Immigration Update: BBA Submits Comments in Opposition to Proposed Federal Regulations

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 9th 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 14th 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

State of the Judiciary

Each October, our friends at the Massachusetts Bar Association host an event at the Adams Courthouse where the Chief Justices of the Supreme Judicial Court and the Trial Court, as well as the Trial Court Chief Administrator, offer remarks on the State of the Judiciary. We always enjoy this event for the insights these court leaders offer into their priorities for the coming year.

The speeches kicked off with Chief Justice Ralph Gants of the SJC taking stock of the good fortune we have in the Commonwealth, with a bar dedicated to the shared goal of the fair and efficient administration of justice and with leadership in the Legislature and the Executive who recognize the importance of an independent third branch of government. We were thrilled to hear Chief Gants cite the BBA’s Service Innovation Project on dismantling the Cradle-to-Prison Pipeline as one example of the organized bar to improve our justice system. “I congratulate the BBA,” he said, “on recognizing the need for justice in a school principal’s office, to diminish the risk that the same student will later find himself or herself seeking justice in a juvenile or adult courtroom.”

But the Chief quickly turned his attention to a not-so-rosy part of the legal landscape: lawyer well-being. He is deeply concerned about a problem highlighted in the August 2017 Report of the American Bar Association’s National Task Force on Lawyer Well-Being: “Too many attorneys are struggling with serious health issues that are exacerbated, if not caused, by the way that law is practiced today.” Debt levels and billing requirements that both seem to rise inexorably over time, and the difficulty of working at the relentless pace of modern technology, add to pre-existing factors such as taking on the stress of clients and building a practice—all of it contributing to troublingly high rates of depression, anxiety, and problem drinking. Throw in concerns about the professional stigma associated with revealing these pressures, and it’s clear that the practice of law is under threat.

Chief Gants is already at work in addressing this issue, having tapped former SJC Margot Botsford to lead an interdisciplinary steering committee—one on which the BBA will be playing a leading role—that will “explore ways to reduce stress on attorneys, increase professional satisfaction, help restore work-life balance, and better support those who are confronting mental-health and substance-use disorders”. We will share their recommendations, which will likely build on the 44 proposed in the ABA report.

In making his point, Chief Gants cited former BBA President Richard Soden’s speech at our Annual Meeting this fall: “He recalled that in 1972 a prominent rain-making attorney at his law firm took him aside and told him that it was important that he take care of his clients, but it was equally important that he take care of his family, his health, and his community. We need to make sure that this advice is bred in the bone of every lawyer, and we need to create the conditions in our legal profession that allow every lawyer to follow that advice. I do not know if we can pull this off, but I damn well know that we need to try.”

Next, the Chief touched on criminal-justice reform, praising the landmark law enacted this year—and singling out Judiciary Committee co-chairs Sen. Will Brownsberger and Rep. Claire Cronin—but adding that the work remains unfinished. He pledged to continue “re-envisioning what it means to be a probation officer,” to help reduce recidivism and promote recovery and rehabilitation. As he put it, “Criminal justice reform 2.0 must refocus on re-entry and include the funding needed to give defendants a fair and reasonable chance of succeeding upon release.”

Finally, Chief Gants addressed what he sees as “a threat to the independence of the judiciary and the rule of law [that] has reached our Commonwealth,” where our own Constitution provides, “It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.” He put the issue in context by citing debates over judicial elections in 1853’s constitutional convention and applauded the state for maintaining the appointment system ever since.

The Chief acknowledged that judges should of course be held accountable, and he alluded to the recent separation of a Superior Court judge from the bench for misconduct as evidence that the judiciary is capable of imposing discipline on its own. Nevertheless, he said, “it is crucial to distinguish between judicial misconduct that merits discipline, and mere disagreement with a judge’s exercise of discretion within the bounds of what the law allows.”

