Wednesday August 14, 2019

#ChangeLawyers She used to work for ICE. Now, this lawyer defends the immigrants she once prosecuted. 

Laura Peña could see that her 36-year-old client was wasting away. Gaunt and haggard after nearly two months in jail, he ran his fingers through his hair and opened his hands to show her the clumps that were falling out. He was so distraught that his two young children had been taken from him at the border, he could barely speak without weeping.

After Carlos requested political asylum, border and immigration agents had accused him of being a member of the notorious MS-13 gang in El Salvador — a criminal not fit to enter the United States. But as Peña looked at him, she saw none of the typical hallmarks of gang membership: the garish MS-13 tattoos or a criminal record back home. He was the sole caregiver for his 7-year-old son and 11-year-old daughter. He’d even brought an official letter from El Salvador’s Justice Ministry certifying that he’d never been in jail. Something else about his case bothered her, too: She’d been peppering the government’s lawyers with phone calls and emails for weeks and they’d yet to reveal any evidence to back up their accusation.

Unlike most attorneys working pro bono to reunite families, Peña was familiar with MS-13, because she’d pursued the deportation of gang members as a trial attorney for Immigration and Customs Enforcement. She understood how the system worked, because she’d been a part of it. Her long tumble of curly hair, which makes her look younger than her 37 years, is paired with a forthright-bordering-on-blunt manner of speaking forged from her years as a prosecutor on the front line of the immigration debate. She was empathetic toward the plight of clients like Carlos, whose last name is not being used for his protection. But she was also unwilling to give any of them false hope. If Carlos was a gang member, his chance for asylum was zero.

“There has to be a mistake,” Carlos insisted that December day from behind the scratched plexiglass wall in the visitor’s room at the jail. “Please help me.” Looking at him, Peña wanted to help. But the system she’d once known, as flawed as it was, had turned into a black box she no longer understood, with an ever-shifting array of rules and policies that granted untold discretion to the government. She couldn’t even get ICE attorneys to comply with a fundamental tenet of a fair system: providing proof of their case, evidence they could fight against.

To Peña and her colleagues, cases like Carlos’ signaled a troubling new era. Years of legal precedent had been swept away by Trump administration efforts to push through evermore harsh immigration policies like family separation. Then, when the courts pushed back and the policies were publicly rescinded, the administration discovered new ways to quietly continue them. She and her colleagues were counting hundreds of new cases of family separation along the border that occurred after the “zero tolerance” policy supposedly ended in June 2018. But no one could track what the government was doing with every case.

Now here was Carlos, who simply looked like a grief-stricken dad. Peña had been skeptical of him at first. When they’d met in November 2018, all she knew was that he was considered such a threat that ICE and Customs and Border Protection had put him in the wing of the Laredo, Texas, jail designated for violent offenders. She’d used her ICE training to poke at his story, searching for inconsistencies, signs he was lying. “Trust but verify” was her guiding principle. She’d gone over his background with him multiple times, his story about why he’d fled El Salvador and his former life as a warehouse manager for an architectural design company. She’d made him retrace his story over and over until she was satisfied.

As a pro bono attorney working for the nonprofit legal group Texas Civil Rights Project, Peña had a growing stack of cases on her desk. She’d spent the last six months monitoring “zero tolerance” prosecutions at the courthouse, searching for unlawful separations. Her mandate was simply to reunify Carlos with his children. He was luckier than most; he had her asking questions on his behalf. The majority of migrants who are arrested at the border never see a lawyer, let alone understand how to fight the allegations against them. Carlos was one drop in a river of cases.

But something about his case made her want to dig deeper. What wasn’t the government telling them?

Read the story on Pro Publica 

More of This The prosecutor who is rethinking prosecution 

The following is an interview tih Wesley Bell, St. Louis County’s first ever Black prosecutor

This week, What Next is revisiting the shooting of Michael Brown in Ferguson, Missouri, on its fifth anniversary. In the final installment of our series, I spoke with Wesley Bell, who was sworn in as St. Louis County’s first black prosecutor. Bell stood between protesters and police as the events in Ferguson began to unravel. He later decided to run for office, won, and was sworn in on New Year’s Day. Bell and I discussed Ferguson, the effects of fines and high incarceration rates on his community, and how he’s using his power as the county’s top prosecutor.

