KATHARINE GORDON: Hi, everyone. Just waiting to geometrically started. Hello, everyone. Let me just look at what I have. And it's going to be a few minutes till we get started. Also, my co presenter, Charlene D 'Cruz is at Matamoros working with a kid with disability, so she should be here shortly. So we're waiting to get started. Hi, everyone. I'm going to wait a few more minutes to get started to watt for many people to join us, then we look forward to our conversation.
And just as a general matter, I do have quite prepared presentation, but at the same time, one of the things I'm really interested in is hearing from you, your questions, your insights, because I think that there's a huge amount of collaboration potential with the disability rights and immigration law community. So to the extent that it's possible in a Zoom meeting, I think that questions or questions or observations or our work experience will be very, very welcome here. And again, we're just waiting a few more minutes. I I'll wait two or three more minutes before we get started. I'm just waiting a minute or two more to get started, and then I'll be happy to see everyone.
Okay, I think I'm going to get started now.
Okay, I think I'm going to get started now my co host Charlene D'Cruz is at Matamoros at the moment. She literally accompanies families who have disabilities to the international bridge to request a CBP, that Customs and Border Patrol follow the law. So right now, she's actually working with UNHCR, the U.N. High Commission for Refugees to work to get a family across who's been waiting many months in Matamoros, and this family has a child who has partial hearing loss, partially blind, and has encephalopathy. She should be joining us pretty soon.
So again, I wanted to thank everyone. I wanted to also specifically thank a few different people who are actually immigrants who have been involved in a lot of the litigation that I'm going to discuss. As we all know as civil rights attorney, without working sited by side with our clients and with the people affected by the policies, we really can't do anything. And in the immigration context, I think it's particularly important, because we may see what's happening, but until there is an immigrant, a detained immigrant who is willing to step forward and willing to explain what they've seen, to be a witness, there's not much — there's limitations on legal advocacy.
One of the other things that's very frightening in this context is that by speaking up, you can be retaliated against. And maybe that means deportation in the middle of the night. Maybe that means dying because of speaking up, so I just wanted to provide four names of a few people. One is Marie Sol, who was a 16 year old girl who decided she would speak out about the abusive conditions as a residential treatment certain in Texas. Because of her experience of being forced to take many psychotropic medications, and because of how she witnessed children being abused, because of her willingness to be a part of the class action, there have been very, very significant changes and focus on the abuse of Office of Refugee Resettlement.
Another person is Francois, who is a person who at the very, very beginning of the COVID epidemic, he's a person with a few different disabilities, he was frightened about being in immigration detention in Virginia with this new virus. And he decided that he would put his name forward and say there have to be measures taken to protect people with disabilities and all people.
Another person, Fahrer, who is an asylum seeker who decided that he would put his name forward. And you may have heard of this case. He lost his vision, he lost a lot of his mobility in ICE detention. I also would like to have — maybe a bit unusual, a moment of silence for Martin Ariano, who is actually a class member in litigation, Armand versus DHS. Martin has a few different disabilities, schizophrenia, diabetes, and multiple disabilities. He had been ordered by the courts to be released, but ICE didn't release him. Instead, he was hospitalized for several weeks, due to COVID, other things in southern California. And when it became clear to ICE that he was going to die in custody, they decided to just release him to a hospital.
His attorney who had been represented by the — who had been government appointed to represent him, only found out by checking with the Los Angeles coroner's office that he had passed away so essentially just a moment of silence for Martin and for all of the people who we really want to raise their voice, because they're the people who are able to — who are really able to allow us to continue with this work as difficult as it may seem.
I also wanted to just frame this conversation a little bit in regards to the overall human rights context that we're dealing with. I think it's important when we are looking at — you know, we hear the terms of surge or crisis or influx. And I think first of all, those are very dehumanizing terms. I think it's important to recognize that these are people, right? And I think that it's — it's also essential to look at this in the context of the particular violence of the United States and Central America.
The people are not — the root causes, if you look at what the root causes are of the border crisis, and this whole presentation and what we've seen since 2014 on when the first, quote, large number of unaccompanied minors started, is it was the aftermath and impact of the wars in Central America that we were involved in as the United States.
An example of that is the Flores settlement you may have heard of, which deals with the rights of kids in refugee resettlement. And that, I think it's important to refocus, again, that that's a particular 15 year old child who was a war refugee. She came to the United States fleeing the war, hoping to reunite with her mom. She was held in a converted hotel, I think, with men and women, regularly strip searched and was held essentially as bait for her mom.
So her mom was in L.A., wanted to come get her, wanted to come care for her, but she was afraid because she would be sent back to likely death in El Salvador if she came to reclaim her 15 year old daughter. That fear of death if she were to come and get her daughter was not really hypothetical.
One important case is the American Baptist Church versus Thornburg settlement. In the 1980s, if you applied for asylum, you had a 95% denial rate where the government was just not considering people's claims from that. And because of the organizing of the religious community and of immigrants themselves, central America resource center, there was some relief that allowed some ability for people who had fled to have a fair chance. This was in the 1980s, and I think we can really see this repeating itself.
Another big factor, when we look at anything we read on what's happening at the border, it's important to be aware of the 2009coup in Honduras. When the coup happened, the U.S. didn't condemn it, Hillary Clinton did not condemn it, instead ended up working with the governments.
So that transitioned from a fragile democracy to essentially a military dictatorship and failed state is also very, very relevant to understanding why there's so many people from Honduras fleeing to the southern border.