It is fair game to criticize a judge’s decision. And if you do not think judges hear and are sensitive to such criticism and to being reversed by an appellate court, I can tell you from personal experience that you are wrong. But threatening judges with removal solely because of a mistake or an unpopular decision threatens the independence of the judiciary and, more importantly, threatens our constitutional obligation to apply the law equally and fairly to every litigant … If we are to provide every person fair and impartial justice in our courts, we must allow judges to make decisions based on their best judgment of the law and the facts, unburdened by any fear that a controversial decision may jeopardize their careers.

Here, the BBA stands four-square with the Chief, and the bench as a whole, in support of their independence and in opposition to unwarranted calls for impeachment. Chief Gants pointed out that the current appointment process—in which the BBA plays a role through our representatives on the Joint Bar Committee—has produced highly-qualified judges throughout the judiciary:

I will gladly compare the quality of our judges to those of any state in the nation. They are selected through a judicial nominating process that is rigorous, fair, and historically nonpartisan, and nominated by Governors who have taken very seriously their obligation to maintain excellence in the judiciary.

Next, Chief Justice Paula Carey of the Trial Court spelled out her four primary areas of focus this year:

  1. Judicial independence

Picking up where Chief Gants left off, Chief Carey discussed what she labeled the “increasing intensity” with which “public criticism and personal attacks” have been directed at individual judges. For her part, she is leading an effort to improve the ways the Trial Court responds in such instances and to re-evaluate “what we can and can’t say when judges are criticized”, and she thanked the bar for its support and pledged to work together. She also went into the Court’s larger-scale work “to increase public awareness and confidence the judicial system.” “Our goal,” the Chief said, “is to share information and discuss issues related to a free press and an independent and impartial judiciary in furtherance of an effort to build relationships of respect and understanding.”

  1. Diversity, Equity, and Inclusion

Here, Chief Carey reviewed the Trial Court’s “sustained effort over the last several years to address issues of diversity, equity and inclusion in our system by integrating leadership principles and awareness in all aspects of court operations,” highlighting the recent Cultural Appreciation Week, held for the first time this past September. The Court must reflect the communities it serves, she asserted, if it is to earn and maintain public trust and confidence.

  1. Specialty Courts

As Chief Carey stated, “The Trial Court of today is not the Trial Court of yesterday,” having become a “default mental-health and substance-use coordinator. Our system has had to adapt and employ evidenced-based practices in order to address the needs of justice-involved individuals.” And much of that work on behalf of those in need of services is now done through the 45 specialty courts statewide (double the number of five years ago) and through Community Corrections Centers. She cited data from the Massachusetts Probation Service showing drug-court graduates with a greatly reduced recidivism rate and used the occasion to announce a $1.5 million grant from the Bureau of Justice Assistance to coordinate a multi-disciplinary initiative with the courts of the six New England states, promising, “We will partner with the National Center for State Courts and Indiana University on this three-year effort to leverage data and share strategies to combat the opioid epidemic.”

  1. Section 35

That epidemic is, sadly, driving an increase in “Section 35” petitions for the court to order involuntary commitments of people with substance-use disorders—more than 10,000 in each of the past three years, according to Chief Carey, who pointed to a new commission (on which she serves) to study law’s efficacy and consider appropriate care and treatment.

By way of closing, she thanked the bar for its help in delivering justice with dignity:

It is only with all of you–District Attorneys, Committee for Public Counsel Services, Attorney General, the Mass. Bar Association, Boston Bar Association, all the local and affinity Bar associations–with your individual representation, the programs you sponsor, staff and fund, and your advocacy for the Trial Court, that we succeed. We share a background of legal education, training and advocacy that allows us to do this important work. Please know that I never take the quality of representation or the good will of Massachusetts Bar for granted.

Then, the newest member of the judiciary leadership troika, Trial Court Administrator Jonathan Williams, took to the podium to deliver his second annual remarks, starting by praising the Court’s innovative strategic plans that helped draw him here from the North Carolina court system. Administrator Williams spoke of the importance to him of thinking through “how we can best achieve our expansive vision of justice.”

