As delivered to the membership at the plenary session of the AILA Annual Conference on July 1, 2010 in Washington, D.C.

Thank you, Chuck, for your kind introduction.

I would also like to thank my father, who you have now all had the pleasure of meeting via video.  The rest of the story is that after he escaped the Nazis with my grandparents he came to the US, eventually settled in Detroit, and joined the US Army where he served with the most decorated unit of World War II.  He came home, completed Harvard Law School, met my mother—that is how I entered the picture—and joined AILA in 1968.

As a child I learned from watching my Dad in action. Through his integrity, hard work, and passion for justice, he taught me that a lawyer’s mission is simple.  It is to help someone. He is my inspiration and my hero.  Thank you.

Last, but not least, you, the hard working lawyers of AILA.

Look around the room today and see the wonderfully diverse group of lawyers that represents America.  AILA is all about diversity; it’s what we do.  We help build this country by strengthening its social fabric, infusing its institutions with talent and inspiration from around the world, and in the process, expanding its rich, unrivaled culture of freedom and democracy.

We are the luckiest lawyers in America.  We help bring in the best and the brightest from far off continents—scientific innovators, artists, sports stars, engineers, doctors, and an incredible array of workers, to name just a few.  We guard and protect America’s promise of opportunity and justice for all.  Every fight for a client in immigration or federal court, every cancellation of removal, asylum or 212c claim we present, every motion and brief we file expresses in a loud and clear voice our collective support of immigrants’ rights.

So, the biggest thank you goes to you, the outstanding lawyers of the American Immigration Lawyers Association.  Thank you for your hard work, thank you for your commitment to justice, thank you for your passion and, above all, thank you for devoting your careers to making this world a better place.

On a daily basis, you carry the flag for people like Mr. Boubacar Bah.  His story has played out for generations.  An immigrant from Guinea, he came to America in 1998, motivated by a burning desire to help feed, cloth and educate his family in Africa.  Like so many before him, and so many to follow, he was ordinary and unremarkable and at the same time, extraordinary and courageous.  He sacrificed and bet on the American Dream; the idea that by his hard work and determination, he could create a better future for his family, and for future generations.  And he did.

For ten years, Mr. Bah lived and worked in New York City, embraced by a circle of friends and relatives, and appreciated by astonished merchants who sold his hand-made clothing in the West Village for top dollar.  He shared a modest apartment in Brooklyn with a fellow countryman and tailor, and eventually saved enough to return after 8 years away to visit his longed-for family.  Mr. Bah was realizing the American Dream.  But his dream ended in a nightmare.

When he returned to JFK airport in May 2006, immigration officials told him his request for legal status had been denied while he was away, automatically revoking his permission to re-enter the US.  He was detained, and for the next 9 months exposed to the horrific maze and brutality of our dysfunctional immigration detention system:  a system that holds up to 33,000 detainees every night in local jails, so called “service processing centers,” and former medium security prisons converted to “family” facilities, like the T. Don Hutto Residential Center in Taylor, Texas.

Violations including physical and sexual abuse, substandard medical care, over-medication, inappropriate transfers, and other appalling indignities contrary to basic notions of due process are rampant and have been documented by organizations including the ACLU, Amnesty International, Human Rights Watch, Human Rights First, the Appleseed Foundation and the Department of Homeland Security Office of the Inspector General.

In late May, the ACLU of Texas issued a press release condemning the reported sexual abuse of female detainees in Hutto.  In a related statement, the Immigrant Justice Center of the Heartland Alliance asked, “How many more lives are ICE and President Obama willing to put at risk before taking meaningful steps to end human rights abuses in the immigration detention system?” It added, “Women – we do not even know how many – have now suffered the trauma of sexual assault because of the failure of ICE leadership to respect the human dignity of those in its custody and implement meaningful reform.”

Did ICE respect the human dignity of Mr. Boubacar Bah?

Records released to the New York Times show that after allegedly falling and hitting his head in a bathroom at the Elizabeth Detention Center on February 1, 2007, Mr. Bah was taken to a medical unit where he became incoherent and agitated, and was ultimately handcuffed and placed in leg restraints.  As he lay on the floor writhing in pain and vomiting, guards wrote him up for disobeying orders.  He was lifted in shackles and taken to an isolation cell where he remained for more than 13 hours, moaning, foaming at the mouth and ultimately rendered unconscious by what medical experts reviewing his file later described as “textbook signs of intracranial bleeding.”  Someone at the jail finally called 911.  He was rushed to a hospital where he underwent emergency surgery.  After lapsing into a coma for four months, he died.

