AMOACHI & JOHNSO , PLLC ATTO RNEYS AT LAV/

By First-Class Mail and E-mail The Honorable John F. Kelly Secretary of Homeland Security 3801 Nebraska Ave, N.W. Washington, D.C. 20528

Dear Secretary Kelly:

February 27, 2017

As attorneys who represent hundreds of unaccompanied children and asylum seekers from Central America, we write this letter to respectfully demand that you rescind the Section M, "Accountability Measures to Protect Alien Children from Exploitation and Prevent Abuses of Our Immigration Laws" of the February 20, 2017 memorandum entitled "Implementing the Presidnet's Enforcement Improvement Policies" given that it is in direct violation of the Flores v. Meese Settlement ("Flores") and the William Wilberforce Trafficking Victims Protection Reauthorization Act (PUBLIC LAW 110--457-DEC. 23, 2008) ("TVPRA")

Flores and the TVPRA require the U.S. government to provide significant procedural and substantive rights to immigrant children, as you acknowledge. 1 Flores specifically mandates the federal agencies "shall release a minor from its custody without unnecessary delay, in the following order of preference to:

A. a parent; B. a legal guardian; C. an adult relative (brother, sister, aunt, uncle, or grandparent); D. an adult individual or entity designated by the parent or legal guardian as capable and willing to care for the minor's well-being in (i) a declaration signed under penalty of perjury before an immigration or consular officer or (ii) such other document(s) that establish( es) to the satisfaction of the INS, in its discretion, the affiant's paternity or guardianship; E. a licensed program willing to accept legal custody; or

1 Implementing President's Border Security and Immigration Enforcement Improvements Policies, February 20, 2017 "The determination that the child is an ' unaccompanied alien ch ild' entitles the chi ld to special protections , including placement in a suitable care facility , access to social services, remov al proceedings before an immigration judge under section 240 of the INA, rather than expedited removal proceedings under sectio n 235(b) of the lNA , and initial adjudication of any asylum claim by USCIS. "

1 1918 Un ion Boulevard , Bay Shor e NY 11706 • T: (631) 647-9701 Fax: (631) 647-9705 • www.an~olaw.com

F. an adult individual or entity seeking custody , in the discretion of the INS, when it appears that there is no other likely alternative to long term detention and family reunification does not appear to be a reasonable possibility."

As a condition of release, the proposed custodian must swear to several duties , including to 1. provide for the minor ' s physical , mental, and financial well-being and 2. to ensure the minor ' s presence at all future proceedings before INS and the immigration court.

The TVPRA , created in 2008, created additional protections for unaccompanied alien children , including the following directive to the Office of Refugee Resettlement:

"(2) SAFE AND SECURE PLACEMENTS .-Subject to section 462(b)(2) of the Homeland Security Act of 2002 (6 U.S.C. 279(b)(2)) , an unaccompanied alien child in the custody of the Secretary of Health and Human Services shall be promptly placed in the least restrictive setting that is in the best interest of the child. In making such placements, the Secretary may consider danger to self, danger to community, and risk of flight."

The TVPRA also expanded the number of children eligible for special immigrant juvenile status, a form of permanent protection from deportation. Specifically, a child can qualify for SIJS status if they can show that reunification with 1 or both of their parent s is not viable due to abuse, abandonment, neglect, or a similar basis found under State law, and that it is not in their best interests to return to their native country .2

Section M's Directive To Prosecute Parents For Smuggling Their Own Children Eliminates Flores and the TVPRA Protections

Immediately after outlining the requirements that DBS must comply with regarding unaccompanied children, you began Section M with "Although the Department's personnel must process unaccompanied alien children pursuant to the requirements above, we have an obligation to ensure that those who conspire to violate our immigration laws do not do so with impunity­particularly in light of the unique vulnerabilities of alien children who are smuggled or trafficked into the United States."

