Our Section Steering Committees frequently take the opportunity to comment on proposed new and amended rules and court orders. Members are able to offer important insights from the viewpoint of their particular practice area and expertise, and the courts have a strong history of listening and responding to the concerns and suggestions of the Sections, and their insights are often reflected in the final iterations of the rules.

Earlier this month, the Criminal Law Section, one of the BBA’s most frequent participants in the comment process, submitted comments in response to a proposed amendment to Rule 12 of the Massachusetts Rules of Criminal Procedure. The amendment would add a new section allowing the defendant, if the prosecutor agrees, to plead guilty while reserving the right to appeal any ruling that would, if reversed, render the Commonwealth’s case not viable. The proposal was drafted in response to the Supreme Judicial Court decision in Commonwealth v. Gomez, 430 Mass. 240 (2018), which authorized the use of conditional guilty pleas in Massachusetts.

The comments reflect diverse opinions from both prosecutors and defense attorneys, offering suggestions and feedback on those sections related to prosecutorial consent, the “not viable” requirement, and single-charge conditional pleas sentencing issues.  A special thanks goes out to Criminal Law Section Steering Committee members David Rangaviz, of the Committee for Public Counsel Services, and Kaushal Rana of the Suffolk County District Attorney’s Office, for taking the lead in drafting these comments and presenting them to the Executive Committee.

                You can read the full Criminal Law Section comments here. We’ll be keeping an eye out for the final rule, and in the meantime, don’t miss the Criminal Law Section’s upcoming program on Conditional Guilty Pleas on March 20 at the BBA!  

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Since the release of the BBA Principles and Report last September, we’ve been using the analysis and framework created by the Immigration Working Group to weigh in on key immigration developments. For example, over the last few months, we submitted comments in opposition to proposals that would radically change the public charge rule and the processing and treatment of immigration youth.  

Below, we highlight the most recent immigration-related position adopted by the BBA Council and offer a few updates on other important developments, including the Border Wall and the family separation suit filed last fall by a collection of Boston-area immigration and civil rights attorneys.

ABA Resolution on Zero-Tolerance Policy and Operation Streamline

Last month, we reported that the BBA endorsed a proposed ABA resolution related to federal immigration policies and practices to be taken up by the ABA House of Delegates at their mid-year meeting. We’re thrilled to report that the resolution was indeed adopted  by the ABA as proposed and can be found here.

The Resolution  and accompanying report were drafted in response to concerns over the US Attorney General’s “zero-tolerance policy,” which, as the accompanying report states, “mandates the prosecution for illegal entry of everyone apprehended at our southern borders between ports of entry, including asylum seekers,” and “Operation Streamline,” under which “en masse hearings combine the initial appearance, preliminary hearing, plea, and sentencing into one single proceeding that can last less than one minute per defendant.”  The report accompanying the proposed resolution explains why the ABA Commission on Immigration and other groups, like the BBA, are so concerned about this policy and practice , focusing specifically on the “significant due process” and public safety issues. 

For a full overview of the resolution and the BBA’s endorsement, visit this blog post.

Our ABA Delegates, both former BBA Presidents, Mary Ryan, of Nutter McClennen & Fish, and  Lisa Arrowood, of  Arrowood LLP, were able to pass along the BBA’s support in advance of the vote. Mary Ryan reported on the great testimony presented in support of the Resolution by those who had visited the border and told personal stories of how the scenes of mass prosecutions impacted them.  

Other Updates

National Emergency and the Border Wall

The federal government shutdown, which occurred largely due to a disagreement over funding for a wall at the border, had major impacts on individuals and communities across the country. These impacts were especially pronounced for immigration courts, where over 85,000 immigrants had their hearings canceled, many after already waiting for years for the court date. It will likely take years for the courts, already facing a deep backlog, to make up the missed hearings, but the shutdown has now ended and attention has turned to the President’s declaration of a national emergency at the border in order to access funding to build the wall.

The declaration has raised significant questions about executive power and national emergencies. Director of Government Relations Michael Avitzur previously shared an article on LawFare Blog by Margaret Taylor, and it’s worth a reread for the statutory argument analysis.

Soon after the declaration, 16 states filed a suit in the U.S. District Court in San Francisco, arguing that the President does not have the power to divert fund as Congress controls that spending and pointing to Trump’s own words to show there is not an actual emergency. Attorney General Maura Healey stated that she is “working to determine the full scope and impact on Massachusetts so that, if and when we challenge the administration’s actions, we bring the strongest possible case.”

Amended Complaint Filed in Family Separation Suit

In September, Lawyers for Civil Rights, and attorneys from Todd & Weld, Nixon Peabody, Demissie & Church, and the Law Offices of Jeff Goldman, filed a first-of-its kind federal class action lawsuit seeking damages against Trump Administration officials for the family separation at the border. The suit, brought on behalf of two families and similarly-situated children, seeks damages based on violations of the constitutional and civil rights of immigrant children, including the violation of due process and violation of the Fifth Amendment’s equal protection clause. The damages sought include the creation of a mental health fund to pay for therapy and treatment necessitated from the separations.

At the end of last month, the two families filed an amended complaint that adds a count alleging violation of the Fourth Amendment’s protection against unlawful seizure. On January 9, the government had filed a motion to dismiss but will now file a second motion to dismiss in response to the amended complaint. Hearings in the case have not yet been scheduled.

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Continue to watch this space for more updates on how these matters develop on the state and national level. If you’re interested in learning more or becoming involved in the BBA’s immigration-related work, email adaniel@bostonbar.org

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

It’s that time of year when our budget priorities become a focus here in the Government Relations Department of the Boston Bar Association (BBA). We previewed our budget campaign before Walk to the Hill earlier this year, and last month Governor Charlie Baker released his Budget for Fiscal Year 2020 (FY20). You can read our letter to the Governor here.  Now, our attention turns the Legislature as the House, and then the Senate pass their own budget proposals in the coming months.

For a refresher on where things ended up for the FY19 budget, visit this blog post, and keep reading to learn more about our funding asks for FY20.

Walk to the Hill Recap and MLAC Budget Ask

Before getting into the budget details, we first want to thank all those who made Walk to the Hill 2019 such a success!  On January 24, hundreds of attorneys braved the rain and rallied at the State House to advocate for an increase in funding from the Mass Legal Assistance Corporation (MLAC), the largest funder of legal services programs in the Commonwealth. This year marked the 20th anniversary of the Walk, annually hosted by the Equal Justice Coalition, an organization formed in partnership with the BBA, the Massachusetts Bar Association, and MLAC.

Before heading over to the State House, law students, in-house counsel, and solo and small firm practitioners gathered at the BBA for a breakfast and refresher on speaking about legal aid with legislators. Once across the street, attendees heard moving remarks from President Jon Albano,  SJC Chief Justice Ralph Gants, EJC Chair Louis Tompros, MLAC Executive Director Lynne Parker, MBA President Chris Kenney, a client who received legal assistance from GBLS, and GBLS Executive Director Jacquelynne Bowman.  As usual, many of the speeches relied on the BBA’s own Investing in Justice report to highlight that funding for legal is not only the right thing to do, but a sound investment that pays for itself, and then some. (ICYMI: that same report just got a mention in the Boston Globe in a piece related to the provision of counsel in eviction proceedings). After the speeches, attorneys spread out across the State House, including Jon Albano and MetroWest Legal Services Executive Director and BBA Council member Betsy Soulé, who had productive meetings with Representative Alice Peisch and Senator Michael Barrett, both long-time supporters of MLAC funding.  Read the full Walk to the Hill recap by the EJC here.