Another thing that's obviously important is to recognize that so much of the violence in Mexico that is making people unsafe while they're waiting for asylum is the drug violence. I think the question is, what role does the United States have in drugs violence? Mexico, regarding the demand for it and also regarding the way in which the U.S. — the way in which U.S. policy has fed into that. That's some or the larger context.
Another part of the larger context is recognizing that disability discrimination and eugenics and outright racism have all been very, very much entwined. Some of you may have heard of Henry Goddard. He's well known for creating some of the classifications for different types of people, including feeble minded people, including some of these terms that are so horrifying to us.
What he did, he went to Ellis Island, he took his investigators, literally pieces of chalk, had them look at a person, see if they thought the person was mentally, some horrible words that he used, to classify him. They would put an X mark on the person's clothing and send them for further screening.
And of course, the people who were found to be not safe were, of course, people who were from places other than England, other than Germany and other than northern Europe.
I also want to just now get started a little bit. My co presenter Charlene, I believe has joined. I told you a little bit about her, and now she's here. Could you unmute yourself? I'll just give a brief introduction. Charlene has been working in Matamoros and has just been doing the most extraordinary job accompanying and fighting for so many people throughout her lifetime.
CHARLENE D'CRUZ: Thank you, Kate. Hello, everyone. As Kate said, I'm Charlene D'Cruz. I am currently on the border in Brownsville, Texas, dealing with a host of frustrating and crazy issues down here as far as confusion and chaos with people being released and people being paroled.
But just a little background on myself. I have a — not as in depth experience with disability law as possibly Kate or others on this call, but I started — I'm a special education teacher, and I actually started in the field of special education in the legal aspect with the Minnesota Disability Law Center where I represented children with special needs, everything ranging from attention deficit to specific syndromes.
And back in the day, the classification that people who have been in the field long enough will recognize, I was a level 5EBD teacher. What that meant wuss emotional behavior disorder children who were segregated from the regular school setting and placed in very separate settings, most of them happened to be children of color. Most of them black boys in the inner city of St. Paul, Minnesota.
That has been my experience and my interest. I also have a child who is on the spectrum. So I had to learn disability law issues not only from the professional standpoint but also as a parent.
When I first came down to the border, I have 30 plus years in experience of immigration law. I started on the border in Arizona back in the '80s when the Civil Wars were going pretty hard in El Salvador, Guatemala and Nicaragua. People were literally fleeing then.
My first experience with immigration law was the extreme injustice in due process, how, as Kate just said, there were so many denials of asylum law. There were so many people who couldn't express themselves, had no lawyers. Detention centers and jails in the middle of the desert. They had no access to lawyer, interpreters.
When I came back down to the border 30 years later, down to Matamoros Brownsville, I see the very same things. And this time, people were subject to the remain in Mexico program that was a procedure, and it is not a law, never was. It was a policy and procedure that was instituted during the Trump administration. And basically, it was about keeping people who were seeking asylum stuck in Mexico.
And what happened in Matamoros on the other side of Brownsville, Texas, was a camp city developed. People who just were awaiting to ask for asylum were stuck on the bridge. Basically, my first day there — well, one of my first few weeks there in Matamoros, I spoke to a family. It was a mom and a daughter of about 20 something years old, and another child who was a teenager.
They were from El Salvador and the mom was very distraught because her daughter, the 20 something year old was hard of hearing and non voicing. They were scared. They had just been kidnapped. They had gone through the process of asking for asylum at the border, and the response there was nope, we're not going to deal with you.
So they went across the river seeking asylum. And eventually, they were taken to what was the ICE cages that people have heard of. And at that time, the mom was consistently telling the CBP officer, my child is deaf, she doesn't hear anything, she doesn't speak. It didn't matter. And what they did is they separated Becky from her mom and put her in a separate ICE cage filled with people. From what I gathered, there were more than 50 people in the ICE cage there. Oh, and Becky also has a 5 year old son who was with her.
Mom who is the only person who has ever been able to communicate with Becky, who has not had any schooling in El Salvador — it's absolutely impossible for someone with a disability to go to school. And they were separated. And what happened was they basically served papers on Becky, even though she didn't understand anything. Even though she refused to sign, and they stuck her in this MPP program, or the remain in Mexico program, and pushed them across the border.
When I found them, they had just been kidnapped for several days. What came out of that was I marched to the CBP on the bridge and demanded to know how did they put a person in proceedings when that person did not hear them, did not speak to them, therefore how would they know she's from El Salvador, other than getting the information from her mother.
But remember, that Becky was an adult, and they had to treat her as an adult. And they did not, could not just extrapolate information. It's a violation of due process. But yet here we are in Matamoros, one of the most dangerous cities in the world. It's been labeled level 4, according to the Department of State.
And I march across and the answer I got first was, oh, well. At which point I said, have you heard of the Rehab Act? To which point they said nope, we don't know, what is it? So I had to educate them as to what they were supposed to do, what services they were supposed to provide and the reasonable accommodation that they should have provided to Becky, who was physically in the United States.
Needless to say, a huge fight ensued between me and the Customs and Border Patrol where they claimed they did not owe her a duty or any service, which was wrong. And is wrong. Eventually after a threat of lawsuit, they let Becky and her family in, but that didn't end. I ended up fighting for the parole of a blind woman. It took me 20 plus hours standing on the bridge, fighting for her parole. There were people with severe medical needs.
There was a child in Matamoros for over a year who had development delay and she had hearing and sight issues and they didn't think it was a problem for her to be in Matamoros. It took me almost a year and a week to get that family through.
All of these stories I'm it willing you because, well, for one thing, this is going on. Even though remain in Mexico is being rolled back — and it's not been complete revoked — the Biden administration has yet to say that. But it's been rolled back and suspended and they rear paroling people who suffered under this horrendous draconian policy.
