Phila. immigration suit gaining national attention
When Honduran police found Maria Erlinda's uncle dead in a ditch, his nose and one of his ears had been cut off, a finger severed - hallmarks of "Los Peludos," a notorious gang.
When Honduran police found Maria Erlinda's uncle dead in a ditch, his nose and one of his ears had been cut off, a finger severed - hallmarks of "Los Peludos," a notorious gang.
There was no investigation of the murder, which family members believe was retaliation for his having reported an earlier crime.
Then a gang member held Maria at knifepoint and said she would have to become "his woman," either willingly or by force. Her tears drew attention on the street and she broke free. Two weeks later, the single mother, 25, and her two sons, 5 and 8, fled. They entered the United States illegally, where they were arrested in Texas and processed for "expedited removal."
In El Salvador, the Mara Salvatrucha gang routinely extorted 32-year-old Elizabeth Benitez by taking money her husband wired from the United States to support the family. She, too, received unwanted sexual advances; her 12-year-old son was pressured by gang "recruiters."
These and 28 other court-documented accounts form the basis of a momentous lawsuit filed last month in federal court in Philadelphia, with the potential to reach the U.S. Supreme Court, court watchers say.
The women and their children, all current and former detainees at the U.S. Immigration and Customs Enforcement-supervised family-detention facility in Berks County, seek the federal court's jurisdiction over their truncated, expedited asylum proceedings, which their advocates say have unfairly sealed the fates of many broken families.
The case is drawing amicus support from across the country. It comes at a time when the federal government is wrestling with the recent waves of Central Americans seeking asylum, and with the topic of illegal immigration playing a big role in the GOP presidential primary debates. Advocates say these immigrants from relentless danger and crime without punishment in Central America are really refugees, deserving protection.
"The stakes . . . could not be higher, from both a human and legal perspective," said the plaintiffs' lead counsel, Lee Gelernt of the American Civil Liberties Union's national Immigrant's Rights Project.
"If deported, these mothers and their kids - some of whom are only toddlers - will face horrific abuse and violence, and possibly death," he said. "If the government . . . prevails, it will be the first time in the country's history that immigrants on U.S. soil facing removal would lack meaningful access to our courts."
Certain to make precedent in the Eastern District of Pennsylvania, the case could have "persuasive value" in other federal court circuits, too, and could impact thousands of undocumented immigrants.
The 30 cases are consolidated on the docket of U.S. District Judge Paul S. Diamond, who was appointed to the court by President George W. Bush in 2004.
Diamond's first order of business is to decide the threshold question: Does the law allow him oversight of such matters, which normally are the purview of the special immigration courts?
Erez Reuveni, of the U.S. Justice Department in Washington, is lead counsel for the defendants - a cross-section of officials from virtually every division of the Department of Homeland Security.
"Unfortunately, I am unable to discuss the case," Reuveni said in an email, and referred the matter to DHS public affairs, which declined to comment.
Both sides have submitted briefs. Diamond has yet to decide whether he will want oral arguments, as well.
Under ordinary, non-expedited circumstances, an undocumented immigrant who seeks asylum is interviewed by an immigration agent, who must decide whether the person has a "credible fear" of harm in her homeland. If she passes that test, she goes to Immigration Court (with legal counsel, if she is lucky enough to be represented), and presents her asylum claims.
Under expedited removal proceedings, which occur quickly and generally without counsel, after a recent arrival is arrested on the border, "the hearings are procedurally unfair because they do not provide a meaningful opportunity to prove their claims," the plaintiffs contend in a filing.
In simple terms, the federal government's position is that these women and children who came to the United States illegally and are incarcerated pending deportation do not have the same due-process rights as U.S. citizens, and thus are not entitled to federal review of what happened in their expedited removal proceedings.
In effect, the government holds that the legal protections against improper incarceration under habeas corpus law apply only to lawfully admitted U.S. residents.
The plaintiffs, supported by a brief from 15 prominent law professors and constitutional law scholars, counter that the U.S. Supreme Court already has affirmed that such protections against improper incarceration historically have been extended within U.S. borders to noncitizens - even to unlawful entrants.
In a reply brief, the government said the plaintiffs misconstrue the facts: "None of the accusations lodged at the government by amici accurately depict the government's position."
Diamond, a former Philadelphia assistant district attorney who also served as treasurer for the 1996 presidential campaign of U.S. Sen. Arlen Specter (since deceased), will have to see his way clear through the legal murk and issue a ruling, which could come at any time.
If he finds that he has jurisdiction in the matter, the 30 individual cases likely will be remanded for further litigation before the judges to whom they were first assigned before they were consolidated.
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