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Luis Mariano Garcia was born and raised in Miami, Florida.  Mr. Garcia has represented clients with problems ranging from immigration issues to deportation proceedings. He has helped detained people, has represented individuals in visa and immigration court, and has filed appeals and petitions for his satisfied clients. Luis Mariano Garcia is an immigration lawyer who is proud to serve his hometown, and put his eclectic legal experience to use for you.


Trust in Attorney Luis Mariano Garcia to work closely alongside you for the duration of your case, as well as throughout your courtroom proceedings. 


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The Perils of Expedited Removal

How Fast-Track Deportations Jeopardize Asylum Seekers

 

By 

Kathryn Shepherd and Royce Bernstein Murray

 

This report shows through the use of original testimony that the government’s reliance on “fast-track” deportation methods, such as expedited removal, in conjunction with detention often results in disadvantaging one of the most vulnerable groups of non-citizens currently in the U.S. immigration system: women and their children held in detention centers in rural, isolated locations in Texas and Pennsylvania. Accounts from women and children detained at the South Texas Family Residential Center in Dilley, Texas, the country’s largest family detention center, illustrate the many obstacles a detained asylum seeker must overcome in order to obtain a meaningful day in court. The authors drew from a database of thousands of case files to identify families who experienced one or more of the challenges outlined in this paper. Although many of the families whose stories are highlighted in this report were ultimately able to forestall immediate deportation with the assistance of legal counsel, all of them faced serious obstacles accessing the asylum process. Detained asylum seekers encounter numerous challenges, including the following problems detailed in this report.

  • High Incidence of Psychological Trauma among Detainees
    Many of the asylum-seeking women and children who are detained in Dilley experience psychological trauma as a result of their past persecution or fear of future persecution. This trauma is compounded by the experience of detention, the limited access to medical and psychological services in the detention center, and other policies outlined below.

  • Separation of Family Members after Arriving at the Border
    Current government policy mandates that women must be separated from their spouses, adult children, parents, siblings, and other family members before they are transferred to the detention center in Dilley, Texas. The emotional impact of family separation – and the possibility that a separated family member with the same claim for relief may be deported – may have a profound effect on the ability of a woman or child to testify during their fear interview with the asylum office or before the immigration court.

  • Medical Conditions Adversely Impact the Ability to Pursue Protection
    The women and children who are transferred to the detention center in Dilley suffer from a range of medical conditions. The prevalence of medical conditions may affect a worried mother’s ability to tell her story during her interview if her child is ill, or the sickness itself could affect a child or woman’s ability to articulate her story.

  • Limited Access to Language Services
    While the majority of families who are transferred to the detention center in Dilley speak Spanish, many do not. The languages spoken within the walls of the detention center in Dilley are diverse. Access to interpretation services is limited, which may present problems for women and children attempting to seek help at the medical clinic, ask questions about their legal cases, and, most importantly, undergo fear interviews with the asylum office or hearings with the immigration court.

  • Complexity of the Legal Standard Applicable to Credible Fear Screenings
    The immigration system is notoriously complicated, and the credible fear screening process is no exception. The legal standards to which asylum seekers are held are nuanced and complex, even for well-trained attorneys, let alone lay persons. Many of the factors outlined in this paper, including the prevalence of trauma and medical conditions, may further impede a person’s ability to understand the legal process and articulate a claim for protection.

  • Procedural Defects in the Credible Fear Interview Process
    The credible fear interview process is potentially rife with procedural errors. Asylum officers are required to conduct the interview in compliance with printed guidance and law, but occasionally fail to do so. For example, officers must ensure that an asylum seeker feels comfortable, ask sufficient follow up questions to reveal critical information in the person’s case, and evaluate a parent’s claim for protection separately from the child’s (and vice versa). However, an officer may not develop the rapport with the mother or child that is needed to fulfill these obligations. Such procedural pitfalls, and many others, may adversely affect the outcome of an asylum seeker’s claim.

While the voices in this report are predominantly of asylum-seeking mothers and their children from Central America and the surrounding region, the obstacles this population faces illustrate the high risk of error in asylum screenings for all noncitizens who are held in detention facilities around the country during their fast-track deportation proceedings. Finally, the report looks at the critical role attorneys play in the cases of those who fail to pass their fear interview in the first instance due to one or several of the challenges highlighted above. The case stories illustrate how these pitfalls place families at risk of being returned to the very countries where they fear persecution.

