What's Whack with Immigration

As I’ve mentioned in previous posts, I have been doing some work at the Children’s Village in Dobbs Ferry for several unaccompanied alien minors who need representation. Briefly explained, Catholic Charities helps children under the age of 18 who have been detained for being illegal immigrants and not being in the custody of a legal guardian. Once a child gets picked up by an Immigration and Customs Enforcement (affectionately known as “ICE”) officer, they are put into a detention center in certain places around the country. One such place is at Children’s Village in Dobbs Ferry, about a 1hr train ride north of Manhattan.

Catholic Charities helps these unaccompanied minors in three specific ways. First, they try to assist the recently arrived kids understand the nature of the proceedings and the reason why they are there. This is given in an hour-long orientation called a Know Your Rights presentation, where the minor will get general information about his or her rights, immigration law in the US generally and some examples of ways that minors and others immigrants can stay legally in the United States. Second, Catholic Charities tries to do a basic intake of the client, asking about their particular personal history and case. Last, Catholic Charities, while not technically representing the minor will try to help seek representation for the child, usually a pro bono lawyer either from Catholic Charities itself or perhaps from another friendly organization.

For the past month and a half of my internship, I have gone every week up to Dobbs Ferry to speak with some of the detained children. The conditions that these kids are put in is quite surprising. While they are not in a prison, their freedom is greatly restricted. They live in a large dorm style house where there are classrooms and administrative staff watching over them at all times. Additionally, there is a locking mechanism on the house doors that prevent anyone from entering or leaving the house without the permission of the house master. There are also several security guards and people watching over them at all times. Certain houses have higher security ratings than others based on whether the minor has a previous criminal history or not. Each of these kids is told when to get up, when to go to class downstairs where they learn English and other subjects. They are told when they can play or go outside, and only with express permission.

The restrictive nature of their housing arrangement made me think about the nature of immigration itself. Immigration, as it stands now, is a civil proceeding between the government of the US and the person being deported. For this reason, immigrants are not entitled to the right to an attorney even though they may be detained for several hours or even days. Doesn’t it seem wrong to detain someone for so long in an immigration proceeding and put them in one of these houses without giving them a right to an attorney? Doesn’t it seem like its more of a criminal situation than a civil one? Yeah most government employees will tell you that this is not criminal because the worst consequence is getting taken back to your country of origin and that you can’t be put in jail for just being an immigrant. Yeah sure, but doesn’t being locked up for all the time until you get deported seem a lot like punishment. Most detention centers for immigrants are held in the same place as the prison, in case you didn’t know.

Additionally, the decisions on who to detain and who to deport, made by policemen and judges alike, are highly arbitrary and sometimes fairly capricious.

The following is an account that one child gave me in an interview. For the purposes of confidentiality, any identifying information has been changed or altered so as to protect him:

Juan was three years old when he came to the United States. He was born in Mexico to his two parents, both of Mexican citizenship. Juan doesn’t even really remember coming to the United States. His earliest memories are of him in Phoenix, Arizona with his mom and dad. He continued to live with them until they moved to Queens in New York.

One day while he was riding his bike, he passed by a police officer, who turned around his patrol car and stopped Juan. He told Juan that he was riding his bicycle on the wrong side of the street. He asked him for ID. Juan didn’t have any. He was taken to jail where he was locked up for a few hours. Then, half-asleep he heard his last name being called by the guards. In a stupor he walked to the front of the line and they led him to the patrol car and took him to Immigration court. In court he was asked for his full name. When they realized that he was not the person that they had wanted and that they had mixed up his name with another inmates, they decided to run his name in the system anyway. There they found that he too was an illegal immigrant and so he was put in proceedings.

So now this kid who has lived almost his entire life in the U.S., speaks English better than Spanish, and was picked up on the street for no real apparent reason other than the fact that he might have “looked suspicious”, will have to face being deported and being thrown back into a life he has no idea about: a life in Mexico.

I tell this story because it has happened to countless immigrants and immigrant families. I realize that many immigrants struggle for rights and for an ability to simply live where they have established themselves.

