Recently the handling of civil immigration detainers by local law departments has been heavily scrutinized.
AILA Doc No. 04070265 | Dated July 1, 2004
Dear Secretary Tom Ridge, Dr. Nguyen Van Hanh, Chief Judge Michael Creppy:
We, the undersigned organizations and individuals, call on the Department of Homeland Security (DHS), the Office of Refugee Resettlement (ORR), and the Executive Office for Immigration Review (EOIR) to take all steps necessary to ensure the well-being of vulnerable children who seek refuge in the United States. The recent case of Edgar Chocoy, a child asylum-seeker who was murdered after his deportation, underscores the need for swift action to save the lives of these children, help ensure their well-being, and affirm our nation's humanitarian history and responsibilities.
Edgar was only twelve years old when he joined a street gang in Guatemala. At the age of fourteen, he tried to leave that gang. As a result, he was threatened, beaten, forced into hiding, and chased at gunpoint. When Edgar was still fourteen he fled to the United States to save his life. However, an immigration judge denied his request for asylum. Since he had been detained in a secure facility throughout his case, Edgar chose not to appeal to the Board of Immigration Appeals. Seventeen days after his deportation, Edgar was shot to death on the streets of Guatemala by the same group who had persecuted him in the past and whom he told the immigration judge would kill him if he was returned to Guatemala. It was the first time he had ventured out of his house since his deportation.
Sadly, Edgar's death was preventable. We urge you to take the following necessary steps to ensure that future children will not suffer similar tragedies:
1. The EOIR immediately should make binding on all immigration judges the Legacy INS Children's Asylum Guidelines promulgated in December 1998. These Guidelines currently bind the DHS in its adjudication of asylum claims, and they should bind immigration judges as well. Had the judge considered these guidelines, he would have readily found Edgar Chocoy eligible for asylum since from a child's perspective he experienced and feared persecution. The Guidelines would have also assisted the judge in considering and evaluating discretionary factors in Edgar's case, i.e., not treating his juvenile dispositions as quasi-adult criminal behavior.
2. The EOIR and DHS should institute mandatory training programs for existing and new immigration judges and trial attorneys. These programs should focus on areas including child welfare and working with child respondents as witnesses, to prevent needlessly tendentious and hostile questioning, such as occurred in Edgar's immigration hearing. Additionally, the EOIR should develop a special bench book on working with child respondents to assist the judges in adjudication, and DHS should develop standardized materials for prosecutors.
3. The DHS's Office of Juvenile Affairs (OJA) should cease to interfere or obstruct the ORR's exclusive authority and decision-making regarding releasing children per the Flores agreement. OJA reportedly exerted undue influence and provided unsubstantiated evidence in Edgar's case and thereby deterred ORR from exercising its discretion to release Edgar to the care of his aunt.
4. DHS and ORR should develop policies and practices to protect children like Edgar from repatriation to circumstances that severely jeopardize their lives, health or safety. Even when Edgar lost his asylum case, the U.S. government had actual notice that this boy was reasonably afraid of being killed in Guatemala. Nonetheless, no branch of the U.S. government interceded to investigate how to repatriate Edgar to safer circumstances in Guatemala or whether to withhold his removal based on humanitarian considerations. Such cavalier disregard for the actual prospect of harm to a child violates our history and traditions and can contribute to the untold deaths of other children.
DHS's role in ensuring children's safe and secure removal and ORR's role as custodian in loco parentis of the children underscores that both agencies' mandates include researching the circumstances and optimum means of ensuring the safe and secure repatriation of children to their home countries. If DHS and/or ORR deem a child's repatriation as unsafe, the child's removal should be withheld through any available mechanism under U.S. immigration law, e.g., prosecutorial discretion to terminate proceedings and/or deferred action. In this regard, DHS should immediately revise its prosecutorial discretion and deferred action criteria to explicitly entertain children's compelling needs for protection from removal from the U.S.
5. DHS and ORR also should develop and promote legislation that would create a new temporary visa category for children facing extreme hardship if removed. The intent of such a visa category would be to provide temporary protection to a foreign-born child in serious need, which would be reviewed on an annual basis for any significant change in the child's facts and circumstances that would warrant the child's safe repatriation. Such a temporary visa would serve to protect children who, like Edgar, are denied asylum but nonetheless face grave risk of harm if removed. These vulnerable children need and deserve a temporary safe haven in the United States.
We enclose additional information about Edgar Chocoy's case, as well as media coverage of his death. Please contact Crystal Williams of the American Immigration Lawyers Association (202-216-2405) if you have any questions. Thank you.
Edgar Chocoy Guzman
On January 5, 2004 a child was in essence sentenced to death by an immigration judge who rejected his plea for asylum. As reported in the media, Edgar Chocoy was assassinated on the streets of Guatemala seventeen days after the US government ruthlessly executed his removal. He was shot to death by the same group he told a US immigration judge had persecuted him in the past and would kill him if he were returned to Guatemala.
