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12/10/07 – First Circuit
Court Dismisses Case but Criticizes ICE Practices; ICE
Adopts New Humanitarian Guidelines
GBLS has been awaiting a decision from the
1st Circuit Court of Appeals which was announced on
11/27/07. Previously, we and our pro-bono partners had
filed suit in Federal Court, arguing that the detainees’
statutory rights were violated because they were sent to
Texas, effectively denying them access to counsel, were not
given adequate translation of documents and because they
were unable to post bond in Texas. Judge Stearns ultimately
ruled that the federal courts had no jurisdiction because of
legislation passed by Congress that explicitly limited the
role of federal courts in removal procedures to appeals
filed of decisions by Department of Justice Administrative
Courts.
GBLS appealed Judge Stearns’ decision,
arguing that Immigration and Customs Enforcement’s (ICE)
handling of the detainees’ cases effectively gave them no
chance to take advantage of the individual appeals process
because they did not have counsel and did not understand
their rights. Therefore, we argued, the only effective means
of protecting their rights was by the action in court
claiming collective rights.
Unfortunately, the 1st Circuit Court agreed
with Judge Stearns that the federal court had no
jurisdiction over the case. The decision did note that
“…undocumented workers, like all persons who are on American
soil, have certain inalienable rights. …it is Congress – not
the judiciary – that has the responsibility of prescribing a
framework for the vindication of those rights.”
In his 48 page opinion, Senior First Circuit
Judge Bruce M. Selya said the decision “should not be read
as an unqualified endorsement of the way in which
immigration officials handled the matter”, which he
characterized as “ham handed”. (To read the full opinion,
go to
http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=07-1819.01A
)
In fact, on November 16th ICE released
guidelines it had developed in response to discussions with
Senator Edward Kennedy and Congressman William Delahunt
immediately after the raids. GBLS staff had worked with
both offices, giving them details about the raid.
These guidelines are far from perfect, but
they are a first step in that ICE acknowledges the
importance of many of the concerns people had about the raid
and the way the detainees were treated and they commit the
department to a more improved system. Among other things,
the guidelines call for:
(1) Creating a system for
flagging and releasing people with humanitarian concerns
that involves health and social service agencies outside of
ICE as well as key community organizations that could assist
with the identification of humanitarian issues;
(2) Training ICE law
enforcement officers to ensure that detainees are provided
access to legal counsel;
(3) Providing arrestees with
information in their first language of their right to legal
counsel, a list of pro bono legal services in the area and
facilitating communication with legal aid services, state
social service agencies, and family members;
(4) Setting up and publicizing
to the community, a dedicated toll-free hotline for
relatives seeking information about the location of a
detainee. (For a more detailed summary of the guidelines,
go to
http://kennedy.senate.gov/newsroom/press_release.cfm?id=0F91969E-96EB-4AB1-832B-2CF42451B587.)
We are disappointed that the appeals court
did not rule in our favor and are considering further
appeals. In any case, we believe that much good has been
accomplished. Had we not obtained an injunction in federal
court two days after the raid which halted the precipitous
deportation process ICE was creating, the lives of the
detainees and their families would be very different and the
issues raised by this raid would have been quickly
forgotten. Instead, at this time, about 200 of the
detainees are still in the U.S., free and on bond, and have
hearings pending. No additional raids have taken place in
Massachusetts. And a federal agency has committed itself to
principals and processes that we hope will prevent future
repetitions of this travesty.
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8/01/07 Update - First Circuit Court of
Appeals Hears Argument in Immigration Case
The federal First Circuit court heard oral argument
today on GBLS’ appeal, on behalf of the 361 New Bedford
detainees, of the Federal District Court’s decision in May
to grant the government’s motion to dismiss. In that
decision, Judge Stearns ruled that recent federal
legislation limits the federal courts’ jurisdiction to
hear the detainees' claims. Pro Bono Counsel, Bernard
Bonn of Dechert LLP and Harvey Kaplan, of Kaplan,
O’Sullivan and Freidman argued today before a panel
consisting of the Hon. Michael Boudin, Hon. Jeffrey R.
Howard, and Hon. Bruce M. Selya that the court had
jurisdiction to hear claims pertaining to the conditions
of detainment. The government is arguing that the only
recourse is to raise the claims in individual cases. We
argued that the claims in the case could not be raised in
individual cases before immigration judges, that only a
direct case in the federal court could give the relief
needed and that Congress has not taken jurisdiction from
the courts in these matters. The hearing was moved to a
larger courtroom to accommodate the large number of people
from the New Bedford community who came in a bus to hear
the argument.
