Court filing

Declaration of Nicole Ramos (Al Otro Lado) — East Bay Sanctuary v. Barr

Record facts

Court	U.S. District Court, Northern District of California
Filed	2021-01-21

U.S. District Court, Northern District of California · No. 4:19-cv-04073-JST · Doc. 131-2 · 2021-01-21 · Docket on CourtListener

Full text

Exhibit A

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FURTHER SUPPLEMENTAL DECLARATION OF NICOLE RAMOS, BORDER
RIGHTS PROJECT DIRECTOR, AL OTRO LADO

I, Nicole Ramos, pursuant to 28 U.S.C. § 1746, declare as follows:
1.
I am a U.S.-licensed attorney practicing in the area of immigration law and human
rights. I am barred by the State of New York, and I am a former Assistant Federal Public
Defender. I am the Border Rights Project Director of Al Otro Lado. In that capacity, I work
with asylum seekers in Tijuana, Mexico. I have been a resident of Tijuana for the last six years,
and have been working with asylum seekers in Tijuana and accompanying them to U.S. ports of
entry since December 2015.
2.
I am familiar with the new final rule (“Final Rule”), which seeks to deny asylum
to anyone who enters, attempts to enter, or arrives in the United States through the U.S.-Mexico
southern border without having applied for and been denied asylum in a country through which
they transited, with limited exceptions. I am also familiar with the previous interim final rule
(“Interim Rule”), which is substantially similar and has been vacated.
Al Otro Lado’s Mission
3.
Al Otro Lado serves indigent deportees, migrants, refugees and their families,
principally in Los Angeles and San Diego, California, and Tijuana, Mexico. Al Otro Lado's
mission is to provide screening, advocacy, and legal representation for individuals in asylum and
other immigration proceedings, to seek redress for civil rights violations, and to assist deportees,
refugees, and other indigent immigrants with legal and social service needs. We have a staff of
12 people in our Tijuana office.
4.
Through its Border Rights Project, Al Otro Lado hosts legal orientation
workshops at our offices in Tijuana, Mexico. Our focus is on providing information about the
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U.S. asylum system to migrants who wish to seek asylum in the United States. As part of this
representation, our staff accompany some asylum seekers who wish to present themselves to
Customs and Border Protection (“CBP”) officers at the San Ysidro Port of Entry, represent them
at their credible/reasonable fear interviews before asylum officers with U.S. Citizenship and
Immigration Services (“USCIS”), and assist them with their pro se I-589 asylum applications.
On average, Al Otro Lado, our volunteer attorneys, and clinic students from law schools around
the country provide representation to about 30 individuals per year in their credible fear
interviews. Since November of 2018, we have helped over 5,000 migrants prepare for their
credible fear interviews. Because we only encourage migrants to present themselves at a Port of
Entry, prior to the Interim Rule, our service delivery model in Tijuana, our volunteer training
program, and our materials are geared toward preparing asylum seekers for credible fear, rather
than to meet the higher standard in reasonable fear interviews. We also work with individuals
returned to Mexico pending the resolution of their immigration proceedings pursuant to the
Migrant Protection Protocols, and with individuals who are waiting in Mexico for the
opportunity to apply for asylum in the United States but have been delayed in doing so because
of the U.S. policy of metering migrants at ports of entry.
5.
To expand our capacity, Al Otro Lado frequently recruits and trains volunteers
and pro bono attorneys to assist with legal orientation workshops in Tijuana, border
accompaniment, and credible fear representation. Since November 2018, we have trained and
deployed over 3,000 volunteers.
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6.
We also work with asylum seekers and other community advocates to document
human rights violations by both U.S. and Mexican immigration authorities against asylum
seekers.
7.
Al Otro Lado also has an office in San Diego, California, through which we
provide representation to detained asylum seekers in Southern California. Al Otro Lado’s San
Diego office hosts our Otay Mesa Release Project, focused on helping detained asylum seekers
apply for bond or parole.
8.
Pursuant to the Trump Administration’s “Zero Tolerance” and “Operation
Streamline” policies, large numbers of migrants entering the United States without inspection are
criminally prosecuted. If asylum seekers enter without inspection near San Diego, they are
usually detained at the Otay Mesa Detention Facility and represented by federal public defenders
in their criminal proceedings. The federal public defenders often refer these asylum seekers to
