Declaration of Michael Smith — East Bay Sanctuary Covenant — East Bay Sanctuary Covenant v. Barr (N.D. Cal.)

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The Declaration of Michael Smith, Refugee Rights Program Director of the East Bay Sanctuary Covenant (EBSC), filed 07/17/19 as Document 3-2 in Case 4:19-cv-04073-JST in the U.S. District Court, N.D. Cal., executed the 15th day of July, 2019. It states that EBSC's affirmative asylum program has filed nearly 5,000 cases since 1992 and has over 500 cases pending before USCIS, that approximately 50% of its clients entered through the southern land border after transiting through a third country, and that the new rule barring those individuals from asylum would cut EBSC's client base by about half, threaten the $2,000 per case it receives under a California Department of Social Services grant and divert its resources.

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Case 4:19-cv-04073-JST   Document 3-2   Filed 07/17/19   Page 1 of 7
DECLARATION OF MICHAEL SMITH, REFUGEE RIGHTS PROGRAM DIRECTOR,
EAST BAY SANCTUARY COVENANT

I, Michael Smith, pursuant to 28 U.S.C. § 1746, declare as follows:

1. I make this declaration based on my personal knowledge except where I have
indicated otherwise. If called as a witness, I would testify competently and truthfully to these
matters.

2. I am the Refugee Rights Program Director of the East Bay Sanctuary Covenant
(“EBSC”), I helped start EBSC’s affirmative asylum program in 1992, and have been with the
organization since. In my current role, I oversee our affirmative asylum practice, which includes
over 500 cases currently pending before the U.S. Citizenship and Immigration Services
("USCIS").

3. EBSC is a 50l(c)(3) nonprofit corporation, incorporated in 1996 in Berkeley,
California. Our office is located at 2362 Bancroft Way, Berkeley, California, 94704.

EBSC’s mission and _ activities

4. EBSC is part of the National Sanctuary Movement founded in 1982 to assist refugees
fleeing the terrible civil wars and violence in E] Salvador and Guatemala.

5. EBSC’s mission is to offer sanctuary, support, community. organizing assistance,
advocacy, and legal services to people escaping war, terror, political persecution, intolerance,
exploitation, and other expressions of violence. In particular, one of EBSC’s critical missions is
to assist individuals fleeing persecution in applying for asylum and similar humanitarian relief in
the United States. EBSC also trains and mentors law students and attorneys to help clients apply |
for asylum.

6. As part of its mission, EBSC provides legal and social services to immigrants and

refugees within the jurisdiction of the San Francisco Asylum Office, including applicants in
Case 4:19-cv-04073-JST   Document 3-2   Filed 07/17/19   Page 2 of 7
California, Washington, and Oregon. We offer our clients legal assistance in applying for
affirmative asylum, Deferred Action for Childhood Arrivals (“DACA”), Temporary
Protective Status (“TPS”), Special Immigrant Juvenile Status (“SIJS”), permanent
residency, and naturalization. We also provide social services, including regular workshops
on integrating new immigrants into the United States, English as a second language tutoring
program, and one-on-one assistance in finding housing, employment, or educational
opportunities.

7. Also, as part of its mission, EBSC helps train professionals to assist immigrant
and refugee communities. For example, we partner with law schools to provide legal
training opportunities to law students and attorneys looking to get experience in immigration

and asylum law.

EBSC’s_ affirmative asylum program

8. EBSC’s affirmative asylum program is a key part of the organization’s mission.
It is our most important program and accounts for nearly half of our organizational budget. Its
success is the reason that EBSC has been able to grow and develop other programs.
Affirmative asylum applications are those that are filed with USCIS. rather than in
immigration court, on behalf of applicants who are not in removal proceedings. Individuals not
in removal proceedings cannot apply for other forms of relief like Withholding of Removal or
protection under the Convention against Torture, which only an Immigration Judge can
adjudicate.

9. Our program is among the largest in the country and provides legal services to
individuals applying for affirmative asylum within the San Francisco Asylum Office

jurisdiction. Since the affirmative asylum program began in 1992, we have filed nearly
Case 4:19-cv-04073-JST   Document 3-2   Filed 07/17/19   Page 3 of 7
5,000 cases. Over 97% of adjudicated asylum applications have been granted. Currently, we
handle about 20 intakes per week, and have over 500 pending cases before USCIS.

10. Approximately 50% of the clients in our affirmative asylum program in 2018
entered the country through the southern land border after transiting through a third country en
route to seek asylum in the United States, and we expect that the rate will be similar in the

future. Most of these individuals are fleeing persecution in their home countries in Central

America.

11. We work mainly with low-income and poor refugees and immigrants from around
the world in the jurisdiction of the San Francisco Asylum Office. We work especially closely
with vulnerable populations in the immigrant and refugee community, including victims of
gender-based violence and domestic violence, indigenous Guatemalans, LGBT (lesbian, gay,
bi-sexual, transgender) individuals, and those. suffering from HIV/AIDS, as well as
unaccompanied children.

12.Funding for our affirmative asylum program is based in part on the number of
cases we handle per year, and the number of cases we anticipate serving. For instance, one of
our main grants is currently from the California Department of Social Services. In applying for
this grant for the year 2018, we relied on the fact that we filed approximately 280 affirmative
asylum cases in 2017. Around half of these cases were for individuals who entered the U.S.
through the southern land border after transiting through a third country. We currently receive
$2,000 for every asylum case we handle, which does not cover the full cost of ourservices.

