Court filing

Declaration of Stephen W. Manning (Innovation Law Lab) — 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. 131-3 · 2021-01-21 · Docket on CourtListener

Full text

Exhibit B

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FURTHER SUPPLEMENTAL DECLARATION OF STEPHEN W. MANNING,
EXECUTIVE DIRECTOR, INNOVATION LAW LAB

I, Stephen W. Manning, declare as follows:
1.
I am an attorney licensed to practice in the State of Oregon and am a member in
good standing of the bars of the United States District Court for the District of Oregon, the United
States Court of Appeals for the Ninth Circuit, and the Supreme Court of the United States. I am
over 18 and have personal knowledge of the facts described herein.
2.
I am a member of the American Immigration Lawyers Association (“AILA”), a
former member of the Board of Governors of AILA, and a former Chair of the Oregon Chapter of
AILA. In 2015, I was awarded the AILA Founder Award as a person who had the most substantial
impact on the field of immigration law or policy in relation to the Artesia Pro Bono Project and
the Dilley Pro Bono Project. In 2017, I was named the most innovative lawyer in North America
by Financial Times for my work in creating these immigrant and refugee representation detention-
based projects.
3.
I am the Executive Director of the Innovation Law Lab (“Law Lab”), a nonprofit
that I founded to improve the legal rights of immigrants and refugees in the United States. Law
Lab has an office in Oakland, California, and has staff and offices from which we provide services
in other locations around the United States, including: Portland and Eugene, Oregon; Atlanta,
Georgia; San Diego, California; Gainesville, Florida; Chicago, Illinois; Chandler, Arizona; Seattle,
Washington; and San Antonio and El Paso, Texas. Law Lab’s work is centered on providing
representation to asylum seekers.
4.
I previously submitted two declarations in this matter. See East Bay Sanctuary
Covenant v. Barr, No. 3:19-cv-4073-JST (N.D. Cal.) ECF No. 3-4 (July 17, 2019); id., ECF No.
57-2 (Aug. 19, 2019). This declaration updates and supplements the information provided in my
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previous declarations in light of the issuance of the Final Rule version of the asylum transit ban
policy, set to take effect on January 19, 2021.
5.
In my role at Law Lab, I led the organizing of the Artesia Pro Bono Project in 2014
and the Dilley Pro Bono Project in 2015, which are detention-based projects that provided
universal representation to detained families in rapid removal proceedings. The Artesia Pro Bono
Project provided representation to more than 700 women and children who were detained at the
Artesia Family Residential Center in Artesia, New Mexico, including representation during the
credible and reasonable fear screenings, applications for release, and merits adjudication on
immigration relief. The Artesia Pro Bono Project lasted six months and ended when the detention
center in Artesia was closed in December 2014. The Dilley Pro Bono Project, which continues to
operate at the South Texas Family Residential Center, has been representing noncitizen asylum
seekers during proceedings since its inception in 2015. A related project operates at the Karnes
Family Residential Center; together, both projects have represented over 100,000 individuals since
their launch. I also designed the model for the Southeast Immigrant Freedom Initiative, an
initiative of the Southern Poverty Law Center in collaboration with Law Lab, to provide
representation to adult noncitizens detained at immigration facilities in the Southeastern United
States in 2017.
6.
In 2018, Law Lab mobilized around the civil detention of 123 asylum-seeking
immigrant men at the Federal Correctional Institution Sheridan in Oregon (“FCI Sheridan”). Law
Lab provided pro bono legal representation to every man in the Sheridan cohort who requested our
representation. In collaboration with almost 200 legal advocates and community members, Law
Lab represented 80 men from 11 different countries. Every individual represented by Law Lab
was found to have a credible fear of persecution or torture; leading to, for most, the conclusion of
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expedited removal proceedings, the initiation of immigration judge § 240 proceedings, and
eligibility for release from detention. All but three of our 80 clients were released from FCI
Sheridan on bond or parole. Law Lab has continued to represent, or facilitate pro bono
representation, on the merits in the cases that remain before the Portland Immigration Court.
7.
As part of designing and scaling representation projects at detention centers, I have
relied on data acquired during the different representation phases of immigration proceedings to
make estimates about when and how long attorneys and other legal workers must spend
interviewing, conferring, and consulting with clients. My estimates form the basis of the
representational models, which have proven to be very successful when measured by client
outcomes, with most individuals prevailing in seeking relief.