But now we have something called Title 42. And that's an old public health law that really was aimed at quarantining people in a pandemic, mostly within the United States. The Trump administration turned Title 42 on its head and used it to weaponize against asylum seekers saying the border is now closed, we don't want your COVID, you can't come in.
And as a result, nobody is allowed to ask for asylum. I have two young men from Venezuela, both of them are hard of hearing. One of them is completely deaf and non voicing. Only one signs basic Venezuelan sign language. They are scared. They also happen to be gay.
So right now, they are in a situation of extreme danger. I filed a parole request with the Customs and Border Patrol, on these case, which I believe are extremely high risk for victimization. It has been more than five weeks, and I have heard nothing from them. This just tells you that despite the fact that I'm going to dial it a little bit, after fighting for almost 60 people to get through, I got frustrated and reached out to other organizations like the Texas Civil Rights Project and filed a class action lawsuit where we claim the remain in Mexico program violated the right of people with disabilities and medical needs because the CBP refused to follow their own guidance.
That was the case of EARR. It's been filed in the southern district of California and we're still in the process of negotiating the case. That was the case — there's never been a case like that brought before. And it came out of my screaming at the border Rehab Act, Rehab Act, Rehab Act. And eventually we did file it, but it has done nothing to change the attitude towards people with disabilities and medical needs at the border, as is evidenced by my five plus weekending humanitarian parole.
So we still have a long road ahead we need to address these needs of disability because we're coming up on mental health issues that are severe mental health issues, caused by post-traumatic stress disorder and other forms of trauma that have really been — are widespread. And we can't ignore that anymore. We can't marginalize people because number one, we don't quote, unquote, see the disability.
But even if we see the disability, we figure, we're not going to deal with it. That's now how we should be operating on the border. And the border is still the United States of America. And this is the amazing part of trying to convince CBP that they have a duty under the Rehab Act.
So that education is going on. My project is going to be pretty much focusing on people with disabilities and people with medical needs throughout Mexico and possibly Guatemala, over the next phase of my project. Now that the remain in Mexico program is declining and has been suspended, I am now focusing on people who are in Mexico.
My goal is to protect them, create a scaffolding around people with vulnerabilities so that I can apply for not only parole, but if they need to get to the border, how to get them here safely. The victimization of the cartels do not care whether somebody can walk or whether somebody can see or whether somebody can hear. They just want money.
The impact, the ultimate draconian consequence is on the people who are victimized, who happen to have disabilities, medical needs and are particularly vulnerable. So I'm going to stop talking because there's a lot I can say, but if there's any questions or, Kate, if you want to — you're muted.
CHARLENE D'CRUZ: Thank you so much on this. I think there's so many things we can talk about. I do think one of the things to emphasize is the level of partnership and collaboration that we are looking for for this. And so just wanted to say that, so Charlene, her project right now is through the Lawyers for Good Government, who has access to a lot of different law firms and organizations.
And then also there's an extraordinary group of generally small, local organizations that are really doing the direct work on the border. And I think it's important to really honor those explain their work. So some of those work in Tijuana and has really been doing the brunt of this work, similar to what Charlene is doing in Matamoros. Another is the Black Alliance for Just Immigration. While I talked a little bit about — we talked a little bit about Central American, I think it's also important to recognize that Haitians, Cameroonians, a lot of people, because they're Black, are also experiencing yet other levels of marginalization.
Haitian babies have been taken and deported under Title 42. Another organization is the Haitian Bridge Alliance that works on those issues. One huge issue has been the Civil Rights Education and Enforcement Center, who have been doing this litigation and others. Another is the immigration defenders law center in Los Angeles and Immigration Law Lab. We've been needing to cooperate with humanitarian organizations.
There's a Bridge of Love across the border. There's Global Response Management, which had been working with Charlene. Jewish Family Services of San Diego. Team Brownsville. There are a huge number of participation that I would like to give a shout out for that. Another thing that's important, just in terms of communication, as a little bit of my background, I guess I realized I didn't say anything of what I was doing, but part of that is, I worked for many Americans at the American Diabetes Association. That's how I got connected to this group and community. But I also worked a lot in immigration issues.
I worked a few years when I met Charlene on coordinating the volunteer legal response initially to remain in Mexico, and some of the programs before that. We've been able to create a marvelous network of people across the country we can call on. I would encourage you to look at a few Facebook groups. Some are border crisis volunteers, border justice attorney, which deals with these issues. Cam i589. And I589 refers to the asylum form that asylum seekers ask for. Then Nerdy Immigration Lawyer, which is great.
One thing I think has been remarkable is we're also working on language access issues. Still insufficient, but it's an important issue to take into account. I wonder, Charlene, if you could talk a little bit about language access issues.
CHARLENE D'CRUZ: Yeah, they're huge on the border. Spanish is taken care of, but we do need Creole speakers and assistance with Creole. The indigenous languages of Guatemala. The cases used to be continued 13 and 14 times in court because they couldn't get the appropriate interpreters.
KATHARINE GORDON: And how much time would 13 or 14 dates be?
CHARLENE D'CRUZ: That was over six months. And then they ended up not being able to do anything with the cases because COVID hit. But that is about six to seven times more continuances than a Spanish speaker would have.
The other issue is we have no ASL interpreters that are appropriate for this group of asylum seekers. An El Salvadorian young man, I worked close with Corpus Christi interpretation center where we had to use four levels of interpretation because this young man had never been to school. He did not have any tools or skills in sign language.
