Child Litigants Need to Have Counsel

By Professor Kevin Lapp

This op-ed originally appeared in the Monday, May 13, 2019 edition of the Daily Journal

For the second time in three years, the 9th U.S. Circuit Court of Appeals avoided answering the urgent issue of whether child respondents in immigration removal (deportation) proceedings have a due process right to counsel at government expense. The case, C.J.L.G. v. Barr, 2019 DJDAR 3782 (May 3, 2019), involved a Honduran adolescent who appeared in immigration court accompanied only by his mother. C.J.L.G. sought asylum based on his fear of persecution for being a member of a particular social group, a legal claim so complex that it regularly confounds attorneys and judges alike. He was also apparently eligible for special immigrant juvenile status (SIJS), but neither C.J.L.G., his mother, nor the immigration judge raised that form of relief at his hearing, and he was ordered deported. On appeal, C.J.L.G. argued that his hearing was unfair and that due process required that child litigants like him be provided counsel at government expense.

C.J.L.G.’s immigration hearing was all too usual. Each year, tens of thousands of minors appear without a lawyer in immigration proceedings, some as young as two and three years old. Data show that, unsurprisingly, unrepresented minors are significantly more likely to be ordered deported than represented minors. The government nevertheless insists that adversarial proceedings against unrepresented children comport with due process.

The fully briefed right to appointed counsel claim was presumably the reason the 9th Circuit chose to hear C.J.L.G. en banc. Yet, as it did three years ago, it avoided the issue. (In J.E.F.M. v. Lynch (2016), the 9th Circuit held in the context of a class action that there was no jurisdiction over a constitutional right to counsel claim raised by minor respondents.) Instead, the court ordered a new hearing because the immigration judge failed to inform C.J.L.G. of his apparent eligibility for SIJS. It then dropped a footnote to explain that because C.J.L.G. has since secured counsel, and will be represented on remand before the Immigration Court, it need not address the constitutional right to appointed counsel claim.

The 9th Circuit’s decision is certainly a victory for C.J.L.G. and other pro se children who may be eligible for SIJS. The court found error in his proceedings, and he now has an opportunity, aided by counsel, to fully present his case for relief. But to avoid the right to appointed counsel issue (again) is, in practice, to decide it. And it is to decide it in a way that necessarily leaves thousands of child litigants, who either cannot afford a lawyer or who have not lucked into pro bono counsel, to defend themselves against trained government prosecutors in proceedings that involve a notoriously complex area of law.

Strikingly, C.J.L.G.'s case demonstrates exactly why child respondents need lawyers to ensure the fairness of their proceedings. Recall that the 9th Circuit found that the immigration judge failed to inform C.J.L.G. of a possible form of relief as he was required to do. Neither the presence of a friendly adult nor the immigration judge’s duty to develop the record were sufficient safeguards. If C.J.L.G. had not secured counsel after he was ordered deported, the error in his case would have never come to light. He would have been just another child deported after an unfair hearing. Nevertheless, because of C.J.L.G.’s fortune in securing a lawyer, thousands of children who do not share his good luck will continue to go without a lawyer in proceedings that are just as likely as his to be unfair.

Loyola Immigrant Justice Clinic Statement on Family Separations at Border

The Loyola Immigrant Justice Clinic at Loyola Law School, Los Angeles joins its colleagues in condemning the widespread family separations occurring along our southern border. Because of repeated misrepresentation of both fact and law by government spokespersons, the following points require clarification:

• In early May, Attorney General Jeff Sessions announced a policy of "zero tolerance" against individuals, including families with children, arriving at the southern border. This policy is new, entirely a creature of the current administration, and wholly within the executive branch's discretion.
• This new policy mandates criminal prosecution and incarceration of individuals for misdemeanor first-time unlawful entry. The new, discretionary policy implements incarceration for this misdemeanor. Incarceration is not a requirement of the law.
• It is this draconian policy of incarceration for a first-time misdemeanor offense that has resulted in the wholesale separation of parents and caregivers from their children, a policy condemned by the American Academy of Pediatrics because of the traumatic effects of separation and the long-term damage done to already vulnerable children. A secondary effect is the overcrowding of federal courts previously focused on prosecution crimes such as human trafficking and the illegal drug and weapons trade. 
• This policy operates in conjunction with ICE's "surge initiative," a policy of targeting the sponsors of children released from federal custody by the U.S. government into the custody of caregivers. The two operate together to promote the isolation of children from relative caregivers, and to prolong their detention and isolation. 
• These policies are a violation of the UN Convention on the Rights of the Child, the standards contained with the the UN Declaration of Human Rights, and basic norms of humane conduct. They are a stark departure from past practices, and represent an effort to use children as a weapon to enforce the president's inhumane immigration agenda.