Al Otro Lado for representation in their bond and/or removal proceedings.
9.
Generally, when asylum seekers who entered without inspection are referred to Al
Otro Lado, our attorneys represent them in their bond proceedings. Almost all these clients are
released on bond. If an individual goes to the Los Angeles area following release, our Los
Angeles office continues to represent him or her before the Los Angeles immigration court. If
the client moves to another jurisdiction, Al Otro Lado connects the client with local pro bono
counsel or a local nonprofit.
10.
The San Diego office also receives referrals from the Tijuana office. Al Otro
Lado staff in Tijuana identify particularly vulnerable asylum seekers, and we then work to
prepare their parole applications. Al Otro Lado’s Otay Mesa Release Project is an established
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partnership with Innovation Law Lab’s Border X Project, through which we collaborate to locate
sponsors, prepare parole and bond applications, and represent asylum seekers in their requests
for release from custody. Through this collaboration, we have helped obtain release for over 50
asylum seekers since January of 2019. Al Otro Lado serves clients regardless of where they
enter or plan to enter the United States. Although most of our clients enter through California,
our clients also travel to cross into the United States via the Texas border, because of the long
waits to present at a port of entry in Tijuana.
Impact of the Transit Ban on Al Otro Lado
11.
Once the Final Rule is in effect, individuals who transit through a third country
while en route to the United States and do not apply for asylum there are, once again, ineligible
for asylum in the United States. Because of the Interim Rule and the possibility that the Final
Rule will reinstate the transit ban, Al Otro Lado has had to completely revamp its representation
strategy, overhaul the materials we use to train volunteers and pro bono attorneys and the
materials we have developed to assist asylum seekers out of our Tijuana office, and develop a
whole new training program for our attorneys in our San Diego office. The Final Rule will force
Al Otro Lado to continue devoting resources to training or educating staff, volunteers, clients,
and broader communities on the transit ban—resources that the organization could otherwise use
to advance its mission of helping clients obtain asylum. In addition, we would have to expend
additional resources to brief eligibility issues, resulting in additional hearings and time spent on
each case, and would have to apply for more complex and time-consuming forms of relief for
our clients, thus limiting the number of clients we can represent.
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12.
The virtually identical Interim Rule drained Al Otro Lado’s resources when it was
in effect. Because of the drastic change in asylum eligibility, Al Otro Lado’s staff had to train its
staff and volunteers on the implications of the transit ban, revise training and education
materials, and conduct numerous presentations in its client communities. Because the Interim
Rule has been vacated for more than six months, Al Otro Lado would have to repeat the staff
training and community education process for the Final Rule. A community education campaign
for the Final Rule will be especially difficult to execute because community members will be
confused by the whiplash of the Interim Rule being issued, enjoined, allowed to take effect,
vacated, and now reinstated.
13.
The Final Rule, like the Interim Rule, will affect the majority of the individuals Al
Otro Lado built its mission and programs to serve. Approximately two-thirds of the individuals
Al Otro Lado serves out of its Tijuana office transited through another country. 2,254 of Al Otro
Lado’s adult clients have already transited through a third country and entered the United States
after July 16, 2019; all of those clients and all other family members with whom they migrated to
the border would be impacted by the Final Rule.
14.
The Final Rule, like the Interim Rule, will continue to slow down our client intake
process because of the time it takes to explain the transit policy to clients. The complexity of the
transit ban, combined with the Migrant Protection Protocols and the Title 42 policy, has caused
intakes to take twice as much time as usual. In my experience, explaining the transit ban is the
most time-consuming because clients are astonished and dumbfounded by the requirement of
seeking asylum in countries like Mexico or Guatemala. Clients tend to protest strenuously that
doing so is absurd for a variety of reasons and that the transit ban is nonsensical—Guatemala has
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no asylum office, and they have never heard of anyone seeking asylum there; Mexico is too
dangerous because it has the same gangs (and sometimes the same gang members) as their home