El Salvador I think now might have an official sign language, but I think they use the one more that's Honduran. We just gestured. So we had to use a gesturing professional who then translated into sign language. I think it was Mexican sign language who then translated to American Sign Language, who translated from English to Spanish. That's four or five levels of interpretation. That's a lot for someone stuck in Mexico and having to maneuver a very complicated asylum case. Add on top of that, dealing with five levels of interpretation.
So I am looking always for interpreters and translators, especially from gesturing to sign language. I not sure if I'm using the correct terminology, but most of my clients do not have an education. So anybody who has any information or some pointers on me — on how I can deal with it who are in the deaf community or with it, I would really appreciate it.
But interpretation has been a huge issue on the border. But even in immigration courts around the U.S. And this is not a new issue. Over the last 32 years I've been in the field, we have consistently dealt with interpretation issues.
The other thing is trauma related, or trauma informed cases, how to deal with trauma in a court hearing. And I don't think any of our immigration judges, even though they deal with trauma every day, have been trained in trauma informed — how to conduct trauma informed hearings, and thing we need to be pushing for that. So yes, those are some of the things we definitely need help with.
Also we need lawyers who could help with an asylum application or a motion to reopen or something where somebody, especially with a disability, could further their cases in immigration court.
KATHARINE GORDON: I also just wanted to ask of Talila Lewis about her experience.
TALILA LEWIS: I just want to talk about my group. We've done a good amount of immigration support, asylum support work. And what we have found is a massive gap in disability and deaf consciousness among even the best attorneys who are doing some really great radical asylum and refugee work, such that deaf folks who they are attempting to serve are actually being funneled through the system, unintentionally so, without any real access.
I wrote in the chat that often meaning having layers and layers and layers of interpreters is more a theater of access than actual access. I would be happy to talk to all of the attorneys on this and whoever else, about some of those concerns and issues. And I'm wondering more about the radical stance and position around language access. I think it's true also of many folks who use spoken indigenous languages, the same thing is happening.
I'm not sure if just saying let's figure out more language access is the best approach. I would like to be in conversations with folks about some other positions we might be able to take around some of this stuff if at all possible. And I'll yield the floor. Thank you. And thank you for your work as well.
KATHARINE GORDON: And thank you also for all of your work. I would love to be in conversation. Charlene, I wonder if you could talk a little bit more about what trauma informed means. And also how memory and trauma work a little bit. You know, because there's, of course, we deal with stigma against people with mental illness. I don't think that's — that's not news for any of us. But also some of the ways in which trauma actually impacts a person's ability to tell their story.
CHARLENE D'CRUZ: Kate, one of the things that I've seen over the 30 years that I've done this, but more intensely when I came down to Matamoros is how trauma affected the legal cases. And also the people, but how it really degraded the legal cases. This is why I am now focusing — this is the exact mission of my new project, how I'm going to preserve the legal cases while dealing with the issues surrounding a human being who is fleeing. And one of the things is how to take care of trauma. So I'm building the scaffolding I was talking about before, me working with psychologists, doctors, community and social workers in trying to sort of scaffold the asylum seeker as he or she is either making their way up through Mexico or Guatemala, or stuck in the border.
I think if we do not do that, I have seen how it is easy to just stay on the law or as Talila said, just the language issues and forget the human being as a whole. And we must push that rhetoric in the court system and educate the judges and the trial attorneys to accept and respect those issues while continuing to forge forward on the legal issues.
We tend to just talk about persecution in a vacuum almost without take into account that, first of all, you're asking about a very delicate, difficult topic. And you expect a proper answer. And what happened on the border with the teleconferencing hearing. Usually the sound was not very good. There's a lot of wind in Brownsville, so even though they were in tent, it was not very good.
And somebody who's scared says something and the judge is like what, what? And then just moves on. Well, that is not only bad in a general sense of this thing, but also it's not trauma informed. It is very disrespectful. It is just not taking into account what this person is trying to say. But the biggest issue is there are no lawyers. 99% of asylum seekers went in unrepresented. And that's where the rubber meets the road. We need to have more advocates in these courtrooms. We need to be able to fight for the due process issues, the interpretation issues, and the trauma informed.
But there has to be a whole lot more training of judges and people who are making decisions, adjudicators who need to be able to do this. Now, I know there's some trauma informed training for the asylum officers with the UCIS, but none of that showed through when people were crying and begging to get into the U.S. during hearing where they were interviewed and just discarded. These are people who were kidnapped, raped, assaulted, just living in fear. And none of that trauma informed training came into play. I listened to many of those interview, and they were horrendous.
KATHARINE GORDON: I wanted to just actually break in right now and provide a little bit of immigration law context. Because actually, the program that I'm working on right now is in Washington, D.C. where I'm with the National Qualified Representative Program, where we represent individuals who were found mentally incompetent to represent themselves. How ridiculous am I saying that people in detention have been found mentally incompetent to represent themselves.
In what world should somebody represent themselves? In law school, we're told that you're a lawyer, you should never, ever, ever in any circumstance represent yourself, because that's just a horrible idea, for the best person. And then, imagine a person who has no access or through four different levels of interpretation. So there's that ridiculousness.
Usually in a criminal proceeding, the usual solution is to stop the proceedings, usually dismiss the charge, terminate, or there might be other commitment or other types of things. You don't decide to just go on and execute them because they can't understand things. You don't execute people who can't understand the proceedings against them. But we're precisely executing people because of not giving them attorneys and because of continuing on with this thing.
