Welcome everyone today is January 31, 2017 and it’s a very special bonus episode of The Byline. I am your host Malaney Weissman. If you haven't yet please make sure you subscribe to The Byline and follow us “@thebyline” on twitter. The Byline is ad free and for 2017 we are requesting in leui of donations that you instead subscribe to your favorite news outlet, including local news outlets, to support investigative journalism, and the journalists who come on this show. I appreciate all the tweets showing me confirmations of your subscriptions.
So, on the pod today we are going to be covering the travel ban that went into effect this Friday, and some other immigration issues that you guys requested on twitter. But we are going to start with the estimated hundreds of people who were detained--
Illegally detained
MALANEY
Right, illegally detained in our airports across the country, because of the president's executive order that banned entry of individuals from six countries, mostly Muslim majority nations. The order did not make any exceptions for people coming in with valid visas, or for legal permanent residents returning from being denied entry--
and it doesn’t allow for people from these countries to obtain asylum or other forms of removal relief and it suspends refugee relocation from Syria indefinitely…
Are you… okay… hold on let me do the intro you can correct things after.
Long time listeners know this voice who won’t stop interrupting me but if you are new, my girlfriend DW is an immigration attorney, she started as a business immigration lawyer and now does mostly asylum cases. She's been working in immigration for 25 years, and I wanted her on the show today to give us a first hand account of her experience at JFK airport. She spent almost 60 hours at JFK airport trying to help people who were detained.
And for the first time ever on this show she’s my actual guest instead of just visiting to ruin the outro takes. Although she is ruining this intro.
DW
I’m sorry... but that was a very important point though, I’m not seeing that point get a lot of coverage.
MALANEY
I wanted to do this pod yesterday but DW slept for about 20 hours after she got home on Sunday. And then she woke up today and I told her I was going to be doing a travel ban pod and she said “great with who?” Surprise.
DW
well thanks for having me I guess and for hosting me in the room that prior to your podcasting was a bedroom for our cats. . .
MALANEY
I am so glad you could join us, in your pajamas and eating what looks like buttered egg noodles at 8:30 in the morning...
DW
You know, when I got up I just felt like physically and mentally like I was hungover and so I just wanted to eat pasta. But...you know if you want to restart and do this again I won’t interrupt you but maybe take those as my notes...
MALANEY
Don't worry about it, I’ll fix it in post.
You know while you were sleeping, the President tweeted that only 109 people were detained this weekend.
DW
You know what, that guy... okay I can't get into a rant right now, but even if it was 109 people, that's 109 people who were illegally detained... and that's a lot! In your first ten days in office you are bragging that you deprived over 100 people of basic due process? Yeah great job.
MALANEY
You're getting into that rant-zone..
DW
Okay, sorry. So I think we had about … roughly 65 people held at JFK alone, and there were over 30 at Logan so I know that number 109 is not right. I know there’s an estimate out there coming from AILA...hold on I am checking my phone, this is from a group chat I am on with some other attorneys and… uhm I think it's probably more accurate than a Trump tweet. This is.. an estimate of almost 700 people are believed to have been held, some for long durations between Friday and Sunday.
MALANEY
So …it’s somewhere between at least 109 from the President's tweet and 700 from your group chat...
DW
The number is irrelevant in the scheme of things, and you know those were just people who were able to get here, countless people had their visas cancelled or revoked and were pulled off flights before they left for the US, people seeking medical treatment weren't allowed to come here ... people were coerced into signing away their status or visas, or were told they had to sign a document that revoked their right to enter believing that they were signing something that would allow them to enter.
MALANEY
There have been a lot stories coming out this weekend about people who were denied entry and why they were coming here. There is a group called "banned grandmas" I'll tweet some out with this show when it goes up. Also one article came out this morning about this 34 hour detention of a person here on a student visa.
But I think, you know we always get so off our track we should go back and do the story in order. I did give you a paper there to follow.
DW
What? Where? I don't see anything.
MALANEY
Because it is under your dishes...
DW
Oh. Oh. Well this will help... or not... this just says "answer my questions: ban, daca, wall, sanctuary cities questionmark"
MALANEY
It's a very straight forward easy to follow road map for you.
So, around 5:30 PM on Friday you got a call about something and then you said you had to go to the airport and then you left. So, first, who called you, what was the call and why did you have to go?