            Walk to the Hill marks the beginning of a months-long budget campaign for civil legal aid, and this year we are asking for a $5 million increase in funding in the Fiscal Year 2020 (FY20) budget, for a $26 million total appropriation. The day before the Walk, the Governor released his own budget, which offered level-funding for MLAC. Now we turn our attention to the Legislature, where we’ll be urging the House and the Senate to include the full $26 million request.

Trial Court

As usual, we’ll also be urging for adequate funding for the Trial Court appropriation. The Trial Court, which is made up of seven court departments, handles the vast majority of cases in the Commonwealth, and as a result, acts as the primary point of contact for nearly all Massachusetts residents who are seeking resolution of a legal issue. In order to ensure the efficient operation of the judicial system and fair, impartial, and equal access to justice, it is essential that the Trial Court receive adequate funding.

Over the last few years, the Trial Court has made great strides in finding ways to work smarter and leverage technological advancements to get more done with less money and less staff. Their current request for maintenance funding of 6,359 positions represents a decrease of 161 positions below the FY16 staffing level and a 19% reduction since FY02.

Despite these efforts, and even with steady increases in funding from the Governor and Legislature, the Trial Court still has a major need for increased funding to sustain and continue the progress made in recent years. In addition, the Trial Court’s facilities are in dire need of security system upgrades, which are necessary to preserve the safety of court employees, users, and the general public, ensuring the Trial Court remains effective and accessible for all residents of the Commonwealth. That’s why we are urging that the FY20 budget include the Trial Court’s full requested maintenance-level appropriation.  

CPCS

This year, we will also be urging, as usual, for adequate and timely funding for the Committee for Public Counsel Services (CPCS),which plays a vital role in our judicial system, providing representation to indigent persons in criminal and civil cases and administrative proceedings, in keeping with the right to counsel under our laws and the Constitution. Adequate funding would help CPCS to increase salaries of their staff attorneys, who are woefully underpaid in comparison to their colleagues in other states, and to attorneys of similar experience in the executive branch. This is not merely our conclusion but that of the Commission to Study Compensation of Assistant District Attorneys and Staff Attorneys of the Committee for Public Counsel Services. The BBA supports the Commission’s 2015 recommendation that minimum salaries for these attorneys be increased, over time, to match the corresponding minimums for executive branch attorneys, and increased funding for CPCS would be a significant and beneficial step in that direction.

CPCS funding in the FY20budget is especially critical because the state faces what the Chief Justice of the Supreme Judicial Court has called a “constitutional emergency.” In cases where a child is facing removal from parental custody, the parents and children have a right to representation at a hearing within 72 hours. There are too few attorneys taking up these cases, and as a result, children and parents, especially in the western parts of the state, are being denied their constitutional right to a timely hearing. Adequate funding would allow CPCS to increase compensation for bar advocates, or private attorneys who defend indigent clients, which would help to find attorneys willing to take on these tough cases and protect the constitutional rights of these parents and children.

Residential Re-Entry Services

As you’ll recall, last year we added an additional item to our budget priorities: funding for residential re-entry services to reduce recidivism. Massachusetts recently took a huge leap towards ensuring our criminal justice system is more fair and effective. While there is much to celebrate, there is still much to be done. Each year thousands of Massachusetts residents are released from jails and prisons, many with little or no resources to help in securing essential needs like employment and housing.

Because of this, the BBA recommended in its report, No Time to Wait, that the state “ensure adequate funding and accountability for anti-recidivism efforts.” One step towards this is through line-item 0339 -1011, which would offer funding for community-based residential reentry services that provide housing, workforce development, and case management for recently released individuals, fostering connections and stability for those re-entering the community. This year, we are once again supporting a $5 million appropriation for these important services.

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As our budget advocacy gets underway, there will be plenty of opportunities beyond Walk to the Hill for you to join us in advocating for our priorities, which will help to ensure access to justice for all residents of the Commonwealth and an efficient and effective judicial system. Watch for e-alerts coming your way, asking you to reach out (again) to your elected officials at key points in the process during budget season! In the meantime, you can learn about the state budget process by listening to this podcast focused on civil legal aid in particular, and about the federal budget and budget advocacy at that level from our Federal Budget Process 101 podcast.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Let’s get one thing out of the way up-front: This blog post has nothing to do with wine.

Rather, let’s talk about trust decanting, or the fiduciary exercise of broad discretionary powers of distribution to create new trusts for one or more beneficiaries of an existing trust. In other words, the distribution of assets from one trust into a second trust, just as wine may be decanted from a bottle into another vessel.

It’s a form of trust modification that’s available to fiduciaries now in Massachusetts. Decanting can be a useful strategy for changing the outdated terms of an otherwise-irrevocable trust—for example, to provide for a beneficiary who becomes disabled after the settlor executes the original trust—but it can also defeat a settlor’s intent, so rules are needed to prevent such abuse.

However, the law on decanting in Massachusetts—what can and can’t be done, under what circumstances—is far from clear.

This situation has confounded practitioners, who don’t know whether a specific modification is proper until the courts weigh in—and who may therefore refrain from taking certain appropriate steps out of fear of litigation. It also poses traps for the unwary and creates an incentive for settlors and testators to establish trusts elsewhere, in a state such as New Hampshire whose trusts law is more modern and can thus provide greater assurance.

Of course, this issue is not new to the BBA. In 2013, we filed an amicus brief to the SJC in Richard Morse, Trustee v. Jonathan A. Kraft, et al. That case addressed, for the first time in Massachusetts, a trustee’s power to transfer the assets of one irrevocable trust to another for the same class of beneficiaries. The BBA’s brief argued in favor of this power to decant, and urged the Court to recognize that it is inherently held by trustees.

The SJC did rule favorably with respect to Morse’s petition—recognizing the authority of trustees to decant where the terms of a particular trust and the surrounding circumstances indicate that decanting is consistent with the trust settlor’s intent—but declined to recognize decanting as an inherent trustee power, essentially preserving the current limbo.

Since that decision, the BBA has hosted numerous CLE and other events on the topic, and next month we will host an event titled “Decanting, Non-Judicial Settlement Agreements and Other Trust Amendment Alternatives.”

Into this uncertainty stepped the independent Standing Committee on Massachusetts Legislation Relating to Wills, Trusts, Estates and Fiduciary Administration (which you may remember from its work on the Revised Uniform Fiduciary Access to Digital Assets Act, or RUFADAA). That group of trust experts—which includes Stacy Mullaney of Fiduciary Trust, BBA Trusts & Estates Section Co- Chair, and Brad Bedingfield of Hemenway & Barnes, Trusts & Estates Section Public Policy Committee Co-Chair—spent more than year poring over the Uniform Law Commission’s model language to develop a Massachusetts-specific version of the Uniform Trust Decanting Act (UTDA), which was designed to create a national framework for practitioners facing questions of how best to accomplish trust decanting.

Last month, on the recommendation of the Trusts & Estates Section, the BBA Council endorsed their work, and we will now make the case to the Legislature that they should adopt this UTDA as part of the existing Massachusetts Uniform Trust Code, joining the other half of the states that have taken similar steps to date—enacting either UTDA or their own decanting statutes.