8.
Law Lab’s current asylum-related work includes the following programs.
9.
I designed and direct our pro bono representation project called the Centers of
Excellence, which provide support to noncitizens and their pro bono attorneys including legal,
technical, and strategic assistance in the preparation and presentation of claims. Through the
Centers of Excellence, I direct representation projects in California, Georgia, New Mexico, North
Carolina, Oregon, and Texas. In Oregon, under my direction, approximately 150 pro bono lawyers
have been trained on asylum and removal defense. I also designed and lead coordination of the
Equity Corps of Oregon, which is the region’s first government-funded universal representation
program. I designed and directed a program called BorderX that uses technology and collaboration
tools to provide support to legal service providers at immigrant detention centers. BorderX
currently serves clients detained at immigrant detention centers in Southern California, Texas,
New Mexico, and Louisiana. I designed BorderX so that remote attorneys and advocates—that is,
attorneys and advocates who are unable to physically enter a detention center because of its
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remoteness—can participate by telephone and through cloud-software to scale representation
efficiently. In August 2019, we opened an office in El Paso, Texas as part of our membership in
the El Paso Immigration Collaborative (EPIC), which provides legal services and representation
to all asylum seekers detained at detention centers in the El Paso jurisdiction. In early 2020, we
closed our program in Kansas City, Missouri.
10.
Innovation Law Lab also has played a central role in the development and piloting
of the Equity Corps, Oregon’s first universal representation program, which launched on October
1, 2018. Innovation Law Lab coordinates and reviews all case intake and provides technical and
strategic support to partner nonprofit immigration legal service providers who represent
immigrants in removal proceedings before the Portland Immigration Court. In July 2019, the
Equity Corps received an additional two million dollars of funding that enabled expansion of
services throughout the state of Oregon for a two-year period. The Equity Corps provides
representation regardless of case type. A high number—likely close to 90 percent—of the Equity
Corps’s clients are people who are fleeing persecution, many of whom arrived to the United States
recently. Every week we receive referrals and begin providing services to newly-arrived asylum
seekers in the state of Oregon.
11.
In Georgia and Oregon, Law Lab conducts and supports legal services asylum
workshops to assist people who have fled persecution in removal proceedings with legal advice,
application preparation and filing. Since the onset of the COVID-19 pandemic, we have conducted
these workshops remotely.
12.
Innovation Law Lab also has provided direct and support services for cases of
people fleeing persecution who were forcibly returned to Mexico under the “Migrant Protection
Protocols” (MPP) program. Because Mexican nationals cannot be subject to MPP, all of the cases
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we have supported in this work are asylum cases where the applicant traveled or resided in a
country other than their country of origin before seeking asylum in the United States.
13.
Law Lab also provides direct representation to persons applying for asylum both
within and outside the Ninth Circuit.
14.
With the exception of Mexican nationals, all of the asylum-seeking clients Law Lab
serves through these programs have traveled through a country other than their country of origin
on their way to the United States. A meaningful majority of the people we serve are nationals of
the Northern Triangle countries of El Salvador, Honduras, and Guatemala; we also provide
services to nationals of countries in Africa, South America, Asia, and Europe. By necessity, these
persons who have fled persecution have traveled through at least one other country, if not several,
in order to seek asylum in the United States. By statute, asylum can only be sought when
physically present in the United States or arriving to the United States. Traveling directly to the
United States would require travel documents, a valid visa, and funds to pay for air or sea travel;
our indigent clients do not have access to any of these. In 2020, approximately 84 percent of client
served by the EPIC program entered the United States after transiting through a third country.
Approximately 95 percent of non-EPIC clients served by our BorderX project in 2020 entered the
United States after transiting through a third country. And approximately two thirds of the nearly
1,0000 clients served in 2020 by our non-detained representation programs in Oregon, Atlanta,
Charlotte, and Kansas City entered the United States after transiting through a third country. We
anticipate that similar proportions of asylum seekers we would serve through these programs in
the future will also have transited through a third country.
15.
