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News From CLINIC's Case Files: Issue Two

by Catholic Legal Immigration Network, Inc.'s Division of Public Education and Advocacy

The following are examples of vulnerable immigrants and developments that negatively impact the population served by the Catholic Legal Immigration Network, Inc. ("CLINIC's") affiliate agencies. These examples represent a sampling of problematic cases and issues from across the country.

February 2004: Issue Two

1. Backlogs Keep Families Apart: Adjustment of Status Adjudication Delays
Ms. A, the beneficiary of an approved I-130 petition filed by her U.S. citizen spouse, filed an I- 485 application for adjustment of status to lawful permanent resident in February 2001. Mr. and Mrs. A attended an interview with an INS adjudications officer in Charleston, SC in June 2002, and were told that Mrs. A's FBI fingerprint check had not yet been completed, but otherwise, her I-485 was approvable.

Mrs. A's legal representative did an in-person inquiry with the INS adjudications officer handling the case in Charleston, SC on November 12, 2002. This was followed by a serious of five letters as well as in-person and telephonic inquiries to the director of the then-INS Charleston suboffice and subsequently the District Director of the USCIS Atlanta Office. All of the letters and requests for assistance regarding the case have gone unanswered. Finally, one communication received from the Texas Service Center in response to a congressional inquiry about the case stated that due to a "missing I-89 form," the Service Center could not process the I-181 (record of creation of lawful permanent residence). The notice did not explain what the I-89 was, but instructed Mrs. A to contact her local "INS" office for further assistance.

In December 2002, Mrs. A's father passed away in Mexico. She was not able to leave the country to attend his funeral, nor has she been able to leave since his death to visit and comfort her mother, as her departure would trigger a 10-year bar to re-entry (due to the amount of time she spent in the United States in undocumented status). Although Mrs. A was fingerprinted again in April 2003 and October 2003, she has yet to receive her lawful permanent resident status, nearly three years after her application was filed.

2. USCIS Delays Hold Serious Consequences for SIJS Applicants
Special Immigrant Juvenile Status (SIJS) is available to immigrants under the age of 21 who have been declared dependent and placed in long-term foster care by a U.S. juvenile court. The Child Status Protection Act does not cover SIJS applicants. Therefore, once an applicant turns 21, he or she is no longer eligible for SIJ status.

Ms. W, a citizen of Trinidad and Tobago, was placed in the care of the state of Maryland in January 1999, due to substantial abuse by her mother. Ms. W has lived in the United States since she was seven years old. In November 2000, the Baltimore City Department of Social Services (DSS) submitted an I-360 (Special Immigrant Juvenile Petition) for Ms. W. After not receiving a decision regarding the petition, DSS sought the legal assistance of Associated Catholic Charities of Baltimore who confirmed that the I-360 had been approved in February 2002.

In January 2003, upon confirmation that the I-360 was approved and that Ms. W was eligible for permanent residence as a special immigrant juvenile, Ms. W filed her I-485, application for permanent residence. Initially, the Vermont Service Center did not place the case in expedited processing, erroneously claiming that the Child Status Protection Act covered Ms. W. Ultimately, the case was transferred to the Baltimore USCIS office for adjudication. Despite repeated requests that the I-485 application be adjudicated before Ms. W turned 21 on December 5, 2003, the USCIS Baltimore office scheduled the interview for March 2004.

An accredited representative from Associated Catholic Charities personally visited the USCIS Baltimore office on Wednesday, December 4, 2003 to request an interview for Ms. W. That day he met with the USCIS Baltimore Director of Examinations, who informed him that USCIS had cancelled his client's March interview because they intended to revoke her I-360 approval. Although Ms. W's representative immediately requested an explanation regarding the intent to revoke her approved I-360, USCIS waited until December 9, 2003 (after her 21st birthday) to issue the notice of intent to revoke (at which point she was ineligible for special immigrant juvenile status).

In addition to the serious failure of USCIS to expeditiously process Ms. W's case when she faced the danger of aging out, USCIS issued a notice of intent to revoke that was based an incorrect interpretation of law. The notice of intent to revoke erroneously stated that Mrs. W was not eligible for SIJS due to her placement by Baltimore Social Services in an "independent living" program. Ms. W participated in the independent living preparation services component of Maryland Department of Social Services Foster Care, a program recommended to most youths in foster care between the ages of 16 and 21 to prepare them for their departure from the foster care system. The independent living program is part of the foster care system, and thus Ms. W was eligible for SIJS and the I-360 was properly approved in February 2002.