Strengthening and Reforming America’s Immigration Court System

Loyola Immigrant Justice Clinic Co-Director Emily Robinson '12 submitted a letter on behalf of immigration professors and clinicians related to the Senate Committee on the Judiciary Subcommittee on Border Security and Immigration prior to their April 18, 2018 hearing "Strengthening and Reforming America’s Immigration Court System."

An excerpt appears below:

Immigration judges are employees of the Department of Justice and are deprived of many protections had by Article I and Article III Judges. Attorney General Sessions introduced a new EOIR Performance Plan, which was first announced by EOIR’s head, James McHenry by e-mail on March 30, 2018. Under the new standards, which are set to go into effect on October 1, 2018, immigration judges will be required to meet a number of performance metrics, which include completing 700 cases a year and having fewer than 15 percent of their cases sent back by a higher court. These metrics are not put forth as suggestions or guidelines, but, rather, are inextricably tied to job security and raises. This means that immigration judges have a financial stake in the number of deportation orders they enter, or clients they convince to self-deport orvoluntarily depart.

Read the letter in its entirety

Loyola Immigrant Justice Clinic Co-Director Testifies before State Assembly Committee

On Tuesday, April 18, 2017, Loyola Immigrant Justice Clinic Co-Director Marissa Montes '12 testified before a California State Assembly committee about the use of gang databases in the state.

Good Morning. My name is Marissa Montes and I am the Co-Director of Loyola Law School’s Immigrant Justice Clinic, which provides free immigration legal services to the community of Boyle Heights and East Los Angeles. Through our work, we have integrated ourselves into the community, and have witnessed firsthand how over-policing, and the mislabeling of gang membership can severely impact an individual’s ability to gain legal immigration status.

For this reason, I am here to testify in support of AB 90, which would address the accuracy and fairness of CalGang and other shared gang databases. This bill not only addresses the concerns highlighted in the California State Auditor’s findings, but would also add safeguards to limit the misuse of information that unfairly targets immigrant and low income communities.

First, AB 90 would place a moratorium on the use of Calgang until the state audit concerns are addressed. The audit found that children younger than one year of age were entered and labeled as gang members, demonstrating either that individuals were being categorized by law enforcement based on family and community ties, or that the data entered was horribly inaccurate. This misinformation proves to be detrimental, as it was for our client, Mathias, a stellar community college student, who in the course of his green card interview was accused of gang involvement due to his older brother. Mathias, who only had one misdemeanor conviction for a non-gang related offense, had never been involved or gang affiliated. US Citizenship and Immigration Services had no access to any evidence regarding gang affiliation, except for inaccurate information collected through CalGang. Mathias’ case remains ongoing, but is an example of one of many young adults in his community who are similarly stigmatized as gang-affiliated.

Religious Organizations, Refuge for Undocumented Immigrants, and Tax Exemption

By Professor Ellen P. Aprill

This op-ed originally appeared in the Los Angeles Daily Journal.

For many houses of worship, the Biblical injunction, “You should not wrong a stranger or oppress him, for you were strangers in the land of Egypt” (Exodus 22:21, JPS), constitutes an important religious doctrine. The Trump administration has announced plans for aggressive enforcement of immigration laws, plans that are expected to expand massively the number of people detained and deported. This new policy has forced many houses of worship and other religious organizations to consider whether their beliefs call upon them to grant refuge or so-called sanctuary to undocumented immigrants.

Under long-standing immigration laws, harboring undocumented immigrants carries the potential for both fines and imprisonment. An organization can lose its exempt status if its purpose is illegal. Moreover, illegal activity is deemed not to further an exempt purpose, and an organization can also lose its exempt status if a substantial part of its activities are not in furtherance of its exempt purpose. Houses of worship and religious organizations face some risk, at least in theory, of losing exemption for such activity. As a practical matter, loss of exemption is unlikely, but the organization needs to document the religious basis for its actions and the criteria it will use.