country; Central Americans, Africans, and non-Spanish speaking clients suffer pervasive housing
discrimination in Mexico, even when Al Otro Lado guarantees rent payments to landlords; lack
of employment opportunities in Mexico is exacerbated by the Mexican asylum system’s long
processing times; and clients are often easy targets for corrupt police officers and organized
crime due to their racial and linguistic differences. Convincing the clients that none of those
common-sense considerations matter for purposes of the transit ban takes significant time.
Additionally, because we also prepare our clients for fear interviews and provide other legal
advice during intake, our attorneys have to expend more time explaining the difference between
asylum and withholding of removal, the practical difference between proving a 10% probability
and a 51% probability of persecution, and the difference between credible and reasonable fear.
If the Final Rule is not enjoined or vacated, Al Otro Lado will have to continue to devote
significant time explaining the transit ban policy to its clients, unnecessarily prolonging the
intake process and draining staff time.
15.
The Final Rule will also require us to divert resources away from our core
programs to litigate the eligibility bar in individual cases, as well as to pursue more complex and
time-consuming forms of relief. The vast majority of our asylum-seeking clients who enter or
attempt to enter the United States at the southern border have immediate family members in their
countries of origin with whom they hope to reunify once they gain lawful status in the United
States. Stripping these individuals of the ability to qualify for asylum would also eliminate their
ability to petition for their immediate family members, even if they ultimately win withholding
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of removal or protection under the Convention Against Torture. In many cases, the spouses and
children left behind in the country of origin also face persecution, and our clients are anxious to
win asylum so that they can remove their family members from dangerous situations. Given our
clients’ goals, Al Otro Lado would have no choice but to vigorously litigate issues of asylum
eligibility for any client who transited through another country and would otherwise be eligible
for asylum.
16.
In addition, most of Al Otro Lado’s asylum clients are families traveling with
minor children. Unlike asylum applications, withholding and CAT applications do not allow for
a principal applicant to petition for derivative applicants such as children. Thus, should they
become ineligible for asylum, spouses and minor children could no longer be counted as
derivatives in a single application. Al Otro Lado would be forced to prepare separate cases for
each family member, exponentially increasing the number of hours required to prepare the cases
for a family unit. This will require significant additional staff time to prepare and litigate each
case, including preparing separate evidence and witnesses in each separate case. Compared to
asylum applications, withholding and CAT applications require meeting a higher evidentiary
standard, and often require more time and greater legal resources. Similarly, because the
evidentiary standard for withholding and CAT is higher, these regulatory changes will also likely
lead to a greater number of losses in immigration court, and a greater number of appeals filed by
attorneys.
17.
The Final Rule also would jeopardize some of Al Otro Lado’s most critical
funding streams. Currently, the California Department of Social Services (“CDSS”) gives us
funding at a fixed per-case rate to represent individuals in bond proceedings, which may no
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longer be available to individuals subject to the Final Rule. We also receive a fixed per-case rate
to represent migrants in their removal cases, but this funding is limited to a small number of
cases. Even now, the funding received per full removal case does not cover the true cost of a
complex asylum case that requires extensive briefing, expert testimony, and multiple hearings to
litigate eligibility issues. The Final Rule would make such cases even more challenging and
labor-intensive.
18.
When the Interim Rule was in effect, although the funding remained fixed on a
per-case basis, our attorneys had to devote significantly more hours and resources towards our
clients’ withholding of removal and Convention Against Torture claims, which were much
harder to win but had to be pursued as the exclusive remedies for many of our clients. As an
example, for one of our clients who was persecuted in Honduras for being gay, it would have
been much easier for her to apply for asylum, but because of the Interim Rule, we could only
pursue withholding of removal, a more difficult to obtain and more limited form of relief. Her