With this struggle in mind, I obviously cannot help but see the other side. Many might say that illegal immigrants take away jobs from U.S. citizens; others say that immigrants do the jobs that no one else will. I think both are true because immigrants get paid much less to do the worst jobs generally speaking. (I’m talking about the most common immigrant worker as opposed to the professional immigrant worker here.) But if those immigrants were taken away, then maybe employers would be forced to raise wages so that U.S. Citizens who would otherwise not work would. This in turn seems like it might allow immigrants who do come to this country protection from abusive work practices that prevent them from getting paid a living wage and from getting protection for human rights violations in the work place. But then you have the problem of immigrants using public services like educations and health without paying any taxes. Some California hospitals have had to close because of so many illegal immigrants stiffing the hospital for the bill. (http://www.federalobserver.com/archive.php?aid=9572)

It all seems to have an effect. But the biggest hold on all of this is really the employers themselves, who dominate D.C. and control the politicians to stall any legislation that would force them to have to pay more to their workers. Most corporations depend on immigrant workers. Just think about all those undocumented Chipotle people that got laid off a few months ago.

(http://articles.cnn.com/2011-02-08/justice/minnesota.chipotle.immigrants_1_illegal-immigration-illegal-workers-immigration-policy?_s=PM:CRIME)

Corporations depend on it. So really is this whole immigration system meant to fail immigrants? Is it meant to just be some way for congress to justify sending someone to their home country just because we feel like it?

These issues are tough to deal with but in the end I think that we have to just let more people become documented immigrants in this country. But the difficult task is protecting people human rights and basic freedoms in the meantime. We shouldn’t treat immigrants so radically different from our own citizens just because they were born in another country, should we? Human rights relies on the fact that we all have one thing in common: we are all human. Bridging the gap between us and them needs to start with immigration. Changing our policies with immigration will radically change how we perceive others and how others perceive us on an international scale. I’d probably need more to back up that statement but for right now I’m going to leave it at that and hopefully you all will agree and see what else is out there. Hopefully these issues will come to the spotlight more as immigration issues become more important in this country.

How can the P.R.C.'s national "Mental Health Law" (Draft) be improved?

The team of public interest advocates at Equity & Justice Initiative, Yirenping's partner organization in Shenzhen. From left to right: Finn Kwok, Pan Jiang, Renwang Zhang, Alice Wong, Xiaohu Liu, Xiaoxuan Huang.

How can the P.R.C.'s national "Mental Health Law" (Draft) be improved? Alice Wong, an attorney with Equity & Justice Initiative — Yirenping's partner organization in Shenzhen — has delivered her suggestions to the Legislative Affairs Office of the State Council (ZH original / EN translation).

Below are the main talking points of Alice Wong's formal comment on the national "Mental Health Law" (Draft).

• Pertaining to substantive criteria for involuntary treatment:

1. In the "Mental Health Law" (Draft), "Has dangerously disturbed public order" is one of many criteria that can be grounds for involuntary diagnosis and improper commitment in a psychiatric institution. Such criteria can be very easily abused, and should be deleted.
2. Criteria should be added to ensure that involuntary commitment and treatment is in the patient's best personal interest. The "Mental Health Law" (Draft) must be clear: all hospitalization and treatment conducted without personal consent should be considered involuntary; therefore, procedures and mechanisms to challenge such involuntary hospitalization and treatment shall apply.

• Preventing abuse of the custodial guardian power and judicial protections related thereto:

1. Involuntarily hospitalized patients' right to legal counsel must be ensured.
2. "Capacity of conduct" determinations are a judicial power, and must be verified by a court of law after an urgent committal.

• Regarding the commitment of homeless persons suspected of suffering from a mental disorder:

1. To ensure that commitment is premised upon the patient's interests, Civil Affairs Departments should exercise custodial guardian power in a temporary guardian capacity over homeless suspected sufferers of mental disabilities who have been involuntarily hospitalized, and whose close kindred relatives cannot be found.

Conclusion

Every case of psychiatric commitment, while involving intersecting propositions of medical judgments, ethical judgments and judicial judgments, can implicate innumerable combinations of relationships between symptoms, household society and the law, and an attempt to depend upon substantive legislation to establish an appropriate distribution of rights is almost an impossible task.

