I’m honored to share a guest blog post by attorney Lisa Laurel Weinberg, who won an asylum case for a detained mother and her two children. The family had fled life-threatening abuse in Honduras, only to be detained at the Artesia Detention Facility, one of the new family detention facilities. Due to the conditions at Artesia, one of her children, an infant, suffered from severe illness. Lisa’s tremendous work on the case allowed the family to be released from detention on parole and ultimately to access protection in the form of asylum.
We are happy to share that the Obama Administration recently announced the closing of the Artesia facility, however, LIRS is devastated that families will be transferred to the existing facility in Karnes, TX, and a new enormous, 2,400-bed facility in Dilley, TX.
Lisa Laurel Weinberg shares her side of the story, and the main issues many asylum seekers in detention face:
On June 27, 2014, U.S. Immigration and Customs Enforcement (ICE) began detaining Central American women and their children who are either apprehended or turned themselves in to Customs and Border patrol officers at the United States border with Mexico. The women and their children are fleeing to the United States from Honduras, Guatemala, and El Salvador escaping domestic violence, gang violence or both. ICE began detaining them in a 672-bed temporary family detention in Artesia, New Mexico at the Federal Law Enforcement Training Center. The family detention center is now closing and will be returned to its original use as a federal law enforcement training facility. However, this is not good news for the women and children still detained and for those who are still to come. The remaining women and children will be transferred to a 523-bed family detention facility in Karnes City, Texas and a new 2,400-bed family detention facility which will be opening in Dilley, Texas.
I went to Artesia to represent women and children on September 1, 2014 for eight days. One of the families I represented was a Honduran woman, her 17-year-old daughter, and her infant who had fled serious domestic violence. I received the case on September 1st, and quickly realized that her Individual Merits Hearing (her asylum trial) was going to be held on September 8, 2014, seven days later.
The trial preparation for an asylum claim is extensive. An Individual Merits Hearing consists of pre-hearing motions, pre-hearing legal brief, opening and closing arguments, direct and cross examination, the testimony of lay witnesses and expert witnesses, gathering and entering into evidence proof of claim documents, including human rights documentation, official and unofficial documents from the asylum seekers home country, medical records, police reports, and any other documents that are relevant to the claim.
The week before I arrived in Artesia, there were over 550 women and children being held in the detention facility and there were four pro-bono attorneys on the ground in Artesia. The fact that this particular woman, with a very strong political asylum case, did not have a lawyer one week before her trial does not reflect poorly on the attorneys on the ground in Artesia who were keeping their proverbial finger in the dam, it demonstrates that the system of keeping families isolated in detention centers, isolated from legal assistance, is preventing the women and children from adequately accessing justice, undermining their right to due process, and putting them at risk for erroneous deportation.
Although ultimately my case was successful (see Huffington Post article: Honduran Mom Fleeing ‘Horrific Acts Of Harm’ Wins U.S. Asylum With Daughters), the circumstances of my client’s extreme isolation from the outside world and the expedited nature of the proceedings hindered my ability to represent her to the best of my abilities and to present the best case possible to the immigration judge.
Barriers to Effective Legal Representation of Domestic Violence Victims at a Family Detention Center
The outcome of an entire asylum case depends on whether an immigration judge at an Individual Merits Hearings finds the asylum seeker credible. The burden of proof is on the individual asylum seeker to prove their claim. Domestic violence asylum cases are particularly difficult to prove due to the intimate nature of the violence the women experienced. In domestic violence cases the persecutor is a private actor often acting in the privacy of his own home. Often, women don’t go to the police or to their doctor when they are harmed because they have been threatened with further harm if they go, because they know the police will not help them, because the cultural norms in their society are accepting of domestic violence, because there are no laws to protect them or the laws are not enforced, or because they are ashamed. If there is documentary evidence, that evidence is going to be difficult to obtain. Consequently, the attorney needs to develop the record with secondary evidence.
Lack of Evidence and Lack of Ability to Obtain Evidence
Women do not flee with evidence that they were abused. Being in the detention center prevents women from acting in their own capacity to help their attorney obtain any evidence needed to prove her case. If there is documentary evidence such as police reports or medical records in their home country, the women cannot access it quickly enough for an expedited trial from the detention center. From the detention center she cannot gather letters of support or affidavits from witnesses who may have seen or heard the abuse. She also cannot gather any identity or educational documents proving her identity.
Attorney Inability to Establish a Relationship with the Client
In an asylum case, the attorney needs to establish a relationship of trust with a client. In an expedited hearing the attorney is unable to have the time to develop a relationship of trust with the client, which is absolutely critical when representing a vulnerable individual. Being able to communicate effectively with the client is critical to understanding their history and their unique personal circumstances within that history that caused them to flee from their countries. Understanding their history and why they fled is necessary in order to be able to present their claim effectively to the immigration judge. Learning how to communicate well with the particular individual who will be testifying is critical to being able to elicit effective testimony from the client at the trial.
Lack of Access to Psychological or Medical Evaluations
In political asylum cases, medical and mental health evaluations are critical to proving the claim. The evaluations need to be done by professionals who are trained in documenting human rights abuses and have the knowledge and skills needed to conduct clinical evaluations of asylum seekers and assess physical or psychological evidence of torture and ill-treatment. In detention there aren’t any independent medical doctors or mental health professionals available to evaluate the abuse.
