Court Filing, Doc. 8-4 — East Bay Sanctuary Covenant v. Trump

Summary

Erika Pinheiro, Director of Litigation and Policy at Al Otro Lado, describes in this declaration, filed 11/09/18 as Document 8-4 in Case 3:18-cv-06810-JST, how the new rule and Presidential proclamation making people who enter without inspection ineligible for asylum would affect the nonprofit's clients in Tijuana and Southern California. It says the change would force Al Otro Lado to overhaul its representation and training, leave many clients ineligible for bond for at least six months, and threaten per-case funding from the California Department of Social Services.

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Case 3:18-cv-06810-JST   Document 8-4   Filed 11/09/18   Page 1 of 13
DECLARATION OF ERIKA PINHEIRO

I, Erika Pinheiro, declare under the penalty of perjury pursuant to 28 U.S.C. § 1746:

L. 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. lam a U.S. licensed attorney practicing in the areas of immigration law and
international human rights. I am barred by the State of California and am over the age of 18.

3. I have over sixteen years of experience in the immigration arena, including
representation of over 100 detained clients in removal proceedings. From 2011 to 2015, I
administered Department of Justice-funded legal access programs for immigrant adults and
children detained in prisons, jails, and shelters, as well as legal orientation programs for
unaccompanied children following their release from government custody. Previously, I
managed one of the largest free legal programs in California for DACA recipients, overseeing
the completion of thousands of applications, as well as managed representation programs for
unaccompanied children. I regularly provide technical assistance to numerous Los Angeles
County agencies and train Federal Public Defender offices on the intersection between criminal
and immigration law. In 2017, | was a New America California Fellow, and my organization, Al
Otro Lado, has received numerous awards and commendations, including the 2018 Courageous
Luminaries Award from the National Immigration Law Center, the YWCA Pasadena 2018
Racial Justice Award, and a 2017 commendation from Los Angeles County Supervisor Hilda
Solis.

4. Since 2017, I have served as the Director of Litigation and Policy at Al Otro

Lado, a non-profit, binational legal services organization incorporated in California. Al Otro
Case 3:18-cv-06810-JST   Document 8-4   Filed 11/09/18   Page 2 of 13
Lado serves indigent deportees, migrants, refugees and their families, principally in Los Angeles,
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.

5. Through its Border Rights Project, Al Otro Lado hosts legal orientation
workshops in migrant shelters in Tijuana, Mexico, and provides representation to detained
asylum seekers in Southern California. 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 and represent them at their credible/reasonable fear
interviews before asylum officers with U.S. Citizenship and Immigration Services (USCIS). To
expand our capacity, Al Otro Lado frequently recruits and trains pro bono attorneys to assist with
legal orientation workshops in Tijuana migrant shelters, border accompaniment, and
credible/reasonable fear representation. 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.

6. Al Otro Lado routinely provides representation or other assistance to asylum
seekers who have entered the United States without inspection (EWI). On average, Al Otro
Lado and our volunteer attorneys provide representation to about 75 individuals per year in their
credible fear or reasonable fear interviews, and handle about 50 cases per year involving EWI
asylum seekers in removal proceedings. Through our shelter clinics, we help an additional 1,000

people per year prepare for their credible fear interviews.
Case 3:18-cv-06810-JST   Document 8-4   Filed 11/09/18   Page 3 of 13
7. 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. Once their criminal proceedings are over, the federal public
defenders often refer these asylum seekers to Al Otro Lado for representation in their bond
and/or removal proceedings.

8. 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 remains in 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.

Harms Caused by the New Policies

9. If individuals who enter without inspection are ineligible for asylum, Al Otro
Lado would have to completely revamp its representation strategy, comprehensively overhaul the
materials we use to train pro bono attorneys, and reevaluate the eligibility of each of our clients
for immigration relief. In addition, we would have to expend resources to brief eligibility issues,
resulting in additional hearings and time spent on each case.

