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REPORT CARD: DHS Implementation of Civil, Labor, and Human Rights Protections

New Orleans Immigration Court Docket Review: April 23- May 4, 2012

 

REPORT CARD: NEW ORLEANS

Click here for the executive summary of the report card

 

 

EVALUATION OF ACTIONS RELATED TO SPECIFIC EXEMPLAR CASES

 

 

Has ICE Broadly and Consistently Implemented the Civil, Labor, and Human Rights Provisions of the Prosecutorial Discretion Policy?

 

Halting Deportation of Civil, Labor, and Human Rights Defenders and Offering Dignity, Stability, and Economic Strength.[1]

 

F

At the close of the review period, ICE is opposing closing deportation cases of labor leaders who went on strike to demand an end to discrimination against Latino workers during the Hurricane Ike clean-up effort.  ICE’s court filings for Josue Diaz, Melvin Mejia, and two other workers go beyond a failure to implement the prosecutorial discretion policy—they demonstrate an aggressive opposition to the policy and its underlying priorities.

F

At the close of the review period, ICE is opposing closing the deportation case of Jose Monterrubio, a day labor leader, whofiled a federal civil rights complaint exposing a pattern and practice of racial discrimination and unconstitutional arrests on New Orleans day labor corners and defending the First Amendment rights of reconstruction workers in New Orleans.  The New Orleans Immigration Court closed his case – over ICE’s objection – so that the federal civil rights investigation could proceed.  ICE opposed closing the case and immediately sought to have the case reinstated by the Court.  ICE’s actions go beyond a failure to implement the prosecutorial discretion policy—they demonstrate an aggressive opposition to the policy and the priorities at its core.

D

At the close of the review period, ICE has not granted long-term relief from deportation for Delmy Palencia, a nationally recognized civil rights leader who won release after being held in jail for a week beyond the constitutional limit. ICE granted her a one-year stay of removal.

Incomplete

At the close of the review period, ICE has not communicated the results of its review for the remaining 26 pending requests from civil, labor, and human rights defenders.  

Incomplete

At the close of the review period, the public has no information on how ICE identified individuals eligible under these provisions through the general docket review. 

 

EVALUATION OF ACTIONS RELATED TO GENERAL POLICY IMPLEMENTATION

 

 

Has ICE Implemented the Civil, Labor, and Human Rights Provisions of the Prosecutorial Discretion Policy In a Way that Maintains the Economic Strength of Workers, Families, Communities, and Small Businesses?

 

Implemented Access to Justice Provisions to Ensure Long Term Relief for Civil, Labor, and Human Rights Defenders.

F

At the close of the review period, ICE has not demonstrated a clear policy and practice that ensures long term relief for individuals granted prosecutorial discretion under the civil, labor, and human rights provisions.  Short term stays of removal and continuances of deportation cases do not provide appropriate stability to civil, labor, and human rights leaders and their families. 

Implemented Access to Justice Provisions to Ensure Economic Strength for Civil, Labor, and Human Rights Defenders.

F

At the close of the review period, ICE has granted work permits through discretionary relief based on civil, labor, and human rights in only 1 of the 32 pending cases.  ICE has not clarified its policy as to ensuring employment authorization for civil, labor, and human rights defenders.  ICE has also not returned thousands of dollars in bond money nor has it clarified its policies to ensure the return of bond money to individuals granted discretion.

Implemented Access to Justice Provisions to Lift Custody Conditions for Civil, Labor, and Human Rights Defenders. 

 

 

C

At the close of the review period, ICE has not fully lifted custody conditions for 32 workers cooperating with ongoing federal civil rights investigations or demonstrated a clear policy that limits check-in requirements for individuals who are cooperating with federal civil, labor, and human rights investigations.  ICE should lift the custody, alternatives to custody, and check in requirements for individuals participating in federal civil, labor, and human rights investigations. 

 

Has ICE Broadly and Consistently Implemented the Civil, Labor, and Human Rights Provisions of the Prosecutorial Discretion Policy In a Way that Ensures Community Transparency and Accountability?