The majority of the asylum seekers served by Law Lab’s programs also did not
seek asylum in the countries through which they transited. Our work with asylum seekers subject
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to the MPP vividly illustrates why most asylum seekers are not safe in Mexico, Guatemala, or
other countries through which they’ve traveled. Asylum seekers who remain in Mexico under
MPP have suffered kidnapping, rape, and extortion; many are homeless and lack the opportunity
to work to support themselves. The asylum systems in Mexico and Guatemala are not set up to
fairly adjudicate asylum claims, and the countries’ institutions are not sufficiently strong to provide
protection from the harms that most asylum seekers are fleeing. Many of the persecutors of Law
Lab’s clients have transnational reach; gangs work across Central American borders, and
persecutors can often travel freely to find their victims in Mexico or other Central American
countries.
16.
Because of Law Lab’s organizational focus on asylum seekers, and the high
percentage of people we serve who have transited through a country other than their country of
nationality en route to the United States without seeking asylum in those countries, if the transit
asylum ban Final Rule goes into effect, it will require us to divert our limited resources
significantly. The vast majority of the people we serve in Georgia, North Carolina, Oregon, Texas,
New Mexico, California, and at the U.S.-Mexico border are asylum seekers. The Final Rule would
make a high percentage of the asylum seekers we serve entirely ineligible for asylum because they
traveled through a third country before reaching the United States without seeking asylum there.
As explained below, we saw this impact on asylum seekers we serve across our various program
during the period that the previous Interim Final Rule version of the asylum transit ban was in
effect following the Supreme Court stay in September 2019 until June 2020 when the interim rule
was vacated. Implementation of the Final Rule would require us to again rework the advice and
guidance we provide in our legal services workshops and respond to a flood of inquiries and
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uncertainty from the immigrant communities we serve regarding the attempt to change asylum law
once more.
17.
The nationwide scope of Law Lab’s asylum-related work means that only
nationwide relief can remedy the harm that the Final Rule would cause to our mission and
programs. If the asylum transit ban went into effect in jurisdictions outside of the Ninth Circuit,
there would be an immediate and significant detrimental effect on Law Lab’s ability to serve
clients and maintain its programs across the country. Law Lab’s programming has a national reach
not only because of our diverse geographic locations, but also because we operate our programs
collaboratively across program sites. Law Lab’s work is national not only in terms of program
sites and direct representation of clients where necessary but also in the ways that our projects
work together to provide high-quality resources to unrepresented asylum seekers, pro bono
attorneys, and other representation projects.
18.
For example, Law Lab operates pro se asylum workshops in Atlanta, Georgia and
Portland, Oregon. These workshops are being operated remotely during the COVID-19 pandemic.
The majority of persons served at these workshops are Central American asylum seekers who
would be subject to the asylum transit ban. Law Lab attorneys and accredited representatives
coordinate and implement the workshops, and also directly provide some legal services and advice
to immigrant attendees. Our workshops in Atlanta and Portland almost always have attendees who
have crossed the border both within and outside of the Ninth Circuit. Our Atlanta project was the
first to launch the asylum workshop concept, and templates and materials developed there are used
across our other program sites. If, for example, people fleeing persecution in Atlanta were subject
to the asylum transit ban, while people fleeing persecution in Portland were not, Law Lab could
no longer use synchronized materials across its asylum workshops. If the Final Rule went into
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effect in parts of the country, but not others, our asylum workshops would have to be meaningfully
restructured in order to effectively serve persons who are subject to the Final Rule and persons
who are not.
19.
Providing legal guidance and asylum application assistance to persons subject to
the transit ban at these workshops would be a significant burden on Law Lab employee time and
program operations. Law Lab would have to spend additional time developing the facts and legal
theories for asylum applicants subject to the Final Rule, as these applicants would be eligible only
for withholding of removal and relief under the Convention Against Torture (CAT). Withholding
and CAT have a higher burden of proof than asylum, and these applications would require the
development of entirely distinct and more in-depth legal analyses. Law Lab staff supervise and
train attorney and accredited representative volunteers at these workshops, and would have to
devote significant time to re-training these volunteers on the new standards and how to screen for
attendees who might be subject to the Final Rule. Law Lab experienced this increased burden and
diversion of resources in our workshop operations after the interim version of the asylum transit
ban rule went into effect in September 2019. Staff had to spend more time advising clients at
workshops, including additional time spent on expanding questioning about individuals’ travels
through third countries.