10. The new rule and Presidential proclamation would also place individuals who
entered without inspection in “‘withholding-only” proceedings, rendering them ineligible for
bond for at least six months. The question of whether they are eligible thereafter is the subject of

ongoing litigation and would need to be briefed accordingly, requiring additional resources to
Case 3:18-cv-06810-JST   Document 8-4   Filed 11/09/18   Page 4 of 13
litigate bond hearings. Many more of Al Otro Lado’s clients would remain detained throughout
their removal cases, which would proceed on a much faster timetable than if they were not
detained. To effectively serve this population, Al Otro Lado would have to devote virtually all
its resources to representation of individuals in removal proceedings.

11. In addition, the rule and proclamation would jeopardize some of Al Otro Lado’s
most critical funding streams. Currently, the California Department of Sccial Services (CDSS)
gives us funding at a fixed per-case rate to represent individuals in bond proceedings. As noted
above, the rule and proclamation would make individuals who entered without inspection
ineligible for bond for at least six months, thus alleviating the need for bond proceedings in cases
that conclude during that time. 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 ($5,000 for released, $6,500 for detained) 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 rule and proclamation would make such cases
even more challenging and labor-intensive.

12. The vast majority of our asylum-seeking clients who entered without inspection
have immediate family members in their countries of origin with whom they hope to reunify
once they gain lawful status. 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 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
Case 3:18-cv-06810-JST   Document 8-4   Filed 11/09/18   Page 5 of 13
vigorously litigate issues of asylum eligibility for any client who entered without inspection and
would otherwise be eligible for asylum.

13. Most of Al Otro Lado's asylum clients are families traveling with minor children.
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
a family's case.

14. _‘ If the government had provided an opportunity for notice and comment before
promulgating the new rule, Al Otro Lado would have submitted comments regarding why the
rule violates the Immigration and Nationality Act. Al Otro Lado also would have offered
comments and evidence to show that the government’s proffered reasons for promulgating the
rule—namely, to channel asylum seekers to ports of entry—reflect an incorrect understanding of
asylum seekers’ motives for crossing the U.S.-Mexico border between ports of entry, and that the
government’s reference to an excessive volume of asylum seekers and unlawful entrants is
factually incorrect when compared with historical norms.

Asylum Seekers Traveling to the Southern Border

15. 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.

16. Although asylum seekers come to the southern border from all over the world, the
vast majority come from El Salvador, Guatemala, and Honduras, an area often referred to as

Central America’s “Northern Triangle.” A 2015 UNHCR report described those countries as
Case 3:18-cv-06810-JST   Document 8-4   Filed 11/09/18   Page 6 of 13
having “epidemic levels of violence.”' Their murder rates register as among the highest in the
world.” The degree of violence suffered by people in the Northern Triangle has been compared
to that experienced in war zones.°

17. Those who leave often are running from life-or-death situations, leaving
everything behind to make a dangerous journey. In particular, violence against women by
criminal armed groups has escalated dramatically, and home governments have been unable or
unwilling to provide effective protection.‘

18. Asylum seekers fleeing their home countries in Central America face an arduous
journey to the United States, involving a high risk of violence, including sexual assault, along the

way.” In 2015 and 2016, 68% of migrants from the Northern Triangle region experienced

violence, including sexual assault, on their journeys through Central America and Mexico.°

' UNHCR, Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador,
Guatemala, Honduras, and Mexico, (October 26, 2015), http://www.unhcr.org/en-
us/publications/operations/5630f24c6/women-run. html (“Women on the Run’).
> The Wall Street Journal, “Why Are People Fleeing Central America? A New Breed of Gangs
is Taking Over,” (Nov. 2, 2018) (‘With the highest homicide rate of all countries in the world, El
Salvador is a nation held hostage.”); NBC News, “Amid political unrest, violence in Honduras,
TPS holders in U.S. worry about their fate,” (Feb. 22, 2018),
https://Awww.nbcnews.com/news/latino/amid-political-unrest-violence-honduras-tps-holders-u-s-
worry-n850241 (“Honduras is among the countries with the world’s highest rates of murder,
violence and corruption”).
> Médecins Sans Frontiéres (Doctors Without Borders), Forced to Flee Central America's
Northern Triangle: A Neglected Humanitarian Crisis, (May 2017),
https://www.msf.org/sites/msf.org/files/msf_forced-to-flee-central-americasnorthern-
triangle_ e.pdf (“Forced to Flee’).