 

Transparency of Review Process Civil, Labor, and Human Rights Defenders.

D

Although EOIR published the timing of the review period, ICE disputed the relevance of the period.[2]  ICE has also failed to publish the process by which it will review requests under these provisions. Together these actions failed to encourage independent submissions of requests for discretionary relief by civil, labor, and human rights defenders during the review period.

Transparent Training for Legal and Enforcement Staff on Civil, Labor, and Human Rights Provisions of the Prosecutorial Discretion Memoranda.

F

At the close of the review period ICE has published no training materials on these standards.  The training materials ICE has published do not include these provisions and their specific standard.[3]

 

 

Transparency on Statistics related to Requests and Decisions on relief for Civil, Labor, and Human Rights Defenders. 

 

F

At the close of the review period, ICE has not released any statistics related to the number of cases specifically reviewed for relief based on civil, labor, and human rights or the outcome of their review.

Transparency on Public Information that Supports Civil, Labor, and Human Rights Defenders with their Requests for Discretion.

F

CPB and ICE have delayed, and in one case opposed through litigation, the release of information relevant to a civil rights related prosecutorial discretion request. [4]

 

Has ICE Ensured Misconduct is Investigated and Sanctioned and Used Prosecutorial Discretion to Protect Victims and Witnesses Alleging Civil, Labor, and Human Rights Violations?

 

Investigate and Sanction DHS Misconduct involving alleged violations of civil, labor, and human rights.

Incomplete

At the close of the review period, DHS has not resolved pending civil rights investigations into violations of civil rights and constitutional law.

Halt Deportation of witnesses to DHS Misconduct involving alleged violations of civil, labor, and human rights.

F

At the close of the review period, DHS is actively opposing attempts to halt the deportations of five individuals who are cooperating with ongoing federal civil rights investigations.   DHS has taken no action on 26 cases.  DHS has refused to grant one individual a long-term stay.

 

Has ICE Adopted Proactive Policies to Limit Harm to Ongoing Civil, Labor, and Human Rights Activities?

 

Adopt Policies to Proactively Limit Harm to Ongoing Civil, Labor, and Human Rights Activities.

Incomplete

At the close of the of the review period, ICE has not published policies to proactively limit harm to ongoing civil, labor, and human rights activities.

Monitor and Report How Policies Encouraged Protected Actions by Civil, Labor, and Human Rights Defenders.

 

 

Incomplete

Because ICE has not published policies to proactively limit harm to ongoing civil, labor, and human rights activities, there has not been adequate opportunity to review and report how such policies meet ICE’s priorities help to “avoid deterring individuals from … pursuing actions to protect their civil rights.”[5]

 

Has ICE Terminated Agreements with Local Law Enforcement Officials Who Undermine Civil, Labor, and Human Rights and Granted Relief through Prosecutorial Discretion to Victims and Witnesses Alleging Civil, Labor, and Human Rights Violations?

 

Terminate Agreements with Local Law Enforcement Officials who Undermine Civil, Labor, and Human Rights.

D

Upon receiving evidence from other federal agencies that the actions of local law enforcement officials were undermining civil, labor, and human rights, ICE has taken minimal actions.[6]  For example, ICE temporarily halted the further expansion of its Secure Communities Program in Alabama, but it did not limit ongoing collaborations. Based on DOJ findings of serious civil rights violations in the Orleans Parish Prison, ICE withdrew civil immigration detainees, but ICE continues to subject individuals to detention in the facility through use of detainers and the criminal alien program.

Halting Deportation of  Victims Where Local Law Enforcement Officials Undermined their Civil, Labor, and Human Rights.

