Post by David Bennion (occasional blogger for the site, joined July 2013). See:
Note: The National Immigrant Youth Alliance (NIYA) is not affiliated with the Open Borders website, and the views expressed herein are those of the author alone.
On September 30, 2013, 34 people crossed the pedestrian bridge from Nuevo Laredo, Mexico, and presented themselves to U.S. officials at the port of entry in Laredo, Texas. Thirty-one were Mexican citizens, two from Honduras, and one from Peru. None had permission to enter the U.S. They were dressed in the graduation caps and gowns that have become identified with undocumented youth and the DREAM Act, the perennial bill which would provide legal status to young people who grew up in the U.S. without papers. The group was accompanied by reporters covering the event for audiences across the U.S. and Mexico. Each of the 34 handed an ID to Customs and Border Protection (CBP) officials. Each was interviewed and expressed a fear of returning to his or her country of birth. All 34 were then taken into custody by CBP.
What these 34 individuals had in common is that each had previously lived in the U.S. without lawful status prior to being deported or “attritioned” due to anti-immigrant state and federal policies. Most were in their late teens or early twenties and would have qualified for the Deferred Action for Childhood Arrivals (DACA) initiative, a federal administrative reform that tracks the requirements of the DREAM Act, had they not been on the wrong side of the border on June 15, 2012, the date the policy was announced. A few had left the U.S. just weeks–even days–before that date.
This group became known as the Dream 30. Organizers at the National Immigrant Youth Alliance (NIYA) conceived of and coordinated the action. As an immigration attorney, my role was to provide legal advice to the participants and represent them in the immigration interviews and hearings that were to follow. The organizers built on a similar action which had taken place two months earlier with nine participants, dubbed the “Dream 9.” The Dream 30 differed from the Dream 9 in two important ways. First, four participants in the Dream 30 action were parents, older individuals who would not have qualified for DACA or the DREAM Act because of their ages when they came to the U.S. (This is one reason that the “Dream 30” shorthand was used even though there were 34 participants.) By contrast, each of the Dream 9 participants was a Dreamer, someone who had come to the U.S. as a child and grown up here without lawful immigration status. Second, three of the participants in the Dream 9 action had voluntarily crossed from the U.S. to Mexico for the purpose of participating in the action with the other six participants already in Mexico. This was a controversial and, to some observers, brazen element of the Dream 9 action which was not part of the Dream 30 action.
Life in Exile
The Dream 30 had departed the U.S. for a variety of reasons. Some were deported or left to join parents who had been deported. A disproportionate number hailed from Arizona and had been driven out by the campaign by elected officials there to purge the state of Latinos. Many had hit a wall after high school or college, unable to pursue work or continue education because of their immigration status. One had traveled to attend a green card interview based on an approved petition filed by her U.S.-citizen stepfather and was wrongly rejected and denied re-entry to the U.S.
Most of the Dream 30 were from Mexico. After returning to Mexico, they found a different country than the one they had left as children. The drug war that began in 2006 had claimed between 60,000 and 120,000 lives and is still raging in much of the country. Members of the Dream 30 came from states wracked by cartel violence like Sinaloa, Michoacan, Veracruz, and Guerrero. In much of Mexico, the authorities cannot be trusted. The entire police force of the city of Veracruz was deemed irredeemably corrupt by the federal government in 2011 and disbanded. Viligante self-defense groups have formed in Michoacan as lists emerged of government officials on the payroll of the cartels. Several of the Dream 30 were victims of extortion or threats by the police themselves. Many had relatives who were kidnapped or murdered. Most of the Dream 30 were readily identifiable as having lived in the U.S. due to their accents or appearance, or by word of mouth. Consequently, they were at risk of being targeted by the cartels or police on the assumption that they had relatives in the U.S. who could pay ransom. Some experienced persecution based on their race or sexual orientation. Some had left the U.S. to apply for visas “the right way” on the mistaken assumption that they would be able to return to the U.S. on student or visitor visas. Instead, they were told their sentence of exile was anywhere from 10 years to life. Many found their school credit didn’t transfer over to schools in Mexico and that their education and career opportunities were no better than in the U.S. They had become foreigners in the land of their birth. The situation was all the more painful because they had missed, some by days, the protections and opportunities they would have been afforded under DACA had they been able to remain in the U.S. until the date the policy was announced.
Fighting to Stay
Elsy, one of the Dream 30 from Honduras, crossed the footbridge with her severely disabled four-year-old U.S. citizen daughter. Elsy was released into the U.S. later the same evening to seek medical treatment for her daughter. Seven others–all minors and their parents–were released on October 1, the first day of the government shutdown. Another 17-year-old who was not accompanied by a parent was taken to San Antonio to be processed for release two weeks later as an unaccompanied minor. The remaining 25 participants were transferred into Immigration and Customs Enforcement (ICE) custody and transported to the El Paso Processing Center, a ten-hour drive from Laredo.