- See, e.g., Women on the Run at 16, 23.

> Forced to Flee at 11; Women on the Run at 43-45.
° Forced to Flee at 11,
Case 3:18-cv-06810-JST   Document 8-4   Filed 11/09/18   Page 7 of 13
19. Although those traveling by land cross through Mexico before reaching the
United States, for many, remaining in Mexico is not an option. Rates of violence in Mexico have
been increasingly as of late; 2017 was the deadliest year on record,’

20. Refugees in Mexico are at risk of kidnapping, disappearance, trafficking, and
sexual assault, among other harms.® Lesbian, gay, bisexual, and transgender persons, as well as
people with indigenous heritage, regularly have been subjected to persecution in Mexico.”

21. ‘In my experience, a significant proportion of migrants coming to the southern
border have credible claims to asylum.

22. According to the United Nations High Commissioner for Refugees, in fiscal year
2015, 82 percent of the women from El Salvador, Guatemala, Honduras, and Mexico who were
subject to a credible fear screening by an asylum officer were found to have a significant
possibility of establishing eligibility for asylum or protection under the Convention Against
Torture. '°

23. Between fiscal years 2014 and 2016, 8,848 people from El Salvador, Guatemala,

and Honduras were granted asylum affirmatively, and 3,502 people from those countries were

granted asylum defensively.'!

7 Human Rights First, Mexico: Still Not Safe for Migrants and Refiigees (Mar. 2018),
https://www.humanrightsfirst.org/sites/default/files/Mexico_Not_Safe.pdf (Mexico: Still Not
Safe”).

8 id., at 1.

* The San Diego Union Tribune, “Should asylum seekers heading to the U.S. stay in Mexico?”
(May 21, 2018), http://www.sandiegouniontribune.com/news/immigration/sd-me-safe-country-
20180518-story.html.

'° Women on the Run at 2,n.2.

'! U.S. Department of Homeland Security, Table 17. Individuals Granted Asylum Affirmatively
By Region and Country of Nationality: Fiscal Years 2014 to 2016,
https://www.dhs.gov/immigration-statistics/yearbook/2016/tablel7; U.S. Department of
Homeland Security, Table 19. Individuals Granted Asylum Defensively By Region and Country
Case 3:18-cv-06810-JST   Document 8-4   Filed 11/09/18   Page 8 of 13
24. In Al Otro Lado’s experience, many people seeking refuge in the United States
are prevented from presenting at a port of entry and instead must enter elsewhere along the
southern border.

25. Al Otro Lado, as well as numerous nongovernmental organizations and news
outlets, have documented thousands of cases in which CBP officials have arbitrarily denied
and/or unreasonably delayed access to the asylum process to individuals seeking asylum by
presenting themselves at ports of entry along the U.S.-Mexico border.”

26. When Al Otro Lado conducts initial screenings of asylum seekers who entered
without inspection, we find that many were unaware that they could present themselves at a Port
of Entry to seek asylum; others are unfamiliar with the concept of a Port of Entry and only know
that they must enter U.S. territory to seek asylum. Many refugees lack significant formal
education, and are unaware that there are designated locations for crossing into the United States.
Even those who know that there exist designated ports of arrival have no idea where they are or
how to find them. Others become lost in the remote terrain of the border area, and do not even
realize they have crossed into U.S. territory until they are apprehended by U.S. Border Patrol
officers. Most individuals who enter without inspection with the intention of seeking asylum do

not attempt to evade U.S. Border Patrol; instead, many approach border officials and ask for

of Nationality: Fiscal Years 2014 to 2016, https:/Avww.dhs.gov/immigration-

statistics/ yearbook/2016/table19 (last accessed Nov. 8, 2018).