 

D

At the close of the review period, ICE has not granted long-term relief from deportation for Delmy Palencia, a nationally recognized civil rights leader who won her release from unconstitutional over-detention on an immigration detainer.  Ms. Palencia is a witness in ongoing civil rights litigation regarding the Sheriff’s pattern and practice of unlawful detention at Orleans Parish Prison.[7]  She has also provided evidence in an ongoing Department of Justice investigation of the same matter.[8]  ICE granted her a one-year stay of removal. Despite repeated public statements to state and local officials that such deportations will not occur, in the past, ICE has repeatedly removed individuals—subject to unconstitutional custody at Orleans Parish Prison—who have reported their unlawful custody to DHS, filed federal civil rights complaints regarding unlawful custody, and asked for discretionary relief.   

    

 

 

 


[1]This Report Card evaluates relief granted to the Southern 32 based on the civil, labor, and human rights provisions of ICE’s prosecutorial discretion policy.  It does not reflect relief granted based on independent eligibility.

[2]EOIR Statement Regarding Second Stage of Case-by-Case Review Pursuant to DHS's Prosecutorial Discretion Initiative, statement issued (April 3, 2012) available at http://www.justice.gov/eoir/press/2012/EOIRProsecutorialDiscretion040320...

[3]See Guidance to ICE Attorneys Reviewing the CBP, USCIS, and ICE Cases Before the Executive

Office for Immigration Review (November 17, 2011)(training materials which fail to mention labor or civil rights provisions of prosecutorial discretion).

[4]Navarro Hernandez v. U.S. Customs and Border Patrol, 2012 U.S. Dist. LEXIS 14290 (Feb. 6, 2012) (Discussing the history of FOIA litigation “seeking information related to the agency's immigration enforcement actions in the city of New Orleans generally, and specifically with respect to the January 12, 2010 incident during which he was arrested. Plaintiff sought to establish an ongoing pattern of unlawful surveillance and suspicionless raids of immigrant construction workers on day laborer corners in New Orleans.”  The Court emphasizes that “over the course of this litigation, CBP withheld each record mentioned above in its entirety. Only after the Court granted Plaintiff's motion for partial summary judgment, over Defendant's objections, were any of these documents released to Plaintiff.”)

[5]John Morton, Director of ICE, “Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs” (June 17, 2011) available at www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf

[6]See H.B. 56, Alabama’s Anti-Immigrant Law (information available at http://www.nilc.org/hb56hvb.html) (ICE has temporarily delayed additional deployment of Secure Communities but has not otherwise acted to mitigate the civil rights effects of collaborating with law enforcement in Alabama under H.B. 56).  See e.g. Department of Justice, Civil Rights Division (March 16, 2011) (finding find reasonable cause to believe that NOPD engages in patterns of misconduct that violate the Constitution and federal law including racial profiling and use of force)(no action taken by DHS in response to these findings) available at www.justice.gov/crt/about/spl/nopd_report.pdf; Update to the Letter of Findings, United States Civil Rights Investigation of the Orleans Parish Prison System, United States Department of Justice, Civil Rights Division (April 23, 2012) (finding he conduct of officials at OPP evinces deliberate indifference to basic needs with particular risk to immigrants detained there) (ICE temporarily removed immigration detainees but did not end other collaborations including the Criminal Alien Program and arrests based on detainers) available at  www.justice.gov/crt/about/spl/documents/parish_update_4-23-12.pdf.  See, e.g., Immigration and Customs Enforcement pulls its detainees out of New Orleans jail, Laura Maggi, The Times Picayune (April 25, 2012) available at http://www.nola.com/crime/index.ssf/2012/04/immigration_and_customs_enfo...

[7]Cacho et al. v. Gusman, No. 11-225 (E.D. La. filed Feb. 2, 2011) (1983 action for unlawful overdetention), Ocampo v. Gusman, no. 10-4309 (transcript from habeas corpus hearing).

[8] Update to the Letter of Findings, United States Civil Rights Investigation of the Orleans Parish Prison System, United States Department of Justice, Civil Rights Division (April 23, 2012) (finding he conduct of officials at OPP evinces deliberate indifference to basic needs with particular risk to immigrants detained there) available at  www.justice.gov/crt/about/spl/documents/parish_update_4-23-12.pdf