The Five 2019 Grantees of the Foundation Filed Their Third Quarter Progress Reports

All 2019 Barbara McDowell Foundation grantees were contacted in July in accordance with the Foundation’s requirements and reported with respect to the progress of their case through the third quarter of their grant cycle. Their reports can be read below. In addition to reporting on their progress, each grantee also submitted third quarter time sheets for their case work and all were deemed to be meeting the requirements of their grants. 

Barbara McDowell Foundation 2019 Grantees Third Quarter Progress Reports

AMERICAN IMMIGRATION COUNCIL

As you will see, there has been almost no activity in the case since the second quarter.  We continue to wait for the Court to rule on the motions for summary judgment (filed July 2018), class certification (filed July 2018), and preliminary injunction (filed November 2018) which we filed on behalf of the Plaintiffs, as well as for a decision on the Defendants’ motion to dismiss or in the alternative for summary judgment, which we fully opposed almost a year ago. We are very frustrated that the Court has delayed ruling on these dispositive motions but there is nothing more that we can do at this point. 

It is possible that the District Court is waiting to see how additional courts of appeals rule on the issue before ruling in Moreno. We are closely following the several lawsuits that individuals have filed on the same issue and have been in touch with the attorneys representing each of these individuals.  In all of these cases to-date, the district courts have ruled in favor of the plaintiffs. The government has appealed three of these cases to the Courts of Appeals for the 3d, 5th, and 8th Circuits, respectively.  We will be appearing as amicus in all three cases in the coming months. Once these three cases are decided, the issue will be resolved in half of the circuits, and we are doing our best to ensure that the resolution is a favorable one.  So, notwithstanding the fact that Moreno itself is stalled, there will be an answer—and we hope an avenue for adjustment of status—for many deserving TPS holders in the coming months.  

CENTER FOR GENDER & REFUGEE STUDIES (CGRS)

Adjudication of Ms. A.B.’s claims for relief

Ms. A.B.’s case remains pending before the Board of Immigration Appeals (BIA or Board). Although we filed a notice of appeal to the Board in November 2018, we have yet to receive our briefing schedule. However, we have begun preparing our brief and lining up support from amicus parties. We have confirmed amicus participation from the Harvard Immigration and Refugee Clinic, Tahirih Justice Center, a group of former immigration judges and BIA members, and a group of immigration law professors. We expect to soon confirm participation from the UN High Commissioner for Refugees (UNHCR) as well.

Though Ms. A.B.’s case remains stalled at the Board, we are continuing to pursue other opportunities to reverse former Attorney General Sessions’ erroneous ruling in her case. In May, CGRS Co-Legal Director Eunice Lee appeared as amicus before the First Circuit Court of Appeals, calling on the court to overturn Matter of A-B-. Eunice appeared in support of the petitioner Ms. De Pena, a Dominican domestic violence survivor, sharing argument time with her attorney. Last fall the BIA relied on Matter of A-B- to deny Ms. De Pena asylum without conducting a meaningful examination of her case.

FOIA lawsuit on behalf of Ms. A.B.

As reported in our last quarterly update to the Foundation, in March CGRS and pro bono counsel at Riley Safer Holmes & Cancila filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Department of Justice (DoJ), challenging the agency’s failure to release information about Sessions’ involvement in Matter of A-B-. Our goal was to compel DoJ to provide records that might shed light on the troubling procedural irregularities experienced by Ms. A.B., which implicate her due process rights to a fair and impartial agency proceeding. However, the government failed to respond to the complaint in a timely manner. At the end of May, the government requested relief from a default judgment, which the D.C. District Court granted. The case has since been reassigned to a new judge.

New FOIA request

In March CGRS filed a new FOIA request, seeking a statistical dataset of all cases heard by Judge V. Stuart Couch related to applications for asylum, withholding of removal, and Convention Against Torture (CAT) relief since June 2017. Judge Couch denied Ms. A.B. relief when her case first came before the Charlotte Immigration Court, and then again after Sessions sent her case back. Our FOIA request seeks records that could shed light on how asylum cases have been adjudicated at the Charlotte court before and after Sessions’ 2018 Matter of A-B- ruling.

The request has been placed on a complex track, and we have not yet received the records we are seeking. In the meantime, we are collecting and analyzing the limited public data that does exist on asylum adjudication trends in Charlotte, and we are reaching out to local attorneys to request additional anecdotal data to supplement it. We expect that the data we obtain – through our FOIA request and these other efforts – will reveal that Judge Couch has not been appropriately analyzing claims on

NATIONAL CENTER FOR LAW AND ECONOMIC JUSTICE (NCLEJ)

We are pleased with the progress made in our work with the assistance of the Foundation. The witness interviews, discovery, and other fact gathering discussed will permit us to expand our claims and more fully and effectively represent the low-income communities of color in Buffalo. 

