A Dangerous Waiting Game: Asylum Protections Continue to be Eroded

By Adonia Simpson

January 25, 2019

No Rest for the Wicked

After returning from Tijuana, I felt like I had a good understanding of the current state of the asylum-process at the border.  In an example of how things change overnight, the Department of Homeland Security (DHS) announced last night that it would be proceeding with its Migrant Protection Protocols (MPP), where some asylum-seekers will be returned to Mexico to fight their cases.  The program was first announced at the end of December, but the Administration said last night that it would begin today. Given the continuing shutdown and backlog of non-detained cases that is growing every day with the Department of Justice’s Executive Office of Immigration Review (EOIR), the vague process outlined by DHS is absurd and will likely lead to renewed chaos at the border and litigation.   

Legal Basis

For the purported legality of this action, DHS relies on Section 235(b)(2)(C) of the Immigration and Nationality Act (INA) that provides that “in the case of an alien  . . . who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the U.S.,” the Secretary of Homeland Security “may return the alien to that territory pending a [removal] proceeding under § 240” of the INA.”  This rationale creates a tangible barrier to claiming asylum, which is protected under both international and U.S. law.  Once an asylum-seeker passes a credible-fear interview, they will be served an immigration charging document, or Notice to Appear, and returned to Mexico to await a hearing date.  The Administration alleges that asylum-seekers will be allowed to travel back into the US for their hearings.  The logistics of this seem prime to increase the number of in absentia orders of removal for individuals who miss their hearings due to problems re-entering. 

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AI Justice Attorneys Reflect On Their Time At The Border: Concluding Thoughts

Adonia Simpson, Director of AI Justice's Family Defense Program, and Jessica Shulruff Schneider, Director of AI Justice's Detention Program, reflect on their experiences volunteering as legal service providers along the U.S.-Mexico border. 

We returned to Miami Tuesday morning, and we are still processing the experience. As the Al Otro Lado team promised, we became “veterans” after 12 hours, assisting with the training and oversight of new volunteers. Our last few days volunteering in Tijuana passed much like the first—observing the illegal list process at Chaparral in the mornings and assisting with the Credible Fear Interview preparations in the afternoons. We saw migrants from all over the world, not just Central America. It is a great service to educate potential asylum-seekers on the process and what can happen once they cross the border. Some may choose to stay in Mexico, while most will seek to proceed with the process when allowed. Either way, these individuals have the information needed to make the best decision for themselves and their families.    

The suffering and limbo these migrants face is heartbreaking. As the shelters around Tijuana close, we saw tent cities and heard rumors of communities forming in the Tijuana dump. Many of these migrants have been waiting months to seek asylum. Not only is there a coordinated effort to prevent migrants from accessing protection at the border through the illegal list, we anticipate many will face additional issues once they are able to express their fear of return. Now, the Mexican government is offering humanitarian visas to many of the migrants which allows them to live and work in Mexico for a year. This is great, right? As attorneys, we are concerned. There is a bar to asylum for individuals who have firmly resettled in a third country. Specifically, under the law some asylum-seekers may be denied if “prior to arrival in the United States...[they] entered into another country with, or...received an offer of permanent resident status, citizenship, or some other type of permanent resettlement” unless the asylum applicant meets one of two exceptions.  8 C.F.R. § 1208.15. Whether or not the bar applies must be established by the Department of Homeland Security (DHS), and if the burden is met, the immigrant can rebut the finding and show that he or she stayed in the third country as a necessary step in fleeing and remained only as long as necessary or that the conditions of residence were substantially restricted. This adds another legal barrier to an already technically complex protection from deportation, a benefit that most immigrants will fight for without an attorney. Studies clearly show that the likelihood of being able to obtain the relief sought increases dramatically with representation.

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AI Justice Attorneys Reflect On Their Time At The Border: Day 4

Adonia Simpson, Director of AI Justice's Family Defense Program, and Jessica Shulruff Schneider, Director of AI Justice's Detention Program, reflect on their experiences volunteering as legal service providers along the U.S.-Mexico border. 

Day 4 began early for us, 7 a.m., but many migrants, replete with suitcases and their children, arrived before daylight broke at El Chaparral, the PedWest footbridge to the United States, to see if this would be the day their number would be called. The visual was surreal. To an unknowing observer this could be any morning at typical Mexican plaza. There were taco stands and wafting smells of coffee and Mexican foods. Squealing children ran and played. But overall there was a heaviness in the air. Strain on the faces of adults and a palpable tension. How many numbers would be called and would they be the lucky ones? A colleague this morning made reference to the Hunger Games and it was an eerily apt reference.    