DW
I would have gone to the airport no matter what. But I’m part of the American Immigration Lawyers Association and I am on the advisory board, which is called AILAD. Someone on AILAD is an emergency person for 72 hours once every two months, like a doctor or a judge, to help with complex issues or emergencies, it's an attorney resource. And that on call person was me Friday to Sunday. So I got a call from an attorney at the Immigrant Rights Coalition and she said she had just learned that there were three LPRs, legal permanent resident--whcih is a green card holder-- that were not being released from their flight. And just to clarify I am going to be saying LPR not green card holders.
MALANEY
What happened when you got to the airport?
DW
I got there, and it wasn't a zoo yet or anything, the ACLU had someone there and at the time, the Department of Homeland Security had a directive that said LPRs would not be affected by the travel ban, but Customs was ignoring that directive. So, the ACLU attorney just said it was all hands on deck and to send out an email to everyone in AILA because they needed immigration lawyers at every international airport, ready to write habe petitions. We weren't at the class action level yet..we only had 3 people confirmed in detention. And then someone said that a new memo was sent out that LPRs were included in the ban and that they could be denied entry, and we realized how much of a mess this was going to be just to get these three people out. And then reports started coming in from other airports, I mean we just had no way to know how many people were coming in on international flights who were going to be detained so it was kind of hard to plan around.
So I was really more there for an organizational role, getting things ready to file, making sure habes were right, keeping track of the names of people who were represented and sending them to ACLU because they were trying to figure out how many people were being detained and to make sure everyone was accounted for and that each person had a lawyer working on an individual petition for that person.
And AILA attorneys we had a rule that we couldn’t leave the airport until our client left the airport, like you had to go see your client physically leave the airport once they were released and make sure they got out of the airport, or know for sure without question that they had boarded a return flight if they weren't being released. And lawyers showed up, they played ball and were on top of it.
MALANEY
Yeah I couldn’t believe how many attorneys were there, and protesters. I came to visit on Saturday, when the chaos was calming.
DW
I would bet that more attorneys showed up to airports than there were even people in need of them. But even just a few hours in detention is a severe deprivation of liberty, and these people didn’t commit a crime or anything, so detention is really quite drastic, and LPRs have a legal right to be here.
It was such a mess for a while because DHS was saying at first that LPRs, they could enter, and the President then said they couldn’t, and then DHS again said they could—uhm and then the administration said each LPR detained had to be reviewed “case by case” but they weren’t able to have access to an attorney to help them. The rules changed so many times during those between Friday and Saturday that Customs at one point just said at one point that they were holding people until further notice, which they cannot do, you cannot detain indefinitely— I mean if you are an LPR.
And a lot of other shady [expletive] was happening, these are just things that came out from other attorneys I know that people were being coerced to sign documents giving up their immigration status, there was a nine-year-old in plastic binder handcuffs who had been separated from his family who was also detained, a mom who wasn’t allowed to change her baby for a few hours, people were denied food and water and use of the restroom for many hours some peroids over 24 hours, denied ability to sleep when detained for over 28 hours, people with dual citizenship were being held.
MALANEY
Wow, wow, okay you got a bit riled up there. I didn’t want to interrupt you, I know you don’t know that feeling
DW
Yea yea, one second, and the other thing is that once the portion of the ban that denied entry to LPRs was blocked, Customs didn’t just release everyone. They did defy a court order for many hours after it came out, which is unbelievable—but also now, not surprising. Just because there is a court order, if you don't have someone there to enforce it and there is no accountability for Customs ignoring it then they will just do what they want. We're keeping attorneys stocked at airports now.
MALANEY
So we sort of made it through what you saw there. Uh I want to talk about the legality of the ban itself before we go onto the other three topics...
DW
I really don't think we are going to make all of those.
MALANEY
So the ban, as it was applied this weekend especially to LPRs is not constitutional... it's already on track to head to the Supreme Court, where Trump is going to today announce his choice for the Court.
DW
I would almost guarantee that this Supreme Court, and likely with the addition of whatever walking human trash can Trump puts on the Court, uh that a travel ban even based on nationality would be upheld. Whenever an administration puts the words national security into their argument to restrict immigration rights it can pretty much do whatever it wants, and the men on the Court I think will agree with that, however they cannot restrict access like that to LPRs, people who are coming on visas it's a completely different story.
