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As you may have heard in the news, there are a ton of women and children fleeing violence (from abusive partners, violent gangs, corrupt police, and more) in Central America and coming to the U.S. to seek asylum. They are women. and children. and infants. They are refugees. They have friends and family in the U.S. that can feed and shelter them while they're pursuing their asylum claims in immigration court.

You would think that the Obama administration, which controls Immigrations and Customs Enforcement (ICE) and the Department of Homeland Security (DHS), would welcome these women and children, process them at the border, and then let them go on their way to join their U.S. sponsors, file their asylum claims, and build new lives free from gang violence, death threats, and brutal abuse.

You would be wrong.

The Obama administration has been detaining these refugee women and children in what's called "family detention." They think that asylum-seeking "family units," which means women and children, are a threat to national security, and so they process the refugees at the border and then ship them off to euphemistically named "family residential facilities" that are jails in everything but name. The Corrections Corporation of America (CCA), which has the distinction of being a private prison company that operates many prison facilities and makes an obscene amount of money off of it, runs the immigration jail in Dilley, TX. You can call it the "South Texas Family Residential Center," but that doesn't change the fact that Dilley is a jail, and that the Obama administration is holding asylum seekers, traumatized refugees who have strong claims for asylum under U.S. and international law, in jail.

There are babies incarcerated in Dilley.

There are children incarcerated in Dilley.

There are women who have suffered rape, partner violence, death threats, beatings, gang recruitment, and more horrors beyond description, incarcerated in Dilley.

Immigration detention is not like criminal detention. You get put in criminal prison if you're convicted of a crime (this is oversimplifying, but let's go with this for now). You're supposed to get put in immigration detention only if (1) you're a flight risk and you won't attend your immigration court dates unless you are held in prison and escorted to your court dates; or (2) you're a danger to the community. With family detention, Obama has set a blanket policy of detaining all family units seeking asylum in the U.S. from Central America, without even first determining whether they're a flight risk or a danger to the community. This is a travesty against all notions of due process, liberty, and human decency.

Theoretically, the Dilley inmates (the CCA corrections officers--oops, I'm sorry, the CCA staff--call them "residents," but they are inmates no matter what euphemism you use) have the right to be released. An immigration judge will hold a bond hearing, during which s/he considers whether the asylum-seeker is a flight risk, or if she's likely to attend future court dates if released from immigration jail, and whether she's a danger to the community. The immigration judge has the power to release the refugees on their own recognizance (i.e. without setting a bond), or can impose a bond that the refugee and her family have to pay in order for her to get out of Dilley immigration jail.

I spent the last week representing and counseling women and children in Dilley on their bond hearings. Every single woman and child I met with has a strong case for asylum, and desperately wants to file and pursue an asylum claim. They want to go to their immigration court dates and will do so if they're released from Dilley; they don't need to be held in Dilley's immigration jail in order to attend their dates. They're also not dangerous; they're refugees fleeing danger, and the most that they want is to get asylum and rebuild their lives in safety.

Nonetheless, the immigration judges have been setting astronomically high bonds for release. Rather than release my clients and the other detainees on their own recognizance (i.e. without any bond), the immigration judges have set bonds of thousands of dollars. Theoretically, this means that if their family and friends in the U.S. can scrounge up the money, my clients can be released from immigration jail and pursue their asylum cases while free. This is a huge advantage, because at Dilley, my clients have virtually no access to counsel; no one to help them fill out their asylum applications; no one to translate the court filing forms from English into Spanish for them; and no one to guide them through the maze that is asylum and immigration law. My clients have excellent cases for asylum, and if they can pay the bond and get out of Dilley, they will be able to find pro bono attorneys and people to help them with their asylum cases, and will probably get asylum.

However, the bonds are far, far too high. The detainees' families cannot pay the bonds that the immigration judges are setting. They simply do not have the money to pay these unnecessary bonds. If the detainees can't bond out of Dilley and have to stay in immigration jail, where they have virtually no access to lawyers and no access to anyone who can help them with their asylum claims, they are absolutely going to lose their asylum cases, and the Obama administration will deport them. And then they will die.