Key to that is embracing change, “whether the changes are driven by new technology, new services, or new statutory requirements and public expectations. The Office of Court Management can be so engrossed with day-to-day operations, that it is difficult to step back and rethink how to deliver services to the courts. But we are doing exactly that.” Not an easy task, given the inherently cautious nature of lawyers and judges. “Add to that an organization adapted to the resource-deprived days of the Great Recession, and you have an incremental approach to the planning of fundamental, system-wide investments” when a bolder and more holistic approach is called for.

He went on to put the spotlight on several areas where that change is underway:

  • expanded availability of interpreter services, to meet the demands of growing numbers of court users with limited English proficiency
  • steady progress toward e-courts…
    • Plans are in place to accelerate the pace toward mandating civil case e-filing and e-service in the coming year. “The vision here is not just for filing; it is for working from an electronic record throughout the life of the case … Far fewer shopping carts of manila folders will need to be wheeled around the courthouse, and far fewer loaded into vehicles and driven to various housing and juvenile courts that sit away from the Clerk-Magistrates’ offices.”
    • The goal of e-courts is not limited to the civil side, and police-record management systems are being built out to support a mandatory Electronic Application for Criminal Complaints, in most instances, as of July 1, 2019.
    • In June, the Court completed the roll-out of e-pay capability for criminal fines and fees, and small-claims filing can now be conducted entirely on-line.
    • By next June, Probation will complete the roll-out of its first electronic case management system that will enable better data collection, supervision and follow up.
    • And, to deal with the risks these steps engender, the courts have hired a Chief Information Security Officer to prioritize cyber-security.
  • a comprehensive technology capital-bond request to the Legislature, in support of major near-term investments for the long-term payoff of the transition to a digital environment
    • This will add to the $80 million of projects already underway this fiscal year, led by the new Regional Justice Center in Lowell, on schedule, on budget, and expected to be finished at the end of 2019 and occupied at the start of 2020.
  • improved recruiting and talent development, as part of an ongoing restructuring of the Human Resources department
    • HR is also increasing its focus on wellness and benefits, to boost employee morale.
  • building on recent progress toward diversity of the Trial Court work-force, highlighted by a new report showing that overall racial and ethnic diversity increased from 23% to 25% this past year alone, reflecting the state’s demographics

“We are setting our sights higher,” Administrator Williams concluded, in the belief that “the Judiciary’s work deserves an operational infrastructure based on best practices. And that perspective and commitment now form the foundation for our ambitious agenda … It is a wonderful time of excitement and progress in the Commonwealth’s Trial Court.”

We look forward to partnering with the Trial Court on that agenda throughout the year.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Immigration Update: Proposed Federal Regulations Could Bring Major Changes

 At the start of the program year, we updated you on our new Immigration-Related Principles produced by a Working Group over the summer. Since that time, the Boston Bar Foundation (BBF) has funded the translation of those principles, and we’ve continued to monitor developments. In recent weeks, we’ve been taking a closer look at two new proposed federal regulations related to immigration policy that are currently up for public comment in the federal register. As you know, we regularly facilitate the submission of comments on local proposed court rules but weigh in on federal proposals less often. Keep reading to learn more about the proposed immigration regulations that we’re taking a closer look at, and how you can participate in the public comment process on proposed federal rules.

Regulation related to the Flores Settlement Agreement  

On September 7, the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) issued a notice of proposed rulemaking to amend the regulations related to the apprehension, processing, care, custody, and release of undocumented juveniles, which would end the existing Flores Settlement Agreement (FSA). The FSA was established in 1997 as a result of the case Flores v. Reno, a class action lawsuit filed on behalf of unaccompanied immigrant children, challenging the policies that concerned the conditions that children and youth experienced during immigration-related custody and release. The Agreement offered a number of protections for unaccompanied minors, including a general policy favoring release from detention and family reunification, detention in the least restrictive setting appropriate to the age and special needs of the children when required, access to human conditions, notice of legal rights, and the right to a bond hearing.

