Voices from The Border

Natali Soto

Sanctuary attorney Natali Soto writes about our legal team’s experience assisting asylum-seekers in Tijuana, Mexico, as the U.S. implemented new deterrence protocols.

Natali Soto is an Immigrant Justice Corps Fellow and an attorney in Sanctuary’s Immigration Intervention Project

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In light of the current humanitarian crisis at the U.S.-Mexico border, my fellow Sanctuary immigration attorneys and I spent the first week of February working with asylum-seekers in Tijuana, Mexico. That same week, the U.S. rolled out its “Migrant Protection Protocol,” a policy which requires most asylum seekers who have passed their credible fear interviews to remain in Mexico, instead of the U.S., while they wait for a U.S. Immigration Judge to hear their asylum case.

Throughout our time in Tijuana, we met beautiful souls from all over the world – including Mexico, Guatemala, El Salvador, Honduras, Venezuela, Nicaragua, Haiti, Ghana, Cameroon, Sierra Leone, Guinea, Tajikistan, Chechnya, and Russia – who had fled gender violence and other forms of persecution and violence in their home countries. These migrants had traveled thousands of miles by plane, bus, boat, and by foot, driven by hopes of finding asylum in the U.S.  They endured unimaginable hardships throughout their dangerous journeys only to find out, upon their arrival at the U.S.- Mexico border, that they must “wait in line” for weeks, even months, before being allowed to present their asylum claim to a U.S. Immigration Officer.

Listen to our attorneys describe the circumstances that have forced survivors to flee their home countries and seek refuge in the U.S.

The Current State of the Asylum-Seeking Process

This line-keeping system is a direct outcome of the Trump Administration’s “metering” policy, implemented in November 2018, which limits the number of asylum seekers allowed to enter the US each day. The system, however, is anything but official. Rather than being run by Customs and Border Protection (CBP) or any other U.S. or Mexican government agency, the line is managed by migrants who have assumed a leadership role among their peers. Newly-arrived asylum seekers must provide their names and nationalities to these migrant leaders in order to be assigned a number that corresponds to their place in line, supposedly based on the order in which they arrive.

Every day, CBP settles on a seemingly-indiscriminate number of people to allow into the U.S. and notifies Mexican officials who, in turn, pass this information to migrant leaders. The leaders then call out certain migrants’ numbers to indicate that those individuals are now allowed to cross into the U.S. to kickstart the asylum-claim process. Because the U.S. is inconsistent in the number of asylum seekers they’ll accept on any given day, these migrants must show up every morning, with their children and all of their belongings. If they are not present when their number is called, they will have to either plead to keep their spot in line or sign-up for a new number and wait several more weeks.

Migrants whose numbers have been called are lined up, put into vans, driven across the border, and kept in detention centers until their credible fear interviews, where a CBP officer will assess their fear of return to their home country. Unfortunately, even passage of these credible fear interviews does not guarantee temporary safety in the U.S. – under the Migrant Protection Protocol, asylum seekers must meet an even higher “reasonable” fear standard by demonstrating they fear persecution both in their home countries and in Mexico. Unfortunately, many vulnerable individuals who “have not had time to gather evidence that would show their credibility,” or whose claims include trauma-related inconsistencies or omissions, will fail to meet this higher standard and be sent back Mexico to await the adjudication of their asylum case.

Watch Lori Adams, Director of Sanctuary’s Immigration Intervention Project, describe the situation at the U.S.-Mexico on the third day of implementation of the “Migrant Protection Protocol.” 

Our Work at the Border

Part of our duties as volunteer attorneys in Tijuana included delivering “Know Your Rights” presentations and meeting with migrants individually to provide them with legal counsel on their respective asylum cases. We also held last-minute credible fear interview prep sessions for migrants whose numbers had been called that morning. Although some migrants had anticipated the strenuous conditions they were about to face upon entering the U.S., others had reasonably assumed the worst of the asylum process was over. Had we not told them, the latter group would not have known that upon entering the U.S., they would be stripped of their extra layers of clothing and forced to await their credible fear interview in freezing holding cells for days at a time.

Listen to Sanctuary attorneys describe how they assisted migrants as they prepared to cross the border to deliver their credible-fear interviews — the first step for claiming asylum in the United States.

While conducting these last-minute interview prep sessions with migrants about to cross the border, my colleagues and I acted as “human shields” to provide privacy for those who needed to change into their warmest base layer. We also provided migrants with Sharpie markers so that they could write their loved ones’ phone numbers on their forearms, in the likely case that ICE would take away their possessions. We also encouraged parents to write their own names and dates of birth on the backs of their children’s shoulders in preparation for the tragic yet foreseeable case of ICE separating families upon crossing. Two young kids with whom I worked thought of these as “cool new tattoos” and showed them off to fellow migrants while their mother held back her tears fearing that these marks would not be enough to keep her children by her side.