One of my clients fled her home country because a violent criminal organization threatened to dismember her young child and give her back the pieces in a garbage bag. If my client can't get bonded out and has to represent herself in her asylum proceeding, in a legal system she doesn't understand, in a language she doesn't speak, the Obama administration will deport them to their deaths.

My classmates and I are raising money to assist the detainees' families in paying the bonds, so that these refugee women and children can get out of Dilley immigration prison, find an attorney, and file their asylum claims. Please donate to our Bond 4 Refugees GoFundMe. Every dollar helps, and every dollar goes straight to assisting the families with bond payment. Please share this link and please read more about family detention, and what our government is doing to the tired, the poor, the huddled masses fleeing to the United States yearning to be free from violence and the constant threat of death.



More on Family Detention

Mother Jones - Inside Obama's Family Deportation Mill" - an excellent article on all the problems with family detention. It's written about the Artesia family detention center that Obama shut down in December, but the Dilley and Karnes immigration jails have most of the same problems: they're an hour drive from the nearest major city and any appreciable legal community that can help the incarcerated women and chlidren; Dilley was refusing to set up legal calls (WHICH THE DETAINEES HAVE A RIGHT TO) until lawyers (aka my clinic team) arrived on the ground; the immigration judges are fast-tracking the cases; and the women have no idea what they're supposed to do, how they're supposed to fill out the court forms (the forms are only in English), and are being denied any shot at a fair legal hearing.

NY Times - Deported From the Middle of Nowhere - At an Immigrant Detention Center, Due Process Denied - a shorter piece that identifies all the problems with Obama's blanket detention policy on women-and-children seeking asylum from Central America.

"U.S. panel hears testimony on guard charged over involvement with inmate" - the U.S. Commission on Civil Rights is hearing testimony on a culture of institutional sexual assault against detained women and children asylum-seekers at the Berks, PA "family residential center." There are criminal charges against one of the guards for sexually assaulting and raping one of the detained women.

ACLU - ACLU sues Obama administration for detaining asylum seekers as intimidation tactic" - the ACLU has filed a lawsuit against the Obama administration for their policy of detaining asylum seekers as a deterrence policy.

You know, the Obama administration's position is that if you allow these women-and-children to go free when they cross the border, settle down with their relatives in the U.S., and pursue their asylum claims without being locked up in jail, then there'll be a swarm of refugees coming to the U.S. That is in all seriousness their actual justification for locking up all these women-and-children. Last week, I had a court hearing and the DHS attorney made that argument. This argument is ridiculous, because locking people up will not deter them. The women-and-children who are fleeing to the U.S. from Central America are not economic immigrants making a rational decision about where their employment prospects are better, they are refugees running for their lives. They are desperate, they didn't want to come here, and they didn't want to abandon their families, their friends, their church communities, and everything they knew in order to make a dangerous, grueling journey up through Central America to the U.S. border. They came because they had no other options. All the women-and-children who will come to seek asylum in the future will come because they have no other options and are scared for their lives, scared enough to leave everything behind. This blanket detention policy is not going to deter them one way or another, and so the most humane thing, and our obligation under our own laws and international human rights laws, is to admit the refugees, let them resettle, and let them pursue their asylum claims, rather than lock them up in situations that guarantee they'll lose their claims. And they'll be losing their claims not because their claims are bad, but because they don't understand English and can't fill out the application forms; because they don't understand immigration law and don't know what they're supposed to argue; and don't know how to send their forms to the court (which is in another state) and the government because no one tells them any of this. No one helps them with any of this.

