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American Civil Liberties Union


Against All Decency, the Government Is Indefinitely Detaining a Man It Cannot Deport

Fri, 18 Aug 2017 10:00 -0400

What the government is trying to do to Mamadu Balde is clearly unconstitutional and heartless. In its zeal to deport anyone, the Trump administration has jailed a man that the government has tried and failed to deport in the past. Fortunately for those of us who care about constitutional rights — not to mention basic human decency — the Supreme Court has built a wall around the government’s ability to do such a thing. In 1999, Mamadu Balde fled Sierra Leone, which was in the middle of a civil war that had started in 1991 and didn’t end until 2002. Mamadu’s hometown was occupied by rebels, the Revolutionary United Front, and his home was burned to the ground. In the fire, he lost all of his personal documentation, and he was separated from his parents and his sister during the occupation.He never saw them again. Mamadu fled to New York City, seeking asylum in the United States. Despite the great tragedy he had experienced, the Bush administration and then the Obama administration opposed his application for asylum, and the courts agreed. When his appeals ran out in 2012, he was detained by ICE and incarcerated for more than nine months as the administration tried to deport him. But a funny thing happened on the way to deportation.Sierra Leone had no record that Mamadu was a citizen and, thus, refused to issue travel documents. The United States couldn’t send him back. Eventually, he was released from jail, with requirements to check in with Immigration and Customs Enforcement every six months. At that point, Mamadu Balde went on to live a productive and happy life with his wife, a U.S. citizen, and the couple settled in West Virginia. He was gainfully employed, and he paid taxes. He provided financial support to his niece and nephew after the death of their mother, Mamadu’s sister. And he checked in with ICE every six months, as required. But something changed this year.When Mamadu reported to ICE as scheduled in April, he was told he would have to report to a new ICE agent in June. When he reported in June, the new agent told him he had no business in this country and that, if he wasn’t gone by August, the agent would “lock him up.” A week later, the agent told him to report again. When Mamadu dutifully reported, the agent told him that his supervisors had told him to detain Mamadu. They gave no reason. Documents subsequently obtained from ICE justify the detention by “changed circumstances in policy.” The government could keep Mamadu, a law-abiding man, behind bars forever. A week later, Sierra Leone officials yet again declined to accept Mamadu back. Mamadu has been held at the York County Prison since then. He has spent over 2 months indefinitely detained behind bars. The ACLU of Pennsylvania and the law firm of JBM Legal in Pittsburgh are representing Mamadu and have filed a federal lawsuit against ICE and the warden of the York County prison. By holding Mamadu, ICE and YCP have engaged in an unlawful detention and a violation of his Fifth Amendment right to due process. In 2001, the U.S. Supreme Court held in Zadvydas v. Davis that the U.S. government cannot detain noncitizens who cannot be deported because their native country refuses to accept them. Otherwise, the court ruled, the government could detain people indefinitely, which is unconstitutional. Since Sierra Leone has repeatedly refused to accept Mamadu, including in the past two months, the U.S. government has no legal basis to detain him and the detention is, thus, unconstitutional. If it weren’t, the government could keep Mamadu, a law-abiding man, behind bars forever. Nevertheless, the Trump administration is willfully defying the Supreme Court’s ruling. There is no good reason for Mamadu to be incarcerated right now. It was unfair that he served nine and a half months in 2012 when the Obama administration couldn’t secure his removal. It is even more unfair that the Trump administration has jailed him again, especially because it is crystal clear that he can’t be deported and that he has demonstrated over the past five[...]