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5/21/07 Federal Case Set-back; Individual
cases proceed; Class Action filed for wages
We are proceeding on two fronts with the
immigration issues and are now also pursuing wage claims on
behalf of all the workers in the factory. The Federal case,
which seeks among other things to have the detainees in
Texas returned to Massachusetts, suffered a set-back in
District Court and will be on appeal to the First Circuit.
The various stays from the federal case which are still in
effect pending appeal have, however, allowed substantial
progress on the second front, asserting the rights of
individual detainees. At the same time, we have begun court
action to recover money due all the workers as a result of
wage violations.
Immigration Case
Federal litigation
On 5/9/07, Judge Stearns handed down a
ruling in our Federal Case. Unfortunately, he granted the
Government’s Motion to Dismiss. He based his decision on
recent federal “jurisdiction stripping” legislation which
purports to reduce the power of the federal courts in
immigration matters. We believe the court has jurisdiction
even in the light of the federal legislation and we will
file an appeal. Judge Stearns has continued the stay for 21
days to allow us to appeal to the First Circuit
Individual Immigration cases
The six GBLS Spanish-speaking staff attorneys and paralegals
who traveled to Texas in April interviewed 75 detainees who
had hearings before immigration judges in Texas and had
waived their rights to appeal. GBLS was accompanied by
colleagues from New Bedford legal aid agencies, including an
interpreter for the Quiche-speaking detainees from Central
America. 54 of those interviewed told our lawyers
they now wanted to appeal. We have filed appeals on their
behalf and are awaiting the outcome.
Thanks in large part to the federal litigation, about eighty
detainees remained in Massachusetts. More than half of them
are out on bond and we anticipate virtually all of them will
be released shortly. In conjunction with other local
organizations, we will then pursue their individual claims
for asylum and other exemptions to removal.
For the detainees in Texas, working with local counsel,
community groups and with generous private contributions, we
have been able to secure the release on bond of about 30
detainees. We are pursuing change of venue motions and
anticipate that we will be able to pursue their cases in
Massachusetts. Texas and GBLS counsel have had the venue for
another group of detainees changed from Texas to Boston. As
a result of the change in venue, ICE is returning those
detainees to Massachusetts where we can pursue bond hearings
and their individual claims.
Wage Claims Class
Action
On May 15th, GBLS, along with South Coastal Counties Legal
Services and Philip Gordon of the Gordon Law Group, who is
serving in a pro bono capacity,
filed a federal court class action lawsuit on behalf of more
than 500 Michael Bianco workers alleging multiple violations
of the federal and state wage and overtime laws.
As a result of our Immigration Unit’s work with the
detainees, GBLS’ Employment Unit and South Coastal Counties
Legal Services have interviewed workers, documented and
undocumented, regarding practices at the Bianco factory.
Papers filed in the case describe how Michael Bianco, Inc.,
systematically and intentionally violated the laws requiring
time-and-half for overtime work. Many employees clocked out
after working a full day shift, then immediately clocked
back in to work an evening shift. The employees’ hours for
the week were often paid in two separate checks, one from
Michael Bianco, Inc. and one from a separately incorporated
company, Front Line Defense, Inc. The complaint sets forth
how Bianco deliberately evaded the overtime laws by creating
a fiction that Front Line Defense was a separate company.
These supposedly separate companies shared a workforce, a
building, equipment, and management.
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4/10/07 - Judge Blocks
Deportations – GBLS Staff Goes to Texas to Interview
Detainees
On April 6th, Judge Richard
Stearns granted the plaintiffs a temporary restraining order
blocking the pending deportation of detainees now held in
Texas who ICE claims have voluntarily accepted removal
orders. GBLS and its co-counsel argued that the detainees
may have had their rights violated because they were sent to
Texas without the opportunity to talk to counsel, without
adequate translation of the documents and because they are
unable to post bond in Texas.
The order lasts for 10 days and requires ICE to provide a
list of names and locations of those detainees who have
voluntarily accepted removal orders, and to allow lawyers to
meet with them to ensure that they understand their rights.