13. Currently, we have 13 staff members who work primarily in our affirmative asylum
program. These include 6 attorneys, 1 BIA accredited representative, and 6 support or
administrative staff. These individuals carry out legal intakes, work with clients to fill out

paperwork, help clients collect relevant evidence for their case, prepare clients for interviews,
Case 4:19-cv-04073-JST   Document 3-2   Filed 07/17/19   Page 4 of 7
and represent clients in affirmative asylum interviews with USCIS officers. We also work with
and train law students to represent clients in affirmative asylum cases. Since 1994, for instance,
we have worked with U.C. Berkeley School of Law. Currently, we help oversee the law
school’s California Asylum Representation Clinic (CARC), which represents approximately
40 affirmative asylum cases per year. We also have second- and third-year law students from
other schools perform externships, and have a summer internship program. Law students are
an important part of our work because they are able to represent clients for much of the
affirmative asylum process, under the supervision of one of our attorneys. Law students allow
us to significantly increase the number of cases we can process.
The threat to EBSC’s mission and affirmative asylum _ program

14. The new regulation barring individuals from. asylum who enter through the
southern land border after transiting through a third country will significantly harm EBSC as
an organization, seriously frustrate EBSC’s mission, and divert organizational resources. As
the result of the new rule, the organization will have to expend significant resources to adjust
to a new regulatory landscape and substantially reduce its affirmative asylum practice. This
would result in a significant restricting of our organization and the overall number of clients we
can serve, and a diversion of resources from our current practice. The new policies also directly
frustrate EBSC’s mission of providing assistance and support to individuals fleeing persecution
and violence, especially through our affirmative asylum pro gram.

15.As noted above, providing legal services to affirmative asylum applicants,
regardless of their manner or means of entry is a key part EBSC’s mission and core activities.
Since the rule makes individuals who enter through the southern land border after transiting
through a third country unable to obtain asylum, EBSC would be unable to continue much of

the work it does in this regard. Because approximately 50% of our affirmative asylum
Case 4:19-cv-04073-JST   Document 3-2   Filed 07/17/19   Page 5 of 7
clients have entered the U.S. through the southern land border after passing through another
country first, EBSC would no longer be able to serve about half of our entire client base going
forward.

16. The new rule would also jeopardize EBSC’s funding streams. Currently, under
our California Department of Social Services grant, we receive $2,000 for every affirmative
asylum case we file. If the organization were no longer able to handle affirmative cases for
individuals who transited through a third country en route to the southern border, we would
likely face a marked decrease in our budget. The grant that funds EBSC’s work is only to
serve people who make under 250% of the poverty guidelines and EBSC’s mission is to serve
poor asylum seekers from all around the world who have few resources and cannot afford
attorneys. In practice, many of the few noncitizens who will remain eligible to apply
affirmatively for asylum under this rule are those who have visas of some kind and can travel to
the United States by air. For the most part, individuals who obtain visas and travel without
transiting through a third country fall outside of the population it is EBSC’s mission to serve,
and they likely do not meet the income requirements for EBSC’s services. |

17. As a result of the new policies, we would either have to significantly cut our
affirmative asylum program and staff, or dramatically overhaul our program to provide types
of assistance we are not currently equipped or trained to provide. EBSC does not currently have
capacity to handle applications for humanitarian relief in the removal context. We handle
defensive asylum cases only in the rare situation in which one of our clients who initially
applies affirmatively is then referred to immigration court by the asylum office. We currently
have. only four defensive asylum cases on our docket. Shifting from an almost exclusively
affirmative asylum-based model to representing much larger numbers of individuals in

removal cases would be extremely resource intensive, and would involve developing such a
Case 4:19-cv-04073-JST   Document 3-2   Filed 07/17/19   Page 6 of 7
program, developing training materials, identifying a new client base, significant training of
existing staff, and hiring different staff experienced in practicing before the immigration court.
In addition, as noted, much of our affirmative asylum work is done by volunteers—law
students and non-practicing attorney who prepare applications under supervision of EBSC
attorneys—but these volunteers would not be able to appear independently in immigration
court.

18. Even if EBSC were to attempt to overhaul our service delivery model to represent
asylum seekers in removal proceedings, it would be extremely resource intensive to represent
these individuals on Withholding of Removal and/or Convention against Torture claims instead
of asylum. That is in part because such claims are subject to a stricter standard and do not
allow for derivative claims for certain close family members as with asylum applications.
Instead, EBSC would have to prepare a separate application for each individual. Given the
intensive resources required, if we were forced to shift our model to do increased removal
cases, EBSC would be able to serve only a fraction of the individuals that we currently
represent through our affirmative asylum program.

19. In addition, we would have to divert significant resources because of the new rule.
This would include devoting stafftime and organizational resources to understanding the new
rule, its impact on the communities we serve, and subsequently educating and advising
our staff, clients, and prospective clients accordingly. Educating the communities we serve
about the new policies would require significant resources and take away from our other
existing programs. To properly counsel new prospective clients who seek our affirmative
asylum services going forward, we would need to invest resources in training multiple intake
staff not only to screen for asylum eligibility based on the new rule, but to conduct detailed

screenings for alternative forms of relief to facilitate referrals or other forms of assistance as
Case 4:19-cv-04073-JST   Document 3-2   Filed 07/17/19   Page 7 of 7
appropriate.

20.In addition, as part of its mission, EBSC supervises and trains law students to
prepare and represent clients in affirmative cases. As a result of the new rule, however, we
would be unable to continue training law students to handle these types of cases, or would
have to substantially reduce our training program. This would frustrate our mission of
helping to train legal professionals to assist individuals fleeing persecution and violence.

21.EBSC is also harmed by the inability to provide comment on the new rule
before it went into effect. If the government had provided an opportunity for notice and
comment before promulgating the new rule, EBSC would have submitted comments

regarding why the rule is unlawful and factually unsupported.

I hereby declare under penalty of perjury that the foregoing is true and correct.

Melee LSD

Michael Smith

Executed this 15th day of July, 2019


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