Florida Immigrant Advocacy Center Summary of Impact Work

Over the Last Year June, 2004

FIAC Advocacy in International Forums and Federal Court

FIAC Filed Request for Protective Action before the Inter-American Commission on Human Rights

            On April 27th, FIAC filed a Request for Protection Action before the Inter-American Commission on Human Rights, which is part of the OAS. Two Harvard clinics, the immigration clinic and the human rights clinic, assisted in filing this request. The Request asked the Commission to protect potential applicants for asylum who have been fleeing Haiti by ordering the U.S. government to provide adequate screenings to those fleeing political persecution. Over 1000 men, women and children left Haiti in February, 2004, and were picked up by Coast Guard cutters off of the northern coast of Haiti. Of that group, FIAC knew of only three who were given asylum screenings and the three were returned to Haiti. All others were returned to Haiti with no screening in the heat of the conflict there. The Request described the tense conditions in the country at the time and outlined the legal authority for the Commission to hear the case. The Commission required the U.S. government to answer. The government replied, in the most generic terms, that it generally provides asylum screenings. The government also denied that conditions were unsafe for Haitians being returned there and that anyone was fleeing by boat since the blockades. FIAC replied. In April, 651 Haitians fled by boat and were picked up by the Coast Guard. Thus the problem of repatriations without screenings was a continuing one.

            On May 19^th, the Commission ruled that it had authority to grant requests for precautionary measures and acknowledged its concern over reports of killings and other human rights violations. The Commission said that even though the U.S. claims to give interviews, it provided no information re: hearings, claimants, number of persons granted refugee status, the grounds for the decisions or the fates of the individuals involved. In light of this, and the importance of respect for the right to seek and receive asylum in these circumstances, the Commission decided that the U.S. will provide information within two months, and every two months thereafter, regarding the persons who raise claims for asylum from the situation in Haiti. This information is to include the number of individuals interdicted, the number who made refugee claims, the conditions under which those claims were made and considered, the number accepted and rejected, the grounds for those decisions and the fates of the persons concerned.

FIAC, the Women’s Commission for Refugee Women and Children, and Holland & Knight File a Petition to the United Nations Working Group on Arbitrary Detention on Behalf of Haitian Refugees

            The petition was filed asking the U.N. Working Group to investigate the manner in which Haitians are detained in the United States and to declare that the U.S. government’s detention policy violates international law. The United States has applied a Haitian-only mandatory detention policy as part of his Administrations’ systematic effort to deter and prevent the arrival of Haitian refugees. The petition outlines U.S. policy toward Haitian Asylum seekers, documents the treatment of large groups of Haitians arriving on the December, 2001 and October, 2002 boats, describes the Haitian detention policy and how it violates international law and due process. The petition asks the United Nations to hold the United States accountable to international standards that forbid such discriminatory policies. The petition describes those recently deported to Haiti including a woman 5 months pregnant, despite the continued insecurity and political violence occurring in Haiti. The Working Group can ask the U.S. government for a response and can conduct hearings.

FIAC and Holland & Knight File Amicus Brief in Benitez v. Wallis, U.S. Supreme Court Case Challenging the Indefinite Detention of Refugees and Asylum Seekers, Including Cubans Who Came in “Mariel Boatlift” Who Cannot Be Returned to Their Countries

            Immigrants have been held in DHS detention for time periods ranging from 28 months (Daniel Benitez) to 20 years under an immigration detention scheme that affects countless refugees who arrive at U.S. borders. These refugees and asylum seekers have no constitutional rights even though they are inspected at the border and paroled into the United States. Refugees affected by this case are in DHS detention and cannot be removed to their home countries which will not take them. Between 130,000 and 150,000 Cubans who arrived in the “Mariel Boatlift” came to the U.S. between April and October 1980. Carter welcomed them as “refugees” and created a special entry status for them as a first step towards attaining permanent residence. Many Mariel Cubans convicted of crimes served their sentences long ago, yet remain in detention. Lower courts are divided about whether Zadvydas v. Davis (limiting government’s power to detain to a presumptive period of 6 months for DHS to remove or release) applies to persons deemed not to have legally entered country. FIAC and Holland & Knight wrote an amicus which summarizes the history of parole in the U.S., including the history of the “Mariel Boatlift.” The amicus outlines the historical use of parole to facilitate the resettlement of large refugee groups in the U.S. It covers the history of Cuban immigration to the U.S. focusing on this country’s encouragement of departures from Cuba. Finally, the brief describes the history of the “Mariel Boatlift.” By detailing this history, the brief quietly underlines the hypocrisy of welcoming Cubans as refugees in the past and now denying them rights accorded to other immigrants.