Representing a Traumatized Client
Domestic violence survivors are often deeply traumatized and often have post traumatic stress syndrome, depression, or other trauma related mental health conditions. Without access to a mental health professional to provide her with counseling she may not be able to testify in a credible manner. A traumatized client may have a flat affect, may be irritable, may have memory loss, may not be able to testify in a linear manner, or may be intensely emotional, anxious, or may get confused. Without the opportunity to process the trauma in a therapeutic setting, the applicant may testify in court in a manner that does not seem credible to the judge. Further, going through the adjudication process, the asylum seeker must tell their story multiple times to multiple people. Retelling her trauma history without the support and benefit of counseling can re-traumatize the client and trigger mental health symptoms that can affect her ability to present her claim.
Lack of Sufficient Time for Preparing Trial Documents, Finding and Preparing a Country Conditions Expert, and Preparing the Client for Trial
In an asylum claim, an attorney needs to file a legal brief, country conditions documentation, motions, opening and closing arguments, and required judicial notifications. An attorney also needs to prepare his or her client to testify on direct exam and cross exam. In an expedited asylum claim, there is a lack of sufficient time to prepare the documents and to prepare the asylum seeker for trial. In many cases, in order to corroborate an asylum seekers claim, a lawyer needs to procure a country conditions expert to evaluate the case. Finding an expert who is willing to do a pro-bono evaluation and testify in court takes an enormous amount of time which asylum seekers in expedited removal cases do not have.
Lack of Interpreters
All of the women in the family detention centers speak Spanish or an indigenous language. The government only has to provide interpretation at hearings. Attorneys who speak Spanish can communicate with their clients, but those who do not speak Spanish have to provide their own interpreter to interview the client and prepare the case. This is cumbersome and expensive. Finding interpreters available to volunteer in a remote detention center is nearly impossible. Further, for clients who speak indigenous languages it may be impossible to find an interpreter to translate during case preparation.
Video Teleconferencing System Compromises Asylum Cases
Political asylum cases for women in detention are heard by remote judges through a Video Teleconferencing System (VTC). A Video Teleconferencing System (VTC) is not an appropriate way to hear cases for vulnerable women who have fled from domestic violence. In all asylum cases, the most critical evidence the applicant presents is his or her own testimony. In a domestic violence asylum case adjudicated in a detention center, the respondent’s testimony is even more important because sometimes it will be the only proof.
For a woman to reveal the most intimate and traumatic experiences of her life to a judge, trial attorney, and interpreter who she sees only on a 32-inch screen is intimidating, impersonal, and undercuts her ability to express herself in a real way. This is even more so if a woman is not technologically savvy. If she is not accustomed to computer technology she may feel intimidated or mistrust the process. If she cannot fully articulate claim or if the technology makes her uncomfortable her credibility may be compromised.
Further, the technology itself is flawed. For example, in the case of D.M.L., the images and voices froze and skipped frequently. ICE agents had to interrupt the hearing and adjust the equipment throughout the trial. Further, the voice delay caused incomplete interpretation and the changing of the orientation of the camera every time someone in the courtroom speaks is disruptive and a distraction.
When adjudicating a case with the VTC system, the client and her lawyer can’t see how the government attorney or the judge are reacting. The trial attorney is at a distinct advantage because he or she sits in the room with the judge and can read the judge’s reactions to the testimony, while the applicant and her attorney are seeing the judge from a video and do not have the same opportunity. The client is also at a distinct advantage because the judge cannot see her demeanor or other non-verbal cues.
Finally, there are one or two ICE agents in the courtroom guarding the asylum seeker and monitoring the VTC equipment. The asylum seeker must reveal the details of the abuse she experienced in front of an ICE officer. It may be particularly difficult for the woman to speak about in front of a law enforcement officer, particularly if the ICE officer is male and the abuse is of a sexual nature. If the woman does not reveal elements of her claim because she is embarrassed or intimidated it could undermine the credibility of her claim.
There have been twelve domestic violence asylum cases adjudicated for a families in the Artesia facility and all were successful. This was due to the extraordinary efforts of attorneys who are members of the American Immigration Lawyers Association who have traveled from around the country and who have volunteered their time often at their own expense to go to the detention facilities to represent the women and children. There will be beds for about 3,000 women and children held in Karnes City and Dilley Texas family detention facilities. The women and children will be replaced by new women and children as beds empty out. It is not sustainable for the long term for pro-bono attorneys to fly and drive thousands of miles to access the clients, stay in hotels for a week or more, leave their families and their legal practices, and represent clients in cases where they face significant barriers in preparing the case.
An individual’s right to due process of the law is a cornerstone of our U.S. legal system. Women and children who have been determined to potentially have legal remedies should not be held in detention in a situation that undermines their ability to access those legal remedies. Requiring a lawyer to prepare and document an asylum claim in an expedited manner while the client is isolated from their lawyer and from all available evidence violates the women and children’s fundamental right to due process of the law.
To read more about the inhumane conditions of family detention centers, including more about the impediments to due process described in this blog, read LIRS’s latest report, Locking Up Family Values, Again.