MALANEY
It’s already been blocked in two courts.
DW
parts of it have been blocked It’s a little bit of a different situation when were talking about LPRs, or visa holders, or just entry in general. The rules of closing ports of entry are not really—-there’s not that many. We have, uh in the 1890s we shut out Chinese immigration for ten years and the Supreme Court upheld it.
MALANEY
What!
DW
Yeah it was called the Chinese Exclusion Act, granting entry or restricting entry there is not really a requirement for it, and there aren’t that many rules in regards to closing it and to whom you can close it.
There are more protections for removal, you technically cannot remove someone from the country on the basis of their nationality, but because the airport is considered an entry point, those people weren’t being removed, they were being denied entry which is just different legally.
Also, as writtenthis ban defied numerous international agreements that we have, but international law isn’t really enforceable against the US
Even though practically speaking it’s not that dif—--
DW
Hold on, sorry, I just wanted to add, uhm, if someone is being removed and under the travel ban the parts that are still enforceable, if a person was being removed and they applied for asylum as a defense to deportation, technically under this ban they would be denied relief because asylum is considered a grant of entry, even if you already live here—as I said before this is a really important point… and there are without a doubt cases pending right now where people are claiming asylum that would have to be denied because of this EO as it stands. This issue wasn't part of the class action because there hasn't been a claim made yet.
Right, you mentioned this I think before.
DW
It is crucially important from an asylum perspective.
We could do a whole separate podcast on asylum
DW
We can scrap this and do one on asylum instead.
We should do that, but I don’t know if people can mentally handle some of your asylum stories right now.
DW
I do always tell you that immigration law is just a constant exercise in shock and disappointment… but it can be rewarding and it has a supportive community as evidenced by this weekend.
Okay, we are leaving the world of the travel ban for now. I don't know if we have time to get to all of big immigration issues, but the one that I know everyone wants to talk about is DACA and protection for the DREAMERS. Most of the questions I got for you specifically were what ways can DACA enrollees still remain here if Trump ends the program, but--before you dive into it just maybe explain it, you know don't get lost in your own words...
DW
I'm sure it's easier to ask a question than it is to answer it on some of these pretty complex topics...
MALANEY
Mmmhm
DW
So the issue with DACA.... Sorry, so DACA is a program, you apply for it you pay a fee and apply for work authorization. You give the government all of your information in exchange they promise not to deport you. You have to qualify for it, you cannot have a criminal record.Not every DREAMER is eligible for the program. A DREAMER is someone who came to the US before the age of 16 with their parents. I have a big issue with the way this is often framed in the media and politics, saying "it is no fault of their own" "the parents brought them here" Yeah let's not demonize the parents who risked their lives to get their children better life. When people say that they didn't do it the right way, there really aren't very many ways to come here unless you have have a family member already here--or money. So. That's my personal problem with the representation of the issue.
MALANEY
Getting into that rant zone again.
DW
Whatever. I mean the issue with DACA is really the way that it was created—through Executive Order—which I don't disagree that it may not be a lawful program through its creation—it needs a legislative fix for permanency. But the lawfulness question is for a constitutional lawyer, which is not me, which is also true of the travel ban.
MALANEY
But the method of creation itself, that's not the main reason why it is really contentious, though… I can't think of anything 80% of Americans agree on, but 80% of them agree on a pathway to citizenship for DREAMERS, and not deporting them and allowing them to work but not that many republicans seems to—-I mean 80% of republicans in Congress don’t agree with it.
DW
So, the first reason is that this isn’t getting a legislative fix is that enough legislators think a pathway to citizenship for DREAMERS/ECAs, “early childhood arrivals” encourages parents to enter without inspection—-that would provide justification for illegal entry.
The second reason, which is usually a —-sometimes it comes from politicians, but mostly it comes from radical base members you know that Trump base, right wing media etc--- is because of family based migration policies—or people call this “chain migration” which is an epithet so I encourage you not to use it, it’s similar to “anchor baby” also highly disgusting term.
MALANEY
Why would family based migration bother anyone? That's how the system always worked right? Isn't that their argument that they were supposed to do it this way instead--through sponsorship.