2 (d) PERMANENT PROTECTION FOR CERTAIN AT-RISK CHILDREN.-

(!) IN GENERAL-Section 101 (a)(27)(J) of the Immigration and Nationality Act (8 U.S.C. l 10l(a)(27)(J)) is amended- (A) in clause (i), by striking " State and who has been deemed eligible by that court for long-term foster care due to abuse, neglect , or abandonment ;" and inserting "State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect , abandonment , or a

similar basis found under State law;'

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The word "Although" is a conjunction, which is defined as "a word used to connect clauses or sentences or to coordinate words in the same clause. "3 The word "although" is defined as "In spite of the fact that ; even though." We do not define these words for the sake of being difficult-we do so because it illustrates how DHS' directive to prosecute the parents of children for smuggling is intended to eliminate children ' s rights under TVPRA and Flores rather than the purported justification of faithful enforcement of U.S . immigration laws.

You made an explicit choice to condition the provision of unaccompanied children's legal rights the DHS' subsequent deportation and/or prosecution of the children's parents or relatives. The latter will result in the de facto deprivation of rights of children through the loss of their parent or family member in in the United States.

The entirety of Section M reveals a clear pattern of DHS' intent to enforce the immigration laws and criminal laws against children's family members solely as a means to defeat the legal protections afforded to unaccompanied children .

There are a total of 3 paragraphs in Section M. In the first paragraph , reproduced above in full, the first sentence refers exclusively to the policy rationale of enforcing the immigration law against those who violate it. The second sentence, which added as an afterthought, purports to conclude that stopping parents' from reunification with their children in the United States will protect the "unique vulnerabilities of alien children who are smuggled or trafficked into the United States.

The second paragraph is structurally identical. The first sentence begins:

"The parents and family members of these children, who are often illegally present in the United States, often pay smugglers several thousand dollars to bring their children into this country ."

The latter focuses exclusively on 1. The "illegal" presence of the children's parents in the united States; and 2. That the illegally present parents pay smugglers to bring their children into the United States.

The second sentence described the journey through Mexico as dangerous, though it cites to no evidence whatsoever.

"Tragically, many of these children fall victim to robbery , extortion, kidnapping, sexual assault, and other crimes of violence by the smugglers and other criminal elements along the dangerous journey through Mexico."

The third sentence clarifies that this policy has nothing to do with protecting children from harm and everything to do with nullifying or eliminating the protections afforded children under the TVPRA and Flores to the maximum effect:

3 https: //en.oxforddictionaries.com /definition/conjunction

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"Regardless of the desires for family reunification , or conditions in other countries, the smuggling or trafficking of alien children is intolerable."

In other words, regardless if a child smuggled into the United States is entitled to asylum and/or special immigrant juvenile protection in the United States, DHS' policy is deny them these legal protections by prosecuting and/or deporting their parent or family member for an act made out the extreme desperation of a parents' love for their child.

The last paragraph of Section M is as follows:

" ... the Director of I CE and the Commissioner of CBP shall ensure the proper enforcement of our immigration laws against any individual who-directly or indirectly­facilitates the illegal smuggling or trafficking of an alien child into the United States. In appropriate cases, taking into account the risk of harm to the child from the specific smuggling or trafficking activity that the individual facilitated and other factors relevant to the individual 's culpability and the child's welfare, proper enforcement includes (but is not limited to) placing any such individual who is a removable alien into removal proceedings, or referring the individual for criminal prosecution. "

The above paragraph is identical to the draft memorandum dated February 17 with the exception of the italicized words. As such, it appears that you acknowledge prosecuting or removing a parent of an unaccompanied child is not in the best interests of the child's overall welfare. The harm suffered by the child or the parent's culpability in providing for the smuggling is a separate inquiry from what is in the child's future best interests. The only scenario where prosecution of a parent or relative of a parent can be reconciled with the child's welfare is if in fact that person brought the child to the United States to be trafficked. Although this can happen , it is exceedingly rare with respect to parents of the child.

Given your expertise on the subject 4 we were shocked that you entirely discarded the conditions of the children's native countries of Honduras, El Salvador, and Guatemala when you signed off on Section M.