Edgar was only twelve years old when he was forced to join a street gang in Guatemala. At the age of fourteen he attempted to abandon the gang. The gang threatened that they would kill him for leaving. He was threatened, beaten, forced into hiding and chased at gunpoint. At age fourteen he fled to the United States to save his life and meet his mother who had abandoned him at the age of six months. Once in the United States his mother abandoned him again and put him out on the streets. Homeless and alone in a strange country he was taken in by members of another gang who provided him with shelter and food. In exchange for their hospitality the gang members forced him to participate in some criminal activities. Edgar was arrested and upon the completion of his sentence for juvenile delinquency adjudications he was turned over to the custody of Immigration and Customs Enforcement and removal proceedings commenced.
Based on juvenile delinquency adjudications, Edgar was forced to remain in a lock-down detention center in Alamosa, Colorado, thousands of miles away from any family members, while he applied for asylum. On December 5, 2003, Edgar Chocoy, through his attorney, submitted a sponsor reunification packet to ORR seeking his release to his aunt, Virginia Guzman, in Virginia. In a letter dated January 2, 2004, ORR approved this release "after careful review of Edgar's case and case history." This review included progress reports from the detention facility. It also included reports that Edgar was undergoing extremely painful laser tattoo removal treatments to erase the tattoos that marked him as a gang member. The sponsor packet showed Edgar was rehabilitated, committed to going to school, and becoming a productive member of society.
Despite an earlier promise from the Denver DHS/ICE Juvenile Coordinator that ORR's custody decisions would be honored, and despite ORR's clear statutory authority to make and implement placement decisions, DHS refused to release Edgar from custody. As a result, on January 5, 2004, Edgar was still detained for his asylum merits hearing.
Edgar sought relief in the form of asylum. His claim was based upon the persecution he suffered due to his membership in a particular social group, i.e. children who leave the street gang Mara Salvatrucha (MS). He demonstrated that the gang MS is a group the government cannot control. He submitted evidence that the gang has a strong countrywide network and that he would not be safe in any part of Guatemala. He testified as to past persecution and the extreme likelihood of future persecution or death. Edgar testified that as a former member of a gang he would forever be subject to persecution by the gang and would not be protected by the government. He explained that the characteristic of being a former gang member is immutable. A psychiatric assessment found that he suffered from Post-traumatic Stress Syndrome and Severe Depressive Disorder as a result of his experiences in Guatemala. The judge found his testimony to be credible.
Edgar's attorney had arranged for an expert witness to testify as to conditions in Guatemala, the strength, prevalence, and violence of street gangs and the class of children who leave gangs and are persecuted or killed. The judge did not allow the expert witness to testify. Edgar testified as to the circumstances surrounding his arrests, his lack of criminal intent, his remorse, and his efforts at rehabilitation. He testified about his desire to live free of the influence of gangs and become a productive member of society. Again his testimony was found to be credible.
Edgar's request for asylum was denied. The IJ stated in his decision that he had no reason to doubt Edgar's credibility. However, he did not feel that children who were former gang members, escaping gang persecution, constituted a particular social group. He also felt that Edgar, a child of fifteen, could hide from the gang somewhere in a country of 13 million people. Finally, the IJ denied his claim in the exercise of discretion because he felt that a person who had committed errors in the past "even though a juvenile" is not entitled to asylum. The IJ recognized Edgar's attempts at rehabilitation but stated that he found them "too late" and that his past carried more weight than his present attempt at rehabilitation.
When the Immigration Judge denied Edgar's asylum claim, his attorney reserved appeal and encouraged him to appeal his case based on a number of errors she believed the judge had committed, including not allowing an expert witness to testify. However, by the time Edgar went to court on January 5, 2004, he had been detained in a secure, restrictive facility for over a year, a significant amount of time for a fifteen-year old boy who was isolated from all family members.F
ollowing the Judge's decision, Edgar's attorneys again attempted to secure Edgar's release to his aunt pursuant to ORR's order. However, following intense pressure from DHS, ORR revoked its release decision on January 14, 2004. According to ORR, the agency felt great pressure from DHS to not release Edgar and to act as "one government" despite ORR's authority over such decisions.
After the denial of his asylum application Edgar became more depressed. His behavior, previously described by staff as impeccable, completely changed. His began to talk of escaping. He began to fight with other children and staff. He attempted to remove his tattoos with paperclips. He threatened suicide. He called his attorney several times a week alternating between desperation to get out of the lock-down facility and fear of returning to Guatemala. When he could no longer stand to be confined he decided to risk returning home. He was killed on the first day he ventured out of his aunt's house in Guatemala.
Cite as AILA Doc. No. 04070265.