Since its establishment, the counsel for plaintiffs in the Flores matter have intervened on several 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 also regularly sought to avoid or change the protections in the FSA, resulting in a few developments of note in recent years. First, in 2016, the court extended the agreement to apply not only to unaccompanied children but also to migrant families. This particular matter came to public attention again when the Administration implemented its zero-tolerance policy and began separating families at the border this past summer. As part of this, the Department of Justice filed a request to modify the FSA, asking for limited emergency relief so that Immigration and Customs Enforcement (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…”

Originally set to sunset in 2003, the Government thereafter stipulated to continue the FSA until it published regulations implementing it, which is what the currently proposed regulations are meant to do. DHS and HHS provide that the regulations 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.”

Though the regulations are meant to implement the FSA, they would significantly alter many of the current policies in place, a number of which have elicited concern from groups like the American Immigration Lawyers Association (AILA), the American Immigration Council, and the National Immigrant Justice Center.

Significant changes proposed in the regulations include provisions that allow the government continually reassess a child’s status as an unaccompanied immigrant child even in the middle of a case, potentially resulting in the loss of certain benefits like the opportunity to present their asylum claims in a non-adversarial setting; provisions that restrict release options to only a parent or legal guardian (not in detention); provisions that remove the current option in the FSA that also allows for release to an adult relative (brother, sister, aunt, uncle, or grandparent); provisions that overturn the right to a bond hearing guaranteed by the FSA and replace it with a new administrative procedure for custody determinations for unaccompanied children, creating an HHS-led hearing process, where an HHS officer determines whether the child poses a danger to the community or a flight risk; and provisions that lower the protections offered to minors during their time in Customs and Border Processing, including allowing for the consideration of “operational feasibility” when determining whether a child can contact accompanying family members and allowing DHS to house unaccompanied children with unrelated adults for more than 24 hours in emergencies or “exigent circumstances.

One of the main changes relates to the requirements currently provided in the FSA that place a 20-day limit in detaining families in immigration detention centers, after which they must be released unless they opt by choice to stay in. The proposed rule would end this 20-day limit by removing the current state-licensing requirement for facilities that will hold immigrant minors, which in practice would mean that detained families could be held indefinitely. This has also raised concern that detention conditions will deteriorate as the government will be in charge of its own oversight. You can read more about the BBA’s recent efforts on family separation here and here, and to learn more about the FSA nad the proposed rules, visit this AILA page.

Regulation related to Public Charge Determinations

Just this week, U.S. Citizenship and Immigration Services (USCIS) published a long-anticipated proposed rule change related to public charge determinations for immigration purposes. Public charge determinations have been a part of federal immigration law for over a century, and if the government finds that an individual is likely to become a “public charge,” it can deny a person admission to the U.S. or lawful permanent residence (or “green card” status). Currently, the government identifies those who may depend on the government as their main source of support as a public charge, and the only benefits that can be considered are cash assistance and government-funded institutional long-term care.

Under the proposed new rule, the government would weigh a range of factors to determine whether a person is likely to use certain public benefits in the future, including, in addition to cash assistance, federal housing benefits (like Section 8), Supplemental Nutrition Assistance Program ( like SNAP, formerly food stamps), Medicaid (with a few exceptions for emergency conditions) and some Medicare subsidies. In addition, the government will consider the following negatively in making public charge decisions: earning less than 125% of the federal poverty level (FPL), being a child or a senior, having certain health conditions, limited English ability, less than a high school education, a poor credit history, and other factors. The proposed rule also considers whether an applicant sought or obtained a fee waiver in applying for an immigration benefit.

Certain immigrant groups are not subject to the determination, including refugees, asylees, and survivors of domestic violence. However, the proposal also extends a similar test to bar extensions of non-immigrant visas and changes of non-immigrant status, like when an individual wants to move from a student visa to an employment visa.

A coalition called Protecting Immigrant Families is leading the charge on analyzing the proposal and facilitating the submission of comments. They’ve compiled a lengthy list of continually-updated resources, which can be viewed here. Various sections here at the BBA are currently considering the impacts of the proposed rule in their practice area and for their clients, and we’ll keep you posted on how you can join the Sections in this effort.

Federal Comment Process

As mentioned, interested members of the public are given a period of time to comment on the proposed regulations once they are published in the federal register, in both instances here, 60 days. Comments must be considered by the agency, and when agencies publish final regulations in the Federal Register, they must address the significant issues raised in the comments and discuss any changes made in response to them.