As if this were not enough, it was subsequently revealed, again in the New York Times that as Mr. Bah lay dying, ICE officials plotted to conceal their negligence, perhaps even criminal misconduct, from a reporter trying on behalf of Mr. Bah’s frantic relatives to find him.  From an article that appeared January 10, 2010,

“[T]he immigration agency’s spokesman for the Northeast, Michael Gilhooly, rebuffed a Times reporter’s questions about the detainee, who had suffered a skull fracture at the privately run Elizabeth Detention Center in New Jersey. Mr. Gilhooly said that without a full name and alien registration number for the man, he could not check on the case.

But, records show, he had already filed a report warning top managers at the federal agency about the reporter’s interest and sharing information about the injured man, a Guinean tailor named Boubacar Bah. Mr. Bah, 52, had been left in an isolation cell without treatment for more than 13 hours before an ambulance was called.”

And ICE’s reaction?  Did its leaders insist on an immediate investigation and urgent action to prevent further misconduct?  No.  They compounded it.  Again, from the January 10, 2010 article:

“While he lay in the hospital in a coma after emergency brain surgery 10 agency managers in Washington and Newark conferred by telephone and e-mail about how to avoid the cost of his care and the likelihood of ‘increased scrutiny and/or media exposure,’ according to a memo summarizing the discussion.

One option they explored was sending the dying man to Guinea, despite an e-mail message from the supervising deportation officer, who wrote, ’I don’t condone removal in his present state as he has a catheter’ and was unconscious. Another idea was renewing Mr. Bah’s canceled work permit in the hope of tapping into Medicaid or disability benefits.”

Eventually, faced with paying $10,000 per month for nursing home care, ICE officials settled on a third course: “humanitarian release” to Mr. Bah’s cousins in New York who protested that they had no means or ability to care for him.  Days before ICE’s planned release, Mr. Bah died.

His death appears as number 76 on a list of 112 deaths that have occurred in ICE custody since 2003.  And there will likely be more.

Mr. Carlyle Leslie Owen Dale, a severely ill Jamaican immigrant, has been languishing in ICE custody for nearly 5 years.  Last week, his advocates at the National Immigrant Justice Center filed an urgent petition with the United Nations in the hope of securing Mr. Dale’s release before he dies from medical neglect.  They have desperately and repeatedly sounded an alarm to save his life; how many other lives now hang in the balance?

It is stunning to consider that these documented reports of death, physical and sexual abuse, humiliation and unconscionable infliction of harm could just as easily describe detention conditions in a far off, totalitarian regime. Can you imagine if an American had died in Iranian, North Korean, or Cuban custody under similar circumstances? We would be incensed. The Administration would call for heads to roll, Members of Congress would deliver impassioned speeches, and the blogs and media pundits would rage.

But the gratuitous cruelty and criminal cover-up I have described to you is homegrown, and government sponsored.  ICE as an agency has failed miserably to protect the human rights and physical safety of thousands of vulnerable men and women.  And despite attempts by those in power to avoid responsibility, AILA must insist on accountability and defend relentlessly those silenced by the government’s collective failure.

Last year Janet Napolitano, Secretary of the Department of Homeland Security, and John Morton, her Assistant Secretary, promised the country a “truly civil” detention system.  At this point, given what we know, and frankly what should be clear to anyone who follows the news, it would be a major accomplishment if ICE’s detention system could be civilized, let alone made civil.

While we take the agency at its word that it is making good faith efforts to implement solutions, at what point do we say- ENOUGH?

When are we obliged, because of our history and all that we know about the danger of silence in the face of injustice, to call for emergency measures to protect human rights?

When does our experience, and our outrage, leave us no choice but to insist that leaders give serious consideration to-

  • Suspending ICE’s detention authority by placing it in receivership under the White House or the Department of Justice pending a full investigation of the abuse and deaths in detention;
  • Ordering a top to bottom review of ICE, in particular its detention and removal operations, with the goal of overhauling the agency to ensure it understands and applies the law fairly, and in manner that protects basic human rights; and
  • Requiring the Department of Justice to commence appropriate civil and criminal investigations of all deaths in ICE custody, and hold individuals accountable?

We owe it to the families of the deceased to stop the ongoing abuse, neglect, and death in ICE custody.   Perhaps if we do, they may find some comfort in believing their loved ones did not die in vain.

Whether to bear witness to the fate of Mr. Boubacar Bah, or to the thousands of other unnamed, unrepresented individuals shipped by ICE to remote and inaccessible detention facilities effectively eliminating their ability to secure or retain counsel, or to receive the support of relatives and friends, we must expose and challenge these manifestations of America’s broken immigration system.  So, too, must we confront the institutionalized “culture of no” that permits repeated misapplication of the law, denial of approvable applications and petitions, and collusion by sister agencies to feed ICE’s seemingly single-minded and currently unrestrained appetite for detention and removal.