We Must Remove Shrines to White Supremacy From Public Property

Thu, 17 Aug 2017 16:30 -0400

Shrines to white supremacy and racial violence denigrate my existence and that of millions of North Carolinians. The resurgence of white supremacy and the violence perpetrated by neo-Nazi terrorists in Charlottesville are painful reminders of how much work remains to challenge and defeat systems of hate and racial oppression in our nation. As a Black woman living in a former slave state adorned with monuments to the Confederate cause, I believe that work requires us to confront our own history and ask: What message do we send when we chose to honor one part of history but not others? The Confederacy sought to protect slavery, dissolve the Union, and preserve white supremacy. While Confederate armies ultimately failed to achieve those first two goals, the monuments erected in their memory years later under Jim Crow were and remain vile symbols of white supremacy and the terrorization of communities of color. Shrines to white supremacy and racial violence denigrate my existence and that of millions of North Carolinians. In my state of North Carolina, there are 90 different monuments to the Confederacy on public land — the second most of any state in the nation, according to the Southern Poverty Law Center. They stand outside our state capitol and our public universities. They greet visitors to courthouses across the state. They are central fixtures of public parks. This is land that is meant for all members of the public. Yet there are no monuments to many of our other ancestors — to those who were enslaved, to abolitionists, to pro-Union North Carolinians, to the Black soldiers who fought and died to defeat the Confederacy. And, as Professor Timothy Tyson notes, there are no monuments commemorating “the interracial Reconstruction government of the 1860s, which gave us the North Carolina Constitution we still try to live under.” What we choose to represent and honor in these spaces matters. Shrines to white supremacy and racial violence denigrate my existence and that of millions of North Carolinians. When we enter a courthouse or visit our state capitol and are greeted by monuments to slavery and white supremacy, it sends a clear message that our government endorses the oppression and inequality that they represent. And by doing so, there is only one thing we can take away from it: We are less valued as citizens. That’s why earlier this week, the ACLU of North Carolina called for these monuments to come down once and for all. Our governor, Roy Cooper, echoed our call and joined those demanding for the monuments to be removed. But while cities like New Orleans and Baltimore have done just that, North Carolina’s monuments remain protected under a 2015 law barring their removal. That law too must go. The events of the last week have made it clearer than ever that we must confront our full history, acknowledge the shameful message these statues send, and take action to remove them. But the work to undo white supremacy cannot end there. From voter suppression and inequitable educational resources, to mass incarceration, the tools of Jim Crow are still being deployed to attack the rights of Black and brown people across the nation. We must live up to the principles of liberty and justice for all by removing monuments and shrines to white supremacy and rooting out racial injustice throughout the land.[...]

After Years of Slammed Doors, Torture Survivors Finally End Impunity Streak

Thu, 17 Aug 2017 10:30 -0400

I’m in awe of our clients, who courageously pursued justice and prevailed against overwhelming odds. As an attorney representing victims of torture, one of the most inspiring things I have ever seen is the sheer determination of survivors standing up and publicly confronting those responsible. That’s why I’m so elated that our clients Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and Obaidullah have surmounted so many obstacles in their long pursuit of justice. Last week, almost two years after filing their lawsuit, our clients prevailed over the final attempt to keep their claims out of court. And today, these brave men secured a settlement from James Mitchell and John “Bruce” Jessen, the two psychologists who designed and implemented the CIA torture program that ensnared two of them and killed a relative of the third. Torture is about trying to break human beings. Torturers inflict suffering with the goal of making prisoners feel such overpowering fear and despair that they cannot resist the torturer’s demands. As documents revealed in this case prove, Mitchell and Jessen specifically designed their torture program for the CIA to inflict “fear and despair” until prisoners became “helpless.” After torture, survivors are usually left with feelings of trauma and helplessness — just as their torturers intended. Often, torture survivors report feeling worthless and powerless. It takes a lot of courage for anyone who has been so brutally traumatized to stand up to those responsible. But that is what our clients did in seeking accountability in a U.S. court.  To understand the legal landscape our clients faced with this lawsuit, it’s important to look back at the much longer story of torture accountability. That story, until today, has been one of total impunity. The Bush administration turned to torture just over 15 years ago. That shameful policy inflicted violence and suffering on hundreds of mostly brown and black Muslim men held in secret prisons around the world. In the years that followed, we and other attorneys have represented a number of survivors seeking accountability. But, every case, without exception, ended the same way: Courts turned survivors away from the courthouse doors. Judges refused even to consider the abuses that government officials and contractors acting in our name inflicted on our fellow human beings. In ruling after ruling, judges decided that the CIA’s torture program was too secret for our courts, that the Constitution did not protect prisoners of the United States from torture, that torturers at Guantánamo were immune from liability, that government officials who justified and ordered the torture of a U.S. citizen were immune from liability, that contractors involved in torture could not be sued — and on and on, a depressing litany of impunity. Torture is about trying to break human beings. Against this backdrop of despair, our clients stood up. Last year, Mitchell and Jessen argued that torture was a “political decision” on which courts cannot pass judgment. But our clients prevailed. In January, Mitchell and Jessen tried a different tack, arguing that a 2006 law prevented the court from deciding the case. Again, our clients prevailed. This summer, Mitchell and Jessen argued one final time that they could not be liable for the torture inflicted on our clients because they were “simply doing business.” Once more, our clients prevailed. As Mohamed recently reminded us, “Keep in mind that when we started this lawsuit, I didn’t expect it to go this far, to get to this excellent level.” But he stood up anyway. He and Suleiman and Obaidullah each flew thousands of miles to tell their stories. They endured depositions and medical exams. And they prevailed over every obstacle. As a result, our clients secured multiple court decisions cementing the rights of torture survivors to seek justice from those responsible. They forced hundreds of pages of formerly secret documents into the light. For the firs[...]