Each of the 25 Dreamers was scheduled for a telephone interview with one of a team of officers at the Houston asylum office the following week to determine whether he or she had a “credible fear of persecution” if deported. The asylum offices are part of U.S. Citizenship and Immigration Services (USCIS). USCIS, ICE, and CBP are sub-agencies of the Department of Homeland Security (DHS). The credible fear interview is only an initial step in the typically lengthy and difficult process of applying for asylum. Asylum is a status granted to those who meet the legal definition of a “refugee” but are either already inside the U.S. or are knocking at the door. The credible fear standard is lower than the standard that must be met for a grant of asylum in a full removal proceeding. As Professor Bill Hing wrote in a letter of support for the Dream 30:
The credible fear concept functions as a pre-screening standard that is broader and less rigorous than the “well-founded fear of persecution” standard that is required for an actual asylum application. A finding of credible fear merely gives the prospective immigrant the opportunity to apply for asylum in removal proceedings. Without this more generous screening standard, the nation risks returning immigrants to grave dangers, including situations involving political violence, police corruption, gang violence, and torture.
During the initial interviews on October 7, some of the interviewing asylum officers were openly skeptical and cut my clients off as they described their experiences. The asylum office refused to accept the asylum applications and packets of supporting documents we had prepared for each individual, as had CBP at the port of entry, saying the detailed information and evidence of persecution wouldn’t affect their decisions anyway as it would not be reviewed. (Later, after NIYA publicly criticized the asylum office, the officers agreed to accept and review some supporting evidence.) The asylum office took the unusual step of re-interviewing twelve of the participants on October 15 since, as a supervisor told me, these were high-profile cases.
The asylum office began issuing credible fear decisions shortly after the second set of interviews. The average credible fear denial rate nationally for Fiscal Year 2013 was about 8% (AILA InfoNet Doc. No. 13081316, p. 29). However, nine of the 25 Dreamers interviewed for credible fear were denied by the asylum office, a denial rate of 36%. The officers refused to acknowledge that the heightened risk of extortion, kidnapping, or murder by virtue of being a Dreamer warranted a full asylum hearing in front of an immigration judge. While the Houston asylum office is bound by the rulings of the conservative Fifth Circuit Court of Appeals, even there, the law governing the specific claim of fear of persecution based on being a member of the class of Dreamers is not settled. The majority of immigrants interviewed for credible fear are unrepresented by counsel, don’t speak English, and often lack formal education. Often there are discrepancies between the initial border interview and the subsequent credible fear interview. For instance, an applicant might tell a border official she was coming to work in the U.S. and later disclose the additional motivation of fear of persecution to an asylum officer. My clients requesting credible fear had all been educated in the U.S., were represented by counsel both prior to and during the interviews, and were fluent in English. There were no significant discrepancies between the border interviews and the credible fear interviews. I emphasized to my clients the importance of telling the truth, and I and the small team of lawyers and assistants working with us reviewed the case histories for consistency and accuracy. Anecdotally, it is rare for credible fear applicants represented by counsel to be denied by the asylum office. I would have expected the credible fear denial rate for the Dream 30 to be lower than the normal rate, not four and a half times higher. By comparison, all of the Dream 9 passed their credible fear interviews and were paroled into the U.S., including the three who had returned to Mexico for the purpose of participating in the action.
Little Help from “Champions” in Congress
Days stretched into weeks, and still ICE refused to release those of the Dream 30 with positive credible fear determinations. This was in violation of an ICE policy announced in 2009 to parole people found to have credible fear who do not pose a flight risk or danger to the community. I believed at the time that ICE’s intransigence was a form of retaliation for this unorthodox, highly-public action. Later, NIYA learned that ICE’s practice of holding asylum-seekers in violation of its own policy was more widespread than we had thought.
The mothers of two of the participants with negative credible fear findings–Jonathan and Rocio–traveled to Senator Bob Menendez’s D.C. office on October 24 to ask for his help. Menendez is the only Senator in the Congressional Hispanic Caucus (CHC) and is a visible proponent of immigration reform in Congress. Over the last few years, he and other members of congress had worked behind the scenes with NIYA and other youth organizations to persuade ICE to stop deportations in individual cases. But the Dream 9 and Dream 30 actions represented a bridge too far for most of the CHC and the immigrant advocacy organizations that guide the politicians’ decisions. Comprehensive immigration reform legislation was still on life support in October, and congressional Democrats and their organizational boosters feared the Dream 30 action might kill it by giving Republicans in the House another reason to oppose reform. Menendez and most of the CHC closed ranks and left the Dream 30 hanging, giving the green light to ICE to deport any who didn’t make it through the credible fear process. The two mothers refused to leave Senator Menendez’s office unless he agreed to help their children. Instead of helping, Menendez’s staff called the police to arrest the mothers. Defiant, Jonathan and Rocio’s mothers came back to the office the next day. Menendez still refused to help.
