And so that’s the problem with templates. Yes, we’ve all been there before, done that, but we also know the drawbacks that templates have in our work. And when you are dealing with somebody’s life, when it’s a life-or-death situation, I don’t know that we would want to encourage using templates that are going to be devoid of factual analysis, since factual analysis—it’s what makes the law come alive, and we want the law to be as alive as possible, because once the law is alive, well, oftentimes the person will remain alive because he won’t be deported.

MARTIN: Just to follow up, I had heard that if a person in a credible threat or credible fear hearing were represented by an attorney that the attorney wouldn’t be allowed to speak. And so I was really wondering if the attorney, in advance, could prepare a more custom proposed order, and if so, would that drastically increase the chances that the petitioner might have of succeeding.

MENDEZ: Oh, I see. I see. So it’s interesting because I thought your question was about some of the templates. There was a template that actually got leaked recently that the judges are getting for adjudicating cases quicker, and yes, I mean, we could also apply the same type of approach with the attorneys. You are right that there is no right necessarily for the attorney to be present, to represent, and there is that option, I guess, to provide a discussion of the facts, or a discussion of the case. But really, making the individual—the asylum seeker understand what the asylum—what asylum means in the United States and what the asylum process is about, talking to them, we find, who are working the CARA Pro Bono Project with the mothers who are seeking asylum and are detained in Dilley, Texas, that that type of orientation in itself is much more important because at some point—we’ve got to remember that at some point, asylum seekers are going to have to discuss their case. They’re going to have to talk about the case whether it’s at that juncture or before the immigration judge if they get a positive credible fear finding or reasonable fear finding.

And you all probably know, given your backgrounds in the roster that I received before the call, that empowering people to be able to tell their story, and letting them know what is relevant in telling their story, there is nothing better than that.

FASKIANOS: Michelle, we only have a few minutes left, and I just wanted to go back to CLINIC, which is grounded in Catholic social teaching and connected with a network of Catholic and community legal immigration programs.

So can you talk a little bit about CLINIC and just your view of the role that religious communities and organizations can play going forward in, you know, challenging these immigration policies or making—or, you know, assisting these vulnerable populations?

MENDEZ: Definitely. I mean, I think throughout our history as a country, I think you see religious groups playing a very important role in whatever social human dignity movement was present.

The example, actually—and I should have mentioned this before with the question on this. It was related specifically as to religious groups. The Jewish community did a really moving protest. They went to the Senate houses in DC, and just basically sat in and protested, and it was just beautiful to see the Jewish community do this.

So what CLINIC does—what we do specifically in training, litigation and support is that we provide support to our affiliates. So our affiliates are more than 330 nonprofits across the country, and our legal response to this administration has been to just ramp up our support of the nonprofit attorneys. So whenever they email us or call us for strategy advice or a legal question, we’re there.

When we realized that this administration meant more detention, we issued a comprehensive, most comprehensive, I’m proud to say, guide on how to get your client released from ICE detention. And of course we have samples there from our wonderful partners who specifically focus on the detained population. When we knew that this administration meant more people being placed in removal proceedings, we partnered with the National Institute for Trial Advocacy to offer hands-on, three-day litigation training because a lot of people in the immigration legal community are people who just care about human dignity, and they want to be there to help. But they’re not necessarily taught to be litigators, but they need to be litigators.

Before, with the Obama administration, there was a lot of prosecutorial discretion happening, and a lot of people didn’t need to know how to litigate because it wasn’t that contentious at that point. But now it is.

We also have been providing court skills training specifically designed for accredited representatives—who are not attorneys, but are accredited. And we did a type of inciting the accredited reps to become fully accredited reps; and that, in exchange for becoming fully accredited reps, we would give them mentorship on the first case they took, and give them three-day, intensive court skills training webinars, and so a lot of that type of support so they could be ready to litigate in court even though they’ve never been to law school.

And then we have myriad practice advisories aside from the guide from how to get your client released from immigration detention. Practice advisories—so many on how to help DACA recipients, and so whatever is coming down the pike for DACA recipients, we wanted to make sure that we have a lot of practice advisories no matter what the situation would be that they would be facing.

So all of those materials are available on our website under the Defending Vulnerable Populations Project. And there’s more that we do, of course, but we just don’t have enough time, unfortunately. And just please reach out to me if you want more information on what we offer, and just know that we are definitely, you know, behind you if you ever need support.

FASKIANOS: Michelle Mendez, thank you very much for sharing your valuable insights with us today and for the work that you are doing. It is so valuable, and we look to you and hope that we can also be doing things on our end.

Thanks to all of you for your excellent questions and comments. We encourage you to follow CLINIC’s work and consult their resources at cliniclegal.org. Also, please do follow CFR’s Religion and Foreign Policy Program on Twitter at @CFR_Religion for upcoming events as well as information about the latest CFR resources and analysis. And reach out to us at [email protected] with any suggestions of future calls or topics that we should be covering.

So thank you all again. We will circulate Michelle’s email address in case you didn’t get it during the course of the conversation, and we look forward to continuing the conversation.

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