Overcrowding in Nebraska’s Prisons Is Causing a Medical and Mental Health Care Crisis

Wed, 16 Aug 2017 09:45 -0400

We’re suing to end the inhumane conditions in Nebraska’s prison system. Nebraska’s prison conditions are inhumane and unconstitutional, and ultimately, they hurt public safety. We can’t reduce recidivism rates among former prisoners if, instead of being given rehabilitation opportunities, they have been horribly traumatized during incarceration. According to the U.S. Department of Justice, Nebraska’s prison system is one of the most crowded in the nation. All but one of our state prisons are over capacity — some are at 200 percent of capacity, and one is at more than 300 percent. The system is supposed to house approximately 3,275 people and is currently housing 5,228 people. call for an end to dangerous conditions in Nebraska prisons This means that people are sleeping in hallways and jammed into small cells designed for far fewer people. Even worse, there are critical shortages in medical and mental health staff, as well as a lack of frontline security officers. In Nebraska’s prisons, you’ll find people who have waited months to be seen by a doctor for a broken bone, people who have not received medication for serious mental health conditions like schizophrenia or bipolar disorder, and people who are deaf or blind and have been given no accommodations for their disability. Besides that, there are hundreds of people who are being held for inappropriately long periods in solitary confinement. In fact, 13 percent of prisoners are isolated 23 hours a day, making Nebraska first or second in the nation for having the largest percentage of prisoners in solitary, according to a 2016 study by the Vera Institute of Justice. Many states only have 2 or 3 percent of their prison population in segregation. These dire conditions have led to tragedy: riots, assaults on staff, and prisoners seriously beaten or killed. In the last two years, there have been multiple riots that left prison staff seriously injured and four prisoners dead. This must change, and we’re filing a class action lawsuit against the Nebraska Department of Correctional Services on behalf of all the men, women and youth behind bars to reform these conditions. The stories from our clients who are currently incarcerated are horrifying. We represent three prisoners who have spent months in 23-hour-a-day isolation as juveniles. We represent a deaf man who has had almost no opportunity to communicate with anyone who uses American Sign Language. Other clients are three prisoners who are blind and have been denied accommodation items provided by the state Commission for the Blind for free, like a talking clock. Some clients who use wheelchairs or walkers have only limited access to prison programs because not all parts of the prison are accessible. Some of the abuses we’ve documented are inexplicable failures of the most basic medical care: a man with epilepsy who has landed in the hospital several times because he didn’t receive seizure medication. One woman who reported, upon entering prison, that she’d been raped six months earlier. She was given a routine physical exam, yet the staff somehow missed the fact she was pregnant until she unexpectedly went into labor. These and other grave failures of medical care are connected to severe overcrowding. How did it come to this? Nebraska’s prison crisis is the result of decades of the failed “tough on crime” mindset and its attendant policies. Nebraska lawmakers have repeatedly created new crimes and enhanced penalties while defunding mental health and substance abuse programs. This has given prosecutors more power to over-charge defendants. In fact, only New York and Washington D.C. have higher marijuana possession arrest rates than Nebraska. In a different era, a person caught with marijuana in Nebraska might have faced a single charge of drug possession. Now that person may face multiple felony charges: possession of the drugs, intent to distribute the drugs to others, failure to pay the drug tax stamp, and posses[...]