The system is broken.  US immigration policy is in need of a full and complete overhaul, and AILA must work aggressively with our partners to promote Comprehensive Immigration Reform.  We need an earned legalization program, a sensible path to citizenship, more visa numbers, and a well-designed temporary worker program.  And of course we need effective enforcement, but not at the cost of violating due process and human rights.

I for one am tired of waiting.

The time to act is NOW.  Not in a month, not after the election, not during a lame duck session, and not after a new Congress takes office.  NOW!

President Obama, Members of Congress, and DHS, DOS and DOJ leaders, we stand ready and willing to work with you to fashion and implement an historic overhaul of our dysfunctional immigration system.

Together, we must halt the steady stream of families ripped apart as a result of unconstitutional ICE raids and the agency’s lack of cohesive, rational direction.  We must prevent researchers, entrepreneurs, innovators and academics from being stymied by bureaucrats in windowless offices whose personal, anti-immigrant bias is permitted to infect adjudications, and rob America of essential talent.  And we must not tolerate people being forced to live in fear based upon the color of their skin and the misguided belief that the darker their tone, the more likely they are illegal.

How many more promising high school graduates will be denied a chance to dream and relegated to immigration limbo – not accepted in the country they have struggled against all odds to enrich – and forced like Leslie Cocche or Eric Balderas to fear being handcuffed and jailed by CBP for boarding a train or a plane without proper papers?

The time to act is NOW.

We are embroiled in a struggle for human rights, and reclaiming America’s soul.  Our battlefield is the broken immigration system, and it is strewn with casualties.  They take the form of families divided by oceans and mean-spirited acts, companies unable complete in a global market, and detainees treated as less than human.  The system is broken and must be fixed.  Indeed, even the U.S. Supreme Court appears to have weighed in through its recent decisions in Padilla v. Kentucky and Carachuri-Rosendo v. Holder, which derive from our confusing, contradictory, and counterintuitive immigration law, and signal a major shift in the Court’s jurisprudence toward greater protection of immigrants’ rights.

There is no issue that impassions people more than immigration.  Why?  Fundamentally, I believe it is because immigration is visceral:  it is about our essence as individuals, as a people, as a culture, and as a nation.  It is about where we have been and where we are going.  What kind of a country do we want to be?  Do we want to be a welcoming nation that opens its arms to people from all over the world, and from all walks of life, or do we want to turn our backs on those in need, and restrict out of ignorance and xenophobia critical opportunities for engineers, entrepreneurs, researchers and scientists like Einstein, who was, by the way, a refugee?

I know which nation I want.

We all want a secure border.  But a secure border depends on an immigration policy that works — a policy that is safe, orderly, and fair — and that promotes rather than destroys families and businesses, and enables America to compete in a global economy.

In 1989, in his final address to the nation President Ronald Reagan described his vision of America as a shining city.  He said:

“[I]n my mind it was a tall, proud city built on rocks stronger than oceans, wind-swept, God-blessed, and teeming with people of all kinds living in harmony and peace; a city with free ports that hummed with commerce and creativity. And (if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here).”

Reagan understood that America’s strength is its openness: its celebration of creativity and new ideas.  We can only hope that those who claim his legacy heed his lesson. We are a welcoming nation, and it’s our job to put a human face on all of the immigrants who grace our shores, no matter how they got here.

We need to seize the immigration policy debate and frame the issue for what it is: Immigration is good for America.  It is good for America to live up to its commitment to due process and the rule of law; it is good for America to reunite families and bring in the best and the brightest to our universities, research institutions and industries; it is good for America to create a system for skilled and unskilled workers that promotes our economy and enables employers to grow their businesses;  it is good for America to legalize 12 million undocumented workers whose full participation in the US workforce will increase the wages and working conditions of all Americans by adding $1.5 trillion to the gross domestic product over the next ten years, by adding $5 billion in consumer spending and by creating nearly a million jobs.

And while our message is overwhelmingly positive, make no mistake about our opponents and their underlying agenda. We must recognize and call out the anti-immigration restrictionists for what they are—hate groups, pure and simple.  The Federation for American Immigration Reform (FAIR), the most prominent anti-immigrant group in the US has cleverly packaged and sold itself to the media and on Capitol Hill as a moderate, “go-to” voice on immigration policy.

But those who study hate for a living know better.  FAIR has been designated a hate group by the Southern Poverty Law Center whose mission is to fight hate and bigotry and seek justice for the most vulnerable members of society, and the Anti-Defamation League whose mission is fight anti-Semitism and all forms of bigotry, defend democratic ideals and protect civil rights for all.

Why have these long-established and well-respected organizations designated FAIR a hate group?  Because they recognize that beyond FAIR’s veneer of moderation is a group whose founders—including John Tanton—as well as its past funders, key employees, and associates are linked to white supremacist and ethnic separatists groups and ideology.