U.S. Supreme Court Denied FIAC’s Petition for Certiorari in Moise v. Bulger

            In August, 2003, FIAC filed a petition for certiorari to the U.S. Supreme Court in Moise v. Bulger (class action on behalf of December, 2001 boat of Haitians). FIAC asked the Court to review the 11^th Circuit’s decision upholding the district court’s approval of the government’s discriminatory treatment of an uncertified class of Haitians. Haitians, and only Haitians, were detained under the government’s initially secret policy requiring detention of Haitian asylum seekers. The main question for review was whether the policy complied with a prior Supreme Court decision in Jean v. Nelson. In that case, the Supreme Court had held that parole decisions were not to be made based on race or national origin. Additional procedural questions, like the lower courts’ incorrect application of summary judgment rules, and the limitation to habeas jurisdiction were also challenged in the petition.

            This year, FIAC lost the petition to review the 11^th Circuit’s decision upholding the district court’s approval of the government’s discriminatory treatment of an uncertified class of Haitians, i.e., those who arrived on the 2001 boat.

Palestinian Man Released after FIAC Appears on His Behalf in Federal Court

            FIAC helped secure release from indefinite detention for a stateless Palestinian man ordered removed as a result of two drug convictions for which he was not sentenced to any jail time. Although his parents are Palestinian, he was born in Kuwait, and never lived in Israel or the Palestinian territories. When he was two, his family moved to Brazil, and then to the United States when he was 13. His entire family, including parents and six younger siblings, are citizens or lawful permanent residents and live here. (He was too old to adjust status when his parents were finally able to do so.) Both parents are very sick with diabetes, and his father recently went blind as a result of the illness. He has helped financially support and raise his six younger siblings, including his severely mentally retarded younger sister, who requires constant supervision. Because his drug convictions occurred after 1996, he has absolutely no relief available. The government attempted for approximately nine months to remove him to Jordan, the country to which he was ordered removed. He filed a pro se habeas petition under the Supreme Court's decision in Zadvydas v. Davis (prohibiting the government from detaining any individual longer than six months while trying to effect his or her removal, unless removal is in the reasonably foreseeable future). The government opposed, stating that his removal was reasonably foreseeable to Jordan. FIAC entered an appearance and notified the court that the Jordanian government had formally informed the government that it would not accept FIAC's client for deportation. The government then asked the court for more time, stating that the United States had recently signed an agreement with Israel that might allow for the client's deportation to the Palestinian territories. After talking with advocates around the country, FIAC determined that the new agreement applied only to individuals who had lived in Israel or the Palestinian territories, and that it was not relevant to our client's case. We filed an opposition to the government's request for more time explaining this to the court, as well as a large packet of materials relating to the case with the detention section of the Department of Homeland Security. Shortly thereafter, the government released our client.

Haitian/Bahamian Released A Year After He Should Have Been When FIAC Represented Him in Federal Court

            FIAC represented a man born in the Bahamas to Haitian parents, who has been in the United States since he was six months old. He was ordered removed to the Bahamas, or in the alternative, Haiti, in an order that became final in August 2002. Since that date, the government has been trying to deport him without success, at least in part due to debate over the proper country of citizenship. Under the Supreme Court's decision Zadvydas v. Davis, the government is not permitted to detain any individual longer than six months while trying to effect his or her removal, unless removal is in the reasonably foreseeable future. One year after the final order of removal was issued, he filed a petition for habeas corpus pro se asking that he be released under this Supreme Court decision. The government opposed, stating that his removal was reasonably foreseeable. In December 2003, FIAC entered an appearance as counsel and filed briefs on his behalf. On February 25, FIAC received notice from the district court that a hearing on the issue had been scheduled for March. One day later, on February 26, FIAC's client was released, after a year and a half of immigration detention -- one year longer than the government was permitted to detain him.

Cuban Released When FIAC Agreed to Represent Him in Federal Court on Excess Bond

            FIAC represented a Cuban man, formerly a lawful permanent resident, who had been ordered removed. Because the U.S. government was unable to deport him to Cuba, he was detained indefinitely in a county jail in northern Florida. As it does with most Cubans, the government determined that it would release him pending its ability to remove him to Cuba. However, in an unusual move, and one that was potentially precedent setting, the government set a $5,000 bond on his case. There were no aggravating circumstances to distinguish his case from those of other Cubans who are routinely released without bond. FIAC notified immigration officials and government attorneys that it planned to intervene in the man's lawsuit in federal court, in which he sought release without bond. Shortly thereafter, the government reversed its decision and released him without bond.