The December 9, 2003 USCIS decision to issue a notice of intent to revoke an approved petition (more than one year after its initial approval), after Ms. W aged out, prevented her from preserving her eligibility for SIJ status. The USCIS intent to revoke the I-360 and refusal to interview her regarding her I-485 application prior to her 21st birthday have resulted in her inability to obtain SIJ status. After turning 21, Ms. W's support through the foster care system was terminated. Because she is unable to work without legal status, she and her one-year-old son face a very uncertain future.

Associated Catholic Charities of Baltimore has two similar cases involving jointly filed I-360s and I-485s, where the applicants were also participants in the independent living program. Because Associated Catholic Charities fears that USCIS may deny the I-360 petitions in these cases on the same grounds that they based their intent to revoke in Ms. W's case, they are working with a private law firm develop a response to the USCIS' notice of intent to revoke Ms. W's I-360.

3. Torture Survivor Granted, then Denied, Humanitarian Parole
Mr. T is an Ethiopian national and citizen of Eritrea who fled to the United States after being tortured by the Eritrean government. His asylum case was denied, and upon learning he could be sent back to Eritrea, he attempted suicide. Shortly thereafter, he was transferred to a psychiatric institution in New York. His doctor's evaluation shows that he does not suffer from mental illness, but rather acute anxiety, which his psychiatrist directly attributes to his fear of returning to Eritrea.

Earlier this year, Mr. T came into contact with Barbara Fortson, an attorney with Catholic Charities of the Archdiocese of New York, who is currently representing Mr. T in a request for humanitarian parole, and in the alternative, deferred action.

On October 10, 2003, Mr. T was granted humanitarian parole and scheduled to be released the following day. Unfortunately, at 5:45 PM on Friday October 10, Ms. Fortson received a phone message from Mr. T's parole officer stating that Mr. T would not be released as planned. Thereafter, Mr. T's humanitarian parole case was transferred to the legal department of the Immigration and Customs Enforcement, which has refused to reinstate humanitarian parole.

4. Twice Granted Asylum, Injured Haitian Refugee Remains Detained
Rochenel Charles arrived in the United States on October 29, 2002 by boat from Haiti. Since his arrival, he has remained detained at the Krome Detention Center in Miami, Florida. He was granted asylum by an Immigration Judge in February 2003, but was not released because the DHS filed an appeal. On September 4, 2003, the Board of Immigration Appeals reversed his asylum grant and ordered removal. Then in rare move, on September 24, 2003 the Board granted an emergency stay of deportation and removal pending reconsideration of Mr. Charles' asylum claim.

During this period of detention, fifty-five year old Mr. Charles was severely injured on September 3, 2003, when he fell off a grocery truck he was unloading while working at the Krome cafeteria. (The detainees are paid $1 a day to work in the cafeteria.) Mr. Charles had been confined to a wheelchair since his fall, which was taken away when he was nearly deported. There is serious concern that his leg may not fully recover.

To date he has only received painkillers and minimal medical treatment from the doctors at Krome. The DHS has refused to transport Mr. Charles to a medical facility outside of Krome where he could be seen by a qualified specialist and be given an MRI, which is essential to ascertain the full extent of his injuries. Likewise, Krome has refused to grant permission for an outside orthopedic surgeon to examine and treat Mr. Charles, at no cost to the government.

At his second asylum hearing on December 12, 2003, the IJ again granted asylum and ordered Mr. Charles to a hospital due to a serious cough. Mr. Charles reports that instead, officers locked him in a small room at the Krome clinic for several hours and never attended to him. Mr. Charles remains detained, as DHS appealed the IJ's decision again.

5. Special Registration Initiated Removal Proceedings Jeopardize Family Unity
In February 2003, Mrs. R, then a lawful permanent resident, but now a U.S. citizen, filed an I-130 petition for her spouse, Mr. R. In March 2003, Mr. R was issued a Notice to Appear (NTA) when he reported to DHS to comply with Special Registration requirements. The NTA charged him as removable for overstaying his nonimmigrant visa. His merit hearing was scheduled for February 2004.