DW
Yes, and it takes years for this process to occur—and from Central American countries it takes decades. Unless otherwise excluded from the law if you give DREAMERS a pathway to citizenship, at some point, eventually the parents who brought them here would be able to apply for LPR status and also at some point eventually naturalize. This is often framed as the “parents are cutting the line, they didn't do it the right way, it’s not fair” etc…
But realistically it would take decades for the parents to naturalize through family sponsorship and they have to leave the country for three to ten years and then re-enter with inspection so, it's not like… it’s not a very practical avenue, and the other thing is that they aren't “cutting the line”--we're not at a deli counter. Wait time for family sponsorship petitions go by the number of applicants from that specific country, and the time you apply, assuming you have met all of the qualifications—you don’t just get a stamp of approval. It’s a really very long process.
MALANEY
It seems like this argument is more based off the fact that it adds people who can enter
DW
right. I don't think those arguments that I mentioned are legitimate but that's what we are being told the issue is and that's why there hasn't been movement on this issue. It's an argument and problem that have existed for decades. It wasn’t the most popular practice to deport ECAs, but new administrations have new priorities and policies I don’t really know what Trump will focus on but the Obama administration deported more people than any administration in history, and I think ICE right now feels very… empowered.
MALANEY
So if the DACA program ends what happens to the people who are turned their information over to the government believing they wouldn’t be deported?
DW
Well, the DACA enrollees-- if the Trump terminates the EO and the federal government will then have at its disposal the addresses of people who are removable—-right now there is nothing to keep them from using that list. Whether or not they will I can’t answer that. But just remember that ECAs have avoided removal orders before the creation of DACA, and if the program no longer exists, we would just use the same arguments that are being used for ECA’s who weren’t eligible for DACA or were in removal proceedings before its existence.
If Trump does cancel the program, remember that you have a constitutional right to a hearing before a judge regarding your removal and you are not without forms of deportation relief unless you have a criminal record. You may be eligible for things like cancellation of removal, which is a very common way to avoid a deportation order. But the avenues that are available to you depend on the facts of your situation. I know there is a lot of anxiety about this, and rightfully so, but if you want to know what your options are should this happen, seek out an immigration lawyer preemptively, it’s confidential and it might help you with managing the stress of the situation.
MALANEY
People have a right to a hearing, but they don't have a right to a lawyer for the hearing though right?
DW
No they do, they have a right to have one present.
MALANEY
Sorry I meant that you don't have a right to counsel like a public defender, one isn't provided to you.
DW
Oh Right. But, well a few things, first, the state of New York will have an immigration public defender service starting in 2018. However, you have to be able to qualify for a public defender. There are also numerous legal aid groups, law school clinics, and all attorneys are required to complete a minimum of 50 hours of pro bono services a year. You just need to know where to look to get the help that you need.
I also think that, yes it can be expensive to hire a lawyer but you have to understand that the chances of being able to defend your removal charge are significantly higher with counsel present. Your chance of avoiding deportation are 3% if you don't have a lawyer, 3%. If you have one it goes up to a 90% chance of avoiding deportation through some form of relief. So representation matters. Most immigration lawyers work off a flat fee and not hourly because it would be too expensive for anyone to afford, so you can shop for price ranges too, price ranges don't usually indicate how good or bad an attorney is either.
MALANEY
Do you know what the flat fee usually is?
DW
For just the removal proceeding it's probably about $5,000. It's actually much cheaper than an hourly rate because hourly rates you could see that bill getting into the 10 to 15 thousand dollar range very easily.
MALANEY
Do you know how many people in deportation proceedings have representation on average?
DW
The average changes depending on a lot of factors like the region, if you are in the Southern region or midwest, due to the higher volume less than 15% of detained immigrants have counsel at deportation proceedings. In the Northeast region it's about 30% of detained immigrants. Finding a lawyer while you are detained is nearly impossible. It's a different story if you aren't kept in mandatory detention because immigrants who were released or never detained are able to look for a lawyer about 70% of immigrants released or never detained have representation, and their cases fare much better. Also we see representation gaps based on nationality. Mexican immigrants have an 80% chance of being held in mandatory detention and only a 20% chance of being represented, and Chinese immigrants have a 4% chance of being held in mandatory detention with a 92% chance of being represented at their removal proceeding.