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AI Justice Attorneys Reflect On Their Time At The Border: Day 3

Adonia Simpson, Director of AI Justice's Family Defense Program, and Jessica Shulruff Schneider, Director of AI Justice's Detention Program, reflect on their experiences volunteering as legal service providers along the U.S.-Mexico border. 

Our orientation with Al Otro Lado started with one of the volunteer organizers saying that the daily grind is like “flying a plane that is on fire and has no engines.”  Somehow these tenacious organizers have created an invaluable service for migrants who have been waiting for months to seek asylum at the port of entry.  A mish-mash of volunteers, donating anywhere from a couple of days to a few months, are providing Know Your Rights presentations, legal observation, and individualized preparation for credible fear interviews.  Most importantly, expectations are being managed about what to expect on the other side. 

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AI Justice Attorneys Reflect On Their Time At The Border: Day 2

Adonia Simpson, Director of AI Justice's Family Defense Program, and Jessica Shulruff Schneider, Director of AI Justice's Detention Program, reflect on their experiences volunteering as legal service providers along the U.S.-Mexico border. 

We made it.  We are here.  We are safe.  We have seen this post circulating on social media and thought it was an appropriate time to share.  

The crisis is not necessarily nonexistent; it is real for those who are fleeing their countries due to violence, political persecution, and extreme poverty.  The US government created this through its unwillingness to provide protections afforded by international and domestic law—a humane process for asylum-seekers to avail themselves of protection.  This morning as we sipped our coffee, we watched the local news and were greeted by headlines about increased militarization at the border—images of tanks and well-armed US troops.   As a nation built on offering refuge to the huddled masses, the current state of immigration is disheartening. 

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AI Justice Attorneys Reflect On Their Time At The Border: Day 1

Adonia Simpson, Director of AI Justice's Family Defense Program, and Jessica Shulruff Schneider, Director of AI Justice's Detention Program, reflect on their experiences volunteering as legal service providers along the U.S.-Mexico border. 

January 15, 2019

It is 3:30 a.m. Miami time, and we just arrived to our hotel in Chula Vista, California, 7 miles from the Southern border. Looking at the map to plot the next part of our trip in a few hours, we see familiar names: Otay Mesa and San Ysidro. These are places that grace the immigration charging documents we see for clients every day. We are anxious to see what awaits us tomorrow, but immediately on my mind is the shutdown. We are entering day 25 of this ridiculous standoff, the longest shut down in US history.  As immigration attorneys, we could talk about the counterproductive impacts of the shutdown—tens of thousands of immigrants have had their court cases canceled and estimates from Syracuse Trac Data state that as many as 100,000 individuals awaiting their day in court may be impacted if the shutdown continues through the end of January. Florida ranks 4 in the nation with the amount of clients impacted. This manufactured crisis is supposedly about national security, but as a traveler today, I didn’t feel particularly safe.  TSA lines were visibly longer, and we sat on the tarmac waiting to take off for nearly 40 minutes—all consequences of our most vital federal employees being forced to work without pay. 


Automatic Extension of Work Authorization For Haitian TPS Recipients

July 20, 2018 

Due to processing delays, USCIS has issued an automatic extension of work authorization to eligible Haitian TPS recipients for whom work authorization is set to expire Saturday, July 21 and who have not yet received their employment authorization document (EAD). For the nearly 5,000 Haitian TPS recipients affected by this delay, automatic work authorization will be extended through January 17, 2019. See below for more information from USCIS, and contact the Family Defense Program if you have any additional questions or concerns. 

USCIS instructions to affected Haitian TPS holders:

USCIS is automatically extending the validity of certain employment authorization documents (EADs) issued under TPS Haiti through Jan. 17, 2019. If you are a TPS beneficiary under the Haiti designation with an EAD based on your TPS status, your EAD may now be valid through Jan. 17, 2019 if your EAD includes a category code of A12 or C19, you have not received your new EAD, and:

  • Your EAD expired on Jan.22, 2018, and you applied for a new EAD during the last re-registration period; or
  • Your EAD expired on July 22, 2017, and you applied for a new EAD on or after May 24, 2017.