Meanwhile, the Dream 30 were becoming increasingly frustrated with their continued imprisonment. The men staged a sit-in on Friday, October 25. Most of the participants went on hunger strike over the weekend. Early the following week, ICE took some of the men to emergency care. I was later told that ICE attempted to obtain a court order to force feed the hunger strikers, but that the treating doctors refused to sign off on the request since the men were still in good health. Tuesday morning, October 29, an ICE officer called to ask me to persuade my clients to end their hunger strike, saying they could not be released while their health was in question. I suspected that the opposite was true, that the pressure tactics were working and ICE didn’t want the negative press that might come if the hunger strike continued. Around the same time, I received word that ICE had denied my last-ditch request to stop the deportation of Rocio, one of the participants whose negative credible fear decision had been rendered first. By the time I was notified of the decision, she was already on her way to Mexico. Later that evening, eleven Dreamers were released. Five more were released on Friday, November 1. While the hunger strike and protests going on around the country had not prevented Rocio from being deported, they had successfully brought others in the group home despite the best efforts of the U.S. government to keep them out.
The Dream 30 forged strong bonds at the migrant shelter in Nuevo Laredo where they met and in prison in El Paso. The 16 who had been released from the El Paso Processing Center promptly got in a van and Benito Miller, a NIYA organizer, drove them to Washington, D.C. The morning of Monday, November 4, they began a series of sit-ins in the offices of members of the Congressional Hispanic Caucus, including Representative Gutierrez. Gutierrez lashed out, declaring he was severing ties with NIYA. Mohammad Abdollahi, a NIYA organizer, dryly noted that NIYA hadn’t had a working relationship with Gutierrez’s office in years.
To deflect the negative attention the offices of Menendez and Gutierrez were getting in the press, staffers told the parents of the Dreamers that I had provided bad legal advice to their children and that they and their children were being manipulated by NIYA. Furious, Maria Hernandez, the mother of one of the Dream 30, wrote a scathing open letter to Gutierrez that was published in the Huffington Post. She wrote, in part:
Personally, these “manipulative” organizers, as the congressman calls NIYA and the Dreamers, have been a constant support to me, to all the parents and to our children, and to the community. Despite their young age they know what they do. But why do they know? Because they have lived it. Such a person can move the world. Thanks to them we have been reunited with our children, which is what these politicians should do.
. . .
Congressman Gutierrez said he will withdraw support from these organizers, but I say, what support? The only thing he has supported is the deportation of these two young people, Brandon and Rocio. Congressman Gutierrez and his colleagues in Congress are well aware that if they support these Dreamers, more Dreamers will come and that is what they do not want, family unity.
By trying to discourage the parents from pursuing the release of their children, the offices of Senator Menendez and Representative Gutierrez were in effect working with ICE to deport the Dream 30. The staffers, including lawyers who should have known better, attempted to impede my ability to represent my clients by giving false information to their parents.
Most of the national immigrant advocacy organizations ignored the Dream 30 action, as they had the Dream 9, hoping that the story would quickly disappear. The action didn’t fit with the approved narrative that Republicans are to blame for the nearly two million people deported during Obama’s presidency. The estimated 500,000 Dreamers living in Mexico are an inconvenience that most congressional Democrats would prefer to forget.
Challenging the System, Shifting the Debate
I and my nine clients who had received negative credible fear determinations asked for review by an immigration judge. The regulations provide for a limited hearing that falls far short of a full asylum hearing and its attendant due process protections, such as they are. Three of the negative decisions were overturned on review by a judge or after reconsideration by the asylum office. ICE deported the remaining six despite their strong ties to the U.S. and legitimate fear of harm in Mexico. Some of those deported had lived in the U.S. since they were toddlers. In all, 28 of the original 34 were released into the U.S. to pursue asylum or other relief in immigration court in their home states.