20.
Additionally, most of the persons fleeing persecution who we serve at our
workshops are in family units. Often a nuclear family can file a single asylum application, with
the spouse and minor children benefiting as derivatives. But because withholding of removal and
CAT do not allow derivative relief, every member of a family subject to the transit ban would have
to file a separate application. This would limit Law Lab’s workshop capacity significantly—
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instead of completing eight applications for eight families, for example, we might only have
capacity to complete eight applications for two families with four members each.
21.
Through the Centers of Excellence, Law Lab places and mentors attorneys taking
on pro bono cases across the country. The asylum transit ban Final Rule would make a significant
percentage of our new pro bono cases a great deal more complicated and will require us to
reevaluate relief eligibility in all of the cases that we screen and mentor. This will require, for each
pro bono case, significant legal research and multiple strategy meetings with pro bono counsel.
Clients ineligible for asylum due to the rule will only be eligible for withholding of removal or
CAT relief, which have a higher standard of proof than asylum, do not allow for derivative
applications, and are more time-consuming cases to handle. Had the transit ban Interim Final Rule
not been vacated in June 2020, we would have had to begin preparing pro bono attorneys for cases
in which withholding of removal and CAT protection are the only possible relief from deportation.
If the Final Rule is allowed to remain in effect, we will certainly have to work to prepare pro bono
attorneys to present these more difficult and complicated cases, and the Centers of Excellence may
begin to lose more cases. We would then be forced to shift a significant portion of our resources
towards mentoring pro bono attorneys on complicated appeals before the Board of Immigration
Appeals and the circuit courts.
22.
Our BorderX program and the EPIC program will also suffer immediate and
dramatic impacts from the Final Rule. BorderX builds better systems for advocates working in
immigrant detention centers, and, as a part of its mission, coordinates effective release strategies
for noncitizens in detention. Since the program’s launch in October 2017, close to 100% of the
noncitizens served have been asylum seekers, the majority of whom transited through a third
country before arriving to the United States. BorderX’s release strategy is, in many ways,
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dependent on a noncitizen’s asylum eligibility, as release becomes possible only after passing a
credible fear interview, which moves the asylum seeker out of expedited removal proceedings and
into immigration judge § 240 or withholding proceedings. The Final Rule, which would apply to
credible fear screenings, would eliminate release eligibility for a significant percentage of clients
of both BorderX and EPIC. Pivoting to determine advocacy strategies for this group will take a
significant amount of resources, and will divert our attention from the noncitizen population that
remains eligible for asylum under the new rule and who will still remain in desperate need of the
support of BorderX and EPIC.
23.
Our BorderX and EPIC programs would be significantly harmed if the Final Rule
went into effect outside the Ninth Circuit. BorderX works regularly in twelve immigrant detention
centers, eleven of which are outside of the Ninth Circuit. If the Final Rule were to go into effect
outside of the Ninth Circuit, work in at least six of BorderX’s program sites would significantly
increase in difficulty, as release eligibility would be severely limited, if not eliminated, for many
of our clients, and the program would have to develop alternative (and time consuming) release
strategies for clients detained in those facilities. That is because release eligibility turns to a
significant degree on eligibility for asylum. BorderX, like our other programs, would also have to
change its templates, materials, and guidance to account for the different eligibility regimes that
would govern clients based on place of entry to the United States and place of detention. When
the transit ban Interim Final Rule went into effect for a period in September 2019 before being
vacated in June 2020, Law Lab had to adjust its resources, templates, instructional guides, and
trainings, and training materials to adjust to the new policy, so that BorderX volunteers could
properly advise clients and clients’ sponsors and family members. This meant that we had to pause
other work and provide services to fewer people. This also affected Law Lab’s relationship with
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several law schools where we trained students to provide free services to detained individuals. By
the time we were able to resume these trainings with adapted materials, many students were no
longer available to volunteer. As a result, detained individuals lost services our programs would
have otherwise provided. Since the Interim Final Rule was vacated, we have re-adjusted our
trainings and materials, and so our programs would have to again divert time and resources from
client services to updating training and materials if the Final Rule is allowed to go into effect.
24.