There are plenty of ways these comments can be submitted, the easiest of which, and the method preferred by most agencies, is submission of comments through the government’s online portal. A few things are worth keeping in mind when deciding what your comments should say. To the extent possible, it’s best to produce comments that are substantive, detailed, and unique to you. This matters because, as mentioned, the agencies proposing the rules must consider and respond to the unique comments when deciding on the final rule, and failure to do so can become a factor in any future litigation related to the rule.  As a result, the more unique and specific comments received, the more fully the agency will have to respond to each concern.

To comment on the Flores Settlement Agreement Regulation, visit this page and to comment on the Public Charge regulations visit the microsite on this page, or the Protecting Immigrant Families Site.  Comments on the proposed Flores regulation are due on November 6 while comments on the proposed public charge regulations are due on December 10. If you want a full briefing on the federal rulemaking process, check out this document.

Stay tuned for more ways that you can be involved in the comment process on these and other matters!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Comments Update: SJC Adopts Final Versions of Court Rules

It’s been a busy rules season for the Courts and over the past few months they’ve issued final versions on a number of rules, including those related to electronic filing, client file retention, and credit card debt collection. You can see a list of recent rule changes and opportunities to comment here, and keep reading for a quick recap of those on which BBA Sections and Committees submitted comments.

Proposed Uniform Practice XXXV for Change of Name Action

In October 2017, the BBA submitted comments on behalf of the Family Law Section on the proposed practice, which was developed to standardize the procedural and form requirements for change of name actions involving both minors and adults. The comments commended the court for offering guidance and consistency in this often-complex matter and pointed out a few ambiguities in the proposal. The final practice became effective in August 2018 and was responsive to one of the ambiguities raised by the Family Law Section, clarifying the ability of an applicant to return to their surname given at birth following a divorce proceeding, even if one has a prior spouse.

Proposed District Court Voir Dire Standing Order

In November 2017, the BBA submitted comments on behalf of the Criminal Law Section Steering Committee on the proposed Standing Order, which was meant to establish a procedure for jury selection in each civil and criminal case while permitting attorneys and self-represented parties a fair opportunity in voir dire to identify inappropriate bias. The final rule was promulgated in the Spring of 2018, and though it did not adopt any of the Section’s specific comments on the language, the later proposed BMC Standing Order was identical in substance to the District Court’s, which the comments did encourage.

Superior Court Rule 9A, Civil Motions, and Rule 9C, Settlement of Discovery Disputes

In February 2018, the BBA submitted comments on behalf of the Business and Commercial Litigation Section on the proposed amendments, which were meant to simplify and reorganize the rules on civil motion and require the parties to confer before filing dispositive motions to narrow areas of disagreement. The comments submitted on behalf of the section were quite specific and detailed in nature, highlighting a few areas the Section felt could use some clarification, at least one of which appears to be addressed in the final rule, which becomes effective November 1, 2018.

Proposed Best Practices for Use by Prosecutors Making Presentments to the Grand Jury

In March 2018, the BBA submitted comments on behalf of the Ethics Committee and Criminal Law Section Steering Committee. The comments raised a number of technical questions, but in general many members agreed that any proposals which would encourage uniformity and consistency across a range of highly varied practices are welcome. In late June, the Committee on Grand Jury Proceedings submitted its final report to the Justices. The final report was responsive to a few points raised by the Committee, including revising one best practice to clarify that while the general best practice is to present all documents and evidence obtained through a grand jury subpoena to the grand jury, this is not so if “the presentation of such evidence would impair the integrity of the proceeding” (emphasis added).