One piece of official IRS guidance offers important guidance. It involved an organization formed to educate the public on the principles of pacifism and nonviolent action, including civil disobedience. This 1975 “Revenue Ruling” explains that no Section 501(c)(3) organization can have an illegal purpose. The ruling’s analysis, however, emphasized the group’s primary activities of undertaking protest demonstrations and other nonviolent actions, including deliberately blocking traffic, disrupting the work of government, and preventing the movement of supplies, all breaches of the peace in violation of local ordinances. The ruling concluded that the organization’s activities “demonstrate an illegal purpose which is inconsistent with charitable ends.” The Tax Court in Church of Scientology of California v. Commissioner similarly concluded that pervasive illegal activities, including a number of felony convictions, constituted an illegal purpose and that the organization’s claimed status as a church did not protect it from application of the illegality doctrine.

Loyola Immigrant Justice Clinic Reacts to DAPA Decision

The co-directors of the Loyola Immigrant Justice Clinic at Loyola Law School, Los Angeles are reacting to the Supreme Court opinion announced today that lets stand a lower court opinion blocking President Obama’s executive action, Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

“The divided court, by affirming the decision in U.S. v Texas, has exposed hard working and vulnerable individuals to continued vulnerability, discriminatory state and federal laws, and predatory practices. The executive action programs would have strengthened family unity, community health and safety, and strengthened our economy,” said Marissa Montes, co-director of the Loyola Immigrant Justice Clinic at Loyola Law School, Los Angeles. “As a clinic that has seen hundreds of community members eligible for these programs who have been preparing to apply, we know that their struggle will continue. As immigrants’ rights advocates, however, this gives further incentive to advocate for change and immigration reform. Our system is broken and victims of crime, asylees, parents, and friends need our attention and protection.”

The co-directors found some semblance of hope in the decision.

“Now more than ever, bold, young immigrants should enroll in Deferred Action for Childhood Arrival (DACA) and show the benefits of this program,” said Emily Robinson, co-director of the Loyola Immigrant Justice Clinic. “We have seen DACA recipients come out of hiding and make positive change on the world. By enrolling in this program, they continue to show its benefits and open the door to future executive action programs. Executive action was just a band aid on an antiquated immigration system. We need to focus on change for those who need a voice.”

Law Would Shine A Light on Gang Lists

By Loyola Immigrant Justice Clinic Co-Director Marissa Montes and Clinical Students Houman Sayaghi, Amber Spring and Megan Venanzi
This op-ed originally appeared on The Daily Journal.

It was a day like any other: a father and son driving together, blasting their favorite music on the way to dinner. Jose Osuna, the director of External Affairs at Homeboy Industries, and his 17-year-old son, Moises Contreras, were pulled over by the police because “their music was too loud.” This kind of stop was common for Jose because he was on a local gang injunction. However, this stop was different because the cops decided to categorize Moises as a gang member because of his father. A few months later, Moises died when he was caught in the crossfire of a race-related shooting.

While Jose was involved with a gang at the time, Moises constantly berated his dad for being part of one. Moises had bigger dreams of joining the military or opening his own apparel store. But Moises’ wrongful inclusion on the gang injunction tarnished his memory, labeling him as something he never wanted to be. When Jose tried to apply for state assistance to pay for Moises’ funeral, he was turned away because his son was a named gang member. Two months later, after pleading to various agencies and political figures as to his son’s innocence, Jose was able to get Moises’ name removed from the injunction and receive aid.

At Home Base Immigration Clinic, Smiles About as Clients Become Citizens

Clinical attorneys Marissa Montes ’12 (pictured, left) and Emily Robinson (second from right) ’12 recently joined their Home Base Immigration Clinic clients, Francisco and Sonia, in Los Angeles as they took their oaths to become new U.S. citizens. The clinic focuses on providing representation to individuals who are unable to obtain immigration legal services elsewhere, focusing on the community of Boyle Heights and East Los Angeles area, specifically the constituents of Dolores Mission and Homeboy Industries. The clinic is accepting students for the 2014-2015 academic year. Interested students must have taken or be concurrently enrolled in Immigration Law during the 2014 fall semester. They may apply by sending a resume, a current transcript and a one-page personal statement to hbic@lls.edu by March 14, 2014.