Equality, Justice and the First Amendment

Tue, 15 Aug 2017 18:00 -0400

An open letter about Charlottesville. For all people of good will — regardless of party affiliation, race, creed, or color — the events that took place this weekend in Charlottesville were sickening and deeply disturbing. Several clear themes emerged for me this weekend. And while they are pretty obvious, I thought I would share them with the broader ACLU community, in an effort to give voice to what many of us are feeling and to spark a further discussion that will allow us to move together with greater hope and resolve through what are likely to be troubling days ahead. While the events of this weekend — with white supremacists holding lit torches — frightened and outraged many Americans, we can never underestimate the impact of these images on African-Americans. That rally reflected this nation’s history of slavery, racial violence, and terrorism, which has left an indelible mark on our democracy to this day. As employees, members, or supporters of an organization dedicated to racial justice, we are all affected. Many of us are even more directly affected because we and our family members are the direct targets of the white supremacists.  I know that speech alone has consequences, hurtful and deep, and that’s why I believe it’s important to place the ACLU’s representation of white supremacist demonstrators in Virginia in the broader context of the values and principles that have guided this organization for nearly a century. First, the ACLU unequivocally rejects the ideology of white supremacists and we work actively with all our might to oppose that ideology in diverse communities across the country and to defend the right of all Americans to speak out against those views. By budget allocation, the national ACLU’s top issue areas are ending mass incarceration, protecting LGBT rights, and safeguarding immigrants’ rights, demonstrating our commitment to advancing equality and justice with communities that are often the targets of white supremacists' bigotry and hate. The ACLU has represented or publicly supported Black Lives Matter activists in First Amendment matters at least five times in recent months. Our work against police agencies’ surveillance of activists has been frequently in support of the Black Lives Matter movement and American-Muslim organizations and individuals.  We’ve represented and taken public positions in support of anti-Trump protesters more than five times since the election and represented one of the Standing Rock protesters in a free speech case. The ACLU has also defended the free speech rights of African-American environmental activists in Alabama against a defamation lawsuit brought by the toxic waste-generating corporation they opposed. This is all in the past year alone. We are not newcomers to this work. We’ve defended individuals targeted for their socialist, anarchist, and communist affiliations, for anti-war speech, and for civil rights activism throughout our history.  We have repeatedly defended the free speech rights of day laborers against city ordinances — grounded in anti-Latino racism — that would have prohibited their expressing their availability for work. The ACLU was founded in 1920 when the attorney general of the United States carried out his “Palmer raids” to round up immigrants based on their “subversive” views. And we stood shoulder-to-shoulder with the emerging labor movement of the early 20th century. The First Amendment —freedom of speech, freedom of association, freedom of the press, and freedom of religion — has always been foundational for our organization. Second, and more directly related to the events of this weekend, there are important reasons for our long history of defending freedom of speech — including speech we abhor. We fundamentally believe that our democracy will be better and stronger for engaging and hearing divergent views. Racism and bigotry will not be eradicated if we mer[...]

A Sweeping Search Warrant Targets Anti-Trump Website in Clear Threat to the Constitution