You started your career as a public defender.
I was a product of the O.J. trial. I was 19, and I just saw that dichotomy that if you have money, you experience the system in a different manner as opposed to those who don’t. My thought was: What better way to make change than to be a judge?

While you were a judge, hearing cases in traffic court, you realized the people coming before you were being inundated by fees. These are the kinds of problems the Justice Department highlighted in its report about Ferguson. The DOJ laid out how tickets and fines were disproportionately punishing black residents: If they couldn’t pay, a warrant would be issued for their arrest.
Until the Department of Justice’s report, few knew the scope of it, how this was going on across not only St. Louis County but across the state, and honestly across the nation. And what I take pride in is that in my courts there were issues that I was aware of just from my experience that I corrected in those courts.

Like what?
Payment plans. I remember getting a little pushback from up top, saying that we don’t want these lenient payment plans—we want three payments. So if their fines are $200, then divide that by three. My thought was, OK, I’m going to get around this. Let’s say the minimum payment would be $300. What I would tell them is, “Unfortunately, I can’t give you a payment arrangement lower than that, but what I can do is I’ll continue the case for you, and then we’ll do this again.” And then they come back in the next court date, and they only have $25. I’ll take that $25, and we’ll just continue it.

After spending time on the bench, did you see the job differently?
It didn’t take long to realize that the real impact came from the prosecutor’s office. Statistics show 90-plus percent of cases are resolved by the time they get to the judge. And so shortly thereafter, I actually stepped down from the bench and focused just on being a municipal court prosecutor.

After that, you served on the City Council, then ran for prosecuting attorney of St. Louis County and won. On your first day on the job, you fired a number of veteran prosecutors, then issued a seven-page memo laying out exactly how the office’s approach to criminal justice was about to change. You said you’d no longer prosecute low-level marijuana offenses. You’d also decline to criminally pursue parents who failed to pay child support. You ended cash bail for misdemeanors. I wonder if you could explain a little bit why you moved so swiftly when you took office to do so much at once.
I don’t know how to make change without change. And as human beings, we are wired to be afraid of change.

We make a point to explain not only our positions but the why behind our positions, the research, the data that supports it. And if we find data that proves that we should be doing something a better way, then that’s what we do.

There’s always that initial instinct, it seems, that people who are used to doing things one way will just cringe when they hear of change happening. But once they understand it, they become converts. And so we wanted to hit the ground running. We wanted to set an example of where we were going so that the office and the attorneys knew what we were doing, and that this change was coming, and that it was time to get on board, and we didn’t want to wait.

Read the interview on Slate 

More of This Too How judges can show respect

Speaking Of… Trump administration is trying to silence outspoken judges

The Justice Department has moved to decertify the union of immigration judges, a maneuver that could muffle an organization whose members have sometimes been openly critical of the Trump administration’s immigration enforcement agenda.

The department filed a petition on Friday asking the Federal Labor Relations Authority to determine whether the union, the National Association of Immigration Judges, should have its certification revoked because its members are considered “management officials” ineligible to collectively organize, according to a Justice Department spokesman.

The move suggested escalating tensions between overwhelmed immigration judges desperate for greater resources and a Justice Department pushing them to quickly address a backlog of immigration cases.

“This is a misguided effort to minimize our impact,” said Judge Amiena Khan, vice president of the judges’ union, which has publicly criticized the use of a quota system in immigration court and other attempts to speed up proceedings.

“We serve as a check and balance on management prerogatives and that’s why they are doing this to us,” said Judge Khan.

Unlike other federal judges who are part of the judicial branch, immigration judges are appointed by the attorney general and are employees of the Justice Department. Though sitting judges are prohibited from speaking publicly about issues that could be considered political, representatives of the immigration judges’ union can speak publicly about Justice Department policies on behalf of its members.

This is not the first time an administration has challenged the organization. The Clinton administration also tried to decertify the immigration judges’ union, a move that the Federal Labor Relations Authority rejected, according to former immigration judges.

Both Judge Khan and the union president, Judge Ashley Tabaddor, have spoken out repeatedly against what they say is an attempt to turn immigration judges from neutral arbiters of the law to law enforcement agents enacting the White House’s policies. They have called for immigration judges to be independent of the Justice Department.