We live in a free country.  FAIR and its ilk can believe and espouse what they want.  But the mainstream media ought to think twice about giving them a bully pulpit to spread hatred under the guise of immigration expertise.  It is our job to counter FAIR’s efforts to sow hatred and misinformation, and to fight along with the Southern Poverty Law Center and the Anti-Defamation League to protect the civil rights of immigrants in America.

How should we go forward?

First, with resolve NOT to succumb to the politics of divisiveness, or to rely on the tactics used by those committed to defeating us.  To paraphrase Mahatma Gandhi, the means we choose will determine the end we achieve.

So let us begin by embracing others.  We must educate our Members of Congress as to the urgent need for immigration reform, and work to prevent “copy-cat” hate laws, like Arizona’s notorious SB 1070.  Arizona Governor Jan Brewer may well win her election in November, but she will have done so by pandering to anti-immigrant restrictionists, and signing hateful legislation, rather than demonstrating real political courage by vetoing it.  In terms of courage, I applaud President Obama and Attorney General Eric Holder for their willingness to take this fight to the courts.

It is ironic – and notable – that T.J. Bonner of the National Border Patrol Council went on record to refute Governor Brewer’s outlandish claim that the majority of undocumented immigrants crossing the border into Arizona are “drug mules.”  Brewer’s comments, Bonner said “don’t comport with reality.”

I think we can all agree – reality is important.  Formulating legislation based on real vs. imagined facts is crucial; so, too, is ensuring that the law is just.  As Martin Luther King wrote in his Letter from a Birmingham Jail, “Any law that degrades human personality is unjust.”

As leaders and experts on immigration, each of you can, and must, provide a voice of reason.  Shed light on what is real by contacting your local newspaper, television and radio stations.  Call a reporter.  Invite him or her to lunch to talk about immigration issues.  Make yourself a reliable resource in your own hometown.

And don’t be shy about taking full advantage of your AILA membership and all it has to offer.  After all, you pay the dues!  Let people know that as a member of the premier association of immigration lawyers and professors, you receive daily, if not hourly, updates on cutting edge developments in law and policy.  Work hard to share accurate information.

Be aggressive.  Write op-eds and letters to the editor.  Nobody knows this issue and can speak or write with more passion and legitimacy than you.  You make your living in the trenches of a dysfunctional immigration system.  You are unequivocally situated to talk about it.

Immigration reform depends upon building support individual by individual, family by family, community by community.  As the late House Speaker Tip O’Neill aptly noted, “All politics is local.”

We have our work cut out for us.

Yet there are undeniable signs of hope.  I commend the commitment of USCIS Director Ali Mayorkas who has extended his hand to AILA and to so many other stakeholders in an effort to achieve progress.  Over the past year, Director Mayorkas has worked internally and externally to promote openness and a meaningful dialogue.  He is willing to listen, and to weigh with integrity a wide variety of views.  Others in government should follow his example.  Some are doing just that — like Associate Deputy Attorney General Juan Osuna — who has taken significant steps to improve the overall quality of the Executive Office for Immigration Review.   He deserves praise for promoting inter-agency and inter-departmental collaboration to establish sensible priorities and, like Director Mayorkas, involving AILA and other key stakeholders in change processes.

Much more remains to be done, particularly to ensure that all who appear in immigration court, especially those who are most vulnerable due to mental and/or physical disabilities, receive a full and fair opportunity to be heard.

Notwithstanding the aforementioned examples of welcome progress in CIS and the DOJ, where government agencies remain intractable and officials refuse to act reasonably, AILA must be ready to sue.  For too long we have let agencies get away with making up, ignoring, or changing the law as they see fit.  Through strategic and forceful litigation it is our job to hold the government accountable for the consequences of its decision-making.  So, whatever your practice area, you must be willing to litigate. And I want you to know that as you take on these difficult and often protracted battles, AILA is on your side.  Whether through practice advisories, mentoring, or tactical support and advocacy, we will help you take your fight to court.  Our Litigation Institute is nearly 10 years old and very sophisticated; still, it is time for us to refine our skills even further.  This year we will develop targeted programs to help prepare members for challenges in federal court.

As an organization, we need to think creatively and be aggressive.  In the end, the courtroom is our most valuable tool and we garner respect and promote real change by using it.  And we should not hesitate to protect our clients’ rights beyond the realm of civil immigration proceedings.  We find ourselves in an enforcement intensive environment.  As immigration attorneys we are uniquely qualified to represent clients charged with illegal reentry, visa fraud, and other immigration-related crimes.  I promise you that as we harness our talents and maximize our potential, AILA will be squarely in your corner.

I am excited about serving this year and look forward to working with all of you as we strive to improve our practice and fight for a fair and just immigration law and policy.

Our mission is clear.  Let’s get to it.