Tue, 15 Aug 2017 17:45 -0400

The government is seeking the information of more than 1 million people who visited a protest website. The danger is clear. One of the core principles enshrined in the Fourth Amendment is a prohibition on general searches — meaning, the government cannot simply go fishing for a wide range of information in the hope that some kind of useful evidence will turn up. But that’s exactly what the government appears to be doing with a newly revealed search warrant seeking reams of digital records about an Inauguration Day protest website that could implicate more than 1 million users. We first learned yesterday that within days of President Trump’s inauguration, the web server hosting company DreamHost received a subpoena from the government seeking records about a website hosted on its servers. Now the government has followed up that initial demand with a search warrant seeking a huge array of records “related to” the website. Those records would include the IP addresses of over 1.3 million visitors to the site.The demand would've been concerning no matter what, but the particular website being targeted rings serious alarm bells: an organizing website, called, intended for individuals planning to stage protests at the inauguration of President Trump in January. After DreamHost raised objections to the warrant, which it sees as overbroad under the Fourth Amendment and potentially chilling under the First Amendment, the government went to court in July seeking to compel DreamHost’s compliance. A court hearing on the matter is scheduled for this Friday. This is not the only time the government has gone after Inauguration Day protesters with unusually aggressive means. The protests have also been at the focus of a major investigation by D.C.’s Metropolitan Police Department. So far, more than 200 protestors have been charged with crimes such as “property damage” and “felony riot,” and the D.C. Police seized and searched hundreds of protestors’ cell phones. The ACLU has been monitoring this investigation closely. In June, the ACLU of the District of Columbia sued the city of D.C., Metro Police officers, and the D.C. chief of police for making unconstitutional arrests, including of members of the media and legal observers; using excessive force; denying arrested people food, water, and access to toilets; and invasive bodily searches of protesters exercising their First Amendment rights on Inauguration Day.Also last month, the ACLU and Public Citizen filed a friend-of-the-court brief in the D.C. Court of Appeals in a case involving warrants for the full contents, over a three-month period, of three Facebook accounts of individuals connected to the Inauguration Day protests. In our brief, we argued that the court should lift the gag order the government put in place restricting Facebook’s ability to give notice to the targeted users, who could then challenge the substance of the warrants. The vast danger in allowing the government — whether this administration, the last one, or the next one — to target political speech through oppressive police crackdown or wide-ranging surveillance demands, untethered to individualized suspicion of criminality, is obvious. The DreamHost warrant in particular is likely to chill the exercise of First Amendment rights — including the right to receive information, to speak anonymously, and to associate with like-minded individuals free from the threat of government unmasking. With those stakes, we applaud the efforts of DreamHost — and our friends at EFF, who consulted with the company before it filed its legal objections to the warrant — to stand up for the rights of its customers and millions of people who visited the site. As the government seeks to gain access to the countless bits and bytes of personal information we generate daily online, we need companies that are willing to stand in users’ shoes and press th[...]

There’s No Evidence I’m in a Gang — Because I’m Not. But I’ve Been Locked Up for Two Months for Gang Membership.

Tue, 15 Aug 2017 13:30 -0400

I came to the U.S. to be safe from gangs. Now officials are accusing me of being in one. One Friday after school last June, I went to play soccer with friends in the park in Brentwood, New York, where I live. I love the soccer fields there. There are lights and grass, and it feels so much nicer and safer than the fields where I used to play. In El Salvador, where I’m originally from, a gun might go off or gang members might grab a player off the field and beat him up. Walking home with my friend, Juan* around 8 p.m., I felt good. We ran into a kid we knew from school, Andres,* and he joined us. I knew Andres’ face, and I would say, “Hey, what’s up?” when we ran into each other at school, but I didn’t know him well. As we were walking, Juan and I started to joke around and shove each other, laughing. All of a sudden, we saw a police car pull up. For months, the police had been stopping me frequently and accusing me of being in a gang. Their “evidence” was based on nothing — a doodle they found in my notebook and people I said hello to at school. I had even asked to meet with the police to explain to them that I’m not in a gang. But this encounter went further. Officers got out of the car and arrested Andres right away. Then they told me and Juan to sit down on the curb. We waited a while, then they called me over to their car. The cops asked if I was friends with Andres. I said no. They asked if I knew he was in a gang. I said no. I asked what was happening. One of them told me I was being arrested for “acting stupid.” They took Juan and me to the precinct, where we spent the night. For a few hours, I was handcuffed and shackled to the wall, unable to walk around in the cell. The next day, officials took us to court for disturbing the peace. The judge said she would release me because the alleged offense was only an infraction, but the police had called the immigration authorities. We were so scared. They said they were going to deport us. If Andres was a gang member, I had no idea, and I was never part of any gang. I was terrified. I thought I would lose everything, including my mom, who is the most important person in my life. The next day, the police brought me to an adult prison. It was a horrible, ugly place, and the guards locked me up with real gang members. When we went outside for recreation, the adult prisoners cursed at us because they thought we were members of a gang. I was so scared. You could be asleep or awake, and it wouldn’t make a difference — it was a nightmare either way. Days later, my family was able to pay bail and I went home. One of the five police officers who arrested me days earlier came to my house to arrest me again. “You aren’t legal,” he said. “I need to give you to immigration. You’ll probably be deported.That wasn’t true. I was going through the slow process of hearings to try to get legal status in the United States. I still have no idea why the police officers picked me up that second time. All I know is a few days later, I was driven to the airport and put on a plane. I ended up in a juvenile detention center in Virginia. I had come to the United States because I’d refused to join a gang, and gang members were threatening my life back in El Salvador. First they started coming up to me in the street when I was on my way to church or to the store. They told me to join them or they’d hurt me. One day when I was home on our farm with my sister, men with guns opened the door and just walked into our house. They said they would kill us if I didn’t join them. The next day my sister and I ran away to another town. That was the beginning of a trip that would eventually take us to the United States, where our mom had been living. It was a hard adjustment to school in Brentwood. I struggled with English. I had never taken courses like algebra and biology and history. Sometimes the t[...]