Front-end judicial review of cases involves immense social cost, and might be unachievable for the time being. Dispute resolution at the midpoint has already proven to be a weak defense after rights have already been infringed. Without relief there is no power, common relief is hopeless, and the next best thing is to permit persons able to save themselves to organize their own rescue. This already constitutes the stubborn pursuit presently before us.

Owing to a shortage of judicial resources, inadequate staff training, crude system construction, and an imbalance of power, the mentally ill who should be committed are not committed, and those who should not be committed are committed. This not only wastes social resources, but citizens thereby face a double threat, and society has lost its sense of security. Society's sorrow lies not in that resources are lacking, but rather in that the administration of justice has been to no avail. Although rule of law has a high cost, it is the only route for our personal safety. Social resources not invested in building the legal system and its institutions will, nevertheless, be astonishingly squandered in other ways.

Making it Through Law School: A Boot Camp for Human Rights Lawyers

Boot camp conjures the notion, at least for me, of certain high-ranking officials constantly telling you that what you are trying to do cannot be done. Many enlisted men and women who attempt physical feats of strength are forced to endure the additional pain of being discouraged and criticized while doing it. They are begged to quit, go home and follow the path of every other civilian; being a soldier is not the faint of heart. Boot camp is not only to make sure that one can endure the possible pain on the battlefield, but also to test one’s determination and resilience in the face of defeat. Many fall by the wayside; only the strongest persevere.

In many ways, the first year of law school has been like boot camp for social justice lawyers. 1L year has not only tested many law students’ academic prowess in completing the required work, but also has forced many to wonder whether the legal profession is everything that they thought it would be when first started. 3Ls can be overheard boasting about their $150,000+ post-graduation salary; professors talk about getting the prime judicial clerkship or firm job that rocketed them to their position today, as opposed to working at a public interest firm doing human rights work or otherwise. Making the big bucks and working at the big firms is reinforced as what defines a successful lawyer. Any student coming into law school with notions of changing the world is a fish trying to swim upstream, bound to be swept downriver by the cachet and glamour of the private sector.

I began law school as one of those students, wanting to change the world by unifying people and cultures and working towards Martin Luther King and Gandhi’s dreams of a brotherhood among men. My law school application’s personal statement even reads:

By creating laws that represent different points of view on a level playing field, by weighing the balances of justice, the various legal systems around the world can facilitate, motivate and obligate people to respect one another or in other words, to abide by the golden rule. The law continues to provide the framework and positive driving force compelling the recognition of the greater good that connects us all. Thus, I have decided to dedicate my life to the pursuit of justice because the law offers the greatest capacity to realize a unified global community: a world where my children and grandchildren can transcend the concept of national, cultural and racial limitations and live in one united world where high moral conduct, collaboration and reverence for all life abound.

That personal statement certainly exudes the characteristic idealism of a future social justice and human rights lawyer. But has the law school broken me down like yet another enlisted man in boot camp?

While I am proud to say that I do maintain the same idealism I have always had, I must admit that my perception of the legal system has evolved as a result of my internship and through the law school experience. I had always fervently believed that justice was always served in the courts, that lawyers were representatives of the principles of equality, freedom and respect that the United States was founded on. Working at Catholic Charities has shown me however, that much of law-making can be very arbitrary and capricious: one unaccompanied alien minor might be deported simply because the judge, who enjoys a great deal of discretion, might simply be having a bad day; a man who almost certainly will be killed if he is returned to his home country will be prevented from gaining asylum because he filed his application after the one-year deadline. Injustice persists even in this country.

In immigration, for example, I have observed that representation and assistance of counsel to immigrants is a serious flaw in the system in need of reform. In New York City in 2009, 60 percent of detained immigrants did not have counsel; neither did 27 percent of non-detained immigrants who appeared in immigration court, according to government statistics. Because judges are given an enormous amount of discretion in these courts and immigration judges have incredibly full dockets (sometimes exceeding 2,000 cases), immigrants without legal assistance are left to fend for themselves, usually without a firm grasp even of the English. As a result, as one can easily imagine, immigrants representing themselves are facing a steep uphill battle.