Law Lab staff also began to see the other concrete detrimental impacts that this
Final Rule would have on the BorderX and EPIC programs and the detained clients they serve
during the period the Interim Final Rule was in effect. The impact of the Interim Final Rule was
most acute in these programs, which serve detained individuals, because immigration proceedings
move more quickly for those who are detained. During the time the Interim Final Rule was in
effect, a number of clients sought assistance through Law Lab’s BorderX and EPIC programs but
could not seek asylum as a result of being subject to the Interim Final Rule. One such client, who
I will refer to by his initials, M.E.A.A., was jailed in 2018 as a political dissident in his home
country and his life is at risk from his nation’s government. He traveled to Mexico in 2019, where
he was detained. He was unable to apply for asylum in Mexico because he does not speak or write
Spanish, and because he does not think Mexico would be a safe place for him to live. After being
released from detention in Mexico, he was unable to pay for housing and all of his money and
possessions were stolen. He spent six months living in a shelter in Ciudad Juarez before he was
allowed to present himself at the United States border and seek asylum on September 21, 2019,
after the Interim Final Rule was allowed to go into effect. Although he passed his screening
interview with the asylum officer, Immigration and Customs Enforcement denied M.E.A.A.
release from detention on the basis that he was ineligible for asylum under the Interim Final Rule.
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Another client, who I will refer to as Y.S.L.V., is an indigenous Garifuna lesbian woman from
Honduras who fled persecution on account of her race and sexual orientation. She was determined
to be subject to the asylum transit ban Interim Final Rule while it was in effect and therefore
ineligible for asylum.
25.
The transit ban Interim Final Rule made it more difficult for Law Lab staff to try to
advise such asylum seekers who had transited through a third country. Assessing their cases was
more complicated and Law Lab staff had to re-enforce our client agreement and the relevant
educational materials that we shared with clients. We also had to update our training practices and
materials for all staff and volunteers that speak directly with prospective clients in order to ensure
that the language and content of how we discussed the impact of the interim rule would be
consistent and accurate.
26.
Law Lab creates written materials and technology for use across our Centers of
Excellence pro bono programs, our BorderX detention project, and other initiatives that serve
people fleeing persecution throughout the United States. These materials include printed guides,
worksheets, training videos, self-help videos, and other resources that are used around the country.
We have had to update our advisals, training materials, templates, and educational materials every
time a new asylum rule is issued or vacated. If the Final Rule were to apply to people fleeing
persecution outside of the Ninth Circuit, Law Lab would have to substantially revise its materials
across programs, and create bifurcated resources going forward.
27.
Thousands of individuals rely on Law Lab’s systems. The new rule will require
Law Lab to deploy expensive and limited engineering resources to recode its software to create
new analytical modeling. Law Lab publishes materials for pro bono attorneys and asylum
applicants, including printed guides, worksheets, training videos, self-help videos, and other
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resources that are used around the country. The Final Rule will require Law Lab to substantially
revise this material and create new learning engagements and materials. This endeavor would
represent such a substantial burden that it could cause Law Lab to cease most of its pro bono
activities.
28.
Again, we began to see the negative impacts this Final Rule will have on our
operations upon the issuance of the asylum transit ban Interim Final Rule. Before it was vacated,
that interim version of the transit ban rule impeded our development and rollout of Asylum
Assistant, a new claim-development tool for asylum cases. Because of the uncertainty around the
transit ban, we were forced to hold back development and public release of the tool. We could not
build this uncertainty into the Asylum Assistant, and were instead forced to orient people to the
possibility that they might or might not be eligible for asylum at all, depending on what happened
with the transit ban. We had been granted funds to build the beta version of the tool, and we
planned to get more grant money to launch it. However, the asylum transit ban caused the project
to stall at the beta stage and prevented us from getting additional grant money for the launch.
29.
Though Law Lab focuses its work on building effective and scalable representation
programs, we also engage in direct representation cases when necessary to serve our mission, as
with our work at FCI Sheridan. Law Lab continues to directly represent clients who were
previously detained at FCI Sheridan, and also directly represents clients in jurisdictions outside of
the Ninth Circuit. If the asylum transit ban were to go into effect outside the Ninth Circuit, our
limited direct representation work would become significantly more complicated and burdensome.