In August 2003, petitioner Mrs. R became a U.S. citizen and shortly thereafter, submitted a request to upgrade the I-130 preference category (as the beneficiary is a spouse of a U.S. citizen and therefore immediately eligible to adjust status upon approval of the I-130 petition) to the Baltimore USCIS District Office as well as to the Vermont Service Center. Upon receipt of this request, the Baltimore USCIS District Office informed Mr. R's attorney that all I-130 interview slots were filled through March 2004.

In December 2003 CLINIC asked William Yates, Deputy Executive Associate Commissioner of the Immigration Services Division of the U.S. Citizenship and Immigration Services (USCIS) to intervene with the Baltimore USCIS office to ensure that the I-130 would be adjudicated prior to Mr. R's February 2004 Immigration Court merit hearing.

Shortly thereafter, Mrs. R and her husband were scheduled for an I-130 interview at the Baltimore District Office in mid-January, approximately three weeks in advance of Mr. R's February Immigration Court hearing. CLINIC believes that Mr. Yates involvement in this case was essential to the interview scheduling and commends his positive intervention. Mr. and Mrs. R are now awaiting their Immigration Court date.

6. The Post-Order Custody Review Process: Is There Really Any Process?
Many problems plague the post-order custody review process for individuals with final orders of removal who are detained by the Immigration and Customs Enforcement (ICE). Commonly referred to as indefinite detainees or "lifers," these individuals are from countries that refuse to accept their return. Many of these individuals entered the United States as refugees at young ages, and are from countries to which the United States has no diplomatic ties. Although the U.S. Supreme Court found that the government could not indefinitely hold such individuals in its custody, ICE often fails to comply with the Supreme Court's decision as well as federal regulations governing the post-order custody review process. The cases below illustrate a few examples of systemic problems that undermine the legitimacy of post-order custody review process.

a. ICE fails to conduct timely 90- and 180-day post-order custody reviews
Mr. Y, a national of Laos and former lawful permanent resident of the United States received a final order of removal on 5/23/03. In July 2003, he submitted a written request to his detention officer for a local 90- day custody review. He never received a response to this request, nor a 90-day review. Mr. Y has also requested a 180-day review from the Headquarters Post-Order Detention Unit (HQPDU). After the local ICE office denies release at the 90-day review, the case is sent to HQPDU, which conducts another review 90 days later. Mr. Y has not received a response or a 180-day review from HQPDU. Mr. Y has submitted at least 10 requests to see his detention officer. All have gone unanswered.
b. Frequently, after a detainee has demonstrated that there is no likelihood of removal in the reasonably foreseeable future, the government fails to rebut this showing with evidence, as required by the Supreme Court's decision in Zadvydas v. Davis, and unlawfully continues detention.

Mr. D is a national of Liberia. His removal order became final in January 2003. Since that time he has sent multiple letters to the Liberian Consulate requesting travel documents. All of his letters have gone unanswered. In addition, Mr. D had a telephonic interview with the Liberian Consulate, which was facilitated by his detention officer. Despite this interview, and his multiple requests for a travel document, he has not been issued one. These factors demonstrate that his removal is not likely in the reasonably foreseeable future. His removal order has been final for more than one year. The DHS now has the burden of showing, with evidence, that Mr. D will be removed in the reasonably foreseeable future. Because DHS has provided no evidence that Mr. D's removal is likely in the reasonably foreseeable future, his continued detention cannot be justified and is unlawful. Mr. D has provided his detention officer and HQPDU with copies of the letters he has sent to the Liberian consulate, as well as a letter from a church stating that they would provide Mr. D with shelter and assistance in finding employment upon his release. On 9/5/03, HQPDU sent Mr. D a notice informing him that his custody status would be reviewed on or about September 15, 2003. Mr. D has not received a written decision regarding HQPDU's 9/15/03 review of his custody.

7. Electronic Monitoring Pilot Program Fraught with Problems
In August 2003, the Immigration and Customs Enforcement (ICE) implemented an electronic monitoring pilot program in Miami, FL. The program, which uses electronic monitoring devices in the form of ankle bracelets, has been used on asylum-seekers who would otherwise be eligible for release on parole. CLINIC objects to the use of electronic monitoring on such asylum-seekers. It recently met with one man, Mr. V, whose case highlights several problems with the program.