California AG: Immigration Detainers are Requests, not Commands

By Associate Professor Kevin Lapp

On December 6, 2012, California Attorney General Kamala Harris declared that local law enforcement agencies in the state are free to decide whether they will comply with immigration detainers issued by the federal government. This was a big announcement for at least two reasons: (1) immigration detainers are a key component of immigration enforcement programs such as Secure Communities, which ostensibly target for deportation non-citizens who have committed serious crimes, and (2) California is the nation's most populous state, with the largest non-citizen population and the nation's largest criminal justice system.
An immigration detainer is a piece of paper from immigration officials purporting to command a jailor to hold a specific individual for up to 48 hours after the individual would otherwise have been released. The purpose behind the extra detention is to allow Immigration and Customs Enforcement (ICE) to evaluate the detainee's immigration status or take the individual into custody itself. Since 2009, the United States has issued approximately 250,000 immigration detainers a year.

State and local law enforcement officials across the country regularly comply with immigration detainers, holding individuals at their own cost until ICE takes them into custody or releases the hold. Some believe that compliance is mandatory, as a glance at the form would suggest. Near the top, it states in bold and all caps, "MAINTAIN CUSTODY OF ALIEN FOR A PERIOD NOT TO EXCEED 48 HOURS." Later, the form quotes from a regulation, 8 C.F.R. 287.7, that the law enforcement agency "shall maintain custody of an alien" once DHS issues a detainer.

But there has been a growing trend against compliance. Santa Clara and San Francisco County (as well as Chicago, Washington, D.C. and New York City) have chosen not to honor at least some immigration detainers. These localities have taken AG Harris's position that the detainers are requests, not commands. They have also objected to the fact that the states and localities must bear the cost of the extended detention, often for individuals arrested for petty offenses who pose no risk to the community.

Supreme Court Weighs Immigration Consequences of Misdemeanor Conviction

By Associate Professor Kevin Lapp

Moncrieffe v. Holder, argued in mid-October before the United States Supreme Court, involves a non-citizen who pled guilty in Georgia state court to misdemeanor possession with intent to distribute 1.3 grams of marijuana (about half the weight of a penny) with no evidence that he received any money in exchange for drugs. Federal law likewise considers possession with intent to distribute such a small amount of marijuana without remuneration to be a misdemeanor offense. Knowing those two things, you'd probably puzzle at the notion that the government is seeking to classify Moncrieffe as an "aggravated felon" for purposes of deporting him. But in the Wonderland world of immigration law, that is just what is happening.

The issue in Moncrieffe v. Holder is whether Moncrieffe's state misdemeanor drug possession offense constitutes a "drug trafficking aggravated felony" under federal law. Longstanding precedent, and recent Supreme Court case law, says that courts should apply what is called the categorical approach to answer the question. That approach involves determining the minimum conduct that is necessarily established by the state conviction, and prohibits looking into anything behind the conviction, such as underlying facts or possible alternative offenses that could have been charged. If the minimum conduct of the state crime is necessarily equivalent to a felony under federal narcotics law, then even a state misdemeanor conviction becomes an "aggravated felony" for immigration purposes. If it is not necessarily a federal felony (because the state crime captures conduct that could be either a federal felony or misdemeanor), then the categorical approach says that it is not an aggravated felony.

Moncrieffe's state misdemeanor marijuana offense does not require proof of any minimum amount of marijuana, nor does it require proof of remuneration. As such, it criminalizes the social sharing of small amounts of marijuana as well as the distribution of larger amounts. Because the state crime encompasses conduct that would clearly be a federal misdemeanor, Moncrieffe argued that the categorical approach means that it is not necessarily equivalent to a federal felony and should not be considered an aggravated felony. The upshot is that he remains deportable, but has an opportunity to seek relief from deportation.

Prop. 35 CASE Act Undermines Victims' Rights

Professor Kathleen Kim, Kevin Kish and Cindy Liou

This op-ed originally appeared in Pacific Standard.