A person is incompetent with schizophrenia, but can't prove they're going to get killed if they return to El Salvador, that decision to continue on with the proceeding is a conscious decision to execute them. I think it's important to recognize just the stakes that we're dealing with is, by going forward with the person who is mentally incompetent with asylum hearings, that means that often times they're going to get killed.
That's the reality of the best situation in asylum, but to go a little bit off of my rant here is, so there are a few things. One is that, one of the quotes that I think is so important is talking about immigration court being death penalty cases in traffic courts. Because that's really what we're dealing with. We're dealing with procedural protections worse than traffic courts. And the stakes are so high. We've talked about trauma on the part of our clients. I think one of the unique things in the past few years has been so many of our colleagues have worked with people who have — we've had clients who have been killed. We had client who said we know if we're sent back we're going to be killed and lo and behold, they are killed.
I'm not sure what to say other than it's important to identify that we're deal very much with life and death situations, but yet, there seems to be a complete ignorance on the part of immigration courts that Section 504 exists. Like it doesn't exist, basically. Or if it does exist, people think that it's very narrow and only focus on complete schizophrenia, or a person who is deaf. There is not an understanding of the very, very wide understanding of what disability is, which under the Americans Disability Acts, nobody seems to understand that.
Again, one of the additional things — one of the things there is a little bit of a focus on, and you may have heard about this is matter of MAM, which is a border immigration appeals decision, which says that an immigration judge should respond to indicia of mental incompetency. If a judge thinks the person may not understanding the nature of the proceedings against them, they should hold a hearing in which they can interpret that.
Then they should take numerous safeguards. Safeguards can include things like additional continuances, or limitations on testimony, or a wide variety of safeguards including, probably most importantly, an attorney or qualified representative. So in my situation, I'm actually a qualified representative for people who have been found to be incompetent, then they're given an attorney. And then the case still proceeds.
So a lot of people in the immigration context, the immigration court context, view their obligations limited to the matter of the MAM hearing and provision of an attorney. And that's the only thing that they look at, and that's the only real disability analysis that they make. I think that that's fundamentally incorrect. Additionally, one of the other cases that's important, and I would recommend that you all look at this, is Franco Gonzalez versus Boulder. This is only in the Ninth Circuit, but it's a case based under Section 504 dealing with a person who had an intellectual disability saying absolutely clearly with no question that the Rehabilitation Act applies to people in immigration proceedings.
In the 9th Circuit, that means detained immigrants who have certain disabilities are given representation. So I think that's a very, very important case, but at the same time, from my experience of working in the immigration legal community, all we think about is matter of MAM and maybe Franco. We don't think about every other kind of disability there could be. We don't think of other types of access issues.
I think another thing that's significant here is — and I'm just trying to, just moving my presentation around a little bit, I think one of the things that's so important to mention is the level of ignorance on the part of judges. And Charlene, on the part of judges, on the part of DHS attorneys. And also on the part of immigration attorneys. I think that it's really quite stunning to see the level of education that's needed for immigration attorneys. And I think it just goes to show that in law school, you can — it's hard to be exposed to disability rights law in law school. It's almost never a course that's taught by itself.
It's almost never something that people are made aware of. I've had so many conversations with really good attorneys who have never heard of the Rehabilitation Act, or who only think that the Americans with Disabilities Act have to be with architectural barriers. I think it's a critical oversight in that situation. I'm going to take a second to respond to some of the comments.
I think it's really important for us to have continued discussions with Olmstead, regarding Department of Justice complaint, regarding Office of Civil Rights complaints. I think one thing I would like to have is an outcome of this conversation, the conversation we had yesterday, is if other people are interest the in following up these conversation, uh ho we might be able to strategize, I think that would be very important, because I'm noticing that a lot of friends and colleagues in both the disabilities rights community and in the immigration community have a desire for better advocacy. I think a collaboration on that would be very, very important. I would love to have whatever communications we could have regarding that.
CHARLENE D'CRUZ: One thing I've had success with since Biden's administration took over is working with the civil rights arm of the DHS. They have been very open to receiving my rants and copies of my paroles and they actually respond and keep in touch. They want more complaints. They want to see that. So, that's what I'm encouraging people, especially on the border, the attorneys, to keep making those complaints. But even if you're in the interior, I think that these complaints need to be made, and we need to communicate and have more of a relationship with CRCL.
One of the things about MAM, though, that's interesting is it's an access issue, right, and safeguards. But when we were trying to argue that people who are — shunted into Mexico and made to remain in Mexico were in a detention setting and we were seeking a change of custody, the judges dependent want to touch it, even under MAM or anything when we were arguing access issues.
So I think the argument for one of the conversations or services or duties under MAM or even the Rehab Act and immigration block should be parole into the country if someone is seeking asylum.
KATHARINE GORDON: One thing I would also like to mention is the importance of using outside organizations because of the retaliation issues that we deal with. And so I think part of it is when we're in court or when Charlene is at the border, we're afraid that if we do certain advocacy, that might harm our client. And so for example, if we might be in front of a kind of ignorant judge, do we smile and nod and see if we can catch them on a good day and do whatever we can to win for that client? And maybe don't push the systemic issues or don't push the larger issues because we're afraid of retaliation.
I think having access to CRCL, have been access to the disability rights network, DOJ, all of those organizations can be critical, because what can happen is if we make a complaint, the detention center might say, oh, suddenly all the phones are broken. Or we might lose access. When I was working with kids who were in immigration torture in residential treatment facility in Texas, the issue that we sometimes had to deal with is, do we make a complaint to ORR, knowing that the facility could just shut off our access so that we couldn't even see the kids.