5 Years Ago, We Won Our Freedom. Will President Trump Pull the Rug Out From Under the Dreamers?

Tue, 15 Aug 2017 12:30 -0400

Ten states, led by Texas, are pressuring President Trump to End the DACA program. When I graduated from college in 2011, the Deferred Action for Childhood Arrivals program didn’t yet exist. So, instead of a graduation day characterized by excitement and possibilities, I faced the iron gate of being undocumented. Without a work permit, I felt a deep level of anxiety of what my future would hold and a locked door blocking future potential accomplishments. This uncertainty is why so many of us fought — we came out as “undocumented and unafraid” and organized — to win work permits and protection from deportation. We wanted to ensure that the many other young people — including my sister, who call this country their home — wouldn’t have to grow up and live under the constant threat of deportation. And here’s the inspiring thing: we won. Five years ago today, the Obama administration accepted the first application for the Deferred Action for Childhood Arrivals (DACA) program. DACA provided new opportunities and futures for nearly 800,000 Dreamers who could then live, study, and work in the United States of America without the fear of deportation. Each DACA recipient who came forward passed a background check and was granted permission to live and work legally in America. As a result, many have fulfilled their dreams of attending and completing college, purchasing homes and cars, and working legally to build their future and provide for their families. For the past five years, these young immigrants have gained a sense of stability. DACA allows them to live freely and fully. But today, under the Trump administration and the guide of Attorney General Jeff Sessions, that freedom is threatened. At the end of June 2017, Texas Attorney General Ken Paxton and nine other states sent a letter to Attorney General Sessions threatening to sue President Trump if he doesn’t end the DACA program by September 5. By attacking the DACA program, their goal is to drive people back into the shadows and into a life of fear, but they will not succeed. As my father often says, “If you get up, you’ll fall. If you fall, you’ll get up again.” Come what may, we will get up, unite, and rise together to defend DACA and the Dreamers against any and all attacks. We will not let the current administration prevent us from making even greater progress in the fight to protect our American ideals. Even President Trump has recognized the great contributions of Dreamers and said earlier this year that he would protect them. The decision is now his. Will he pull the rug out from under these young immigrants or will he uphold the values of the American dream and protect them?[...]

DACA Is and Will Always Be Constitutional

Tue, 15 Aug 2017 11:15 -0400

The Trump Administration can and should defend the DACA program from attack by 10 states and honor its promise to Dreamers. The Deferred Action for Childhood Arrivals program has been an unqualified success.Since its creation five years ago, it has allowed nearly 800,000 young men and women who came to this country as children — or Dreamers — to attend school, support their families, buy homes, begin careers, contribute to their communities, and pursue their dreams. DACA has been a major driver of economic growth for cities and states that reap the benefits of new tax dollars from DACA recipients’ large purchases and new jobs. It’s no surprise then that nearly 78 percent of American voters agree that Dreamers should be allowed to stay in the country. But now DACA is under attack. In late June, 10 states — led by Texas Attorney General Ken Paxton — wrote Attorney General Jeff Sessions a letter demanding that the Trump administration agree to end the program. If the administration refuses to fall in line by September 5, the states will seek to amend a lawsuit pending in the federal district court in Brownsville, Texas, to stop the program. Even worse, we don’t know if the Trump administration is committed to defending the program in court. Sessions is a longtime opponent. At his Senate confirmation hearing, Sessions testified that DACA is “very questionable, in my opinion, constitutionally.”Responding to the states’ June letter, he remarked: “I like [that] states and localities are holding the federal government to account and expecting us to do our responsibility to the state and locals, and that’s to enforce the law.” And former Homeland Security Secretary John Kelly reportedly told members of Congress that “he can’t guarantee that the administration would defend [the DACA program] in court.” To be clear, a decision to abandon the DACA program would be a political decision — not a legal one. In fact, the U.S. government has repeatedly — and successfully — defended DACA against constitutional challenges. Indeed, every legal challenge to the DACA program has failed. A new open letter to the president by 105 law professors makes clear that the DACA program is lawful and constitutional. As the letter explains, DACA is a form of temporary protection from deportation known as “deferred action.” Deferred action is one way in which the executive branch historically has exercised discretion over whom should and shouldn’t be deported from the United States. DACA specifically grants people who came to the United States as children, pass a criminal background check, and meet educational and other criteria permission to live and work in the country on a two-year, renewable basis. Programs like DACA make common sense. The government has limited resources and needs to pick and choose the people it goes after. And that’s especially true when it comes to a penalty as severe as deportation — that is, banishment from your home or what the Supreme Court has called the loss of “all that makes life worth living.” The ultimate legal authority for DACA lies in the U.S. Constitution. Article II, Section Three of the Constitution states that the president “shall take Care that the Laws be faithfully executed.” Carrying out our immigration laws involves deciding who should be targeted for deportation and who should be allowed to stay. Similarly, Congress has given the executive branch discretion over “the administration and enforcement” of the immigration laws. And the Supreme Court has recognized that “[a] principal feature of the removal system is the broad discretion exercised by immigration officials . . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue [someone’s] removal at all . . . .” Indeed, for more than four deca[...]