But sometimes even people with an earnest desire to help become overwhelmed with the flaws of the system. One such helper, a priest named Father Bob, with no legal training or expertise had seen the lack of assistance for immigrants and had decided to assist them in their cases. However, as Father Bob continued to work and saw the gaping hole in representation for immigrants, he began to take case after case, refusing to decline anyone. As a result, as of June 2010, he had amassed 761 working cases. With so many clients, even with his compassion and desire to help, his work began to slip and he began to fail his clients by not advising them of deadlines. As a result, he has recently been barred from representing immigrants at all. For more information about Father Bob, check out the following website:

http://www.nytimes.com/2011/07/08/nyregion/priests-former-caseload-exposes-holes-in-immigration-courts.html?pagewanted=2&_r=1

While of course I would never condone people who fail to adequately represent their clients, Father Bob’s situation underscores the work of public interest lawyers who struggle in the fight to reform backwards policies and under-represented groups. Sometimes one’s passion and dedication seems to be simply not enough.

In spite of all of this, I continue to be steadfastly committed to changing the world through the legal process because I firmly believe that lawyers are soldiers on the front lines of Martin Luther King’s “radical revolution of values.” I now approach law school as a test of will power: the many challenges that law school puts in my way only make my determination to help others stronger because so many others fall by the wayside. I realize that I am a soldier of change and that my country, my brothers and all those who depend on an equal access to justice depend on me. These tests will ensure that I can endure the battle for social justice. The path to achieving the unified global community that I seek may be, by most accounts, near impossible, but at least I know that if I pass this law school boot camp, that possibility of change still exists.

Do you have what it takes?

What a Difference a Border Makes

The Shenzhen-Hong Kong border crossing between Futian Kou'an 福田口岸 (left) and Lok Ma Chau 落马洲 (right).

What a difference a border makes. You know that old Grammy Award-winning Dinah Washington song, "What a Diff'rence a Day Makes?" Well, Dinah was right, days certainly make differences — but so do borders.

Take Shenzhen for example — this is where I'm interning this summer. Shenzhen is a sub-provincial city adjacent to the Hong Kong Special Administrative Region (S.A.R.). Both Shenzhen and the Hong Kong S.A.R. are part of the People's Republic of China (P.R.C.), but a border separates them (consistent with the "One country, two systems" policy), and there are three main points at which to cross the land border between the two regions. Let me first tell you a little bit more about the border itself, and then I can tell you about the difference that border makes.

The Shenzhen-Hong Kong border crossing between Futian Kou'an 福田口岸 and Lok Ma Chau 落马洲 remains open until midnight; the border crossing at Luohu 罗湖 remains open later. The crossings at Lok Ma Chau 落马洲 and at Luohu 罗湖 are each serviced by metro stations on either side of the border, operated by the MTR Corporations of Hong Kong and of Shenzhen, respectively.

As I quickly learned, only the border crossing at Huanggang 皇岗, which is serviced not by metro, but rather by bus, is open 24 hours. Express buses transport passengers at all hours of day and night between Huanggang 皇岗 and the ferry pier in Wanchai 湾仔, and other destinations in Hong Kong, generally within 45 minutes — and for prices of HK$50 (=US$6.42) or less.

In Shenzhen, a river separates mainland China from Hong Kong. But differences between the legal rights of mainland Chinese citizens, and those of Hong Kong citizens, make the border between them feel like a distance far greater than a mere 150 meters.

Both the P.R.C. Constitution and The Basic Law of the Hong Kong S.A.R. guarantee freedom of the person, and the freedoms of speech, of the press, of assembly, of association, of procession and of demonstration. But whereas Hong Kong citizens exercise these rights regularly, mainland Chinese citizens mainly enjoy these rights on paper alone.

On the mainland, official July 1 celebrations for the 90th anniversary of the founding of the Communist Party of China (C.P.C.) were carefully choreographed and widely publicized to an apparent absence of either public participation or unrest. As one Beijing taxi driver told me, "The celebrations are only for the Party and its members. They don't have anything to do with ordinary people."

In Hong Kong, people marked that same anniversary — which was also the 14th anniversary of the handover — with the largest July 1 protest in seven years. Official organizers estimate that 218,000 people turned out for the protest, while police put the figure at 54,000.