So I think have been outside groups who the underlying immigration claim is so important, because even with access issues. For example, if we were — we need to just be careful in terms of really, really focusing on maintaining good lines of communication some of the time with the judges, educating the judges in a way that maybe that we sometimes have to almost not — like, if I'm going to try to get torture relief for my client, I'm going to be focusing more on trying to bring up the sympathy factors or trying to paint my client in a very dehumanizing or vulnerable way to kind of get this judge who knows nothing about disability, to have pity on this person. So that this person isn't deported to their death.
I think having outside organizations and outside advocacy, outside pressure is so essential so that we can work on some of these things more. I'm just rereading this here. I'm just taking a step back right at this moment. Charlene, I wonder if you could respond to, do you ever have to counter the assertion that once an individual is off U.S. territory, Section 504 simply doesn't apply and there's no right to accommodation. Or is that a level of acceptance of disability rights that's even hard to get to?
CHARLENE D'CRUZ: The most common pushback is, oh, Rehab Act doesn't apply. They're not in the U.S. And we had to wrestle with that issue in our class action lawsuit. And I've had to wrestle with that issue with the paroles that I was doing. My argument to that is if the U.S. government has offered a service or a privilege, like, for example, the paroles to the general public, then there is a duty if someone presents, and the government knows, that this person has some disability or some need that is going to make it more difficult for that person to further their claim, I believe the U.S. government owes a duty under the Rehab Act.
Now, I've heard many arguments against it, especially when I was dealing with the remain in Mexico program, but in that lawsuit, we argued that because the DHS had already made an exemption for people with known medical or disability conditions, that they were not supposed to be in the remain in Mexico program. That was an acknowledgment by the U.S. government in that there were exemptions. And those exemptions were probably based in laws like the Rehab Act. And so therefore the government violated their own exemption by forcing people with disabilities, medical needs, and trauma, into the remain in Mexico program.
But that is always there. There's always the issue of, we don't need to offer that, the rehabilitation. I would like to argue, even if their feet are not on U.S. soil, if they go to a consulate, for example, to seek refugee status that the Rehab Act should apply. I need to do more research, so if anyone has any thoughts how we can push it, I just don't have the capability to do that level of research, but I'm always interested in hearing everybody else's research. If I'm wrong, I'm wrong, and we'll need to find another way through, but we need to work that issue, especially through the consulates, I think that would be awesome.
KATHARINE GORDON: I think some of the State Department's accessibility and agencies may have some potential. Going through CRCL, through the State Department might be helpful, similar to go to DHS, no the so helpful you go to CRCL, a little by more helpful.
I wanted to just go over a few other things. I would like to now, just let people know that I put in the chat, and I can share it again, just kind of a — I haven't done the full accessibility check for the PowerPoint, but I think it should be pretty good, as well as my notes that has a lot of articles that I've been referencing. And I try to just put together as many — kind of a combination of some important sites and also articles that I think do a good job of explaining issues and also do a good job of highlighting individual stories. So you can look at that in general.
I would like to talk about a few of the other issues, both the adult immigration, detention in the United States and also kid immigration detention in the United States. Some of you may have heard of Fraihat, I think that's a really important critical case. That focused on the treatment of individuals with disabilities in ICE detention. And it's a claim based on Section 504 and other prison condition issues. One of the things it scepters on a lot is segregation and isolation of individuals with mental health disabilities in prisons, immigration detention facilities.
So that's ongoing litigation certified as a class. The amazing, amazing litigation work of everyone involved, because we know how impossibility class actions can be now. And the fact that all of these things we're fighting, and we were fighting and not losing in the courts, continuing, getting beyond summary judgment often. But in any case, I wanted to say that took a different turn with COVID.
So there was a motion for a temporary restraining order, or injunctive relief to say that people who have certain disabilities that would put them at higher risk for problems with COVID should be released. That was in April of 2020, and so the government entirely ignored all the — entirely ignored the court order, essentially, and continue to have had people in detention, continued to have people die in detention. It just overall, just a horrific situation.
However, in the past two weeks maybe, we are seeing — after ICE ignored all of their directives from the Secretary from Homeland Security from Biden, we are finally seeing people being released who have conditions under Fraihat. I think it's important to keep our eyes out for that. And the information that I shared, I would just suggest that you can — I believe you can contact CREEC for case questions.
There are a number of know your rights resources. And now I think it's a really good opportunity for, if you're aware of individuals who are in immigration detention, now I think is a really good opportunity and time to try to get them out. I want to share just one experience that I've had as well of just bringing you back to some of the larger themes of just white supremacy that we're dealing with.
In April, folks in Virginia were terrified that there would be COVID in the detention facilities and that there was no — there would be no way of preventing a mass infection. Then in Minneapolis, George Floyd was killed. Then the DHS decided that it would get involved in suppressing Black Lives Matter protests.
Sorry for this long winded story, but I think it's important. So the Army decided, and the U.S. military decided it wasn't going to get involved in suppressing these protests. However, DHS decided that it could. So what DHS did is it took its CBP officers who were in Arizona, who were in Florida, who were in California where they were hot spots of COVID in immigration detention, they flew their CBP officers to Virginia in order to put down the Black Lives Matter protests in D.C., in order to requisition the planes that they needed, they had to transfer some immigrants with them.
So they took those immigrant in detention facilities in Arizona where there were COVID outbreaks and transferred them to Farmville. And 90% of people in Farmville got sick with COVID. Many seriously, none of them received real treatment. This summer, all of my clients were calling me, they were sick, they didn't know if they were going to die. And that's the reason Farmville had that kind of conflict, or that breakout was precisely because of the use of CBP officers in an inappropriate way to suppress the Black Lives Matter protests in D.C. I just thought I would share that, because I think it's so important to realize what we're dealing with is so many levels of illegality.