Please help our clients' families bond them out of Dilley, so they have the best possible shot at getting asylum. Every last bit helps. Bond 4 Refugees.
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I caught some of the Rose Parade this morning, including the AIDS Healthcare Foundation's float. The AHF float was a giant wedding cake topped with live cake toppers: A gay couple and an officiant. According to the parade broadcast, Dan and Aubrey have been together for twelve years, and about 9:30 this morning, they were married while floating in the parade, before hundreds of thousands of people and countless masses of flowers (best wedding floral arrangements ever!). The KTLA broadcasters, Stephanie Edwards and Bob Eubanks, announced the AHF float, and the wedding ceremony, just like all the other parade floats, commenting on the float's design and theme (the AHF float won a parade trophy), giving a little background on the couple, mentioning how getting married in the Rose Parade after being together for over a decade perfectly suits the parade theme of "Dreams Come True," and wishing them congratulations. They treated it like a normal, run of the mill event, no mention of politics or how "controversial" same-sex marriage is, nothing about Prop. 8 or Perry or the couple being gay, just wished the happy couple their best and moved onto the next float as if this were a perfectly ordinary (i.e. straight), public wedding.

I just -- I remember the tail days of 2008, the depression hanging over SF, the candlelight vigils, the demonstrations, the search for understanding in how Prop. 8 could've happened, and the need for a new way to go on. I remember the thoughtlessly cruel glee on the face of the woman who saw me holding "No on Prop. 8" signs on Election Day, and how she laughed and shouted, "You won't like the way I voted!" at me. I remember the couple that told me they were on their way to get married right that afternoon, because they didn't know if they'd still be allowed to once the ballots were in and Prop. 8 was decided. I remember so much more, and to see this wedding celebrated in a California tradition, a public spectacle, and hear it treated as ordinary and simply an occasion for congratulations by the broadcasters is the best start to the New Year that I've ever had.

Many congratulations and best wishes for a long and happy life together to Aubrey & Dan. How far we've come. There were kids at the New Year's Eve party last night who will hopefully grow up in a world where same-sex marriage has always been legal and same-sex couples will be as ordinary to them as their cross-sex parents. To move from being ostracized and vilified to being so accepted that there is no need to comment on the act of acceptance, is part of the progress I fought for all those years ago, and to see it happening is more than I could've imagined. 2014, hail and well met!
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[personal profile] sahiya is running a fic fundraiser for the Stanford Cat Network, which feeds and spays/neuters the stray cats on Stanford's campus. The Network's shelter caught on fire the night before last, and so they could use donations. [personal profile] sahiya is doing fic in White Collar and Doctor Who (*cough* fans of wee!Amelia Pond *cough*) for donations of $15 per fic to SCN, so if you've got some spare change, head over there.
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Ok, so here are the Supreme Court's decisions in U.S. v. Windsor (PDF) and Hollingsworth v. Perry (PDF).

Windsor: This is a case involving Section 3 of DOMA, a federal law. Section 3 defines marriage as between one woman and one man, for the purposes of "any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States." The Court held, 5-4 (Kennedy, Ginsburg, Sotomayor, Breyer, Kagan, with Roberts, Scalia, and Alito filing dissenting opinions, and Thomas joining Scalia's dissent and part of Alito's), that DOMA violates the Equal Protection Clause of the 14th Amendment, which is applied to the federal government by the Due Process Clause of the 5th Amendment. What this means is that at the federal level, same-sex marriages are recognized as marriages. So for the purposes of federal tax returns, immigration (i.e. sponsoring a foreign same-sex spouse for immigration), and other federal laws or regulations affecting marriages, same-sex marriages are valid.

Prior to today, married couples in states where same-sex marriage was legal were in the weird position of being treated as a married couple by the state, but not by the federal government. This situation was epitomized of having to do all your taxes as a married couple in order to file your state tax returns, and then do them all as single individuals for your federal tax returns. For couples who live in states where same-sex marriage is not legal, they are now in the reverse situation, where their marriage is recognized at the federal level but not the state level (so, still have to file two sets of tax returns). For couples who live in states where same-sex marriage is legal, they are now recognized as legally married by their state and the federal government. DOMA Section 2, which provides that no state has to recognize a same-sex marriage performed out of state unless it chooses to, contrary to the Full Faith & Credit clause of the Constitution, still stands. So states that have passed laws explicitly refusing to recognize out-of-state same-sex marriages still do not recognize same-sex marriages when it comes to state laws and state-administered benefits. Kennedy's opinion explicitly points that out: "The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. . . . This opinion and its holding are confined to those lawful marriages." (emphasis added).