Additionally, the clients served by Law Lab’s programs do not complete their immigration case in
a single jurisdiction. It is possible that a client would move seamlessly between our program
sites—and thus between different judicial circuits—as their case progresses. A person fleeing
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persecution might receive a legal orientation and services at a workshop supported by Law Lab in
Tijuana, Mexico; obtain release on bond or parole from a detention center in Texas with assistance
from our BorderX project; and complete their asylum application at a Law Lab-run legal workshop
in Atlanta, Georgia. Many persons served by Law Lab programs move between jurisdictions
throughout the lifetime of their asylum case as well. In my experience, such movement between
jurisdictions is common for asylum seekers.
30.
Law Lab’s direct representation programs within the Ninth Circuit will also be
adversely impacted if the asylum transit ban rule goes into effect in other jurisdictions. In Oregon,
Equity Corps’ asylum clients enter the United States to seek protection at or in between ports of
entry across the U.S.-Mexico border, and a significant percentage of these clients first entered the
United States in Texas or New Mexico. If the Final Rule were to go into effect outside the Ninth
Circuit, Equity Corps might have to shift significant resources towards representation of clients
who entered the country in Texas or New Mexico and are subject to the transit ban. These
resources would include both the devotion of additional time to withholding of removal and CAT
applications for these clients, who would not be eligible for asylum, and also re-working of case
templates, resources, and materials to account for eligibility differences based on place of entry.
Thus, when the Interim Final Rule version of the asylum transit ban was in effect, we had to
suspend use of materials developed to distribute to pro se individuals seeking asylum in
Immigration Court, and provide caveats in other materials. Additionally, Lab Law staff had to
spend more time advising clients, inquiring about clients’ travel through third countries, screening
for trafficking that might qualify the client for an exception to the transit ban, and strategizing
during the preparation and filing of their asylum applications. These same disruptions in services
and diversion of resources would occur again now if the Final Rule takes effect. This resource
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diversion would negatively affect other clients within the Equity Corps program, and also would
harm the program as a whole, which could be forced to serve fewer people overall because of the
increased time burden required for a subset of cases.
31.
Additionally, Law Lab’s work creating accountability within the immigration
system will also be significantly hindered due to the impact of the Final Rule. We are currently
engaged in research and policy advocacy around improving due process and access to justice in
the asylum process and removal proceedings. Given the centrality of the asylum process to our
organizational work and mission, the Final Rule will force us to turn our attention from the many
pressing issues we are currently investigating towards mitigating the effects of this new policy on
our existing programs and clients.
32.
In sum, every single one of Law Lab’s programs will be significantly affected,
irrevocably damaged, and immediately diverted by the asylum transit ban Final Rule, and these
harms will occur unless the Final Rule is prevented from taking effect nationwide. Allowing the
Final Rule to go into effect outside the Ninth Circuit would not only harm our multiple programs
in place outside the Ninth Circuit, but would also harm our organization’s ability to employ a
unified approach to our strategic programs. To fully remedy the harms the Final Rule will inflict
on Law Lab, relief against the Final Rule must be nationwide, not just in the Ninth Circuit.
33.
Finally, Law Lab is also harmed by the lack of an adequate public comment period
before this Final Rule was issued. The interim final rule was issued on July 16, 2019 with only a
thirty-day comment period. Along with the other Plaintiffs and the organizations serving as our
counsel in this action, Law Lab submitted a four-page joint comment on the interim final rule on
the final day of that comment period. That joint comment addressed some of the most serious
legal flaws in the interim rule and some of the most egregious defects in its reasoning. Had an
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adequate opportunity been provided to comment on the asylum transit ban rule before it went into
effect, Law Lab would have employed a data-driven, well-researched approach to explain why the
policy set forth in that interim final rule—and now being reissued in the current Final Rule—will
not achieve the objectives it has set forth, as well as comment on the quality of the data proffered
in support of the rule. Law Lab would have explained how the rule would harm the population
Law Lab is dedicated to serving, and would have included in its comments more detail concerning
the numerous reasons why many asylum seekers must transit through third countries before
reaching the United States and are unable to seek and receive protection in those countries.

I hereby declare under the penalty of perjury pursuant to the laws of the United States that
the above is true and correct to the best of my knowledge.
EXECUTED this 19th day of January, 2021.

Stephen W. Manning, OSB #013373

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