Last year, the union criticized the department’s quota system, which required immigration judges to complete 700 cases per year, as well as a move to bar judges from an administrative tool they had previously used to reduce their caseloads. The union says the focus on efficiency impedes judges’ ability to work through complicated cases and could affect the due process rights of immigrants in court.

Read the story on NY Times 

Less of This There’s a program that provides free lawyers to detained immigrants. The Trump administration is trying to destroy it.

In February 2017, Carlos was arrested by Immigration and Customs Enforcement shortly after he dropped one of his daughters at her school bus stop; the agents had been waiting there for him. He was locked in immigration detention in the Bergen County Jail in New Jersey for six weeks before he had his first hearing in immigration court.

Carlos, who wishes to be identified only by his first name, worked as a mechanic and held a green card, making him a legal permanent resident. In jail, he was confused, he missed his three daughters, and he had no idea what was going to happen to him next. He had been arrested so that he could be deported to his native Dominican Republic, having been convicted several years before for two offenses. One was a misdemeanor assault in 2013, for which he served five months in jail, and the other was attempted burglary in 2011, for which he served six months.

“In that month when I was waiting to see a judge, there was no information,” Carlos said. “It was just chaos.”

Then one day, jail guards shackled his legs and hands and transported him and other detainees in the back of a van to the Varick Street Immigration Court in Lower Manhattan. His family had been struggling to find a lawyer, and he wasn’t sure what awaited him. To his surprise, he was taken to a fourth-floor room where he met Molly Lauterback, an attorney from Brooklyn Defender Services, a city-supported pro bono agency; she told him she could represent him free of charge.

“A lot of money would’ve been spent on a case like this, and we didn’t have the resources for that,” Carlos told me. So he agreed to let Ms. Lauterback and her team represent him. And a year and a half later, she and her team achieved his release from detention under a “cancellation of removal,” formerly known as a suspension of deportation.

Ms. Lauterback and her colleagues are part of the New York Immigrant Family Unity Project, which aims to make itself the nation’s first of many public defender systems for detained immigrants in deportation proceedings. Immigrants in the Varick Street Immigration Court are now 11 times more likely to win their cases than before the program began. It is now being replicated across the country, in states such as Texas and Illinois. But the Trump administration has sought to undermine the New York program, which at first had support from federal officials, by making it more difficult for detained immigrants to get access to the program’s lawyers.

Immigrants like Carlos are not necessarily entitled to a lawyer in immigration court. The Sixth Amendment guarantees an individual’s right to counsel in criminal proceedings, but the government argues that the right does not extend to immigration courts, which are deemed civil despite the severity of the consequences being considered. In a 2014 CNN opinion article, a nationally prominent immigration judge, Dana Leigh Marks of San Francisco, said the drama of immigration cases “often involves life and death consequences,” making them “amount to death penalty cases heard in traffic court settings.”

There are some exceptions. For example, the federal government must provide a lawyer to immigrants with mental disabilities. But a large majority of people, including children, are not entitled by law to have such representation. According to Syracuse University’s Transactional Records Access Clearinghouse, there are now more than 300,000 pending cases in which immigrants are unrepresented, which leaves them facing highly trained government attorneys alone as they navigate complex immigration law.

In 2008, that issue began to worry Judge Robert Katzmann in the Second Circuit Court of Appeals. Federal courts have the power to review decisions of the appellate Board of Immigration Appeals if the individual is able to file a request. Judge Katzmann was seeing the number of such requests go up and noticed that all of the immigrants were getting a shockingly poor quality of representation. Between 1999 and 2006, he saw immigration cases rise from a minuscule portion of the court’s docket to almost 40 percent.

“In all too many cases, I had the sense that if only the immigrant had competent counsel at the very outset of immigration proceedings” Judge Katzmann said during a speech in 2012, “the outcome might have been different, the noncitizen might have prevailed.”

The judge formed a study group that found that immigrants in detention and immigrants without legal representation were much more likely than others to be deported. A 2011 report by the group found that 60 percent of detained immigrants did not have lawyers and that 97 percent of detained immigrants who lacked a lawyer were being deported.