Then another level of illegality is the Flores settlement and kids. I had the opportunity to work with kids who were in one of the worst detention facilities in Texas, and from there, I really learned how dangerous the situation is and how much attention needs to be placed on it. Some of you are heard of the Flores settlement, and I talked earlier in my presentation about Jenny who is the child involved there.
The Flores settlement gives certain rights to children who are unaccompanied in the U.S. who are in immigration detention. And what it basically means is that kids should be held in a quality state licensed shelter until they can be reunited with their family or extended family as soon as possible.
However, there's limited oversight of this, no regulations. We have a 1977 settlement that should have been put into regulations with real enforcement authority, but instead there's none of that. Instead, ORR has almost complete power to do whatever they would like to. The one good part of the Flores settlement is that the attorneys are still active. One attorney, holly Cooper at UC Davis included the claims of discrimination against kids with mental health disabilities and other disabilities in ORR custody. That's ongoing. But it also revealed a situation where children are — there's no attempt to get medical consent for children.
Children are typically given five or six psychotropic medications, or they were. Sometimes children would double in weight in a few months with no oversight. So that's part of Flores. Another part of Flores, and problems with it, is the way that mental health services are used to criminalize immigrant youth.
One of the requirements of the Flores settlement is kids should be provided with psychological counseling. Sounds good on its face, right? It sounds good to have these kids who have trauma to talk with a counselor. But what the U.S. has been doing is using those counselors, using those social workers to report what the kids say to ICE. So they're dealing with traumatized kids who have seen people beheaded in front of their eyes, who have problems with memory, who have problems with disability, with so many different things, and in that case, they write down the notes and they say oh, the kid is gang involved. Then that note gets shared with the ICE prosecutors. So then that kid cannot get relief, and the only option the kid has is to essentially self deport.
I worked with several kids in kid immigration detention for years because of what they shared with ORR staff and caseworkers and social workers. And I think that that's a critical issue to look at is how mental health, quote, services are actually a further tool of repression.
One case that's important here, and again, huge gratitude for the people who are bringing litigation for the first time. One case here is John Doe 4 versus Shenandoah valley, which is a 4th Circuit case where it's still pending. The 4th Circuit said that it actually was a somewhat helpful decision saying that kid immigration detention centers need to provide acceptable standards of professional judgment in the provision of care, rather than the much higher deliberate indifference standard.
So again, basically it's a recognition that that ORR centers should be places of treatment and of healing. And therefore, deliberate indifference, the standards that apply to a death row prisoner shouldn't apply to a traumatized kid. And instead, saying these kids may have a right to appropriate care. We're seeing how that plays out, but I think that it's helpful to think that it's really — I think it's helpful to look at that.
CHARLENE D'CRUZ: Can I interrupt just real quickly on the children. One thing, and being a special ed teacher, I know this is not happening. They are not complying with any special education laws. And one of the trips I feels going to take with Donna where they're holding the children, now they're moving them out to these various other location, but I would bet my bottom dollar that there's no assessment going on, and no evaluation. I mean, it doesn't even exist in the detention setting for these children.
That's one I think I was going to try to analyze, what is going on with special ed needs. That's part of the problem with this, when we have attorneys who are doing these cases who are not well informed on disability law. That question I have never seen asked, even from the Flores counsel. They talk about education. I interviewed about 100 children two years ago in the summer who were being held, and all of them said they may have gotten about two hours of education on a high end. It was a child who I was talking to, and he — to me, he seemed dyslexic. Of course, my special ed teacher and evaluator hat came on when I was talking to him.
He seemed like he was dyslexic and he had processing issues. I asked him, did you get special care, special teachers? No. Often times, he was sent away from the classroom because he couldn't sit down. And so I think that we really need to, when we're talking about children, immigrant children in detention, now that they're increasing the number of detention centers, and the capacity, is that we need to be fighting for that. And this is going to be one of my trips in the next week, is to see if I can get to CBP McAllen and demand to know what special education services are getting to — you know they're not going to talk to me, but as long as I show up and keep bugging them, they may talk to me eventually.
You can't find out in any other way. There's no FOIA you can do to ask for services because they move the children so fast. So I have never been able to find out.
KATHARINE GORDON: Just to break in there, I would just really, really recommend that everybody read everything that Ada Bodago has written. She's an extraordinary reporter who broke the story of so much of this. She's just an extraordinary person and individual. She has a lot of the information of all of these abuses, and I think that her writing really gets to the heart of all of this.
I also was able to — I can't say too specifically of things that I saw, but I will just say that I have done a lot of human rights work in my career, including as a human rights observer in Guatemala right after the war. I have just never seen anything as horrifying to me as the — as how children are treated in ORR detention, especially those with disabilities.
I think what it is, so much of it is the adult silence. Everybody knows these kids are being tortured and nobody feels like it's their responsibility. And I think that is something we need to deal with. And in terms of who brought this about, it was those children at that center who decided that they were going to speak, who decided, they knew that they were being monitored with cameras in those facilities. They decided to speak with Flores counsel. They decided to talk about how they were being tortured. And that has created all of this discussion.
I think to honor them, they're just brilliant, wonderful, wonderful kids, and I know several of them, and I think to honor them is — I don't know, it's so important, because they are being tortured in a way that would — if I had these kids' medical records and I were treating — a kid like that was being treated from El Salvador, I would get torture relief from them, because of how poorly these kids are being treated on our watch.