The Trump Administration Is Detaining Immigrant Kids for Gang Membership Without Evidence. So We Sued.

Mon, 14 Aug 2017 14:00 -0400

No immigrant kid should languish in detention because of an accusation of gang membership with flimsy or no evidence. Wearing a blue soccer jersey with “El Salvador” written on it. Doodling an area code from home on a school notebook. Law enforcement agencies have used both of these as “evidence” that a teenage immigrant high school student belongs to a dangerous gang. And both have triggered a process that results in the teenager’s detention in prison-like facilities far from his or her family and home. In the government’s latest effort to be tough on immigration, federal immigration agents are picking up teenagers in what appears to be a coordinated effort to detain anyone whom they suspect of gang affiliation — regardless of whether they have any real evidence to back that up. The pattern works this way: Local police pick up an immigrant juvenile based on a relatively minor incident or suspicion that they belong to a gang. The police can’t produce enough evidence to support the charges, or the charges are only minor infractions that don’t demand any jail time. But instead of closing the case, the police notify Immigration and Customs Enforcement. ICE takes custody of the teenager and sends them to the Office of Refugee Resettlement, the federal agency with a division in charge of caring for unaccompanied immigrant children. So what do ORR officials do?In testimony in the case of A.H., one of the children involved in our class action suit, an ORR official admitted that the agency had conducted no meaningful review to examine ICE’s “evidence” to justify the child’s jailing. They did not contact the child’s parents or attorneys to notify them of the child’s whereabouts.They held no hearing over their decision to incarcerate the child. Instead, within hours of receiving an email from ICE, with unsubstantiated evidence of gang affiliation, ORR decided to send the child to a secure detention facility across the country. Meanwhile, after the arrest, the parents of these kids are left in a panic, going days without any information about what happened to their children. Lawyers scramble to find out where the kids are, only to discover too late that they’ve been transported cross-country. The teenagers are denied access to their lawyers and the evidence against them. Meanwhile, they languish in detention. All of this violates a 2008 law that addresses the rights of unaccompanied children, as well as the Flores decree, a longstanding court order that set national standards concerning the treatment of children in immigration detention. The teenagers in our case came to the United States as unaccompanied children and were placed in custody of ORR, which released them to their family members in the U.S. Since then, they have attended their immigration court hearings and were on the pathway to obtaining lawful immigration status. Now the government is using mere accusations to sweep them back into custody and block their applications for lawful status and put their lives in the U.S. in jeopardy. One such teenager, F.E.,* was repeatedly harassed by local police officers. They accused him of being a gang member based on scribbles in his notebook and acquaintances at school. He was then picked up by ICE agents, bounced around prison-like facilities in New York, Virginia, California, and back again to New York, all based on unproven allegations of gang affiliation. F.E.’s story is not unique. We know of multiple juveniles arrested and swept into immigration custody based on similarly flimsy “evidence” of gang membership, like showing pride in their home countries, or being seen with certain people or in certain locations. To make matters worse, the Suffolk County, New York, police department — where we first heard of cases like F.E.’s — is openly coll[...]