“It was heartbreaking to go to Varick Street and to see folks who were without lawyers in these proceedings,” said Jennifer Williams, an immigration attorney with New York’s Legal Aid Society. “Totally have no idea what is going on, how to best defend themselves. They’re shackled in orange jumpsuits. It was appalling.”

Spurred on by these findings, Judge Katzmann’s study group decided to create the New York Immigrant Family Unity Project in 2013, with the goal of creating a pilot program for universal representation that could eventually be expanded to represent every detained immigrant with a hearing at the Varick Street Immigration Court. The City Council funded the pilot program and the Vera Institute of Justice facilitated it.

The pilot grew and became fully funded in 2014 and now funds three organizations to provide lawyers — the Brooklyn Defender Services, the Bronx Defenders and the Legal Aid Society. Attorneys from these organizations meet every immigrant with a hearing at Varick Street, including those detained in New Jersey and upstate New York, and offer their services to anybody whose income is less than 200 percent of the poverty line.

In 2017, Vera issued a report on the first three years of the program and the results were striking. The rate of success — defined as the immigrant’s being allowed to stay in the United States — had risen by 1,100 percent. Before the program was available, potential clients who went unrepresented had a 4 percent success rate, while later clients who were represented through the program had a 48 percent success rate, the report found.

Cases like Carlos’s are a striking example of the need for a lawyer. According to his attorneys, Carlos had been placed in deportation proceedings because of the two previous arrests. In the first, in 2011, he was found in the driveway of a home that had been burglarized, but he had never entered the house. In the second, in 2013, he was charged with assault when he fought to defend his girlfriend against a drunk customer at the restaurant where she worked. Green-card holders can be ordered deported if they commit a crime, which can be as minor as hopping a subway turnstile. But Ms. Lauterback told Carlos he could be eligible for a “cancellation of removal,” considering the larger arc of his life in the United States after serving his jail time.

Aware that the burden of proof in a cancellation of removal case is high, Carlos’s lawyers brought up his previous taxes, social-work letters, letters of support and a psychological evaluation regarding past hardship. The prospect of Carlos’s being able to gather such documents while in detention is hard to fathom — especially given that phone calls to anyone except a lawyer can cost about 25 cents per minute. “It’s like an automatic deportation if you don’t have a lawyer,” Carlos said.

Read the story on New York Times 

Less of This Too Nobody is talking about the deportation of African and Black immigrants 

Although often not covered in the media, the African immigrant community is facing mass deportations in the era of Donald Trump. While the immigration debate in the U.S. is often framed in terms of undocumented immigrants from Mexico and Central America on the one hand and the infamous Muslim travel ban on the other, the issue is more complicated. As the U.S. Immigration and Customs Enforcement (ICE) agency conducts its sweeps on immigrant communities, African people are among those who are being detained and deported. While deportations were in no short supply under the Obama administration, these deportations are expected to soar under Trump, whose immigration ban on six Muslim nations includes three African nations — Libya, Somalia and Sudan. Trump also is clamping down on refugees and asylum seekers.

According to data from the Department of Homeland Security, in 2015, ICE deported 1,293 African immigrants. Since the 2016 election, the ICE raids on Black immigrant communities have intensified. For example, in January, 86 men and women were deported to Mogadishu, the capital of Somalia, after being detained and imprisoned, as Africanews.com reported. In November, 108 immigrants were deported to Ghana and 20 people also were deported to Liberia, while 53 others were processed for deportation. Earlier this month, ICE deported 130 people to Senegal, six times the number recorded by the agency in its 2016 report.

There are 2.5 million African immigrants in the U.S., according to the Pew Research Center.  When including the Caribbean, Latin America and other regions, there are as many as five million Black immigrants in America. People from Africa experienced the fastest growth rate of the immigrant groups coming to the U.S., 41 percent between 2000 and 2013.

In its “State of Black Immigrants 2016” report, co-authored with the New York University School of Law Immigrant Rights Clinic, the Black Alliance for Just Immigration (BAJI) found that Black immigrants are much more likely to be deported due to a criminal conviction than nationals from other regions of the world. More than one out of five noncitizens facing deportation on criminal grounds is Black. Tia Oso, national organizer for BAJI whose organization works on advocacy, education and direct action on issues impacting Black immigrants and African-Americans, said there is not nearly enough coverage of what is happening regarding the deportations.