In written testimony before Congress in March of 2015, you wrote that Transnational Criminal Organizations "tear at the social, economic, and security fabric of our Central American neighbors" and engage in "money laundering , bribery, intimidation, and assassination." You concluded that "They threaten the very underpinnings of democracy itself: citizen safety, rule oflaw, and economic prosperity. And they pose a direct threat to the stability of our partners and an insidious risk to the security of our nation."

Moreover, you emphasized that the primary motivation for unaccompanied children was grounded in the dire insecurity of their native countries , measures to deter the exodus of unaccompanied children to the United States are unlikely to have success:

4 http://www.armed-services.sen ate.gov /imo/media/doc/Kelly _ 03-12-15 .pdf

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"Last year, almost half a million migrants from Central America and Mexico-includsing over 50,000 unaccompanied children (UAC) and families-were apprehended on our border, many fleeing violence, poverty , and the spreading influence of criminal networks and gangs. Assistant Secretary of State Roberta Jacobson testified that the 'UAC migration serves as a warning sign that the serious and longstanding challenges in Central America are worsening. ' 5

For FY 2016, UAC apprehensions totaled nearly 60,000, almost matching the record of 68,541 in FY 2014. Moreover, UAC apprehensions from El Salvador and Guatemala exceeded that of FY 2014. 6

Yet now , as DHS Secretary, you state that the United States must criminalize the parent's desperate act of love- smuggling-to save their own child from being killed or harmed by these very same organizations that you previously declared "are tearing at the social , economic and security fabric of our Central American neighbors."

The Practical Consequences of Section M Will Be To Deny Children Their Rights Under Flores and the TVPRA

In order to initiate removal proceedings or prosecute parents who allegedly smuggled their own child into the United States, DHS must use information ORR obtained from the child· and proposed sponsor during the reunification process. ORR must elicit this information, including the name, identity , and address of the parent , to ensure the safety of the child , (i.e. that the parent claiming to be the parent is in fact the parent and not an imposter seeking to traffick the child) reunified with their parent

In other words , But for the child vindicating their rights to release from custody and to reunification with their parent or closest relative, ICE would be unable to initiate removal or criminal proceedings against that parent. The DHS' official policy is to use laws created to ensure the best interests of immigrant children as a vehicle to work directly against the best interests of immigrant children.

If DHS initiates removal proceedings or files criminal charges against an unaccompanied minor's parent, that parent will likely be detained and could face deportation to their native country. Detaining and deporting a child's parent or parents is, in vast majority of circumstances, decidedly not in that child's best interests.

If a parent is detained, that parent cannot provide for the care and custody of their child; cannot ensure that the child appears for their court hearing; and cannot obtain an attorney for that child to apply for and obtain asylum or special immigrant status that the child is likely entitled to.

5 Posture Statement of General John F. Kelly , United States Marine Corps , Commander , United States Southern Command, Before The 114th Congress , Armed Service Committee, March 12, 2015, http://www.armed­services.senate.gov/imo/media/doc/Kelly 03-12-15.pdf

6 https : / /www. c bp .gov I newsroom / stats/southwest-border-unaccompanied-ch ii dren/fy-2016

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In many cases, detaining, deporting or prosecuting an unaccompanied child's parent(s) will result in the de facto deportation of the child, even if that child was granted asylum or SIJS status. Asylum protection in the United States is not worth the paper its written on if the child simultaneously loses the only adults capable of caring for them in the United States.

Although this list is not exhaustive, one particularly ironic consequence of this policy will be to increase the risk that children are trafficked, or abused and neglected by other individuals who are not suited to care for the child. Human traffickers target the most vulnerable of children. A child whose parent is ripped from their lives is not only more vulnerable, but significantly more visible as a target. One day, their was a parent to protect them.

We again respectfully demand that you rescind Section M of the implementation memo given that its clear intent to eliminate unaccompanied alien children's rights under the TVPRA and Flores.