Cuban with Disabilities Who Was Unable to Take Oath, Finally Becomes Citizen After FIAC and FLS Take The Issue to Federal Court

            More than six years after his initial application for naturalization, a severely retarded FIAC client became a United States citizen. FIAC represented a Cuban man who was left severely mentally retarded after he was shot in the head in 1996. He applied for naturalization in 1997 and was initially denied because he was not competent to take the oath of allegiance to the United States. FIAC appealed this denial. In 2000, Congress passed legislation authorizing the attorney general to waive this requirement in cases of otherwise qualified individuals who are unable to take the oath because of disability. His case was put on hold indefinitely because the Attorney General had not yet promulgated regulations implementing the new legislation. FIAC, along with Florida Legal Services and LSGMI, began to file lawsuits in the summer of 2003 to compel a decision in this and similar cases. In response, the government finally promulgated regulations and began to process these individuals for naturalization. FIAC’s client was granted U.S. citizenship at the end of 2003.  

Positive Federal Magistrate Decision in CAT case

            In one of FIAC’s many cases raising Convention Against Torture (CAT) claims, a federal magistrate judge filed an extremely favorable recommendation to the district court judge in the Western District Court of New York. The magistrate adopted FIAC and Holland and Knight’s arguments and recommended not only that there was jurisdiction but that our young Haitian client, be granted habeas on grounds that the Haitian prison to which he would be returned would result in torture. The District court judge adopted most of the magistrate’s report, but remanded to the magistrate for a more specific ruling on the merits. The magistrate sought briefs on merits which were filed. FIAC is awaiting new recommendation from the magistrate. (Incidentally, the 3rd Circuit case has recently joined the 1st, 2nd, and 9th to find habeas CAT jurisdiction and although FIAC did not write the brief, the victory is significant in that it will now become more difficult for the 11th Cir. to find that habeas jurisdiction over CAT cases does not exist). Habeas Petition for Honduran Woman Who Was Victim of Domestic Violence

            FIAC and Holland & Knight filed a habeas petition in the Southern District of Florida in July 2002. A district court judge granted a stay of deportation. Following the Immigration Judge's denial of Ms. Paz's request for 241(b)(3) withholding of removal and relief under the Convention Against Torture (CAT) based on domestic violence in Honduras, the BIA summarily affirmed Ms. Paz's immigration case in June 2002. United States Attorney's office agreed that her case was not proper under BIA regulations for summary affirmance. Therefore, her case was remanded from district court back to the BIA in December 2002. Ms. Paz's case has remained pending at the BIA since December 2002 awaiting the Attorney General's decision in Matter of R-A. She has remained detained at various county jail facilities throughout Florida.

FIAC and Pro Bono Counsel Bring Federal FOIA Action Seeking Documents Forming Basis for Attorney General’s Decision that Pakistanis and Palestinians Were Going to Board Boats from Haiti

            FIAC sent a FOIA request to the National Security Council and to the State Department seeking documents explaining Attorney General Ashcroft’s decision in the D. J. case. In that decision, he stated that one basis for his national security concern in releasing Haitians who arrived on the Oct. 29^th, 2002 boat, was that Pakistanis and Palestinians were using Haiti as a staging area to come into the United States. The National Security Agency found a one page document it found responsive to the request, but refused to release it, because it was characterized as “TOP SECRET.” FIAC appealed. The Security Council issued a second denial. In early June, FIAC and pro bono counsel filed a lawsuit in federal court.

FIAC files petition for review with 11^th Circuit for Cuban defector 

            A Cuban defector was one of the latest victims of the Department of Homeland Security’s misuse of its authority to detain people it decides to label as national-security threats. In May 2000, he defected from Cuba because he wanted to expose how the Cuban government was requiring him, a gate guard at the United States’ diplomatic mission in Havana, to give it certain information. Mainly he was forced to report the names of Cubans who visited the diplomatic mission. This information was not sensitive because the American mission is flanked by Cuban police at all hours. But Cuba tried to get him to provide more information. When he could no longer agree, he left his family and fled to the United States, where he promptly explained the situation to federal authorities in his political-asylum application. He was not rewarded. His asylum application triggered a lengthy, secret investigation. Even though the DHS found no evidence that he came to the United States to spy or engage in any other wrongdoing, it arrested him in March 2003. And it paraded his arrest as the newly-formed department’s first capture of a “former high-ranking international intelligence officer” in south Florida.