Having to explain to families that they would most likely be separated at some point during the asylum claim process and that they would most likely be returned to Mexico while they await adjudication, was soul-crushing. When migrants learned about the new policies central to the current U.S. Immigration System, their hopefulness and excitement would immediately turn into anguish and disappointment, yet for many of them turning back was not an option. When you are fleeing for your life, not even a cruel system that is purposefully set in place to deter you from seeking asylum will dissuade you from pleading for safety.

Listen to our attorneys describe the anguish experienced by migrant families facing separation at the border.

My colleagues and I stayed in San Diego and crossed the border by foot twice a day since the people we were working with were in Tijuana. Throughout the week, I could not avoid thinking of the irony and privilege that underlined our back-and-forth crossings, during which we did as little as wave our U.S. passports to border officials. We were able to easily cross this arbitrary line only because we were born on the “right” side of it, while those who were born elsewhere and are fleeing for their lives were kept waiting for weeks for an opportunity to plead asylum in our country.

We hope that our experiences at the border can further shed light on what has become an undeniable reality – that our current immigration protocols are inhumane and deprive thousands of migrants of their basic human rights. These asylum seekers are fleeing domestic violence, gang violence, and government torture, among other types of unbearable persecution.  Sending them back to Mexico, even after they have passed their credible fear interviews, is a violation of due process. It also puts them at greater risk of harm, for many of them are still being followed by their persecutors and perpetrators.

As a nation founded under the principles of life, liberty, and the pursuit of happiness, we must embrace those who are most vulnerable, not turn our backs on them.

Please consider donating to Sanctuary’s Immigration Intervention Project to support our work with immigrant survivors of gender violence.

Pa’ lante, mi gente.

New York State moves to protect survivors of cyber sexual abuse

Hon. Judy H. Kluger

This legislation will go a long way to help survivors like our client Nathaly pursue justice against abusive partners who seek to humiliate, harass, and coerce their victims. 

Today, landmark legislation was unanimously passed in the New York State Legislature to criminalize the non-consensual dissemination of sexually explicit images and videos, commonly known as “revenge porn” or “cyber sexual abuse.” This legislation will go a long way to help survivors like our client Nathaly pursue justice against abusive partners who seek to humiliate, harass, and coerce their victims.

When Nathaly first ran into Sanctuary staff attorney Lindsey Song at the Bronx Family Court House, she was anxious and distraught. A former boyfriend she had dated as a teenager had recently sent her a link to a porn website with a video of the two of them having sex – a video she did not know even existed. The link included her full name, where she was from, and her father’s phone number. This was in 2017, before she helped New York City pass a law criminalizing cyber sexual abuse and before any legal remedies existed for victims like herself.

Today, thanks to Nathaly’s courageous advocacy in partnership with Sanctuary and the work of Assembly Member Edward Braunstein, Senator Monica Martinez, and numerous advocates and other survivors, New York joined 42 other states that have passed legislation to protect victims of cyber sexual abuse and recognized the terrible magnitude of harm that it inflicts upon victims.

Watch Nathaly’s speech from our annual benefit last year >

At Sanctuary, we see the devastating damage that cyber sexual abuse causes its victims. Survivors are often forced to change their names and flee the state to escape the horror of having their most intimate photos go viral; others have been threatened with sexual and physical violence when their photos have been posted, and many have lost their jobs, families, or communities as a result of this abuse.

Should this legislation be signed into law, it will be a crime to share an explicit image without a person’s consent when done so with the intention of causing emotional, financial, or physical harm. In addition to criminal relief, survivors will also be able to seek justice and protection through both Family and Criminal Courts, as well as secure injunctive relief if a website refuses to take action in removing the videos or images in question.

In late 2017, Nathaly and Sanctuary helped pass New York City’s cyber sexual abuse bill which is being used every day. Today we celebrate their work and the work of others in the passage of a New York State bill which will provide many more survivors like Nathaly with the legal recourse to seek relief from the flood of online harassment that they have long been denied. We hope that the Governor will act quickly to sign this measure into law.

Sanctuary ED Speaks at “Protect Our Courts” Rally, Urges Bill Passage

Sanctuary for Families

Sanctuary Executive Director, Hon. Judy H. Kluger, recently joined advocates for the introduction of State legislation that would limit I.C.E.’s ability to make arrests in and around New York courthouses. Read her remarks.