MRCP Rules 8.1 and 55.1

In February 2017, the BBA submitted comments on behalf of the Bankruptcy Law Section on the Massachusetts Rules of Civil Procedure proposed new Rule 8.1 and Rule 55.1. These rules relate to actions for money damages against individuals arising from credit card debt and were drafted specifically to respond to abuses in these types of debt collection cases and difficulties that arise when the identity of the original creditor is not clear from the face of the complaint. Rule 8.1 requires plaintiffs in credit card debt collection cases to file additional documents along with their complaint, including affidavits with specific information about the debt, address verification, and certification that the statute of limitations has not passed. Rule 55.1 provides that defaults and default judgments are not allowed without the required affidavits and certifications and also requires any request for default judgment served by mail to be sent to same address verified under Rule 8.1. The Bankruptcy Law Section was generally supportive of the rules and felt they would help address abuses that are common to the collection of credit card debts. Over the summer the SJC approved the amendments, and the final new rules will become effective on January 1, 2019.

New Rule 1.16A of the Massachusetts Rules of Professional Conduct

In April 2017, the BBA submitted comments on behalf of the Ethics Committee, the Criminal Law Section, the Family Law Section, and the Health Law Section on proposed new Rule 1.16A related to Client Files. The final rule, which became effective in September 2018, remains largely the same as the proposed version but is responsive to at least one comment submitted by the Ethics Committee.

Rule 1:25, Massachusetts Electronic Filing Rules

In May 2017, the BBA submitted comments on behalf of the Business and Commercial Litigation Section on Proposed Amendments to the Interim E-Filing Rules. The comments submitted by the Section raised a few points of ambiguities in the proposed interim rules. One subsection of the rule was clarified in line with the comments suggestion. New Rule 1:25, Massachusetts Electronic Filing Rules, is largely the same as the interim rules proposed, and became effective September 2018, replacing the interim rules.

Appeals Court Standing Order Concerning Electronic Filing

In December 2017, the BBA submitted comments on behalf of the Business and Commercial Litigation Section and the Civil Rights and Civil Liberties Section on the proposed order, which would expand and make e-filing mandatory for most civil and criminal matters, with exceptions for impounded cases and other circumstances like undue hardship or exigency. The Business and Commercial Litigation comments were quite specific, but not overly substantive in nature, while the Civil Rights and Civil Liberties comments praised the court for taking into account access-to-justice concerns when considering how to expand and require e-filing. The final order, which became effective in September 2018, was responsive to an ambiguity raised by the Business and Commercial Litigation section.

SJC Rule 1.11, Rule Relative to the Disposal of Old Court Papers and Records

In June 2017, the BBA submitted comments on behalf of the Business and Commercial Litigation Section on SJC Rule 1.11, Rule Relative to the Disposal of Old Court Papers and Records. This comment also included a note from the Association, urging that the rule drafters keep in mind the importance of conserving the legal history of the Commonwealth, including those more recent records which may only be revealed to be historically important years in the future. A few of the concerns raised by the Section were addressed, at least in part, by the final rule, which becomes effective in October 2018.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Count Down to Election Day: Show Support for Yes on 3!

With the Massachusetts primaries behind us, all eyes turn to the general election on November 6.  And Yes on 3: Freedom for All Massachusetts is fighting to ensure that voters uphold our state’s public accommodations protections for transgender people on Election Day.

The Yes on 3 coalition—made up of 1,250+ businesses, non-profits, colleges & universities, public officials, faith leaders, law enforcement, labor unions, sports teams, and domestic violence and sexual assault advocacy organizations—is working hard to defend the non-discrimination law signed by Governor Charlie Baker in 2016.  The law includes gender identity in the list of prohibited grounds for discrimination in places of public accommodation, protecting the rights of transgender people in public places such as retail stores, restaurants, hotels, parks, theaters, public transit, public restrooms, and medical offices.

On Election Day, Question 3 will ask voters if they approve of the state’s existing non-discrimination law. A YES vote upholds the important protections afforded by the current law.

These last few months before the election will be key in spreading the word and making sure that voters understand the ballot question and the issues at stake.  The Yes on 3 coalition has been ramping up its efforts, opening three new campaign offices in Boston, Worcester, and Holyoke and hosting public education canvasses and phone banks almost every day of the week.  In this crucial moment, we need your support to make sure that Massachusetts remains on the path towards equality, inclusion, and justice for all!