The Ultra-Aggressive Policy of Expending Significant Law Enforcement Resources on Removing and Criminalizing Non-Criminal Parents Of Unaccompanied Alien Children

For Saving Their Children's Lives Undermines United States Security

In your testimony in March of 2015, you strongly urged Congress members to address the "root causes of insecurity and instability" because it was in the United States' interests. Specifically, you cited to the "relative ease with which human smugglers moved tens of thousands of people to our nation's doorstep and that "these smuggling routes are a potential vulnerability to our homeland. In explaining your basis, you went on to state that "In addition to the thousands of Central Americans :fleeing poverty and violence, foreign nationals from countries like Somalia, Bangladesh, Lebanon, and Pakistan are using the region ' s human smuggling networks to enter the United States" and that "a small subset could potentially be seeking to do us harm.

You concluded that "Last year, ISIS adherents posted discussions on social media calling for the infiltration of the U.S. southern border" though there has not yet been any evidence of this happening. You again stated "I am deeply concerned that smuggling networks are a vulnerability that terrorists could seek to exploit."

As you know, the instability and insecurity in Central America is not what has caused human smuggling networks to flourish. These networks have their genesis in one factor: the United States and Mexico's policy requiring individuals from the countries of Honduras, El Salvador, and Guatemala to obtain a visa prior to entering or passing through Mexico. But for this joint immigration policy7, human smuggling networks would barely exist: a child or adult who wished to seek asylum in the United States could simply fly directly from San Salvador to the Mexican/US border and promptly express their request to seek asylum as an arriving alien at a US port of entry.

7 Prior to the elimination of the wet foot, dry foot policy, Cubans were able to secure safe passage through Central America and Mexico, all without the need for human smugglers. http://www .bbc.eo.uk/news/world -latin-america-3519 1828

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As this map illustrates, the Northern Triangle countries are the only countries in Central America, and one of the few countries in all of Latin America that require a visa to enter Mexico. 8

U!.i ELECTRONIC AUTHORIZATION

It is not a stretch to conclude that the United States' is largely responsible for Mexico's visa requirements for Central Americans. (See former President Obama ' s comments on Central American migration crisis: "If it were not for the hard work of Mexico in trying to secure its border to the south and to cooperate with us, we would have a much more significant problem. nd if it were not for the hard work of Mexico in trying to secure its border to the south and to cooperate with us, we would have a much more significant problem." 9

)

Without visa requirements to enter Mexico, there would be no significant obstacles to Central Americans from seeking asylum or other protections in the United States at the U.S./Mexico border.

Under the current laws and policies, Central Americans, including UAC, pay smug;slers from $5,000-plus to bribe Mexican law enforcement to ignore their unlawful presence in Mexico as well as to provide protection from the various drug and human trafficking organizations that prey on migrants throughout the trip from Mexico to the United States. The underground nature of human smuggling comes with inherent risks, including that the smuggler abuses , rapes, or murders the person(s) they were paid to transport.

However, the alternative to a paying a smuggler is far more dangerous : a child or any individual who attempts to travel through Mexico to the United States on their own is at the

8 http://www.inm.gob.mx/gobmx/word/index .pho/paises-reguieren-visa-para -mexico/

9 http://time .com/4419849/president -obama-donald-trump-speech/

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complete mercy of corrupt Mexican officials and transnational or national criminal organizations.

Providing safe passage of unaccompanied children and asylum seekers from Central America through Mexico would enhance the U.S. security by enabling the prioritization of resources on interdicting and apprehending individuals , such as potential terrorists, who pose an actual risk to the safety of the United States.

Conclusion

Given that Section M unlawfully eliminates the legal protections of unaccompanied children through deporting and/or prosecuting children's parents or legal guardians in the United States and that the policy will do nothing to address the root causes of human smuggling, we again respectfully demand that you rescind Section Min its entirety.

We thank you for your attention to this urgent matter and look forward to a prompt response . If you should have any questions or concerns, please do not hesitate to contact us at 631-647-9701 , or via e-mail at Bryan@amjolaw.com or Ala@amiolaw.com

Very Truly Yours ,

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