At the outset, I had hoped for the same outcome that the Dream 9 had achieved: parole of all participants after passing a credible fear interview. I believe the different result this time came from a combination of factors. The DHS agencies involved–CBP, ICE, and USCIS–closed ranks in an attempt to shut the action down. DHS was on notice after the Dream 9 action and wanted to discourage future attempts by exiled Dreamers to return to the U.S. The asylum office manipulated the legal standard for credible fear determinations in order to deny my clients’ cases at over four times the normal rate, and ICE ignored its own directives on discretionary release of low-priority detainees. Over the past couple of years, ICE rank and file officers have chafed at instructions from D.C. not to deport Dreamers. In the absence of support from legislators and the administration, ICE was free to treat the Dream 30 as though they weren’t Dreamers and deport some of them. A few prominent immigration lawyers gave the administration and the CHC political cover by publicly undermining the Dream 30’s legal cases.
It was important for DHS to discourage more Dreamers from trying to rejoin their families in the U.S. Otherwise the public might become aware that the consequences of U.S. immigration policy extend beyond our borders, and that people don’t vanish once they are deported. They keep living, they keep dreaming. As Prerna Lal aptly wrote
“the deported are not lost to us. They will come back because they are responsible, committed, and dedicated mothers, fathers, children, siblings.”
Even though those of the Dream 30 who were paroled have not secured permanent status in the U.S., they now have the time and resources to prepare to fight their cases. Inside prison, ICE has the upper hand, as legal representation and support networks are disrupted and the cases are heard on an expedited schedule. Immigration judges presiding over prison courts are among the harshest in the country. That dynamic is flipped once a person is released. With time to gather supporting evidence and locate reliable local counsel, and in front of more sympathetic judges, chances of success rise dramatically. But perhaps more importantly, upon release, my clients have likely secured their futures in the U.S. While it is impossible to predict the outcome of the individual cases, it is unlikely that ICE will detain and deport the Dream 30 even if they ultimately lose their cases. They are now embedded in a network of Dreamers and allies that will mobilize to protect them if necessary. The Obama administration says it doesn’t deport Dreamers, and the Dream 30 have become Dreamers on the right side of the border once again. If Congress crafts a DREAM Act that excludes the Dream 30 and the Dream 9, they and their supporters will fight back.
In the midst of the Dream 30 action and a series of civil disobedience actions coordinated by the National Day Laborers Organizing Network (NDLON) to disrupt ICE operations, Representative Gutierrez pivoted away from the comprehensive reform orthodoxy, acknowledging that piecemeal legislation would now be the only realistic way forward. The week following Gutierrez’s public dispute with NIYA, he criticized President Obama for saying one thing and doing another.
While pressure is rising on Obama to enact additional administrative reforms, immigrant rights supporters remain divided over who to target: the President or House Republicans. At the heart of the rift is a difference in objectives and analysis. The first approach involves a sustained push for compromise legislative reform, understanding that it may not produce results until long-term demographic changes work their way through the electoral system. Most analysts predict that the GOP will hold onto the House in 2014, and I believe that House Republicans will become even more resistant to immigration reform as the primary season progresses. I do not know if or when broad amnesty legislation will pass through Congress, but it could be years. The changes contemplated under existing proposals would not significantly alter the immigration system. The second strategy is to directly challenge the deportation system and and push for fundamental changes to the underlying immigration regime. Both approaches have their merits, but disputes are inevitable where the stakes are so high and the analysis so different. We are entering another window of opportunity for an administrative policy shift, as comprehensive immigration reform is stalled and public focus shifts back to Obama’s deportation record. Direct action keeps up the pressure and helps shape public opinion, challenging the “Democrats good, Republicans bad” narrative that has facilitated the administration’s deportation and attrition policies.
I can’t speak for the participants or organizers of the Dream 9 and Dream 30 actions or for the undocumented communities they represent. But to me, the actions represent a challenge to the border as an illegitimate construct, built in a misguided attempt to protect status and power in a changing world. The actions question the global immigration and citizenship regime which, perhaps more than any other single factor, perpetuates extreme social, political, and economic inequality. I believe the actions:
- Pushed for a new “Dreamer” particular social group to be defined as a protected ground under asylum laws.
- Reunited families.
- Helped shift control over policy messaging and strategy back to undocumented people themselves and away from citizen allies purporting to speak for undocumented communities.
- Put pressure on the administration and the Democrats to enact further administrative reforms.
- Raised awareness of the large number of exiled Dreamers and their family members, most of whom will be shut out of legislative or administrative reforms as currently proposed.
Too much, I have become hardened against the suffering endured by my undocumented clients. Perhaps it’s a necessary response to continue to do the work. Even so, I was powerfully affected by a stream of Facebook posts showing happy reunions with family and friends as members of the group finally made their way back to their homes in November. The Dream 9 and Dream 30 bravely challenged the morally illegitimate laws that would separate them from their families and their dreams. As the Twitter hashtag for the actions succinctly puts it, #BringThemHome.