            Since then, he has been jailed in the DHS’s Krome Avenue detention facility. He has not been allowed to have a bond hearing to decide if he can be released pending a decision on his applications/ for asylum and for residency status under the Cuban Refugee Adjustment Act. He was denied this hearing because the DHS has charged him with violating an obscure law relating to espionage. Because it had no evidence of espionage, DHS merely charged him with failing to report to the Attorney General on a certain form within a certain time the very same information that he reported in his asylum application. He is being charged with failing to report information that he reported—and the only evidence is his own report. His failure to use the proper form and file by the proper time was not a willful act on his part. Yet the DHS has used the “violation” as a basis for seeking his deportation and for holding him in detention for many months pending the ruling on his applications for relief.

            He lost his asylum claim. The court also found that he had failed to register as a foreign agent with the Attorney General. FIAC has filed a petition for review with the 11^th Circuit Court of Appeals. FIAC also filed a request for his release and recently succeeded in that request.

State Court Cases

FIAC Filed Amicus on Behalf of Immigrants in Henderson v. Crosby (Law Library Access for Inmates)

            FIAC has filed an amicus brief on behalf of some 4,500 immigrants detained in Florida’s prisons in a class action filed by Holland & Knight. That action is based on the state constitution and asserts that prisoners are entitled to improved law library access. FIAC’s amicus asserts that immigrants have even less resources and are in greater need than other inmates. Plaintiffs are awaiting the 1^st District Court of appeals decision in that case.

Use of State Court Proceedings to Effect Private Deportations of Immigrant Patients

            FIAC continues its advocacy on behalf of a young man with developmental disabilities at Jackson hospital. They are tired of keeping him there due to the cost. When FIAC first had the case, the hospital tried to persuade the guardian that she should agree that her ward be returned to Trinidad. FIAC worked with public defenders and learned there is no treatment available for him there. He is a Miami-Dade resident entitled to free care. Late last year, the hospital asked the guardian to turn over the young man’s passport. The mother, who lives here, opposed and FIAC encouraged the guardian to refuse. The press moved to intervene in his probate court case to get the court to order that all judicial proceedings be made public and that doctors and hospital personnel be freed to talk with the press about his case. This is a back door way to seek access to confidential medical information. The young man’s family is opposed and the probate court sought the mother’s opinion. FIAC wrote a brief regarding the young man’s strong interest in the privacy of his mental health records, opposing the Miami-Herald’s request and argued the case in probate court. FIAC succeeded in keeping records from being opened to the press.

                                    Advocacy on Behalf of Unaccompanied Children

Haitian Boy Wins Transfer to Boystown from Adult Jail in New Orleans after Federal Court Hearing

            FIAC continues to work with counsel for Shook, Hardy & Bacon and Florida Legal Services to represent a Haitian boy from Miami, who was moved to New Orleans and placed in an adult jail there. He was 16 when he arrived, but DHS claimed that he was an adult based on a dental examination of his wisdom teeth and a bone examination of his wrist. The practice of attempting to determine chronological age by these exams has been challenged as completely lacking in scientific basis especially when, as here, the expert determines that a child is one certain age, rather than stating that his age could be anywhere within a range of up to three years. Further, studies have shown that when applied to non-white children, age range estimates are even less likely to be accurate. The complaint was filed in federal district court in new Orleans based on Flores, the class action settlement decree that governs the placement of unaccompanied juveniles as well as a habeas petition. As a member of the Flores class, he was improperly characterized as an adult. He had a birth certificate establishing that he was a minor and relatives testified at the federal court hearing that he was a minor. FIAC and the Shook, Hardy attorney conducted the hearing before a federal magistrate. (FIAC’s efforts to persuade the magistrate that he had the authority to conduct a hearing on Kenier’s age for the purpose of establishing whether he was a Flores class member, was a critical step in obtaining relief). FIAC subpoenaed the government’s bone expert who said that he did not know that the examination he was performing was to be used by DHS to establish the child’s chronological age, much less for the purpose of holding him in an adult jail. He said that the tests were not designed for that purpose. Findings and recommendations were submitted, but DHS finally conceded that he was a boy and agreed to transfer him back to Boystown. FIAC worked with the relatives to obtain the documents necessary for his release.