Mr. V fled to the United States from Haiti seeking asylum. He was released under the electronic monitoring program from the Krome detention facility in Miami, FL while waiting to have an asylum hearing with the Immigration Judge. Upon his release, he received no written instructions regarding the terms and conditions of the electronic monitoring program. Mr. V's detention officer orally informed him that under the program, he could leave his home between 9:00 AM and 2:00 PM everyday. The officer did not inform him of any other conditions. Less than one month after his release, Mr. V was re-detained after he attended church on a Saturday from 9:30 AM to 1:00 PM. Upon his re-detention, DHS told Mr. V that he was not allowed to leave his home on Saturdays. This was the first time that Mr. V learned of this condition.

While released, Mr. V demonstrated extremely conscientious behavior illustrating that he did not intend to violate the terms of the EMP. For example, on each of the three days prior to a 9:00 AM Immigration Court appearance, Mr. V attempted to contact his detention officer, as he had been instructed to do, to inform him that he would have to leave his home before 9:00 AM in order to be on time for the hearing. For three consecutive days prior to the court hearing, Mr. V left messages for his detention officer. The officer never returned his calls. After the court appearance, Mr. V attempted to visit his detention officer to inform him that his violation only occurred because he had to attend an Immigration Court hearing. His detention officer was not available, and other ICE employees sent Mr. V home.

In a letter to Mr. V's attorney, ICE indicated that Mr. V violated the terms of the electronic monitoring program 15 times. No evidence of those violations was given prior to re-detaining Mr. V, nor has any evidence been provided to Mr. V's attorney. Additionally, ICE's letter to Mr. V's attorney states "While at the residence, he and his sponsors were again notified in their native language of the agreements by officers using a Creole-speaking DHS employee." It is clear from Mr. V's case that oral notification is not sufficient. It is not possible to accurately gauge or document an individual's understanding of the conditions of a program that are given orally. When important information and requirements are only provided orally, language and cultural barriers often result in misunderstandings. For these reasons, written notice is essential. The letter also states that Mr. V was provided with written instructions regarding the program, yet despite repeated requests for a copy of these instructions, ICE has failed to provide them to Mr. V's attorney.

Mr. V's case is not an isolated example of ICE's failure to provide program participants with written instructions regarding the program. CLINIC interviewed several other detainees who, upon their release, did not receive written instructions regarding the conditions of the program, indicating that the problem needs to be addressed systemically. Recently, in a positive development, ICE agreed to meet with FIAC and other NGO's in the Miami area to discuss problems related to the electronic monitoring program.

8. Asylum-Seeker Prosecuted for Use of False Passport
Mr. K fled Ethiopia with an Italian passport. Upon arrival at the Dulles International Airport in Virginia, he was referred to secondary inspection. At secondary inspection, a senior immigration inspector with the Customs and Border Protection (CBP) referred him to the U.S. attorney's office for prosecution under 18 USC 1543, for the use of a false, forged, or altered passport. According to Mr. K, despite his minimal English skills, there was no interpreter present during secondary inspection and the inspector did not ask him if he was afraid to return to his country. The CBP inspector filed a criminal complaint and Mr. K was taken into U.S. Marshall's custody. Because he was immediately referred for prosecution, he was not taken into DHS custody and never received a credible fear interview. He is currently detained in a county jail waiting to be indicted. After he is prosecuted, he will be transferred to DHS custody. Upon his transfer to DHS, he will most likely already have a conviction for using a false passport, and therefore, he will not be eligible for asylum. CLINIC strongly objects to the prosecution of asylum-seekers for the use of false documents before they have received a final decision in their asylum cases.

About The Author

The Catholic Legal Immigration Network, Inc.'s ("CLINIC") Division of Public Education and Advocacy plans to circulate a compilation of its current cases on a bimonthly basis, in an effort to regularly document and report on problematic developments facing the population served by its network. CLINIC believes that documentation and media coverage of the human impact of our nation's immigration laws and policies are crucial to advocacy efforts to create a more just immigration system. CLINIC relies heavily on the case examples that it receives from its affiliate agencies in order to effectively advocate with officials at the Department of Homeland Security (DHS) and the Executive Office for Immigration Review (EOIR). Please contact Vanessa Waldref at or (202) 635-5812 with your examples of backlogs, poor customer service, and other problem cases.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.