This proposed Act represents a piece of legislation (now filed by Senator Cynthia Stone Creem) that has been deeply vetted, fits a known need, and will ensure that practitioners in the Commonwealth have at least the same level of statutory clarity on this issue as those in the majority of other states throughout the country. If it’s enacted, Massachusetts practitioners will be free to continue to decant trusts under common law, if that makes the best sense for a client or situation; they will, however, have an alternative and clear guidance concerning how to decant properly in accordance with the statute.

—Michael Avitzur
Government Relations Director
Boston Bar Association

As you know, we regularly collect and submit comments on proposed new and amended rules and court orders from our Section Steering Committees, who offer insights from the viewpoint of a particular practice area. The courts have a strong history of listening and responding to the concerns and suggestions of the Sections, and their insights are often reflected in the final iterations of the rules.

Late last year, the Court released a final version of the Uniform Trial Court Rule on Limited Assistance Representation (LAR) that incorporated feedback from our Business and Commercial Litigation Section (BCLS) Steering Committee. The Rule will become effective on February 1, 2019, and can be read in full here.

Early last year, Chief Justice of the Trial Court Paula M. Carey solicited comments on the proposed Uniform Trial Court Rule on LAR. An LAR Rules Committee was formed in 2017 and charged with drafting the proposal, intended to provide consistency across departments, improving the service for both lawyers wishing to provide LAR and litigants wishing to secure LAR services. When creating the proposal, the Committee considered the Supreme Judicial Court (SJC) LAR Order as well as existing Orders from other Trial Court Departments.

The BCLS Steering Committee comments began by noting that committee members believed “the Trial Court’s embrace of limited assistance representation is an important development in the delivery of affordable legal services in non-criminal cases,” noting that the Section had previously reviewed and offered favorable comments on the Superior Court’s LAR order the previous year. The comments commended the Court for continuing those efforts and highlighted a few points in the proposed rule that departed from the existing rules in ways potentially worth clarifying.

For example, the comments expressed concern about the requirement that the attorney “ensure that a prospective client fully understands the agreement and that the client gives informed consent.” Members were not sure how counsel could “ensure” that a client “fully understand” the agreement and suggested instead it a more objective test, like reviewing the document together. The final comment removes the “ensure” language and instead reads: “The attorney shall review the written agreement with the client before it is signed and obtain the client’s informed consent.”

Members additionally raised concern about the language addressing instances when a lawyer may have exceeded the scope of the assistance described in the Notice of Limited Appearance. The proposed rule provides: “[I]f an LAR attorney files a pleading, motion or other document and/or argues a legal issue outside the scope of a filed Notice of Limited Appearance, then the court may consider the LAR attorney to have entered a general appearance.” Members were worried “that counsel would feel constrained not to raise relevant, helpful, but unforeseen issues—which they had not identified in their Notice of Limited Appearance—out of a concern that they could then be deemed to have appeared generally.” The new rule clarifies this provision, easing the concern expressed in the comments, and now notes that if an Attorney files or argues something outside the scope of the filed Notice of Limited Appearance, the court may require a new Notice to be filed, and if the attorney fails to do so after that, the court may consider the attorney to have entered a general appearance.

            Next, the comments raised two minor clarifying suggestions related to paragraph 5: the mentioned Notice of Withdrawal should be “court-approved,” and that there should be a reference to “service. The final rule incorporates both of these suggestions, now reading: “[u]pon completion of all events or issues for which an LAR attorney has filed a Notice of Limited Appearance, s/he shall serve and a Notice of Withdrawal of Limited Appearance on a form approved by the Chief Justice of the Trial Court.”

            Finally, members addressed the “non-punitive remedy” outlined in Paragraph 5, finding the new proposal a bit draconian compared to the previous standing orders, and noting that members thought that the bar to an award of fees or costs should be set higher than in the proposed rule. The proposal read that “if any other party incurs costs or is otherwise prejudiced by the attorney’s failure to file a Notice of Withdrawal, then upon motion the court may order a non-punitive remedy, including compensation for fees and costs reasonably incurred.” The final rule remains much the same but adds that “…upon motion the court for good cause may order a non-punitive remedy…”(emphasis added). 

You can read the full BCLS Comments here.

As always, we are very appreciative of the hard work and expertise offered by the Committee Members, especially committee co-chairs Stephen Riden of Beck, Reed, Riden and Daniel Tighe of Donnelly, Conroy & Gelhaar, who presented the comments to our BBA Executive Committee before their submission. We’re also thrilled that the court adopted many of the suggestions.

To read more about the impact of past BBA Comments check out:

Busy BBA Sections Submit Comments on Five Proposed Rule Changes and New Rules

BBA Government Relations Year in Review: Part II

Comments Update: Final Trial Court Rule on Attorney Portal Use Reflects Revisions Suggested by BBA Section Comments

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

UPDATE: We’re pleased to report that the ABA adopted this resolution at their mid-year meeting in January.

December was a busy month for the BBA Council. In addition to adopting a position on Massachusetts trust and estates legislation, which you can read about here, the Board also endorsed a proposed ABA Resolution related to federal immigration policies and practices.  This proposal will be voted on by the ABA House of Delegates at the Mid-Year meeting at the end of this month.

The Resolution

The Resolution and accompanying report were drafted in response to concerns over the US Attorney General’s “zero-tolerance policy,” which, as the accompanying report states, “mandates the prosecution for illegal entry of everyone apprehended at our southern borders between ports of entry, including asylum seekers,” and “Operation Streamline,” under which “en masse hearings combine the initial appearance, preliminary hearing, plea, and sentencing into one single proceeding that can last less than one minute per defendant.” The resolution reads in full:

• RESOLVED, That the American Bar Association calls upon the Attorney General to rescind the policy of prosecuting all individuals who enter the United States without authorization at the southern border for the misdemeanor offense of illegal entry pursuant to 8 U.S.C. §1325, end the practice of expedited mass prosecution of immigrants, and allow for an individualized determination in deciding whether to file criminal charges.
• FURTHER RESOLVED, That the American Bar Association urges the federal judiciary to take appropriate measures to assure that every defendant charged with the misdemeanor offense of illegal entry is represented by counsel who has had an adequate opportunity to consult with the defendant, and that any guilty plea is knowing, intelligent, and voluntary.
• FURTHER RESOLVED, That the American Bar Association urges Congress to provide sufficient funding for the judiciary to enable it to take the above measures and sufficient funding to assure that each defendant receives effective assistance of counsel.
• FURTHER RESOLVED, That the American Bar Association urges the Attorney General to exercise prosecutorial discretion and refrain from prosecuting asylum seekers for the offense of illegal entry.

  The report accompanying the proposed resolution explains why the ABA Commission on Immigration and other groups are so concerned about this policy and practice , focusing specifically on the “significant due process” and public safety issues. The report first points to the conclusion drawn by several former U.S. Attorneys that devoting prosecution resources to the mandatory prosecution of misdemeanor improper entry actually detracts from public safety by leading to a dramatic decrease in prosecutions for other serious crimes. These crimes include drugs and weapon smuggling, human trafficking, and environmental crimes. In a letter to the Attorney General on this issue, a bipartisan group of former U.S. Attorneys stated: “Under your Zero Tolerance policy, firearms cases, violent crime cases, financial fraud cases, and cases involving public safety on Indian reservations all take a back seat to these lesser, weaker misdemeanor cases.”  