Learn More

If you or a loved one has been detained, contact the Law Offices of Luis Mariano Garcia for a consultation

Asylum in the United States

Asylum

Each year, thousands of noncitizens arriving at our border or already in the United States apply for asylum, or protection from persecution. Asylum seekers must navigate a difficult and complex process that can involve multiple government agencies. Those granted asylum have the opportunity to apply to live in the United States permanently, receive certain benefits, and be reunited with their family members. This fact sheet provides an overview of the asylum system in the United States, including how asylum is defined, eligibility requirements, and the application process.


What Is Asylum?

Asylum is a protection granted to foreign nationals already in the United States or at the border who meet the international law definition of a “refugee.” The United Nations 1951 Convention and 1967 Protocol define a refugee as a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.” Congress incorporated this definition into U.S. immigration law in the Refugee Act of 1980.

As a signatory to the 1967 Protocol, and through U.S. immigration law, the United States has legal obligations to provide protection to those who qualify as refugees. The Refugee Act established two paths to obtain refugee status—either from abroad as a resettled refugee or in the United States as an asylum seeker.


What Are the Benefits of Asylum?

An asylee—or a person granted asylum—is protected from being returned to his or her home country, is authorized to work in the United States, may apply for a Social Security card, may request permission to travel overseas, and can petition to bring family members to the United States. Asylees may also be eligible certain benefits, such as Medicaid or Refugee Medical Assistance.

After one year, an asylee may apply for lawful permanent resident status (i.e., a green card). Once the individual becomes a permanent resident, he or she must wait four years to apply for citizenship. 


What Is the Asylum Application Process?

There are two primary ways in which a person may apply for asylum in the United States: the affirmative process and the defensive process. Asylum seekers who arrive at a U.S. port of entry or enter the United States without inspection generally must apply through the defensive asylum process. Both processes require the asylum seeker to be physically present in the United States.

  • Affirmative Asylum: A person who is not in removal proceedings may affirmatively apply for asylum through U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). If the USCIS asylum officer does not grant the asylum application and the applicant does not have a lawful immigration status, he or she is referred to the immigration court for removal proceedings, where he or she may renew the request for asylum through the defensive process and appear before an immigration judge.
  • Defensive Asylum: A person who is in removal proceedings may apply for asylum defensively by filing the application with an immigration judge at the Executive Office for Immigration Review (EOIR) in the Department of Justice. In other words, asylum is applied for “as a defense against removal from the U.S.” Unlike the criminal court system, EOIR does not provide appointed counsel for individuals in immigration court, even if they are unable to retain an attorney on their own.

With or without counsel, an asylum seeker has the burden of proving that he or she meets the definition of a refugee. Asylum seekers often provide substantial evidence throughout the affirmative and defensive processes demonstrating either past persecution or that they have a “well-founded fear” of future persecution in their home country. However, the individual’s own testimony is usually critical to his or her asylum determination.

Certain factors bar individuals from asylum.  With limited exceptions, individuals who fail to apply for asylum within one year of entering the United States will be barred from receiving asylum. Similarly, applicants who are found to pose a danger to the United States are barred from asylum.


Is There a Deadline for Asylum Applications?

An individual generally must apply for asylum within one year of arriving in the United States. Whether DHS is obligated to notify asylum seekers of this deadline is the subject of pending litigation. A class-action lawsuit has challenged the government's failure to provide asylum seekers adequate notice of the one-year deadline and a uniform procedure for filing timely applications.

Asylum seekers in the affirmative and defensive processes face many obstacles to meeting the one-year deadline. Some individuals face traumatic repercussions from their time in detention or journeying to the United States and may never know that a deadline exists. Even those who are aware of the deadline encounter systemic barriers, such as lengthy backlogs, that can make it impossible to file their application in a timely manner. In many cases, missing the one-year deadline is the sole reason the government denies an asylum application.


What Happens to Asylum Seekers Arriving at a U.S. Border?

Noncitizens who are encountered by, or present themselves to, a U.S. official at a port of entry or near the border are subject to expedited removal, an accelerated process which authorizes DHS to perform rapid deportations of certain individuals.