Six GBLS lawyers, a GBLS paralegal, a law student from
the GBLS/Harvard Immigration and Refugee Clinic, a lawyer
from Catholic Social Services, and a staff member from MIRA
are leaving for Texas today. Because many of the detainees
are from the Kichee tribe in Guatemala and are not fluent in
Spanish or English, an interpreter who speaks Quiche, the
language of the Kichee tribe, will also go to Texas. The
team plans to interview 80 detainees. They anticipate many
of the detainees who have waived their rights will change
their minds when they have a chance to speak to lawyers who
speak their language and have had contact with their
families.
Meanwhile families and others have been raising money for
bonds. In Texas 30 detainees have been released on bond.
In Massachusetts another 20 detainees have been released and
many others have bond hearings pending. The bond hearings
are being handled by a large number of pro bono lawyers as
well as by GBLS and Catholic Social Services.
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3/26/07 -
Court grants Discovery – Bond hearings begin
On Friday March 16th, we learned that ICE had
begun bond and removal proceedings in Texas. We and our
colleagues on the federal case filed an emergency motion
asking Judge Stearns to freeze the proceedings. It is
important that bond hearings be held in Massachusetts where
detainees can show ties to the community and where bonds are
generally set much lower than in border communities.
Unfortunately the judge denied our motion.
The following Wednesday, we were more successful. The Judge
refused to rule that the court had no jurisdiction over the
detainees moved to Texas before we filed the law suit. Over
the objection of ICE, he is permitting us to file discovery
against ICE to help prove our claim that the government
acted in bad faith in denying us access and moving the
detainees out of Massachusetts. We have already requested
documents and have begun depositions (questions under oath)
of ICE officials. The next hearing on this matter is
scheduled for April 19th.
Detainees were sent to Harlingen, Texas
and El Paso, Texas. In El Paso, the immigration judge, as
far as we can learn, has refused bond to all the detainees
appearing before him. A number of detainees, faced with the
prospect of an indefinite stay in the detention center, have
chosen to “voluntarily” accept removal orders. Late Friday,
March 23rd ICE told the court that it will
shortly be deporting those accepting removal and those who
had outstanding removal orders. GBLS, along with its
co-counsel, will file a motion on March 28th with
Chief US Immigration Judge David Neal requesting permission
to question immigrants who ICE says have waived their right
to appeal deportation orders.
Meanwhile, along with PAIR (the Political Asylum/Immigration
Refugee Project) and our legal aid colleagues in Texas, we
are preparing for and conducting bond hearings. For those
granted bonds, a fund raising effort is under way to
supplement money raised by families to post bonds. Working
with Catholic Social Services and some generous donors
(including a student group at Brandeis) we have already
obtained the release of some detainees at Harlingen, Texas
where the judge, in contrast to the judge in El Paso is
setting bonds (although at $5,000 rather than the $1,500 to
$2,500 typical in Massachusetts).
We also believe that many of the workers have wage claims
against the factory owners. Our Employment Unit is
investigating these claims.
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3/15/07 - Update
After a concerted effort by our staff, our colleagues in
South Coastal Legal Services, Catholic Social Services and a
sister program in Texas, we now have names and
authorization to represent 178 of the detainees. Through
our efforts and that of DSS, a number of detainees have
been released including some who were sent to Texas and
other out of state locations.
As previously noted, on March 13th we did file an
amended class complaint on behalf of all the detainees,
including the 178 named detainees, renewing our claims that
their rights have been violated and those moved out of
Massachusetts should be returned. The complaint is a
petition for a writ of habeas corpus and a request for
declaratory and injunctive relief. ICE has filed a
status report with the court. Among other things it
implicitly criticizes the GBLS staff for only remaining till
4:30 AM interviewing clients!!!
We have asked for an oral argument on the class complaint.
Meanwhile we are taking on extra staff and gearing up, along
with other programs and pro-bono lawyers, to take on the
individual cases of as many of the 350 detainees as
possible.
This case has caused outrage among public and private
figures throughout the political spectrum. Representative
Delahunt has promised Congressional hearings and came to the
GBLS offices to be briefed on the situation.
Special thanks to the law firm of Dechert LLP which drafted
the initial complaint and memorandum in one afternoon.
Bernie Bonn, our Board member, led the charge at his firm.
Along with Dechert and Harvey Kaplan, of Kaplan, O’Sullivan
and Freidman, we have now been joined by attorneys from
Foley Hoag, the Massachusetts ACLU, the Massachusetts Law
Reform Institute and Catholic Social Services of Fall River.
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