attorney had to prepare her case to meet the higher ultimate burden for withholding, which
required significantly more time and resources. We have also had to assist over 100 asylum
seekers with motions to reopen their proceedings in order to seek asylum once the Interim Rule
was enjoined and vacated. Due to the burdens caused by the Interim Rule, our attorneys had
reduced caseloads in order to devote sufficient time to each client.
19.
Al Otro Lado is also harmed by the lack of a 60-day comment period before the
Final Rule went into effect. Due to the complexity of the policy and the strain on Al Otro Lado’s
resources in adjusting to the Interim Rule, Al Otro Lado did not have time to research,
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investigate, and submit a separate comment concerning the impact of the policy on our client
population and the reasons why the policy rationales are not justified.
Many Asylum Seekers Cannot Access Protection in Mexico or Guatemala
20.
Individuals who arrive at the southern border seeking protection in the United
States through the asylum process are fleeing some of the most dangerous countries in the world.
21.
For many who reach the United States after transiting through Guatemala and/or
Mexico, remaining in those countries and pursuing asylum there is not an option.
22.
Many of Al Otro Lado’s non-Mexican clients face discrimination and persecution
in Mexico, as well as in other countries through which they transited. For example, Hondurans
face significant persecution in Mexico based on their nationality. Haitian and African migrants
similarly face discrimination on the basis of national origin and race. Lesbian, gay, bisexual, and
transgender persons regularly are subject to discrimination and persecution in Guatemala and
Mexico.
23.
Several people Al Otro Lado has served have suffered persecution or torture at the
hands of Mexican officials, who turned them over to cartels, beat them, or extorted them.
24.
Al Otro Lado clients have been kidnapped, raped, assaulted, and murdered in
Tijuana, which is one of the most dangerous cities in the world right now. Migrants are
particularly vulnerable to violence here.
25.
Central Americans fleeing gang violence will not be safe in Guatemala, as their
persecutors are often able to find them there, given that travel between the Northern Triangle
countries is virtually unrestricted and the reach of persecuting criminal networks is often
transnational.
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26.
COMAR, the Mexican asylum agency, is underfunded, understaffed, and
overwhelmed. Based on my experience, COMAR does not have sufficient resources to
adequately process asylum seekers now, let alone additional asylum seekers forced to apply in
Mexico because of the Final Rule. The asylum system in Mexico is far less well developed than
the asylum system in the United States. It is difficult to access and unpredictable in its
processing.
27.
Because COMAR does not have a meaningful presence north of Mexico City, it
is very difficult for anyone in northern Mexico to apply for asylum in Mexico.
28.
Asylum seekers in Mexico are also vulnerable to being forced to return to their
home countries by Mexican authorities. Mexican authorities have deported asylum seekers back
to their home countries even as they wait on a list in one of the northern border cities to apply for
asylum in the United States. Mexican authorities have also forced or coerced asylum seekers
returned to Mexico pursuant to the Migrant Protection Protocols to return to their home
countries.
29.
Many asylum seekers must transit through a third country before reaching the
United States because they lack the resources or ability to travel directly to the United States.
For some, the danger they face in their home country compels them to leave without having had
the time to gather the necessary resources to get a visa and secure a flight. Other asylum seekers,
particularly many Central Americans, do not have the financial means to travel to the United
States except by land. Some asylum seekers do not have passports and are unable to obtain them
to fly directly to the United States, especially if they are fleeing imminent persecution from their
own governments.
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30.
Many of the asylum seekers Al Otro Lado serves have family and networks in the
United States who can help them, but lack similar connections in Mexico. Without such support,
asylum seekers in Mexico may lack a safe place to stay and access to basic resources, like food
and shelter. Given these vulnerable conditions, Mexico is not a feasible alternative for many,
especially those traveling with children.

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

Executed on: January 20, 2021

Nicole Ramos
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