To ensure that the United States does not violate international and domestic laws by returning individuals to countries where their life or liberty may be at risk, the credible fear and reasonable fear screening processes are available to asylum seekers in expedited removal processes.

Credible Fear

Individuals who are placed in expedited removal proceedings and who tell a Customs and Border Protection (CBP) official that they fear persecution, torture, or returning to their country or that they wish to apply for asylum should be referred for a credible fear screening interview conducted by an asylum officer.

If the asylum officer determines that the asylum seeker has a credible fear of persecution or torture, it means that the person has proven that he or she has a “significant possibility” of establishing eligibility for asylum or other protection under the Convention Against Torture. The individual will then be referred to immigration court to proceed with the defensive asylum application process.

If the asylum officer determines the person does not have a credible fear, the individual is ordered removed. Before deportation, the individual may appeal the negative credible fear decision by pursuing a truncated review process before an immigration judge. If the immigration judge overturns a negative credible fear finding, the individual is placed in further removal proceedings through which the individual can seek protection from removal. If the immigration judge upholds the negative finding by the asylum officer, the individual will be removed from the United States.

  • In Fiscal Year (FY) 2017, USCIS found 60,566 individuals to have credible fear. These individuals, many of whom were detained during this screening process, will be afforded an opportunity to apply for asylum defensively and establish that they meet the refugee definition.
  • The number of credible fear cases has skyrocketed since the procedure was implemented—in FY 2009, USCIS completed 5,523 cases. Case completions reached an all-time high in FY 2016 at 92,071 and decreased to 79,977 in FY 2017.

Reasonable Fear

Individuals who re-enter the United States unlawfully after a prior deportation order and noncitizens convicted of certain crimes are subject to a different expedited removal process called reinstatement of removal.  To protect asylum seekers from summary removal before their asylum claim is heard, those in reinstatement of removal proceedings who express a fear of returning to their country are afforded a “reasonable fear” interview with an asylum officer.

To demonstrate a reasonable fear, the individual must show that there is a “reasonable possibility” that he or she will be tortured in the country of removal or persecuted on the basis of race, religion, nationality, political opinion, or membership in a particular social group. While both credible and reasonable fear determinations evaluate the likelihood of an individual’s persecution or torture if deported, the reasonable fear standard is higher.

If the asylum officer finds that the person has a reasonable fear of persecution or torture, he or she will be referred to immigration court. The person has the opportunity to prove to an immigration judge that he or she is eligible for "withholding of removal" or "deferral of removal"—protection from future persecution or torture. While withholding of removal is similar to asylum, some of the requirements are more difficult to meet and the relief it provides is narrower. Significantly, and unlike asylum, it does not provide a pathway to lawful permanent residence.

If the asylum officer determines the person does not have a reasonable fear of future persecution or torture, the individual may appeal the negative decision to an immigration judge. If the judge upholds the asylum officer’s negative determination, the individual is turned over to immigration enforcement officers for removal. However, if the immigration judge overturns the asylum officer's negative finding, the individual is placed in removal proceedings through which the individual can pursue protection from removal.


How Long Does the Asylum Process Take?

Overall, the asylum process can take years to conclude. In some cases, a person may file his or her application and receive a hearing or interview date years in the future.

  • As of March 2018, there were more than 318,000 affirmative asylum applications pending with USCIS. The government does not estimate the time it will take to schedule an initial interview for these asylum applicants, though historically the delay could reach four years for such asylum seekers.
  • The backlog in U.S. immigration courts reached an all-time high in March 2018 with more than 690,000 open deportation cases. On average, these cases had been pending for 718 days and remained unresolved.
  • Individuals with an immigration court case who were ultimately granted relief—such as asylum—by March 2018 waited more than 1,000 days on average for that outcome. New Jersey and California had the longest wait times, averaging 1,300 days until relief was granted in the immigration case.

Asylum seekers, and any family members waiting to join them, are left in limbo while their case is pending. The backlogs and delays can cause prolonged separation of refugee families, leave family members abroad in dangerous situations, and make it more difficult to retain pro bono counsel for the duration of the asylum seeker’s case.

Although asylum seekers may apply for work authorization after their case has been pending for 150 days, the uncertainty of their future impedes employment, education, and trauma recovery opportunities.