Haitian Boy Released, Re-detained, Re-released; Wins FOIA; Pending Adjudication of Dependency

            A Haitian boy, who was orphaned in Haiti at the age of 12, arrived in the U.S. with the Oct. 29^th, 2002, boatload of Haitians which sailed into Biscayne Bay. A judge approved his asylum application in January, 2003, but DHS appealed. He was placed at Krome (adult detention center) because DHS determined he was 18 based on widely criticized bone and dental examinations concluding that he was 18. Prolonged detention caused extraordinary stress to this young boy. FIAC won a parole release request which attached a report establishing that the boy suffered from extreme depression and post-traumatic stress disorder. The expert concluded that he was deteriorating irreparably from prolonged detention. Krome’s own psychological evaluation confirmed this conclusion. Additionally, FIAC urged Amnesty International and Lutheran Immigrant and Refugee Services to issue “Urgent Action” requests seeking his release. Although he was released to his uncle, when he lost his appeal, he was re-confined, this time at a local motel, where he was incredibly isolated and rarely permitted outside to breathe fresh air.

            FIAC also filed a brief attacking the validity of the bone and dental examinations for the purpose of establishing chronological age. Over Christmas time, FIAC filed a FOIA action to obtain the medical documents forming the basis for the bone and dental evaluations; FIAC succeeded in obtaining the documents. FIAC took extraordinary steps to locate documents establishing that he was a juvenile, finally obtaining a National Archives birth certificate. Even then, DHS continued to insist that he was an adult. In January, 2004, DHS in Washington contacted DHS authorities in Florida to say he would be treated as a juvenile and would be released. DHS informed Congressman Meek that he would be released. Hours later, Meek was informed that there had been a terrible mistake. Someone at DHS misread one word in an email and the boy was to be treated, not as a child, but as an adult. Meek flew into action, contacting everyone he knew about his outrage, including Tom Ridge, head of DHS on the night of the State of the Union speech. A short time after, DHS decided to treat him as a juvenile and released him to his uncle. FIAC worked with pro bono counsel to obtain a dependency order in juvenile court making him eligible for special immigrant juvenile (SIJ) status. FIAC is now working to obtain his SIJ status.

Haitian Girl Released but Continues to Battle Lost Asylum Case at BIA and in 11^th Circuit

            A 17 year old Haitian girl, who arrived on the Oct. 29^th boat from Haiti with an older sibling, who was initially characterized by DHS as an “accompanied minor” even though her older brother was locked up in Krome and could not even visit her, much less care for her. FIAC argued that this legal characterization of “accompanied” was incorrect and that the rights available to unaccompanied children should be afforded to her. These rights include the DHS responsibility to make “release efforts” on her behalf. After extensive advocacy, DHS finally reclassified her as “unaccompanied” under the law, so she became eligible for release. In January, 2004, she was finally released. Her case on the merits continues. FIAC has a pending motion to reopen before the BIA which affirmed the denial of her asylum claim; this will be supplemented by current country conditions. Additionally, FIAC is working with pro bono counsel in an 11^th Circuit appeal of the case because even though she was never called to testify at her hearing, she was found “not credible” by the immigration judge based on her brother’s testimony. (The asylum cases had been consolidated and FIAC was not representing her at the time).

                        Other Policy Advocacy on Behalf of Unaccompanied Children

Moving ORR to Assume Their Role

             FIAC has been collaborating with groups representing children nationwide in pressuring Office of Refugee Resettlement (ORR) to assume more of the responsibilities placed upon it for the care, custody and placement of unaccompanied children in detention. ORR has the authority to decide placement issues, but ORR seemed overly cautious in assuming its authority, and DHS does not want to give up power. Very recently, FIAC has seen positive results of this extensive advocacy in two cases involving FIAC clients. In one case, a 17 year old boy was finally released to his sister-in-law in Boston, after ORR threatened to take dramatic action against DHS unless the boy was released to ORR. In that case, DHS’ reason for refusing to release the boy, was that his brother had absconded; they refused even to give him bond. ORR agreed with FIAC that the boy should not be held responsible for his brother’s actions and he is now in Boston with his sister-in-law. Similarly, in a second case, ORR also challenged DHS’ negative decision on release in a Haitian girl’s case and won.

Bench Book for Juvenile and Family Court Judges on Special Immigrant Juvenile Status

            FIAC Board member, Professor Bernard Perlmutter, from the University of Miami’s children’s clinic and FIAC met with the law firm of Weil, Gotshal to obtain their assistance in drafting a bench book for Florida judges on Special Immigrant Juvenile status. This will include a summary of who is eligible, who has jurisdiction, how to conduct proceedings involving children from other countries, etc. Given widespread misunderstanding statewide, this bench book offers hope for a simple way to begin educating judges regarding dependent immigrant children.