The report next discusses the significant due process concerns presented by Operation Streamline, which began as a pilot in the Del Rio border sector in 2005, continued sporadically until 2018, and then was expanded across the southern border of the U.S. by the zero-tolerance policy. While the stated purpose of the practice is to deter entry without authorization, there is no evidence that that the policy has had that effect.  This practice raises significant due process concerns, as the use of en masse hearings mean that Federal public defenders typically only have a few minutes to meet, interview, and prepare each client prior to the court proceedings and questions by the judge are also often predominantly done en masse.

            More specifically, these concerns have led the drafters of the report to worry that the guilty pleas procured in these hearings may not even be valid as “under the rush of these proceedings, a defense attorney has only a brief opportunity to meet his or her clients — in a public setting — immediately prior to a scheduled guilty plea hearing to discuss the charges and the decision whether to plead guilty.” Additionally, this makes it difficult or impossible for defense attorneys to fulfill their duty of providing effective assistance of counsel, as they do not have the time required to adequately evaluate the evidence, investigate the veracity of the allegations, and consider any potential defenses. And it’s not only the counsel and clients who suffer from these policies, the report highlights that judges and magistrates are put in an untenable position by having to preside over these group proceedings, since they must determine before accepting a guilty plea, that it was made knowingly, voluntarily, and intelligently.  

            Finally, the report highlights specific concerns related to asylum seekers. The mandatory prosecution of everyone, including those seeking asylum, deprives prosecutors of the discretion to consider cases on the merits, “contrary to accepted norms concerning the sound exercise of prosecutorial discretion.”

Read the full proposed resolution and report here.

BBA Background

                As you likely know by now, the BBA has recently adopted a Statement of Principles Concerning Immigration and Related Issues, which includes four key principles and a full report of the background and reasoning behind them. The document was intended not only as an expression of the BBA’s positions and core values in this area but also as a guide in responding to future immigration questions and challenges. In this instance, the principles most relevant for analyzing the zero-tolerance policy and Operation Streamline are Principle 3 and Principle 4.

Principle 3 calls for the protection and enforcement of due process and equal protections rights for all. The report specifically states:

“Those well-settled principles—that immigrants, including those who have entered the country without documentation, are entitled to the protections of the Due Process and the Equal Protection Clauses—should serve as the foundation for the BBA’s approach to addressing immigration issues.”

Principle 4 provides that “[e]very person should have the full and meaningful ability to exercise their rights and to access justice through the legal system regardless of immigration or citizenship status, level of income, or economic circumstance.” And the report specifically references Operation Streamline in the provision related to “Access to Counsel and Individualized Hearing:”

“Furthermore, when defendants in immigration proceedings seek to assert their rights and privileges, they must be afforded the right to an individualized hearing of the unique facts of their case. … [G]roup hearings and other shortcuts in immigration proceedings have been imposed, particularly along the southwest border, in which ‘a single attorney can represent dozens of defendants at a time, [and] might not be able to speak confidentially with each client or might have a conflict of interest among clients.’ In such cases, judges may take as little as 25 seconds to hear the case of each defendant. Such proceedings cannot be viewed as offering meaningful access to counsel, due process, or justice. [citations omitted]”

            Asylum-seekers are also entitled to due process in pursuing their claims before federal immigration officials.  The BBA used the immigration principles to speak on this issue just a few months ago, expressing concern about newly-imposed limits on their ability to do so, and saying:  “While not all individuals who arrive at our border are eligible for asylum, under law each and every one must be afforded a meaningful opportunity to have their claim for asylum heard.” The extent to which these policies hinder the ability of asylum-seekers to have their claims heard is therefore deeply troubling.

Finally, the BBA has a long history of supporting adequate funding for the judiciary, making it a priority of our state budget campaign each year, so it’s only natural that we urge for adequate funding for the federal judiciary, in order to accommodate the resolution’s call for a right to effective representation by counsel for every defendant charged with the misdemeanor offense of illegal entry.

Next Steps

At the end of this month, the ABA hosts its Mid-Year Meeting where the House of Delegates will vote on a range of proposed resolutions, including this one. Our ABA Delegates, both former BBA Presidents, Mary Ryan, of Nutter McClennen & Fish, and  Lisa Arowood, of  Arrowood LLP, have and will continue to communicate our support for the proposal and urge for its adoption. We’ll be sure to keep you posted on whether this important resolution is adopted and other developments in this space!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Last week, the BBA submitted comments in opposition to the proposed “public charge” rule, which would dramatically change the way in which the Department of Homeland Security (DHS) determines whether an immigrant is likely to become a “public charge.” This determination can act as a bar to legal permanent resident (green card) status, and if adopted, to certain non-immigrant employment and student statuses.

In Spring 2018, leaked versions of a proposed rule change emerged and, deeply concerned about the sweeping impact such a rule change would have on millions of immigrant individuals and families in the U.S., lawyers, advocates, and organizations began working immediately to secure commitments to submit as many, and as varied, comments as possible. The Department of Homeland Security (DHS) published the Notice of Proposed Rulemaking on October 10 and the Public Comment period was open until December 10.

We were proud to join tens of thousands of other local and national individuals and entities in opposing this dangerous proposal. We are also proud that six of our substantive-law sections joined us by submitting their own comments. You can read our full statement here.

The Proposed Rule

Under immigration law, one who is deemed likely to become a “public charge” can be denied admission to the U.S. or be denied lawful permanent resident (“green card”) status.  These determinations most often arise when applying through a family-based petition, and certain categories of individuals are exempt from this determination, including refugees, asylees, special immigrant juveniles, and other humanitarian statuses.

Currently, the definition of “public charge” is a person who has become or is likely to become primarily dependent on the government for subsistence, and the only benefits considered are cash assistance (supplemental security income, temporary assistance for needy families) and government-funded long-term institutional care. Under the proposed regulation, the definition is dramatically expanded to include anyone who has used, or is likely to use in the future, more than a “minimal” amount of public benefits, including non-cash health benefits (non-emergency Medicaid and some Medicare assistance), federal public housing benefits, and nutrition benefits (food stamps).

A range of new positive and negative weighted factors would also be considered in determining whether a person is likely to use certain benefits in the future. For example, the proposal includes new income thresholds that give negative weight to immigrants who earn less than 125 percent of the federal poverty level. Other factors considered include age, health, family status, and education, giving negative weight to children and seniors, persons with limited English proficiency, poor credit history, limited education, or having a large family. The rule also proposes negative weight be given for seeking and receiving a fee waiver in applying for an immigration benefit.  Finally, the single heavily-weighted positive factor in the proposed rule is having an income or resources over 250% of the federal poverty level. In an illustration of just how dramatic these changes would be, roughly 5% of U.S. citizens would possibly be found to be a “public charge” under the current test while 33% would struggle to meet the new standards proposed.

BBA Comments

The BBA comments were framed by the Report and Principles on Immigration produced over the summer and adopted by the board. These were rooted in a recognition of the invaluable contributions immigrants of all income levels make to our communities and country. The principles inform our advocacy on related matters and urge for immigration policies and practices that protect fundamental rights and human dignity, vindicate immigrants’ established constitutional rights to due process and equal protection, and promote the ability of all people to meaningfully exercise their rights and access justice through the legal system. Our comments note the ways the proposed rule fail these important standards. You can read more about our concerns in the full comments or outlined briefly below.