What Happens to Asylum Seekers While Their Application Is Processed?

Asylum seekers include some of the most vulnerable members of society—children, single mothers, victims of domestic violence or torture, and other individuals who have suffered persecution and trauma. Some of these individuals may live in the United States while their application is processed, yet the government has detained others—including children and families—for some or all of this time.

While U.S. law provides arriving asylum seekers the right to be in the United States while their claim for protection is pending, the government has argued that it has the right to detain such individuals. Some courts have rejected this interpretation and held that asylum seekers meeting certain criteria have a right to a hearing over their detention if they have been held for at least six months. Several lawsuits have challenged the practice of detaining asylum applicants, including class-action suits that document the prolonged detention—sometimes lasting years—of individuals with credible fear awaiting adjudication of their claim for asylum.

Detention exacerbates the challenges asylum seekers already face and can negatively impact a person’s asylum application. Children and families who are detained suffer mental and physical health problems, including depression, post-traumatic stress disorder, and frequent infections. Studies have found that detained individuals in removal proceedings are nearly five times less likely to secure legal counsel than those not in detention. This disparity can significantly affect an individual's case, as those with representation are more likely to apply for protection in the first place and successfully obtain the relief sought.


How Many People Are Granted Asylum?

In FY 2016, the most recent year with available data, 20,455 individuals were granted asylum: 11,729 affirmatively and 8,726 defensively (Figure 1). Total annual asylum grants averaged 23,669 between FY 2007 and FY 2016.

 

The countries of nationality for individuals granted asylum have largely remained the same in this 10-year period (FY 2007-2016), with nationals of China and Egypt making up significant shares of asylees. Other individuals granted asylum in that time period included nationals of Guatemala, Haiti, Venezuela, Iraq, Ethiopia, Iran, Colombia, and Russia.

In FY 2016, Chinese and Salvadoran nationals represented the greatest shares of asylees (accounting for 21.9 and 10.5 percent, respectively, of all individuals granted asylum in FY 2016). Nationals of China, El Salvador, Guatemala, and Honduras combined accounted for half (49.4 percent) of the 20,455 individuals granted asylum—either affirmatively or defensively—in FY 2016. A total of 98 nationalities were represented among all individuals granted asylum in FY 2016.

Source: American Immigration Council analysis of government data. Office of Immigration Statistics, Tables 17 and 19 in 2016 Yearbook of Immigration Statistic (Washington, DC: U.S. Dep't of Homeland Sec., 2018), https://www.dhs.gov/immigration-statistics/yearbook/2016.

September 2018 Newsletter

Immigrants in Florida

 Florida has long been home to a large number of immigrants, many of whom hail from the Caribbean. One in five residents in the state is an immigrant, together making up more than a fourth of Florida’s labor force. As workers, business owners, taxpayers, and neighbors, immigrants are an integral part of Florida’s diverse and thriving communities and make extensive contributions that benefit all.

One in five Florida residents is an immigrant, while nearly one in eight is a native-born U.S. citizen with at least one immigrant parent.

  • In 2015, 4.1 million immigrants (foreign-born individuals) comprised 20.2 percent of the population.
  • Florida was home to 2 million women, 1.8 million men, and 219,060 children who were immigrants.
  • The top countries of origin for immigrants were Cuba (22.8 percent of immigrants), Haiti (8.3 percent), Mexico (6.8 percent), Colombia (6 percent), and Jamaica (5 percent).
  • In 2016, 2.5 million people in Florida (12.5 percent of the state’s population) were native-born Americans who had at least one immigrant parent.

Over half of all immigrants in Florida are naturalized U.S. citizens.

  • 2.2 million immigrants (53.7 percent) had naturalized as of 2015, and 784,395 immigrants were eligible to become naturalized U.S. citizens in 2015.
  • The majority (72.4 percent) of immigrants reported speaking English “well” or “very well.”

Immigrants in Florida are distributed across the educational spectrum.

  • More than one in four adult immigrants had a college degree or more education in 2015, while more than one in five had less than a high school diploma.


Immigration Statistics for Florida
www.americanimmigrationcouncil.org

Immigration Statistics for Florida www.americanimmigrationcouncil.org

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