Since April 2019, the legal team for Black Love Resists in the Rust v. City of Buffalo has continued with plaintiff and witness outreach and the discovery process. In preparation for the filing of our amended complaint this fall, we have interviewed and collected and reviewed the records of Buffalo residents to determine their eligibility to be added as plaintiffs. We have also been conducting research to determine new legal claims to add as we continue to learn about what community members have been experiencing. Discovery has been ongoing for several months and we have submitted additional requests for Defendants to produce documents and subpoenas to entities and individuals who are not parties to the case. However, the Defendants have not been helpful or cooperative in producing the requested information. We requested, and the Court granted, an extension of our deadlines in the case as we explore all avenues to enforce our discovery rights. In May, we had a court conference to update the judge on the progress of discovery and she ordered the Defendants to adhere to some strict new deadlines. Finally, we have had meetings with our existing plaintiffs updating them on the status of the case.

We appreciate that the Barbara McDowell Foundation is one of the few foundations that not only truly gets the role that litigation plays in addressing issues of social, racial, and economic justice, but that funds the hard work necessary to achieve success in pattern and practice impact class actions. 

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD (NIPNLG)

NIPNLG presently awaits the Commonwealth Court of Pennsylvania’s decision in our petition for review in support of detained families’ right to intervene in a child residential

licensing dispute over the Berks County Residential Center (BCRC). BCRC is one of the only detention facilities in the country that detains immigrant children. The Commonwealth Court of Pennsylvania has set a tentative oral argument date for November 12, 2019. The petitioners are minor children D.G.A. and R.D.A.M., adults G.C.G. and R.N., and ALDEA – The People’s Justice Center. The petitioners are appealing an order denying their Petition to Intervene in proceedings before the Bureau of Hearings and Appeals (BHA) of the Pennsylvania Department of Human Services (the “Department”).

The Department did not renew BCRC’s operating license as a child residential center in 2016. BCRC administratively appealed that decision to the BHA in 2016. The license dispute has been pending ever since but the Department has consented to ongoing operation of BCRC in the meantime. If the Commonwealth Court rules in our favor, petitioners will be entitled to participate in the licensing dispute before the BHA and to present witnesses and evidence of rights violations.

In the meantime, we have been exploring the possibility to expedite the litigation in Commonwealth Court in Pennsylvania as well as alternative litigation options. Those include an application for expedited relief before the Commonwealth Court, other state litigation tied to the violation of children’s rights under state law, and federal civil rights litigation.

Finally, the humanitarian crisis at the border, which continues unabated despite horrific reports from U.S. Congresspeople, pediatricians, and others who visited the border in early July, has only underscored the urgency of our work to close BCRC. At least five immigrant children have died in US government custody in the past nine months. As a result of the border crisis, we expect an increase in the number of detainees housed at Berks which remains one of the only facilities in the U.S. that lawfully holds immigrant children. Based on communications with individuals on the ground at BCRC, our understanding is that currently DHS is only sending from the border children with the most serious medical conditions to the facility. This further raises our alarm, since the we are seeking closure of BCRC due to its inhumane and unlawful detention conditions.

PRISONERS LEGAL SERVICES OF MASSACHUSETTS (PLS)

During this quarter, PLS continued to engage in fact-finding, prepared discovery, consulted with experts, and participated in settlement discussions.  The most significant even in the litigation was the court’s decision on July 2, 2019 to certify a class consisting of: 

All men placed or housed in a DOC facility solely pursuant to G.L. c. 123, § 35 from July 2, 2019 through the date of the final judgment in the case, including the named plaintiffs. 

During this time, PLS also worked to educate the community, policy makers, the media and the public about the harm of incarcerating Section 35 patients, including testimony before  the legislature (https://www.masslive.com/politics/2019/06/obamas-drug-czar-michael-botticelli-backs-bill-to-get-addiction-patients-out-of-jails.html) and by working with the legislatively-established commission on Section 35, which, on June 27, 2019 recommended that all civil commitments to criminal justice facilities under Section 35 be abolished (https://www.mass.gov/files/documents/2019/07/01/Section%2035%20Commission%20Report%207-1-2019.pdf).  As we continue to litigate the case vigorously in the next quarter, we will also work with the legislature to bring an end to the practice of incarcerating men solely for their alcohol and substance use disorder. 

(August 2019)

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