Where the border is concerned, Hong Kong citizens also enjoy a greater freedom of movement than mainland Chinese citizens do: it is far easier for Hong Kong citizens to visit mainland China, and comparably more difficult for mainland Chinese to visit Hong Kong.

Accordingly, I can and have visited Hong Kong with greater ease than my mainland Chinese colleagues. My multiple-entry P.R.C. visa permits me to return to the mainland as frequently as I want, but I don't require a visa to go to Hong Kong — and a stamp in my U.S. passport allows me to stay there for up to 90 days.

In contrast, most mainland Chinese citizens can only stay in Hong Kong for one week at a time, and need the equivalent of a visa to travel there. Each and every time a mainland citizen wants to visit Hong Kong, they must return to the main Public Security Bureau (P.S.B.) office of the city in which they are registered to reside. (Most people refer to this as "the city where my household registration [or hukou 户口] is located.") At that P.S.B. office, they must apply for a two-way permit (or tongxingzheng 通行证) — which looks and functions like a passport — or, if they already possess a two-way permit, they must obtain an exit endorsement (or wanglai gang'ao qianzheng 往来港澳签证) — which looks and functions like a visa — that, in most cases, permits them to travel to Hong Kong once, and to stay there for up to 7 days. In addition, most mainland citizens can only visit Hong Kong once within a 30-day period.

Other examples abound demonstrating the different legal rights of mainland Chinese versus Hong Kong citizens. Although mainland citizens' freedom of the person is ostensibly guaranteed, the government violates that freedom without respect "for even the modest requirements of its own laws".

Furthermore, it is by no means true that one is safe in mainland China as long as one does not go looking for trouble. If you are considered a "high risk" person, a category "including former inmates, vagrants and the mentally ill," and the reputation of your city is deemed to be at stake because the city will play host to a major international sporting event — such as the 26th Summer Universiade — within a few months' time, the local people's government may elect to temporarily banish you from that city, seemingly without recourse.

Such has been the backdrop of my summer internship with Yirenping, a Chinese N.G.O.

In order to avoid confrontation with the government, Yirenping has formulated and adheres to a narrow mandate as an apolitical, non-religiously affiliated, civil rights-focused N.G.O. that now strives to eliminate discrimination of all kinds (formerly focused on combating discrimination on the basis of Hepatitis B and H.I.V./A.I.D.S.), to strengthen workers' rights, and to promote the general welfare through public health and education.

A newer project of Yirenping's Shenzhen office concerns mental health regulation reform; the mission is to put an end to improper involuntary civil commitment of private citizens in psychiatric institutions. This topic has been and will continue to be the main focus of my work and of my comparative legal research here.

This is a very exciting time to be in China and involved in the issue of mental health law. On the afternoon of June 8, I was briefed by an Yirenping attorney regarding the lobbying she had done that morning with Shenzhen municipal legislators. Those legislators were drafting an updated mental health law to take effect in the city, and at the time, Shenzhen was one of seven Chinese cities — along with Beijing, Shanghai, Hangzhou, Wuhan, Ningbo and Wuxi — that had passed municipal mental health laws. Two days later, on June 10, the P.R.C. central government published a new draft national mental health law, and announced that the public would have one month — until July 10 — to comment on this new draft.

If promulgated, the national mental health law will supersede the municipal efforts of the seven aforementioned Chinese cities; and while the draft national law advances more positive reforms than do the respective municipal laws, it also contains dangerous loopholes which, if left unchanged, could legalize the psychiatric commitment of political dissidents on a large scale. My co-intern in Shenzhen and I have already translated this draft national mental health law (ZH original / EN translation).

Although the central government put an early end to the public comment period, and barred further suggestions on June 25 — the day after an Yirenping partner attorney and I met in Beijing with an American expert on mental disability law— the Legislative Affairs Office of the State Council of the P.R.C. has received and accepted Yirenping's formal letter providing suggestions on the draft mental health law. I will translate that formal suggestion letter this week.

In addition to translating, in Beijing I had the opportunity to attend two conferences pertaining to P.R.C. law. I have also been able to liaise with other organizations and individuals both in mainland China and in Hong Kong. This internship with Yirenping has been everything I had hoped it would be, and more...but the diverse opportunities with which the internship has presented me have kept me more than a little busy!