Bench Memo to Judges Re: Confidentiality and Not Referring Juvenile Court Cases to DHS

            FIAC is working with Children First is to draft a bench memo regarding the duty of judges in family and children’s court to maintain confidentiality and how it contravenes federal and state law for judges to refer undocumented children in proceedings to DHS. The memo will be widely distributed to family and juvenile court judges statewide. Action was spurred by the dramatic disclosure that a judge in juvenile court in Palm Beach County referred an undocumented child who was before him in dependency proceedings to DHS for deportation.

Unaccompanied Children Released to Non-Family Members

            Children are now being released to non-family members. DHS never did this in the past. This change in policy, long advocated by FIAC, gives hope to unaccompanied children who come here, but have no family members. They can be released to friends of their families.

                                    Select Examples of Detention Advocacy

Electronic Bracelets

            FIAC organized a meeting with DHS and CLINIC and FIAC on February 24^th regarding the DHS’ pilot program on electronic monitoring devices (EMD). Miami is in its 7^th month of the pilot program along with Detroit and Anchorage. They have had a total of about 75 detainees with EMDs with about 45 people with EMDs at any given time. They say its reduces cost because EMDs are less expensive than detention, but their main goal is to reduce the ratio between people with final orders and removals. They claim that written guidelines are now given to detainees, that there will be signed agreements, and that the rules are translated. They concede that they can take detainees back into custody for any reason, and they do take them back when final orders are issued. They continue to use ankle bracelets on asylum seekers. Advocacy on these issues continues on the local and national level.

Medical Issues for Women at Broward

            Following a visit to detention centers by several national human rights groups in January, FIAC was asked to follow up with some 20 women with serious medical problems who had made requests but were not treated correctly. FIAC staff interviewed all of these women and learned that many had serious problems. FIAC summarized those problems and with the women’s permission, reported them to the head of the facility. Within days, all of the women were seen at the BTC clinic and several of the pregnant women were released.

Pregnant Woman From Cameroon Who Had Been Raped By Officials There Released

            A 24 year old woman from Cameroon came to the U.S. seeking political asylum. Her husband was a political prisoner and was arrested because he spoke out for an unpopular political group in the country. At one point he escaped jail; no one has heard from him since. During her interrogation regarding the escape, she was raped by police officers. A pastor helped her to escape Cameroon. Shortly after she was taken to the Broward Transitional Center (BTC), she learned that she was pregnant because of the rape. When she told the nurse at BTC that she wanted to terminate the pregnancy, the nurse said as long as she is in DHS custody, that is not allowed. Later she spoke to the DHS head of the facility who said the same thing and added that she had to get pre-natal care. When she refused pre-natal care several nurses said they were going to refer her to see a psychiatrist for refusing pre-natal care. When she spoke with the DHS head of the facility again, the officer repeatedly discouraged her from having an abortion.

            FIAC learned from DHS national health care decision makers that BTC should have advised her that she could make her own choice but that DHS would not pay for an abortion. DHS would nevertheless transport her to a facility where she could pay for it. FIAC advocated for her release and was finally successful in obtaining her release to a shelter for women who have been victims of rape.

FIAC and Others Persuade EOIR to Back Off of Plan to Use Video Conferencing for Asylum Hearings at Broward

            FIAC helped to prevent the use of video conferencing hearings at Broward. FIAC wrote to EOIR, brought it to the attention of AILA who also wrote a letter, and EOIR backed off from the original plan. Now only the preliminary hearings (master calendar appearances) are done via video, and the individual asylum hearings are still in person.

Release of Women Asylum Seekers from Broward

            Since late summer last year, the release of women from Broward has been sporadic. FIAC raised this as a major issue with the delegation of human rights groups in January, because men at Krome continue to be released regularly. One of the women on the delegation was from DHS’ Office of Civil Rights and we asked her to do some advocacy for the women. Soon after the delegation was here, DHS met with groups of women, asked for necessary documents and sponsor information and a significant number of women were then released - a large number after many months in detention.

Detention of Undocumented Immigrants by Local Police

            FIAC continues to document abuses by the Border Patrol and by local police. FIAC staff in the detention centers have learned that some people were picked up by local police while walking on the beach, waiting at bus stops or on routine traffic stops. They were asked from what country they were and then asked to produce papers. Additionally, Border Patrol was picking up people at the airports who were arriving from California on domestic flights. They even detained relatives of immigrants and questioned them re: immigration status. FIAC is concerned that many are waiving their rights. We have met with the ACLU on the issue of stops by the local police and they are interested in working with us on a campaign to stop this practice. FIAC has written to Palm Beach and Broward County sheriffs asking to meet with them. FIAC has also demanded a meeting with Border Patrol to stop abuses.