Fee Waivers for Immigration Benefits

We expressed specific concern over the inclusion of consideration of “fee waivers for immigration benefits” as a negative factor. Over a decade ago, the BBA endorsed an American Bar Association Resolution urging that fee levels not be so burdensome as to deter applications and for clearly defined policies and procedures to ensure that fee waivers are “reasonably available. The inclusion of fee waivers as a factor in public charge determinations is misguided for several reasons:

• A fee waiver merely evidences financial need, a factor already considered in the public charge calculus, and is thus double-counted under the proposed rule.
• DHS claims that receipt of fee waivers demonstrate a weak financial status, but an inability to pay a specific fee, on a one-time basis, is only a small part of a person’s overall financial situation and certain fee waivers—for example, waivers to adjust status so an immigrant can be employed–would, in reality, serve as a step toward self-sufficiency and decrease the likelihood that the immigrant would become dependent on government assistance.
• There is no detailed information provided as to the definition of “immigration benefit” in this provision. If, as it appears to, the proposed rule on fee waivers applies to administrative appeals from USCIS decisions, or efforts to obtain relief from removal or defend against removal before an immigration judge or the Board of Immigration Appeals, the rule raises significant access to justice concerns.

Widespread Chilling Effects

Beyond discouraging fee waiver applications, the proposed regulation would inhibit applications for benefits such as Medicaid, Medicare Part D prescription drug assistance, Supplemental Nutrition Assistance Program (SNAP), and housing support. As a result, millions of immigrants will likely choose not to enroll (or to disenroll) in programs that provide benefits vital to their basic needs, including housing security, food access, and healthcare. Already, there have been thousands of reports across the country, including here in Massachusetts, of immigrants dropping or choosing not to pursue benefits based exclusively on rumors or leaked versions of the regulations. The Massachusetts Budget and Policy Center, for example, found that 24 million people in the United States could be impacted by the chilling effect, and that 500,000 people in Massachusetts, including 160,000 children (the majority of whom are U.S. citizens, could forgo receiving these important benefits).  In addition, the burden of this chilling effect may be borne most by people of color, immigrants and citizens alike, as these groups have disproportionate rates of poverty and health disparities, making supplementary health, food, and nutrition benefits more necessary to their well-being and economic stability.

Principle 4 of the aforementioned BBA Immigration Principles focusing on access to justice states: “Similarly, immigrants are deterred from asserting their civil rights with respect to housing, healthcare, labor and employment, education, and public benefits when they fear that doing so may lead to immigration enforcement against them or their families or may negatively affect their future ability to pursue U.S. citizenship.” The new public charge standards would do just that – deter millions of individuals, many of whom are already among our most marginalized, from accessing benefits to which they are, in fact, entitled. As a result of these significant equal treatment and access to justice concerns, the proposed regulation is simply not sound policy.

Anticipated Health and Economic Consequences

The comments further discuss the adverse effects of the proposed rule on the well-being of individuals and families and the widespread public health and economic costs for our communities, including:

• Many families with an immigrant member may face separation. Nearly one-quarter of U.S. citizen children have an immigrant parent, many of whom would be at risk of failing the public charge test. Immigrant parents should not forced to choose between providing housing, food, and healthcare for their families and obtaining certain immigrant statuses, often necessary to remain with their families.
• Negative health outcomes will also abound, some of which were specifically mentioned by DHS as potential consequences in the proposed rule. This will include increased prevalence of obesity, malnutrition, and communicable diseases, delayed negative shock to maternal and childhood health, and reduced care for serious psychiatric illnesses.
• The healthcare-related costs of these outcomes will be a significant burden for local and national economies. For example, disenrollment from public insurance and benefits will increase uncompensated care costs to hospital and increase use of emergency care, decreased participation in nutrition assistance will increase health care expenditures per person, the disenrollment from preventative services will lead to major costs, and localities will experience lost earnings from loss of productive and loss of workers and talents.

Overall, this proposed policy goes against the overwhelming evidence that shows the essential role that immigrants, including and especially working-class immigrants, play in building thriving cities and economies. It also goes against the government’s own classification of the newly-included non-cash benefits. In 1999, the government issued public charge guidance that overtly explained that the housing, healthcare, and nutrition benefits now included were not to be a part of a public charge determination because they demonstratively helped immigrants achieve economic stability. Those guidelines specifically noted that these types of benefits “are often provided to low-income working families to sustain and improve their ability to remain self-sufficient.” According to DHS, the stated purpose of the rule is to better ensure that “aliens subject to the public charge inadmissibility grounds are self-sufficient,” yet they fail to adequately explain why suddenly the receipt, or likely receipt, of such benefits is no longer a step toward self-sufficiency but instead a signal that one is not or will soon not be self-sufficient.

In the BBA statement on the comments, Shiva Karimi of McLane Middleton, Immigration Law Section Co-Chair and member of the BBA Immigration Working Group stated:”

The proposal runs counter to the reality of the invaluable contributions immigrants, of all income levels, make to our communities and economies. Such a dramatic expansion seems based not on sound policy meant to actually evaluate the likelihood of future government dependency, but instead on a desire to change the current nature of our immigration system and create significant barriers for certain low-income populations.

Inadequate cost-benefit analysis

While DHS does spend time addressing some of the cost and benefits of the rule, it fails to adequately calculate and explain many of the costs outlined in brief above. For example, DHS estimates that roughly 350,000 people will be impacted by the rule; however, many studies conducted since the proposed rule’s release, including the aforementioned Massachusetts Budget and Policy Center report, have estimate that the figure is closer to 25 million people.  DHS also fails to provide adequate estimates of the costs that will be incurred due to eventual public health implications of the rule and the loss of workers and talent. Any proposed regulatory changes that will likely have such sweeping nationwide impacts must be fully understood and explained, and we urge DHS to provide the public with a detailed explanation of these burdens before enacting any of the proposed changes.

Unclear Guidance and Application

Finally, our comments expressed concern about the lack of clarity provided as to how the rule should be applied and the likelihood this will result in unequal and inconsistent application of public charge determinations. The proposed regulation provides no guidance as to how much weight is to be given to the newly enumerated negative and positive factors in the totality of circumstances test, beyond those weighted “heavily.” As a result, the assessment will be highly subjective, and there will likely be significant differences in how the test is applied depending on the government agent reviewing each set of circumstances. Such inconsistencies across the system could lead to bias-based decision making and unequal applications of the test.

On this point, BBA President Jon Albano, partner at Morgan Lewis, said

As attorneys, we appreciate that without standards that are fair, clear, and consistent, we cannot provide equal access to justice for all, an essential element in maintaining faith in our public institutions.

Section Comments

We are proud to report that a number of BBA Sections have joined us in this effort and submitted their own comments. A big thanks goes out to the volunteers and leaders who made this happen!

These comments address points and concerns unique to the specific expertise and practice area of those sections. For example, the Family Law Section comments focus on the well-being of families and the best interest of children, the Health Law Section comments hone in on the specific public health consequences and costs, and the Real Estate Section highlights what the rule would mean for housing insecurity and affordable housing providers.

Read the comments submitted by the Health Law Section, Real Estate Section, Delivery of Legal Services Section, Civil Rights and Civil Liberties Section, Immigration Law Section, and Family Law Section.