'2 Amnesty Int’l, USA: ‘You Don’t Have Any Rights Here’ (Oct. 11, 2018),
https://www.amnesty.org/download/Documents/AMR5191012018ENGLISH.PDF (“While there
are no official statistics on how many people CBP has illegally turned away without processing
their asylum requests, Amnesty International has received numerous secondary reports from
NGOs indicating that CBP has forced thousands of asylum-seekers to wait in Mexico — including
families with children, mostly from Central America.”); see generally First Amended Complaint
28-, Al Otro Lado v. Nielsen, No. 17-cv-2366 (S.D. Cal. filed Oct. 12, 2018) (recounting other
evidence in the possession of Al Otro Lado).
Case 3:18-cv-06810-JST   Document 8-4   Filed 11/09/18   Page 9 of 13
protection, or wait near the border fence to be apprehended by Border Patrol. Most claim fear of
return as soon as they are encountered by U.S. officials.

27. ‘In other cases, asylum applicants are forced to enter the United States without
inspection by criminal groups, who typically refuse to take migrants to ports of entry. Instead,
they drop migrants near the border, with no idea where they are or where the nearest port of
entry may be, thus forcing them to enter without inspection.

28. Others are held for ransom by criminal groups near the border; some are
kidnapped when they attempt to cross without paying the criminal groups that ostensibly
“control” the border area. I have personally spoken with asylum seekers who were kidnapped,
raped, or beaten by criminal groups operating on or near the border. In at least two cases, asylum
applicants were forced to watch as members of criminal groups raped and killed other migrants.
In one case, carte] members freed an asylum-seeking father and daughter from captivity and
ordered them at gunpoint to cross the border without inspection.

29. Asylum seekers presenting at ports of entry are turned back by U.S. officals
through a number of tactics, including threats, intimidation, and coercion; physical force;
physical obstruction; and deliberate misinformation. This may force asylum seekers to attempt
to enter without inspection.

30. | Noncitizens seeking asylum who present at a port of entry also may have to wait
several days or even weeks to present their claims to an immigration officer. Al Otro Lado is
aware of multiple instances in which Border Patrol agents have coordinated with Mexican
immigration authorities and other third parties to implement a “metering,” or waitlist, system that
creates unreasonable and life-threatening delays in processing asylum seekers; instructed asylum

seekers to wait in pre-inspection areas or at a shelter until there is adequate space at the port of
Case 3:18-cv-06810-JST   Document 8-4   Filed 11/09/18   Page 10 of 13
entry; or simply asserted to asylum seekers that they cannot be processed because the port of
entry is “full” or “at capacity.”

31. Asylum seekers waiting in Tijuana must add their names to a first-come, first-
serve list that is administered by another asylum seeker. Only asylum seekers whose names are
on the list are able to present themselves at the Port of Entry, but not all migrants have access to
the list. T have personally witnessed the list administrator refuse to add the names of black
migrants to the list. Al Otro Lado staff has also witnessed the list administrator refuse to add
unaccompanied children. Asylum seekers who are not able to access the list could be compelled
to enter the United States without inspection, depending on their circumstances.

32. Asylum seekers who wish to present at the San Ysidro Port of Entry are currently
waiting an average of four to six weeks in Tijuana due to an alleged lack of CBP capacity.
Asylum seekers waiting in Tijuana shelters are subject to threats and intimidation by criminal
groups who seek to coerce them into paying fees to cross without inspection. Over the past few
weeks, Al Otro Lado has spoken with several families who were pressured and threatened by
members of criminal groups to cross without inspection. Members of criminal groups have
infiltrated the migrant shelters and prey on the most vulnerable, including families traveling with
small children.

33. Tam also aware of significant delays at other ports of entry along the Southern

Border. For instance, earlier this summer, only six asylum seekers were processed each day at
Case 3:18-cv-06810-JST   Document 8-4   Filed 11/09/18   Page 11 of 13
the port of entry in Nogales, despite a backlog of more than 100 people waiting in Mexico to
apply, and even though the port is capable of holding 47 people at a time.'?

34. Similarly, at the port of entry in Brownsville, Texas, there were reports that
officials were processing between zero and three people per day.’

35. | Outside observers have indicated that this slowdown is not the result of an actual
lack of capacity to process asylum seekers. The Department of Homeland Security Office of
Inspector General has noted that, while CBP justifies “metering” by citing a lack of capacity to
process asylum seekers, “the OIG team did not observe severe overcrowding at the ports of entry
it visited.”'> Human rights researchers visiting seven POEs in Texas in June 2018 reported that
“[t]he processing rooms visible in the ports of entry . . . appeared to be largely empty.”!