Day Laborers in Hialeah

            A Telemundo reporter observed what appeared to be police harassment in a local park. He called FIAC. FIAC sent staff, investigated, and learned about a pattern of harassment that has taken place in or around the park for a year. Primus Park is a small public park in the City of Hialeah. Employers with jobs drive up to the park, men run up to the vehicles, work out terms of employment, and the employer hires some and takes them away. Employers do not stop on a busy street, but rather on a quite one where cars can safely pull out of traffic lanes.

            The workers (about 30 a day) are primarily Hispanic (e.g., Nicaragua, Cuba, Honduras, Argentina, Venezuela, Panama, El Salvador). They described a pattern of arrests and threats to arrest for merely being in or near the park, looking for work. The workers said that police officers had taken individual worker=s pictures, asked who they were and told them they had to leave. Some said that officers told them INS would be called if they couldn’t produce identity documents. FIAC did an open records request establishing that the police did regular Asweeps of the park@ and that there was “zero tolerance.” It also established that they distributed a summary of the ordinance to workers and told them that based on it, workers had to leave.

On some days, officers arrested people simply for being near the park looking for work. Some were arrested under a Miami-Dade County ordinance (Aloitering and soliciting employment@) even though that ordinance contains no penalty for workers arrested under it. Each of these arrests also cited another Florida State Statute, i.e., section 810.09 (Atrespass after warning@) or sec. 870.02 (Aunlawful assembly@). Workers were arrested even though they were standing on sidewalks in an industrial zone where soliciting employment, even under the county ordinance is permitted. The arrests caused fines, several hours in jail, lost opportunities to work Workers feared looking for work there and reduced numbers appeared at the park due to the harassment.

After interviewing some 40 workers and assembling this evidence, FIAC and FLS wrote the mayor of Hialeah on July 7, 2003 demanding that the practice cease or we will sue. He responded July 18. He admitted that the ordinance was circulated and that there were arrests but denied arresting immigrants simply for looking for work. After the letter, arrests and harassment stopped. FIAC negotiated with him to verify that the promise to stop all harassment is solid. If it had not, FIAC, FLS and the Mexican American Legal Defense Fund agreed to co-counsel in a challenge to the pattern and practice of harassing day laborers in Hialeah on First Amendment grounds.

Prosecution of Asylum Seekers

FIAC took the lead in an intense policy initiative to persuade the U.S. Attorney for the Southern District of Florida, Marcos Jimenez, to stop prosecuting asylum seekers who find it necessary to use false documents in order safely to exit their countries. Since September, 2002, perhaps more than 100 asylum seekers had been arrested from their homes, or removed from DHS detention centers and charged with federal crimes for entering the country with false documents. Under international law, using false papers to flee persecution is acknowledged as a necessary and acceptable practice for immigrants seeking safety in another country.

FIAC organized a meeting between the U.S. Attorney and local advocates including the ACLU, the NAACP, the SEIU, Catholic Charities, Haitian Women’s group. The U.S. Attorney conceded that there had been a sharp increase in referrals for prosecution from customs personnel at the airport of cases in which persons seeking asylum were charged with various crimes for entering the country with false documents. He stated that persons who failed to shout out that they want asylum at the primary inspection point would be referred for prosecution for failing to do so, even though the immigrant sought asylum at secondary inspection and passed the credible fear interview. FIAC suggested that there should be no prosecution in cases in which the asylum seeker passed the credible fear interview and stated at secondary inspection that s/he sought asylum.

Because the U.S. Attorney seemed to point to Border Patrol referrals as causing the increase, FIAC organized a meeting with Thomas Winkowski, Director, Bureau of Customs and Border Patrol for the region and the local immigrant/ civil rights advocate community. Mr. Winkowski conceded that his office had referred an increased number of cases, claiming his staff increased. However, he had no answer to FIAC’s question regarding why new staff should focus on referrals of asylum seekers instead of protecting the country from terrorists or drug smugglers.     Following these meetings, FIAC urged national immigrants’ rights’ groups to circulate a sign-on-letter to the U.S. Attorney. Thirty groups signed a letter to Mr. Jimenez asking him to stop prosecuting asylum seekers for using false documents because that may be their only means of escape. They argued that such prosecution violates international law because it impermissibly punishes refugees for their manner of entry. Several months later another 55 groups signed a letter opposing the policy anywhere in the country

FIAC wrote U.S. senators and congressional representatives from South Florida urging them to contact Mr. Jimenez. FIAC has also sent FOIA requests to all the appropriate agencies. Finally, FIAC learned that the practice had stopped. While there was no formal announcement or agreement, immigrants now are apparently only prosecuted for entering with false documents if they are smuggling persons or drugs.