Next Steps

Over 200,000 people submitted comments on the proposed public charge rule, more than doubling the initial nationwide goal set by the Protecting Immigrant Families Campaign. Locally, Massachusetts’ goal of 2,000 was also greatly exceeded with at least 5,000 comments submitted online, and perhaps even more by mail. We were lucky to have the leadership of the Massachusetts Immigrant and Refugee Advocacy Coalition, the Massachusetts Law Reform Institute, Health Law Advocates, and Health Care for All. These comments matter because at the end of the rulemaking process, the agency must base its conclusion that the proposed final rule or regulation will accomplish the goal presented on the full rulemaking record, including the public comments submitted.

We’ll keep you posted on any next steps DHS takes in relation to this proposal. And thanks to those of you who joined us by submitting comments of your own!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

We hope you’ve already marked your calendar for one of the state’s biggest lobby days: Walk to the Hill for Civil Legal Aid on January 24. On this day each year, hundreds of attorneys head to the State House to hear speeches from the judiciary, the bar, and those helped by legal aid funding, grab lunch, and then spread out to speak to their legislators, urging them to protect state funding for programs that provide civil legal aid to low-income Massachusetts residents.

As usual, we’ll also be hosting our annual breakfast, where you can look up your legislators, learn more about how to speak to them about civil legal aid, and join us for the short walk across the street to Great Hall of the State House for the start of the event. Keep reading to learn more about why this event is so important and what the Equal Justice Coalition will be requesting in the Fiscal Year 2020 (FY20) Budget.

The Importance of Civil Legal Aid

Each year, advocating for adequate funding for the Massachusetts Legal Assistance Corporation (MLAC), the largest provider of funding for legal services in the state, is one of our highest legislative priorities. In 2014, the BBA’s Investing in Justice report underlined the great need for increased civil legal aid funding when it revealed that MLAC-funded legal services programs are forced to turn away nearly two-thirds of qualified applicants.

Legal aid providers offer critical assistance in a range of matters, including immigration, housing, employment, domestic violence, and health care. The expertise of legal services attorneys helps resolve matters before they become a crisis. Unfortunately, when one is unable to access legal services, the consequences can be devastating, as often one’s family, home, health, and job may be at stake in civil legal matters. The consequences extend beyond individuals and families as well. That same Investing in Justice report included a survey of judges and found that 60% of those who responded felt the lack of representation negatively impacted the court’s ability to ensure equal justice to unrepresented litigants. So our whole system of justice suffers when civil legal aid is not adequately funded.

Fortunately, our Investing in Justice report revealed more than just the great need for the aid and the consequences of underfunding. The report shows that legal aid actually pays for itself, and more, by saving the state money on “back-end” costs such as emergency shelter, foster care, and health care. For every additional dollar spent to combat homelessness and domestic violence, the return to the state is two dollars and for every additional dollar spent in legal aid to assist Massachusetts recover federal benefits, the return to the economy is close to five dollars. MLAC estimates that in FY17, the work of the fourteen MLAC-funded civil legal programs offered an overall economic benefit of $59.2 million to the Commonwealth.

A recent report by the Philadelphia Bar Association reinforces the far-reaching benefits of funding civil legal aid—both to individuals and families facing civil legal matters, and to state and local governments. The study estimates that in housing cases alone, Philadelphia could save $45 million a year by investing $3.5 million to provide legal counsel to low-income tenants facing evictions. The study found that tenants who lacked legal representation in eviction cases faced outcomes that resulted in “disruptive displacement” around 78% of the time; with legal counsel, that number dropped to 5%. Yet, tenants were represented in only 7% of eviction cases during the study period; landlords, meanwhile, were represented in 80% of cases. This stark difference in outcomes when tenants are represented versus unrepresented suggests that those without means simply are not seeing meaningful protection of their rights by the legal system—this should be of deep concern to all of us who care about justice, even without the economic benefits.

Philadelphia spends millions of dollars annually on social services associated with the fallout of evictions, including the need for shelter and emergency housing services, exacerbated physical and mental health issues, job loss, and others. Thus, the investment in ensuring better outcomes for tenants in housing cases—whether by preserving tenancies, or by negotiating move-out terms that maintain a higher level of housing and financial stability for tenants—is estimated to save the city $12.74 for every dollar invested in civil legal aid. The report notes that this figure is conservative; many of the societal benefits of maintaining family and community stability are not easily quantifiable.

The Budget Ask

Last year, you may recall, that we asked for a $5 million increase in the MLAC budget-item for a total appropriation of $23 million. In a big victory for civil legal aid, MLAC received a $3 million increase for a $21 million appropriation. This will enable MLAC-funded programs to assist thousands more qualified Massachusetts residents while saving the state money elsewhere in the budget.

Unfortunately, demand also continues to rise and the turn-away rates have thus remained stubbornly high, even through several generous funding increases from the Legislature in recent years. Changing federal policies, especially those related to immigration and public benefits, have driven up the demand further, and communities are still adjusting to the impact of Hurricane Maria and other natural disasters. Approximately 45,000 otherwise eligible individuals will be turned away again this year. That’s why the EJC is seeking a $26 million total appropriation for FY20, or a $5 million increase to begin to cover this unmet need.

The Governor releases his FY20 budget during the last week of January, marking the beginning off a months-long process to the final budget. The next major step comes in mid-April, when the House Ways & Means Committee will release its budget, triggering a flurry of amendments from the 160 House members seeking changes during the marathon floor debate. After that, it’s on to the Senate for the same series of events, with their version released in May. Then comes a conference committee to reconcile the inevitable differences between the two houses’ budgets, and when the conferees reach agreement, and their respective houses concur (typically a mere formality), that final legislative budget goes to the Governor for his signature, with the prerogative for line-item vetoes that the Legislature can then try to override. Be sure to check out our Geeking Out on the State Budget podcast for a “101” on the Massachusetts Budget Process.

Walk to the Hill falls the day after the Governor’s budget is released and is a great way to kick off our budget advocacy. Rallying at the State House, and meeting with legislators immediately afterward, offer the best opportunity for BBA members and the legal community as a whole to: thank elected officials for their past support, remind them of the importance of civil legal aid, and explain that further increases are still desperately needed to keep up with the growing demand on the justice system. If you don’t know your legislators, you can look them up here, and if you’re not sure what to say, listen to our Issue Spot Podcast on How to Talk to Your Legislators. And as mentioned above, If you’d like a quick refresher day-of, join us here at the BBA at 9:30am for our Annual Pre-Walk Breakfast, where we’ll review the budget ask and key talking points.

In addition to civil legal aid, our budget advocacy will also focus on our other regular priorities, including adequate funding for judiciary line-items and the Committee for Public Counsel Services. Visit this post to learn more about where each of these items ended up in the current FY19 budget.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

From a policy issue that has been central to the BBA’s recent advocacy efforts, to races all over the state, we wanted to provide our members with a roundup of outcomes in this year’s election that are relevant to the BBA’s work and to civic life in Massachusetts generally.

Yes on 3:

Question 3—a referendum asking whether to maintain the state law that includes transgender individuals among those protected from discrimination in public accommodations—passed easily, earning nearly 70% of the vote. The BBA lent its strong support to the “Yes on 3” effort—just as we had for the original law, which was enacted in 2016. The BBA joined the broad Freedom for All Massachusetts coalition to retain these civil-rights protections at their first statewide electoral test, and ensure that a strong message was sent to other states. Yes on 3’s victory marks the first time these kinds of legal protections for transgender individuals have been upheld by a popular vote, and represents a momentous victory for transgender rights in Massachusetts.