According to a recent report by the Immigrant Defense Project, I.C.E. arrests inside and around New York courthouses increased by 1700% between 2016 and 2018. Threats of arrest and deportation have deterred an untold number of gender violence survivors from reporting abuse, seeking services, or serving as witnesses in cases.

Sanctuary’s Executive Director, Hon. Judy H. Kluger spoke at a press conference celebrating the introduction of the Protect Our Courts Act — a bill that would make it unlawful for I.C.E. to make a civil arrest while a person is going to, attending, or leaving court unless the officer presents a valid judicial warrant or court order. Read her remarks below:

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Thank you, Assemblywoman Solages and State Senator Hoylman, for reintroducing the Protect Our Courts Act.   In the toxic national environment where important legal safeguards for victims of gender violence are being dismantled, New York State has an unprecedented opportunity to strengthen the laws and systems that protect thousands of survivors of domestic violence and sex trafficking who live here.

At Sanctuary for Families, 75% of the gender violence survivors we serve are immigrants who rely on the courts for orders of protection, child custody and support. Some are witnesses in criminal cases against their abusers.

The threat of being arrested by ICE in a courthouse forces immigrant victims of gender violence to make the tough choice between their safety and the chance of deportation.  This spreads fear, not justice, and discourages many of our clients from seeking the protections they rightfully deserve.

Recently, one of our clients, originally from Mexico, became terrified of appearing in Bronx Family Court – where she had filed for custody and visitation of her children and two violations of an order of protection against her abusive ex-partner.

She had seen a flyer on the subway warning that ICE agents may be in the courthouse.  First, she had feared her abuser.  Now she feared ICE detaining her in the very place where she was supposed to find safety.

The deputy director of our legal center ended up going with her to every court date.  Because our client testified, her ex-partner received eight weeks in prison. If we had not been able to go with her, she never would have appeared in court, and he would never have been brought to justice.

We cannot let distrust in law enforcement and in our judicial system become the norm. We urge the New York State legislature and Governor Cuomo to make sure the Protect Our Courts Act becomes law in this session and restore the sanctity of our courtrooms as a place where justice can be sought by all without fear.

We also urge the Office of the Court Administration to move forward a rule that would require a federal warrant for immigration agents to arrest undocumented immigrants in state courthouses, adding another layer of protection to our judicial system.

As a former judge, I know the importance of courts as safe havens for all who seek its remedies.  The fair administration of justice depends on it. The threat of ICE interference undermines it.

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Read more about what was said here.

Sanctuary’s Comments on the Proposed Title IX Rule

Sanctuary for Families

The Proposed Rule makes survivors of sexual misconduct even more disadvantaged in seeking relief for the harm they have suffered than any other category of complainants in school disciplinary proceedings. Sanctuary urges the Department to withdraw the Proposed Rule in its entirety.

On November 16, 2018, Secretary of Education Betsy DeVos proposed several changes to Title IX regulations introduced under the Obama administration. The proposal has been open for public comment over a 60-day period that ends on January 30, 2019.

Sanctuary for Families appreciates this opportunity to submit comments to the Department of Education. We thank Gibson Dunn for drafting Sanctuary’s official comments on the notice of proposed rulemaking regarding sexual misconduct in educational programs. 

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Background

During the past decade, rates of sexual violence have skyrocketed on college campuses across the country. More than one in five women undergraduates experience an attempted or completed sexual assault during college. The epidemic of sexual violence against women on campus led to widespread calls for more robust and fair procedures to govern how schools address complaints of sexual assault and sexual harassment on campus.  In 2011, the Department of Education issued guidance, known as the “Dear Colleague Letter,” that required schools to address sexual violence on campus and to implement procedures that would place the complainant and the accused on equal footing in Title IX proceedings.  The Dear Colleague Letter, which was implemented by colleges and universities across the country, was widely praised as striking the right balance between protecting the accused and facilitating the reporting and fair evaluation of complaints of sexual assault and sexual harassment on campus.

The Department rescinded the Dear Colleague Letter on September 22, 2017 and announced that it would engage in notice-and-comment rulemaking to draft new Title IX regulations.  On November 29, 2018, the Department issued the Proposed Rule[1], which sets forth an extensive set of restrictions and requirements for schools in responding to complaints of sexual misconduct. The Department says that the Proposed Rule is intended to “promote the purpose of Title IX” by requiring schools to address sexual misconduct and to ensure that investigations of sexual misconduct are “fair and impartial” and that “due process protections are in place for individuals accused of sexual harassment.”