Select Examples of Immigration Court Victories In Individual Cases

Honduran Youth Wins Asylum Based on Legitimate Fear of Forced Gang Membership

FIAC won its first gang asylum grant on behalf of a 19 year old Honduran youth. He was detained at Boystown upon entry. He was pressured by a gang to join and was badly beaten on more than 15 occasions. He was hospitalized twice. The gang threatened his life for not joining. His friend's brother was in a very similar situation, lost his case, and was deported to Honduras. 2 weeks after he was deported, he was murdered by the gang. The immigration judge recently granted asylum and the government did not reserve appeal. The Judge told my client "you are surprisingly strong after such an experience." FIAC has been litigating gang asylum claims unsuccessfully for some time and is proud of this first victory.

Peruvian woman who was persecuted on account of sexual orientation wins asylum

FIAC successfully represented a Peruvian woman in her asylum case based on the past persecution she suffered on account of her sexual orientation in Peru. Several classmates, organized by one of our client's teachers, gang-raped her in an empty classroom when she was fourteen years old because they suspected she was a lesbian and wanted to "teach her how to be a woman." She was unable to find a job in her chosen profession because her sexual orientation became known in the relatively small professional community in which she worked. She and her partner were asked to leave two separate apartments after building owners became aware of their sexual orientation -- and her girlfriend's car was covered in anti-lesbian graffiti at one of these locations. Later, after a colleague she had been dating from work in order to hide her sexual orientation found out the truth, he kidnaped and brutally raped her. She reported the incident to the police (and has documentation that she did so), but the police refused to prosecute her attacker. After she was brutally beaten in the parking lot outside her work by a gang comprised of acquaintances of her attacker, she decided to flee Peru.

Ethiopian Man Who Was Tortured and Imprisoned for Political Beliefs Wins Asylum

FIAC successfully represented an Ethiopian man who was brutally tortured at the age of 19 and imprisoned for two years as a result of his political beliefs in his claim for asylum. FIAC’s client was a member of the Oromo Liberation Front (OLF), which is fighting for self-government for the Oromo people in southern Ethiopia. His brother was arrested in 1991 and remains imprisoned for his OLF activities. His father, also active in the OLF, fled to Somalia in 1994 and has not returned. After his father fled, police visited the family home twice and searched it. FIAC’s client joined the OLF when he was 18 years old and was trained and fought as a rebel soldier. After six months, he left the OLF camp to try to find his father. After an encounter with government soldiers at a border checkpoint, soldiers came to his house and arrested him. He was held for four days at the local city jail and tortured. His captors tied him to a pole suspended between two tables and brutally beat him with sticks and whatever other objects were in the room. After the fourth day of his imprisonment, he was transported to another jail, where he was held for approximately one year. At this jail, prisoners were held in severely over-crowded conditions; were given only bread to eat and only twice a day; slept on pieces of canvas on the floor; were allowed outside only three times a day to go to the bathroom; were beaten by guards; and were never allowed to bathe during an entire year. Sickness and disease were rampant and approximately 75 people died during his year there. Prisoners were forced to bury the dead themselves. After one year, he was transferred to another jail, where he was visited by the Red Cross and eventually released a year later. When he reached his house, he learned from his brother that government officials had already visited his family's other home looking for him. He was afraid that he would be rearrested and fled. He and a friend with whom he had been imprisoned swam for six hours to a large ship anchored in the harbor and arrived in the U.S. as stowaways.

Vietnamese Woman Wins Cancellation of Removal

FIAC represented a Vietnamese woman who was detained at TGK since September 2003. DHS charged her with two convictions which qualified as “crimes of moral turpitude.” DHS said that this made her removable. However, she was eligible for cancellation of removal because she came to the U.S. as a refugee from Vietnam in 1988. Additionally, all of her family members are citizens. She has two children in the Marines fighting in Iraq. In mid-February 2003, the immigration judge terminated proceedings. The judge adopted FIAC’s innovative argument that because one conviction was characterized as "withholding of adjudication," but the Florida Court imposed only "court costs," this was not "withholding of adjudication conviction" under immigration law, because there was no "limitation on liberty, penalty, or fine." The judge granted bond. Although DHS filed an automatic stay, it expired after 10 days. She was released on $1500 bond. Unfortunately, DHS has appealed both the decision to terminate and the bond decision to the BIA. FIAC is optimistic that the BIA will rule in its favor.