We are extremely grateful to the campaign’s leaders and organizers, and to our members who volunteered at Yes on 3: Freedom for All Massachusetts canvassing events over the past several months. We can’t wait to celebrate the hard work and success of the Yes on 3 Campaign at this year’s Beacon Award.

District Attorney Races

Rachael Rollins was elected Suffolk County District Attorney, and Andrea Harrington won the race in Berkshire County – the first women to ever hold either of these seats. Incumbents in those counties, Dan Conley and David Capeless, each departed shortly before the end of their term. Rollins, a former BBA Council member, has named current BBA Vice President Marty Murphy of Foley Hoag and current co-chair of our Civil Rights & Civil Liberties Section, Natashia Tidwell of Hogan Lovells, to co-chair her transition team, as she prepares to take office in January. Locally, Middlesex DA Marian Ryan was among the remainder of incumbents who were re-elected, bringing to three the number of female district attorneys (of 11).

State and Congressional Election

All statewide elected officials won re-election easily, and Ayanna Pressley represents the only change to the state’s Congressional delegation. She will replace Michael Capuano, becoming the first black woman sent to D.C. from Massachusetts. While there will be many new faces in the Legislature as the result of natural turn-over, the party balance will be only slightly different, with Democrats padding their veto-proof majorities in each house.

Looking Ahead

With new faces in the State Legislature, we will be paying close attention to the appointment of chairs to the various legislative committees in the coming months. In particular, there will need to be new chairs for each house’s Ways & Means Committee. And finally, all members of the Governor’s Council, the body tasked with confirming gubernatorial nominations to the judiciary, won re-election.

Stay tuned for more updates on how this election may impact our policy priorities in the coming year!

—Michael Avitzur
Government Relations Director
Boston Bar Association

We recently updated you on a few proposed changes to immigration policies, including proposed regulations that would dramatically alter the protections governing the processing and treatment of immigrant youth. In line with our Principles and past positions, the BBA is submitting comments in opposition to the proposal. You can learn more about the proposed regulations, the BBA’s comments, and a few other immigration developments that we’re keeping a close eye on below.

Flores Agreement Background

In 1997, a settlement agreement was reached in Flores v. Reno, a class action lawsuit filed in 1985 on behalf of unaccompanied undocumented children, challenging Immigration and Naturalization Service’s (“INS”) policies governing children’s release and the conditions children and youth experienced during immigration-related custody. The Flores Settlement Agreement (FSA) includes many protections for unaccompanied immigrant children (UAC), including: 1) a general policy favoring release from detention and family reunification; 2) detention in the least restrictive setting appropriate to the age and special needs of the child when required; 3) the right to a bond hearing; 4) access to humane conditions; and 5) notice of legal rights. In 2002, the Homeland Security Act (HSA) transferred the care and custody of UACs from the INS to the Department of Health and Human Services (HHS) Office of Refugee Settlement (ORR), which assumed the responsibility to comply with the mandates of the FSA. In 2008, the William Wilberforce Trafficking Victims Protection Reauthorization Act elaborated on the ORR’s responsibility, and both the HSA and TVPRA contain “savings clauses” preserving children’s rights under the FSA.

Since 1997, the counsel for plaintiffs in Flores have had to intervene on a number of occasions to ensure compliance with the terms of the agreement, including in relation to prolonged detention, lack of access to bond hearings, and poor detention conditions. The government has regularly sought to avoid or change the protections in Flores, resulting in a few developments of note in recent years:

• In 2015, U.S. District Judge Dolly Gee court held (later affirmed by the 9^th Circuit) that accompanied children detained have no fewer rights than unaccompanied children, and the FSA applies both to minors who are unaccompanied and those accompanied by their parents.
• In 2017, U.S. District Judge Dolly Gee issued an order enforcing the agreement, after finding that the ORR was in breach by denying unaccompanied children the right to a bond hearing.
• In 2018, the DOJ filed a request to modify the FSA, asking for limited emergency relief so that ICE could detain undocumented minors who arrived with their parent or guardian in ICE family residential facilities, and exempt ICE family residential facilities from the Agreement’s state licensure requirement. Judge Gee denied the request, saying that it was “a thinly-veiled motion for reconsideration without any meaningful effort to comply with the requirements…”

The FSA was originally set to sunset in 2003, but the Government thereafter stipulated to continue the agreement until it published regulations implementing it, and last month, DHS and HHS published a Notice of Proposed Rule Making that would “implement” the FSA, claiming it would “satisfy the basic purpose of the FSA in ensuring that all juveniles in the government’s custody are treated with dignity, respect, and special concern for their particular vulnerability as minors.” Despite this claim, the proposed rule would significantly alter the current policies in place under the FSA. The areas of particular concern are raised in our comments and discussed in more detail below.

BBA Comments

In October, BBA Civil Rights and Civil Liberties Steering Committee raised the proposed regulations and inquired as to whether the BBA would submit comment. Following analysis, and in light of our recently-approved Immigration Principles and other relevant past positions, the Association is submitting comments in opposition to the proposed regulations, as they would contravene the purpose of the FSA and endanger the rights, liberty, and well-being of immigrants, especially immigrant children. A special thanks goes to our Civil Rights and Civil Liberties Section for alerting us to the regulation, and to our Immigration Law Section and Immigration Working Group for help reviewing the comments.

Our Principles recognize that all people, whether entering with or without authorization must be treated fairly and humanely. The stakes in immigration proceedings are incredibly high, as our report noted:

The outcomes of this process can have life-changing effects on individuals, including with regards to their ability to access the basic necessities of life, remain united with their families, and even to avoid torture, persecution, or death. It is therefore imperative to protect the Constitutional rights of individuals in removal and other immigration proceedings.

And the stakes aren’t just high for immigrants and their families – our whole country will suffer if certain individuals are not able to access the processes and protections they are entitled to:

When, however, the federal or state government or members of the public target a population and limit or seek to limit that group’s access to judicial or administrative forums, it creates a vulnerable subclass, undermining our system of democracy and the Constitution.

You can read more about our Immigration Principles and past positions reference below here. And you can read our full comments on the proposed Flores regulations here. Those areas that are most concerning, and which our comments highlight include:

Indefinite Detention of Children

The Second BBA Immigration Principle provides that “no person’s rights or human dignity should be devalued on the basis of immigration or citizenship status.” In elaborating on that point, the Report urges that all individuals, even those who enter the country without authorization, be treated humanely and fairly and that, as a result undocumented immigrants should not be detained while their legal claims to remain in the United States are resolved—at least absent extraordinary circumstances, such as if, for example, the individual in question presents a threat to public safety or a serious flight risk. This is why we are especially concerned about the proposals in the regulation that would allow for the indefinite detention of children. The FSA specifically mandates a general favoring of release over detention and that minors be released from custody “without unnecessary delay,” in recognition of the “particular vulnerabilities of youth.” The extensive and long-term social, mental, and physical harms experienced by minors held in prolonged detention are well-documented, and that’s why we joined the ABA and others in expressly noting that family detention was not the solution to family separation. Proven alternatives to detention do exist, and established release mechanisms and alternatives to pre-adjudication detention, such as community supervision and GPS monitoring, would be more consistent with justice and due process.

Detention Conditions and Oversight

In those instances when detention must occur, the same principles of fair and humane treatment must apply, and the BBA has long held that there must be policies in place to ensure that detention conditions are humane and that mechanisms exist to ensure proper oversight and accountability. These principles are also embodied in the Flores Agreement, which provides that minors must be held in facilities that are “safe and sanitary” and consistent with a “concern for the particular vulnerability of minors.” We are, then, also especially disturbed by the provisions in the proposal that may threaten the proper treatment of minors, deteriorate the conditions of detention, and weaken oversight of detention facilities.