The biggest issue with the executive order as far as Black immigrants are concerned, Oso noted, is that fully one-third of immigrants, refugees and asylum seekers are African. “So, to have a ban on refugee resettlement here — a ban on Somalia, Libya and Sudan — is 100 percent to reduce the number of immigrants from these countries, who are Black Africans, from coming to the U.S.” she said. “We have families who are being split up, family members being stuck in limbo in the refugee camps. These people have already been approved, already vetted and assigned to be resettled in the U.S.” Oso said these policies are designed to reduce to the number of Black and brown people.

Not all immigrants are treated equally or being targeted by immigration agents. For example, there are approximately 50,000 undocumented Irish immigrants in the U.S., as CNN reported, yet they are not facing the threat of police raids and deportations. “If this was about immigration, then the undocumented Irish and European folks would be a part of the roundups,” Oso said. “The people being deported are from Mexico, Central America, the Dominican Republic and Haiti. So, this is about keeping America white, not making America great.”

She also said that “the roots of the anti-immigration movement are directly rooted to white nationalism and the white citizens councils, and are related to maintaining the white power structure in narrowly defining who is American and is free to live in the country.”

Read the story on Atlanta Black Star

Perspective Prisons are packed because prosecutors are coercing plea deals. And it’s totally legal. 

The following editorial was written by Clark Neily, a lawyer and vice president for criminal justice at that Cato Institute.

America is the most prosperous country in the history of the world. We excel at innovation and mass production — and nowhere is that more true today than our criminal justice system, which features a streamlined process for transforming millions of suspects into convicted criminals quickly, efficiently and without the hassle of a constitutionally prescribed jury trial.

It’s called coercive plea bargaining, and it’s the secret sauce that helps us maintain the world’s highest incarceration rate.

According to a recent study from the Pew Research Center, of the roughly 80,000 federal prosecutions initiated in 2018, just two percent went to trial. More than 97 percent of federal criminal convictions are obtained through plea bargains, and the states are not far behind at 94 percent. Why are people so eager to confess their guilt instead of challenging the government to prove their guilt beyond a reasonable doubt to the satisfaction of a unanimous jury?

The answer is simple and stark: They’re being coerced.

Though physical torture remains off limits, American prosecutors are equipped with a fearsome array of tools they can use to extract confessions and discourage people from exercising their right to a jury trial. These tools include charge-stacking (charging more or more serious crimes than the conduct really merits), legislatively-ordered mandatory-minimum sentences, pretrial detention with unaffordable bail, threats to investigate and indict friends or family members, and the so-called trial penalty — what the National Association of Criminal Defense Lawyers calls the “substantial difference between the sentence offered prior to trial versus the sentence a defendant receives after a trial.”

Of coercive plea bargaining’s many problems, two are particularly concerning.

The first is false convictions. Though it was once believed that a confession in open court — a guilty plea — was proof-positive of a person’s guilt, we now know that simply isn’t true. Indeed, of the more than 300 people definitively exonerated by the Innocence Project using DNA evidence, some 11 percent pleaded guilty to crimes they did not commit since 1989. The National Registry of Exonerations puts the total number at 20 percent since 1989. But whatever the precise figure, it is clear that innocent people are routinely coerced into pleading guilty to crimes they did not commit.

Despite this mounting evidence, however, the U.S. Supreme Court has steadfastly refused to police the line between permissible inducements and unconstitutional coercion. For example, in a notorious 1978 case called Bordenkircher v. Hayes, the defendant was accused of forging an $88 check and told that, if he refused to take a five-year plea offer, the prosecutor would re-indict him as a habitual offender — which would increase his maximum sentence from 10 years to mandatory life in prison. On appeal, the Supreme Court found nothing problematic about using the threat of a life sentence to try convince a defendant to accept a five-year plea, and allowed the life sentence to stand, since Bordenkircher had refused the deal.

The other big problem with coercive plea bargaining is that it helps cover up an untold amount of prosecutorial misconduct. Even in the federal system, where prosecutors are held to a relatively higher standard, there has been a surprising amount of misconduct in the handful of cases that end up going to trial.

Read the story on NBC News