There's no real way to factor this. I would guess less than 50% overall.
MALANEY
You really hijacked my DACA section here.
DW
Well, no, I mean realistically if the program ends a lawyer is what is going to make a big difference for DACA enrollees. It really makes a difference for everyone in removal proceedings. I would hope one day that every state does what New York is doing, but you know the legal argument for why you don't have a right to an attorney in your deportation proceeding is because deportation is not a punishment. That's the only reason. It's not considered a deprivation of your liberty. And people are working on getting these numbers figured out because they are important.
MALANEY
Okay, so, the wall...
DW
The wall... well... the wall is a stupid red herring of immigration issues. It's taking away attention to critical problems that have existed for a long time, like DREAMERS, and abuse of power violations by ICE and border patrol, and mandatory detention in really, truly horrifying conditions, the mass deportations of people with slight and minor criminal records, asylum free zones, and the lack of representation, and lack of representation based on nationality, there are just so many institutional and systematic issues that have to be fixed, I don’t know if it is worth it to get into a battle over a wall, 80% of which is already built anyway.
The whole wall idea came from Trump talking at a rally and it got a lot of applause. I don't really.... uhm.... I don't want to waste time on this issue because one: it's not going to be a wall it's going to be a fence, and two: all of those other things that I listed are hurting people right now.
MALANEY
but the---
DW
and If I read another op-ed about how people are reading between the lines and see the wall and the ban as needing new immigration policy... god ...stop. Just sopt providing people justification for their xenophobia, racism, and anti-immigrant views. You know who has been begging literally begging Congress to fix immigration policy? Immigrants, unsurprisingly.
MALANEY
well this has just really digressed into a rant now.
DW
Honestly Mal, what did you think was going to happen?
MALANEY
Yea, I guess this one is on me. I maybe should have let you prepare. We don't have time to do the sanctuary cities today--maybe we will do another special bonus pod on asylum and we can cover it then maybe.
Okay, so next week we have two shows---
DW
Wait, sorry. I just wanted to add something
MALANEY
I am trying to outro so you can go to work!
DW
Yea, yea, I want to talk about this one thing I saw online this social media campaign about announcing your undocumented status. I saw someone in a youtube video at a rally get up and say his full name and then state he was undocumented, people are posting their status on twitter and instagram.
Uhm, this is the only legal advice I’ll ever give on a podcast, and please maybe I don't know, imagine clapping emoji hands between every word I am about to say for emphasis but do not post or publicly state your immigration status anywhere for any reason!
The only thing ICE needs to detain you is reasonable suspicion that you committed an immigration violation, and posting online where you can be identified, or stating in public that you are undocumented it’s not a good idea. I know that people were trying to do a solidarity thing about this. This is not one of those things.
MALANEY
Okay okay, right I remember how upset you were when you learned about that "I am a Dreamer" hashtag. Is that ... everything?
Okay, coming up this week on the pod we have two shows and special guests. We are doing 2016's most under the radar stories. You guys voted on which stories you thought didn't get the exposure they deserved---
DW
I have a question about this
MALANEY
DW
If the idea is the most under the radar story and people voted on it, wouldn't you like focus on the story that got the least amount of votes?
MALANEY
DW...
DW
it was a real question.
MALANEY
I think people understood the premise of the question presented in the poll.
DW
MALANEY
Oh no! Your microphone broke. We'll never get to the bottom of that.
Okay so next week we will have Samantha Thompson from the Chicago Tribune and her lead paint exposé, lead contaminiation was heavily covered this year but Sam talks about the problem of lead paint in low income communities. We will also have Matthew Anderson from the Boston Globe and his story on the student debt epidemic and the return of debtors prison.
Thank you so much for coming on the pod today DW. I know I didn't give you much of a choice or any time to prepare because I wanted to get this out today so thanks. I promise one day I will make room for an asylum pod--potentially-- probably.
Thanks for listening to our bonus episode of The Byline. Please subscribe if you haven't, and don't forget that for the year of 2017 we are asking our listeners to subscribe to news orgnizations. The work that journalists do can't be done for free, your support of national and local news will help keep doors open. If you liked this bonus episode and you want more episodes like this make sure to tweet at thebyline, I read all of them. I'm Malaney Weissman have an excellent week, I'll be back with a regular pod on Friday.