You may continue to use your current EAD as evidence of your work authorization through Jan. 17, 2019. Because you have a pending EAD application, USCIS will mail you an individual Notice of Continued Evidence of Work Authorization that provides additional evidence of this automatic extension of your EAD through Jan. 17, 2019 to show to your employer. If you do not receive the Notice of Continued Evidence of Work Authorization within a week of July 22, 2018, please contact USCIS at 202-272-8377 or the UCSIS Contact Center number. You may provide your employer with this notice until you receive your Notice of Continued Evidence of Work Authorization. If USCIS approves your TPS re-registration application and you applied for new EAD, you will receive a new EAD with the expiration date of July 22, 2019.


Are you eligible for relief from deportation under Pereira v. Sessions?

Call the Family Defense Program at 305-573-1106 or email to learn more!




Court Orders Separated Families Be Reunified in 30 Days: 5 Things You Should Know

July 6, 2018

1. The Trump Administration has been forcibly separating families since July 2017, regardless of their manner of entry. Upon separation, parents were moved to criminal custody or Immigration and Customs Enforcement (ICE) detention, and children were designated as unaccompanied alien children (UAC) and placed in shelters scattered across the country, including Florida. Children that were separated from their parents as early as July 2017 have yet to be reunited with their parents. 

2. On June 26, 2018, U.S. District Court Judge Dana Sabraw ordered the government to reunite all separated children with their parents by July 26, 2018. The judge also ordered that children under 5 be reunited by July 10, parents be allowed to speak with their children by July 6, and that no parents be deported without their children (absent a knowing waiver). On July 6, 2018, the Justice Department asked Judge Sabraw to extend the amount of time the government has to reunify families, a strong indication that the Office of Refugee Resettlement (ORR) and ICE will have trouble meeting the court’s order in just 30 days time.

3. There are no adequate systems in place to reunify families. At last count, nearly 3,000 children remain separated from parents who have been detained or already deported without their children. Initial estimates of separated children failed to take into account the hundreds of children torn apart from their families before the "zero tolerance" policy went into full effect in May 2018. Beyond the sheer volume of children desperately in need of reunification and the brisk timeline for doing so, the reunification process is further impeded by the limitations of inter-agency collaboration between ICE, the agency that detains parents in removal proceedings, and ORR, charged with sheltering children.

4. Parents are being coerced into waiving their asylum claims to be reunited with their children. In what is being termed “airport reunification,” parents are reportedly agreeing to expedited removal in exchange for reunification with their children. An attorney from the Southern Poverty Law Center (SPLC) told CNN that "many [parents] are being pressured to sign this [form] before they’ve even seen a judge, and despite not having a final order of removal."

5. The right to seek asylum at our border – whether at an official port of entry or not – is protected under U.S. and international laws. Nonetheless, countless immigrant families have been turned away – including at official ports of entry – without any opportunity to present their asylum case. Additionally, Attorney General Jeff Sessions is seeking to indefinitely detain asylum seekers who have passed their credible fear interview for the entirety of their court proceedings, and to eliminate asylum protections for immigrants who enter illegally.





The Facts Behind the Headlines: Family Separation

Upon arrival at the border, Pedro, an 8-year-old indigenous Guatemalan child, witnessed several immigration officers throwing his father to the ground and assaulting him. When Pedro screamed at the officers to stop, he was ripped away from his father without explanation. Pedro cries when recalling the incident and still has no idea where his father is. His AI Justice attorney has searched for the father on the detainee locator but has been unable to find him.

- Account in AI Justice's report Building the Wall: A New War on Immigrants

AI Justice has a long history of providing free legal services to unaccompanied minors. Over the past week, two issues relating to the treatment of children taken into U.S. custody at the Southwest border have circulated widely in the media. One relates to reports that the Department of Health and Human Services (HHS) has "lost" about 1,500 unaccompanied minors who were released from custody of the Office of Refugee Resettlement (ORR) and the second references recent efforts by the United States government to separate parents from their children at the border. Immigration issues tend to be complex and the following sets forth basic facts regarding recent developments affecting immigrant children arriving at our border.

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About Us:

AI Justice is an award-winning non-profit law and advocacy firm that protects and promotes the basic human rights of immigrants. In Florida and on a national level, we champion the rights of unaccompanied immigrant children; advocate for survivors of trafficking and domestic violence; serve as a watchdog on immigration detention practices and policies; and speak for immigrant groups who have particular and compelling claims to justice.