36. These delays in processing asylum seekers can be life-threatening, as individuals
are often vulnerable to violence and exploitation while they wait to be processed.

37. | Asylum seekers who suffer persecution in Mexico are, at times, unable to wait
several weeks to present themselves at a Port of Entry and must seek to enter the United States

by other means. In one case, a transgender asylum seeker had suffered horrendous persecution at

the hands of state actors and non-state actors in Mexico. She jumped over the border fence on

'’ Washington Office on Latin America, “Come Back Later:" Challenges for Asylum Seekers
Waiting at Ports of Entry (Aug. 2, 2018), https://www.wola.org/analysis/come-back-later-
challenges-asylum-seekers-waiting-ports-entry/.

'' The Guardian, On a bridge between borders, asylum seekers linger in painful limbo (Oct. 16,
2018), https://www.theguardian.com/us-news/201 8/oct/16/zero-tolerance-asylum-seekers-limbo-
gateway-international-bridge.

> Dep’t of Homeland Sec., Office of the Inspector General, Special Review — Initial
Observations Regarding Family Separation Issues Under the Zero Tolerance Policy (“OIG
Report”), No. OIG-18-84 at 5-6 (Sept. 27, 2018), available at www.oig.dhs. gov.

6 Human Rights First, Zero-Tolerance Criminal Prosecutions: Punishing Asylum Seekers and
Separating Families (July 18, 2018), https://www.humanrightsfirst.org/resource/zero-tolerance-
criminalprosecutions-punishing-asylum-seekers-and-separating-families.
Case 3:18-cv-06810-JST   Document 8-4   Filed 11/09/18   Page 12 of 13
Imperial Beach, a heavily patrolled area, and asked for protection as soon as she encountered a
Border Patrol officer. Unfortunately, the Border Patrol officer forced her to jump back over the
wall into Mexico rather than process her in accordance with the law. This is one of many
examples of asylum seekers who are forced to enter the United States without inspection due to
an extreme threat of persecution in Mexico.

38. The region of Mexico near the border with the United States is a particularly
violent area with limited law enforcement capacity.'’ Tijuana, in particular, is experiencing
record-levels of violence; 2017 saw the highest annual number of homicides ever recorded, '*
with a murder rate higher than many Central American cities from which asylum seekers are
fleeing.'”

39. Asylum seekers turned back from a port of entry have been kidnapped and held
for ransom by cartel members waiting outside.”°

40. _ Even shelters outside ports of entry are not always safe, as cartels often infiltrate

them.”!

"US. Dep’t of State, Mexico Travel Advisory (Aug. 22, 2018),
https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/mexico-travel-
advisory. html.

* San Diego Union Tribune, Control for street drug trade pushes Tijuana to grisly new record:
1,744 homicides (Jan. 14, 2018), http:/;www.sandiegouniontribune.com/news/border-baja-
california/sd-me-homicides-tijuana-201 80102-story.html.

” In 2017, Tijuana was the 5th most dangerous city in the world. Business Insider, These were
the 50 most violent cities in the world in 2017 (March 6, 2018),
https: //www.businessinsider.com/most-violent-cities-in-the-world-201 8-3,

20 Human Rights First, Crossing the Line: U.S. Border Agents Illegally Reject Asylum Seekers,
(May 2017), hitps://www.humanrightsfirst.org/sites/default/files/hrf-crossing-the-line-report.pdf.
“ dd., at 17.
Case 3:18-cv-06810-JST   Document 8-4   Filed 11/09/18   Page 13 of 13
41. | Asylum seekers who need to reach safety as quickly as possible thus often feel
compelled to enter the United States along the border, outside of a port of entry, in order to
escape their persecutors and the violence on Mexico’s side of the border.

42. _—_ Individuals fleeing persecution often choose to travel together for safety reasons.
Traveling alone can put a migrant at risk of violence and exploitation. By joining together,
vulnerable individuals can gain some measure of protection.

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.

Erika Pinheiro
EXECUTED this 9th day of November 2018


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