I know we're getting close, but one thing I wanted to really mention for further discussion is there's such a huge opportunity for advocacy at the administrative and notice and rule commenting level, because the Biden administration to their credit does want to put some regulation and some order in place. We have to have a disability rights perspective there at every level, otherwise we're seeing the worse paternalism that we've seen in the foster care system that Charlene talked about in the beginning, of deciding your worst stereotypes of what the child welfare system does, of deciding to do what's best for the child in a way that deprives them of all autonomy and of all dignity.
I think the disability rights community can play a critical role, especially in regulatory advocacy of making sure that every step of the way, kids who have disabilities are protected. Because they're not being protected right now. I think there's a huge opportunity. For people who are in the department of education, the department of health and human services. One other plug I would like to make is — this is just off the top of my head, but I think that ORR may be doing some detailing hiring for people who are already civil servants, so who are already in GS 12, 13, 14 level, who might be able to do details.
I think the biggest thing we can do is to get people in there to see things. Like Charlene talked about, she's a special education teacher, so when she goes and talk, she's going to see different things. And getting people in there who understand that disability rights is a thing is really helpful. Because right now, there's such a need for more education. Because when we're talking about education, it means the difference between a child deciding to self deport to her abusive stepfather who she knows is going to continue to abuse him or not. So the stakes I think are really high. That I think is one of my rants. Charlene, would you like to add anything?
CHARLENE D'CRUZ: One of the things that I didn't know, you could open the chat at the same time. So I've been getting in and out. But I'm seeing some questions. Any questions that anybody has that are specific or general.
KATHARINE GORDON: Sylvia, do you have anything to add?
SILVIA: I have a question how to get education to these kids. I just say IDEA as an act, it hinges upon state infrastructure, education infrastructure. It places an obligation — it would be hard to kind of distinct education responsibility, I think, to be placed directly on ORR or any other sort of immigration entity. I think they would have to — you would have to press on the responsibilities and say well, you, local district, are doing nothing, when there's obviously children in your district that can have disabilities. You should enter an agreement or figure out some way so the obligations of the children in your district are actually met by the closest entity that could possibly do anything about it.
I think that's the only way that IDEA could be brought into this. But that's just an initial thought.
CHARLENE D'CRUZ: Sylvia, I sort of akin it to dealing — when I used to do disability law with homeless children who continuously moved from district to district, how the school districts have to deal with that. It should be a sort of set the tone on how they're going to quote, unquote, deal with the transient student population. And we should be holding their feet to the fire because both the federal government and many state governments have discussed this in terms of homeless children.
If I had 700 hours to the day, that would be something that I would be fighting for, because this for me is in my wheel house, and I'm very interested in how we're treating the children, because after all, our asylum seekers are coming to save their children. And if we can try to envelope the children with the care that they need. That's one of the things I'm very interested in. So if anybody has any thoughts about making parallels between the homeless issue and the transient immigrant detention children, I think that could be something we could address with the CRCL at DHS.
KATHARINE GORDON: I think another comment, maybe just a clarification that does complicate things, when ORR is doing their job correctly, usually kids should be released to a sponsor within 15 to 30 days probably, which allows for some background checks and general thing, which I do think some amount of time for kids who — you know, I have had — I have had kids who have just, you know, just orphans who have come and they do need a place to be for a little period of time.
Generally speak, the kids shouldn't be in detention for more than but 20 days if things are going right. So part of the issue that happens is that people — like maybe it doesn't matter as much if they're recuperating from this horrible journey. The question happens is what kind of oversight is there on kids who have been there for more than 30 days, because then at that point, the system is designed — there's a really good article on, I think, every day is like the first day, "The New York Times." I put it in the Dom that I have, which talks about a girl's experience who was in immigration detention for over a year when she was separated from her sister.
What happens is that because most kids are about two to four weeks. So then they do a two to four week curriculum, it's friendly, it's pretty low intensity. But it's friendly, they do arts and crafts. Then they go and are released to their family. The kids who tend to be there later are kids with disability or perceived disability. They end up getting the same curriculum week after week, year after year. I think that's something that I think complicates the issue. Advocates are looking at release first rather than what does the kid need in detention? Because the kid shouldn't be in detention in the first place.
CHARLENE D'CRUZ: And that curriculum is definitely not compliant.
SILVIA: Right. Individualized education would be a hard thing to pull off.
KATHARINE GORDON: I think we have just five more minutes. I would love to be in continued conversation. Charlene, your project sounds really amazing. And I'm really, really excited to hear all the things you guys are doing. And I think huge opportunities — and going, we just actually had in immigration — I was just on an immigration webinar a few days ago with other qualified representatives who work with folks who have been found to be mentally incompetent talking about CRCL and Section 504. Also the other thing is that we have really, really great people who stayed with it, who are now in government trying to do some of the better things.
I think now is a really opportune and good time to be reaching out to the people who really, really care about these issues. Like just like yesterday, Victoria Thomas was at DOJ, and I worked with her at the American Diabetes Association, so I think that we have some really, really good networks that can allow us to have eyes on these issues and come with all of our perspectives. Any last words, Charlene?
CHARLENE D'CRUZ: Thank you all for — this has been great for me. Being on the border, I am so buried in dealing with the daily needs that it's hard for me to step back and think policy, so I always love talking about what we could do, and if anybody has any question. I see there's several people who run clinics who would like to interface with Lawyers for Good Government. We could use your help, I could use your help on research and basically how to sue the government. Thank you.
KATHARINE GORDON: Wondering if anyone else has last comments. I guess we'll be in contact and looking forward to working with you.