Perry: This decision was decided on standing, a procedural question. To explain this, we need a short history of the Perry litigation. Back in Nov. 2008, the day after Prop. 8 passed, same-sex couples that could no longer get married filed a lawsuit against the state of California, as represented by then-governor Schwarzenegger, arguing that Prop. 8 was unconstitutional under the 14th Amendment Due Process and Equal Protection Clauses. The Northern District of California, a federal trial court, ruled that Prop. 8 was indeed unconstitutional and enjoined its enforcement. CA chose not to appeal, at which point the proponents of Prop. 8 chose to intervene and filed an appeal.

In lawsuits, standing means you have the right to sue. This right is typically limited to parties who are injured by a law or action. In the NDCA case, the plaintiffs had standing--the right to sue--because Prop. 8 affected their civil rights. In the 9th Circuit case, it was unclear whether the official proponents of the Prop. 8 ballot initiative had the right to appeal the decision, since the case didn't really affect them. They were not harmed, in any way, by the district court's ruling, because the legality of same-sex marriage didn't affect their rights. The government would have had standing, had it chosen to appeal, because the decision affected a state law (state constitution, actually).

The 9th Circuit thought that the question of whether the backers of Prop. 8, as represented by Hollingsworth (the named party in the case), had standing was a question of state law, not federal law, and so they certified the standing question to the CA Supreme Court (basically, they sent the issue to the CA SC and said, "Hey, can you resolve this issue of state law for us? Kthxbai."). The CA Supreme Court said yes, Hollingsworth had standing, because the backers of the ballot initiative have a substantial interest in what happens to that initiative even after it becomes law (this is a significantly abbreviated version of what the court decided), and so the 9th Circuit ruled that Hollingsworth had standing to appeal the NDCA ruling, and then upheld the NDCA ruling that Prop. 8 was unconstitutional.

The Supreme Court disagreed 5-4 (Robert, Scalia, Ginsburg, Breyer, Kagan in the majority, with Kennedy filing a dissent joined by Thomas, Alito, and Sotomayor) with the 9th Circuit. Roberts' opinion holds that Hollingsworth did not have standing to appeal the NCDA decision, since they, the Prop. 8 backers, did not suffer any personal injury from that decision. SCOTUS made this decision purely on procedural grounds, without proceeding to the merits of the case. In other words, the opinion does not actually consider whether Prop. 8 violates the Equal Protection Clause, it just says that Hollingsworth didn't have the right to sue/appeal to begin with, and the 9th Circuit was wrong in that respect and shouldn't have considered the merits of the case at all. SCOTUS vacated the 9th Circuit's opinion and remanded the case back to the 9th Circuit with instructions to dismiss the appeal. What this means is that the 9th Circuit opinion is now gone, but the Northern District's opinion holding Prop. 8 unconstitutional still stands. Thus, same-sex marriage is now legal again in California. In combination with Windsor, the Perry ruling means that same-sex marriages in California are valid at both the state and federal levels. Just don't move or travel to a state that refuses to recognize same-sex marriages. Perry does not affect same-sex marriage bans anywhere outside California.

The dissent in Perry did not touch on the merits of the case, either. The lineup of dissenters may look bizarre if you're used to thinking of the Court in terms of liberal v. conservative, but the dissent was actually about federal court deference to state courts on issues of state law. Kennedy's dissent argues that while the question of Prop. 8's constitutionality is a federal question, the question of whether Hollingsworth could stand in the position of the state of California and appeal the NCDA decision is an issue of state law, not federal law. The CA Supreme Court ruled on that issue, and so SCOTUS, like the 9th Circuit, should defer to the CA Supreme Court's decision, which was based on California laws about standing, instead of applying federal law about standing. The dissent argued that this is particularly the case given that Prop. 8 was passed by voter initiative:
"In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability."
In short, Windsor means that same-sex couples that were married in states or countries recognizing same-sex marriages will receive all the federal benefits of marriage, and Perry means that same-sex marriage is valid in California. No more and no less. What Perry means for standing in other, non-marriage equality cases, remains to be seen, and on that topic, I am unsure if this will be a good decision in the long run.

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