This November, voters will consider Proposition 35, also known as the "CASE Act" for "Californians Against Sexual Exploitation." The name of the law is designed to draw automatic support: Who, after all, would be in favor of sexual exploitation? The initiative's supporters, who include concerned citizens and former Facebook executive, Chris Kelly, are committed to increasing fines and prison sentences for certain forms of sex trafficking, and their intentions are beyond reproach. Unfortunately, what the CASE Act actually does is to tinker inexpertly with California's comprehensive laws combating all forms of human trafficking, laws that have served as a model for states across the nation. For over a decade, we, the authors have collectively assisted hundreds of trafficking survivors assert their rights in criminal, civil and immigration actions. Our experience informs us that by taking a predominantly criminal enforcement approach and conflating human trafficking with sexual exploitation, the CASE Act, however unwittingly, will change our current anti-trafficking laws in ways that disempower the actual survivors of human trafficking.

When the 13th Amendment to the United States Constitution was adopted in 1865, our nation made a simple promise of commanding power: "Neither slavery nor involuntary servitude... shall exist within the United States, or any place subject to their jurisdiction." That promise is still being tested. Every year, the State Department estimates that tens of thousands of men, women and children are trafficked to this country - and between the states - and put to work against their will. California is a major point of entry and a destination for traffickers and their victims, who are forced to work not only in the sex industry, but also in garment factories, agricultural fields, construction sites, hotels and restaurants, and as domestic servants in our neighbors' homes.

Some contemporary trafficking cases involve conditions much like the chattel slavery abolished by the 13th Amendment, in which human beings were bought and sold as property. Still more cases involve psychological coercion, deception or fraud: depriving people of liberty by convincing them that harm could come to them or their loved ones if they stop working.

Prof. Kathleen Kim's dual impact on human trafficking

In Yusaf v. Tija, the California Court of Appeal upheld a lower court judgment holding an employer liable for violating the California Trafficking Victims Protection Act (a civil provision). Associate Professor Kathleen Kim authored this statutory provision. She also provided technical support to the plaintiffs in Yusaf and co-authored this amicus brief in the case.

Following is the summary of the argument in the amicus brief:

In 2000, the federal government passed the Trafficking Victims Protection Act ("TVPA"). TVPA §102(a), 22 U.S.C. §7101(a) (2000). The TVPA, as amended, was designed to eradicate human trafficking through the implementation of a three-part strategy involving (1) benefits and services to victims; (2) punishment of offenders; and (3) establishment of a mechanism to monitor and eliminate trafficking worldwide. Congress knew at the time it drafted the TVPA that in order to succeed in its goal of eradicating human trafficking the federal government needed to enlist the participation of both domestic state, and international, governments.

As a result, and at the encouragement of the federal government, several states adopted their own anti-trafficking laws. Five years after the passage of the TVPA, on September 21, 2005, the California state legislature adopted the California Trafficking Victims Protection Act ("CA-TVPA") which was modeled after the federal TVPA. Cal. Penal Code §236.1 (West 2005). The issue of preemption raised by the appellant is an unusual theory given the backdrop against which the TVPA was enacted. Is the TVPA meant to preempt the very state anti-trafficking laws it encouraged the creation of? Given the legislative intent, and consistent language of the two statutes, it is clear that the TVPA does not preempt California's anti-trafficking laws. The 2008 amendment to the TVPA explicitly states that the TVPA shall not preempt any state criminal laws. TVPA §225, 22 U.S.C. §7101 (2008). There is no clearer indication of congressional intent than the express language of the statute which prohibits preemptions of the CA-TVPA. Furthermore, preemption of the CA-TVPA would be inconsistent with the federal government's implementation of the federal TVPA. Ever since the passage of the TVPA in 2000 the federal government has encouraged state legislators to adopt their own anti-trafficking laws. For example, the Department of Justice set forth a model state anti-trafficking statute to encourage states to enact state level anti-trafficking laws. If Congress intended to preempt state anti-trafficking laws, the federal government would have more explicitly promoted one uniform legal standard that could be applied across the board. Instead, the federal government has done the opposite. It has encouraged states to craft state level anti-trafficking laws with the flexibility to accommodate the unique qualities of existing laws in those respective states.

In addition, California adopted the CA-TVPA with the federal TVPA in mind. The CA-TVPA is consistent with the federal TVPA and even incorporates the TVPA by reference.

Finally, non-physical psychological coercion as a means of forcing labor is explicitly prohibited by the federal TVPA and therefore does not preempt the CA-TVPA's similar prohibition of psychological coercion. Based on the foregoing, preemption of the CA-TVPA would be wholly inconsistent with the explicit intent of Congress and the conduct of the Department of Justice, the federal agency charged with overseeing the implementation of the federal TVPA.