For example, the proposed regulations would remove the current state-licensure requirement that requires the government to release children, when a parent or other family member is unavailable, to a facility licensed by a state child welfare agency program. Under the proposed rule, the government would be able to select its own auditors to review the conditions and treatment of facilities where children and parents are held together. The government lacks both the expertise that the state agencies bring and the impartiality necessary to ensure that proper oversight occurs. Additionally, the proposed regulations give much wider discretion to DHS and HHS to suspend critical protections for minors in cases of “emergency.” The proposal lists delay of a meal as an example of one such provision that could be excused in the case of an emergency. The breadth and flexibility of the proposed definition is deeply concerning, given that it could legitimize the denial of necessities, such as food, to children. Under the new rule, there is no guarantee that facilities will be safe and sanitary or that minors will be treated with dignity and respect.

Continual UAC Status Redeterminations

The BBA has also been outspoken in support of strengthening and improving due process and other safeguards; our Third Principles reads: “the constitutional right to due process and equal protection, guaranteed to every person regardless of immigration or citizenship status, must be protected and enforced.” We’ve also long supported measures to ensure these protections are guaranteed for those individuals determined to be an “unaccompanied alien child” (UAC), which comes with a number of important legal protections. In past practice, this status has not been reconsidered once established, but the proposed regulation would codify continual redeterminations, providing that officials will make a determination of UAC status “each time they encounter the alien.” Ensuring the UAC status finding remains in place allows for consistency and predictability for both minors and the government throughout the legal process. That’s why we support revoking of status only in instances of fraud or misrepresentation. The ability of the government to suddenly revoke significant safeguards, in the middle of a legal process that depends on the consistency of a previously recognized status, raises due process concerns and could incentivize intentional case delays to avoid granting the additional legal protections, or other unnecessary and intrusive tactics that would allow the government to continually reassess and re-determine a child’s status.

Access to Bond Hearings

Our fourth and final principle states that “Every person should have the full and meaningful ability to exercise their rights and to access justice through the legal system regardless of immigration or citizenship status, level of income, or economic circumstance.” More specifically, the report explains the importance of providing access to a fair immigration process with independent judges, a principle that is currently embodied in the FSA, as it requires that any minor in deportation proceeding be afforded a hearing before an immigration judge unless the minor refuses such a hearing. This provision was reaffirmed in 2017, when the Ninth Circuit expressly rejected a claim that the DOJ does not have statutory authority to conduct a bond hearing under Flores.

The government, in the new proposed regulation, claims again that there is no statutory authority to conduct such hearings and instead institutes a dramatic change by removing the requirement for a bond hearing altogether. In its place, the proposal would introduce a new administrative proceeding by creating an HHS-run “independent hearing process” by which an HHS officer, rather than an immigration judge, would determine whether the child poses a danger to the community or a flight risk. This approach would remove the due process requirements that accompany an immigration court proceeding, and give the same entity tasked with holding the minor in custody the ability to make determinations about the minor’s release from custody, making it impossible to guarantee an independent process.

Additional Provisions of Concern

Finally, the comments list other areas of concern in the proposal, including:

• Standards for Release on Parole: The proposed regulation removes an internal cross reference to parole-related provisions in 8 CFR 235.3(b), which would mean that minors placed in expedited removal would be held to the same strict standards for release on parole as adults. The FSA has been interpreted to allow children subject to expedited removal to be considered for release on parole on a case-by-case basis for “urgent humanitarian reasons” or “significant public benefit,” if the minor is not a security or flight risk. Here, again, the proposed regulation fails to consider the particular vulnerability of youth as required by the FSA.
• Limits on Release: In addition, the proposal limits those adults to whom children can be released to a parent or legal guardian, despite the specific language of the FSA providing that a child in DHS custody can be released to a parent, a legal guardian, an adult relative, or an adult individual or entity designated by the parent or legal guardian. Given the previously mentioned and well-documented harms experienced by children held in detention, it is improper for the proposal to create more barriers to release.
• Lack of proper standards for determining change in circumstances: The proposed regulation provides DHS the authority to take a child back into custody after having been released if there is a “material change in circumstances showing the child is an escape risk, danger to the community, or has a final order of removal.” On its face this provision complies with court requirements, but it fails to impose any specific burden on DHS to establish the material change. Without placing a burden on DHS in this manner, the process will be neither predictable nor fair, and could lead to the improper re-detention of minors with no meaningful way for them to challenge the decision.
• Costs to the public of expanding family detention: Finally, the government failed, in the Notice of Proposed Rule Making, to properly weigh the costs and benefits related to the expansion of family detention. In 2014, the Government Accountability Office found that the costs of alternatives to detention were less than 7% of the costs associated with detention. All this suggests that the proposed regulations are not only inhumane and contrary to the purpose of the Flores Agreement, but are also fiscally irresponsible given the existence of alternatives to detention that have been proven to be safe, effective, and affordable.

For all of the above reasons, we hope the government will reconsider the provisions in the proposal which threaten the rights, dignity, safety, and well-being of immigrant youth. In the words of our Principles:

The BBA affirms the longstanding commitment of the American legal profession to advocate fiercely on behalf of the human dignity and human rights of all.

We hope you’ll join us by submitting your own comments here. You have until November 6 to do so.

Keeping the Flores protections in place is more important than ever in light of renewed talk of a family separation policy – which the BBA remains opposed to — and the deeply concerning rhetoric and tactics being deployed against those who may soon be seeking asylum at our border. We’ll continue to monitor these developments, including reports of an executive order related to asylum said to be due out next week. In the meantime, Boston Bar Foundation grantee organizations have compiled resources illustrating the devastating conditions that asylum-seekers from Guatemala, El Salvador, and Honduras are fleeing, which you can access here and here.

The treatment of asylum-seekers and those arriving at our borders is, of course, only one of many immigration developments that we are watching closely. A few others include:

Proposed Regulations on Public Charge Determinations: We are also planning to comment on proposed regulations that would radically alter the definition of “public charge” for immigration inadmissibility purposes. The proposal could impact millions of immigrants and their families and have significant public health consequences. You can find more resources about the proposal on the Protecting Immigrant Families page, and if you wish to submit your own comments, guided by the information there, you have until December 10 to do so here. Stay tuned to learn more about how you can join our efforts!

Massachusetts Immigration Court Backlogs: This week, WBUR did a deep dive on the backlog of cases in Massachusetts immigration courts, noting a 76% spike in cases since President Trump took office. The Boston Bar Association Immigration Working Group report highlights just how crucial it is to have a well-functioning immigration court system – one that should be independent of the executive branch and thus, unlike the current one, free from political pressures. The current backlog further underscores the need for improvements in the immigration court system, as the lengthy wait times for adjudication have troubling implications for access to justice, particularly for victims of trauma who are seeking asylum and may be less able to accurately recall the details of their stories over time. Read more about why we are calling for a complete overhaul of our immigration court system here.

Birthright Citizenship: Finally, we are alarmed by reports of a proposed attempt to use an executive order to change a matter of well-settled constitutional law – birthright citizenship under the 14^th Amendment. We will be watching this matter closely and will continue to inform our members of further developments.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association