Our Comments on the Proposed Rule

The Proposed Rule is nothing short of a wholesale effort to eviscerate Title IX as a mechanism to address sexual misconduct on campus. The Department’s arguments to the contrary are not credible.  The Proposed Rule singles out sexual misconduct—the one type of misconduct on campus that disproportionately impacts females students—and rigs Title IX proceedings in favor of the accused by creating barriers to reporting, limiting what sexual misconduct schools can address, and requiring schools to adopt procedures that put complainants at a significant disadvantage and all but guarantee that the accused prevail. The Proposed Rule would also conflict with and consequently preempt existing state laws that seek to do the opposite: require schools to address sexual misconduct on campus and protect survivors. In short, the Proposed Rule makes survivors of sexual misconduct even more disadvantaged in seeking relief for the harm they have suffered than any other category of complainants in school disciplinary proceedings.

First, the Proposed Rule represents a dramatic departure from prior guidance and existing civil rights laws by limiting the circumstances under which schools may address complaints of sexual misconduct.  Under the Proposed Rule, a school may only address sexual misconduct under Title IX if it meets a narrow definition of “sexual harassment,” occurs within defined geographic areas, and is reported to the correct school employee.  If all of these conditions are not met, then schools are allowed—and in many cases, required—to ignore the report, no matter how serious the sexual misconduct.  By narrowing the definition of “sexual harassment” and limiting the circumstances in which a school may respond to complaints of sexual misconduct pursuant to Title IX, the Proposed Rule enables perpetrators to engage in sexual assault and sexual harassment with impunity.

Second, for the narrow range of sexual misconduct that schools can address, the Proposed Rule mandates that schools implement procedures that favor the accused and that will discourage reporting of sexual misconduct on campus.  This is particularly troubling, given that sexual misconduct on campus is already widely under-reported.  The Proposed Rule requires survivors to satisfy a heightened evidentiary burden while providing significant advantages to the accused—most notably, a presumption of no misconduct, the ability to subject the complainant to cross-examination by an advisor of his choice, and more expansive appeal rights than those provided to the complainant.  Although the Proposed Rule states that such procedures are necessary to ensure that Title IX proceedings are “fair and impartial,” these procedures, in fact, only rig the proceedings in favor of the accused and subject survivors to re-traumatizing investigatory processes and heightened and unnecessary procedural hurdles.

Third, the Proposed Rule would preempt state laws that provide greater protections for survivors.  The Proposed Rule’s broad restrictions on the types of sexual misconduct complaints that schools may address and requirement that schools implement procedures that favor the accused would preempt state laws that currently mandate schools to address a wider range of sexual misconduct on campus and to implement procedures in disciplinary proceedings that place the complainant and accused on equal footing.  As a result, the Proposed Rule serves to not only prohibit schools from using Title IX to address many complaints of sexual misconduct but also guarantees that state laws protecting students from campus sexual violence cannot be enforced.

Taken together, these provisions, if enacted, will fundamentally impair the rights of survivors in favor of protecting the accused.  On its face, the Proposal seeks primarily to protect the reputation and interests of the accused—by shielding a broad range of sexual misconduct from the reach of Title IX, all but guaranteeing that the accused prevail in Title IX proceedings, and preempting state laws that provide protections to survivors.  What is clearly not of concern in the Proposal is the growing epidemic of sexual violence on campus.  The Proposed Rule also ignores the long-lasting, pernicious effects of sexual violence on student survivors:  survivors commonly struggle with depression, posttraumatic stress disorder, and anxiety attacks, and frequently face trauma-induced educational problems, such as declines in academic performance, loss of scholarship funds, delayed degree completion, and transferring schools.

The Proposed Rule—and its slavish protection of the interests of the accused—is premised on a myth that men on campus are the victims of a wave of false reports filed by women.  The data disproves this myth.  Studies of false reporting of sexual assault cases generally place the rate between 2% and 10%. The reality is that there is an epidemic of sexual violence on campus and incidents of sexual misconduct in schools are widely under-reported.  If enacted, the Proposed Rule would allow this very real epidemic to worsen, putting even more women on campus at risk of being sexually assaulted, and would undermine the abilities of schools to take effective action to address sexual violence on campus and hold perpetrators accountable. Sanctuary urges the Department to withdraw the Proposed Rule in its entirety.

 

   [1]   The Proposed Rule refers to “sexual harassment,” which it defines as “an employee of the [school] conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct; or unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the [school’s] education program or activity; or sexual assault.”  Because the Proposed Rule’s definition of “sexual harassment” also includes sexual assault, Sanctuary will use the term “sexual misconduct” in these comments to encompass both sexual harassment and sexual assault.