Here are some ways you can help:

  • Sunday, September 16: Attend the 50 Days to Election Day Rally in Copley Square to show your support for Yes on 3!
  • Saturday, September 22: Volunteer at the Lawyers “Super Canvass” in Quincy to engage voters around the issue and show that the legal community stands for equal rights.
  • Check out the campaign’s Action Calendar to find additional volunteer opportunities.
  • Spread the word: Tell your friends and family why you’re voting YES on 3!

(If you need some talking points, check out Yes on 3’s Learn More and Mythbuster pages.)

The Boston Bar will honor Yes on 3: Freedom for All Massachusetts with the Empowerment Award at our Beacon Award celebration on Thursday, December 6.  We hope to see you there to recognize the important work of this coalition in fighting for equality!

—Hannah Poor
Access to Justice & Community Outreach Programs Manager
Boston Bar Association

Welcome to the 2018 – 2019 Program Year!

It’s that time of year again, when the BBA building becomes abuzz with activity as Section Steering Committee meetings and brown bag and CLE programs are once again in full swing. With the new year underway, we wanted to take a moment to offer a refresher about our public policy opportunities and procedures.

Our Public Policy Procedures offer a great resource for learning about BBA policy processes and highlight our key focus areas. We are always looking to be involved in proposals that fall within our mission, which is to:

  • Increase access to justice,
  • Provide for the fair and efficient administration of justice, and
  • Enhance the quality of the law

The procedures also highlight the myriad of ways in which policy related to these areas manifests at the BBA, including:

  • Providing comments on proposed changes to court rules
  • Drafting, endorsing, or providing feedback on legislation
  • Filing and joining amicus briefs

Section Comments

One of the more common policy opportunities here at the BBA involves the solicitation of Steering Committee comments on proposed amendments to court rules. As part of this process, we send an email to the Section Co-Chairs, notifying them of an opportunity to comment, and if the proposed amendments do relate to their practice area, the Co-Chairs forward them along to the full Steering Committee for more in-depth review and potentially a discussion at their next meeting. When a Steering Committee has an invitation to comment on their agenda, I, or Mike Avitzur, the Director of Government Relations, will attend, take notes, answer any questions, and assist in the development of comments should the Steering Committee have them. Then, the comments are reviewed by BBA leadership and submitted by the BBA on behalf of the relevant Steering Committee(s).

We love facilitating the opportunity for Sections to weigh in from their particular, expert perspectives on important changes that may impact their practice area. This also provides the courts with an opportunity to hear directly from practitioners that will be impacted by the proposed amendments. And the courts have a history of carefully considering the submissions and often adjusting the final versions of the rules as a result of the concerns and feedback raised in the Section comments.

For more reading on the Comment process and the impact of these submissions, be sure to check out:

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

BBA Committees Provide Comments on Proposed District Court Protocol and Trial Court Rule Amendments

Sometimes, however, the request for input will come not from the courts, but internally from the BBA. Here in the Government Relations Department, we often reach out to the Sections for their expert opinions and analysis on a range of other internal and external policy requests, including requests for the BBA to endorse legislation, to file or join an amicus brief, or to respond to various current event and policy developments locally and nationally. In these instances, we rely on Sections to weigh in from the perspective of their particular practice area as a way to ensure that we thoroughly understand the issue and any impacts it may have.

Public Policy Request

Beyond responding to requests for comment coming directly from the Government Relations Department, we also encourage Sections, acting through their co-chairs, to prepare their own policy proposal requests by filling out and submitting this summary sheet. These proactive proposals can seek a number of actions from the BBA, including creating and drafting new legislation, supporting or opposing existing legislation (with or without further comments), providing comments on regulations, rules or standing orders, or something else entirely.

As you can see, these requests can be used to take much more nuanced positions than simply support for or opposition to an existing piece of legislation. For example, just this year, the Human Trafficking Subcommittee of the Delivery of Legal Services Section Steering Committee submitted a proposal seeking BBA endorsement of legislation that would introduce a streamlined process of post-conviction relief for survivors of human trafficking. There were two separate bills filed, which, though different, would each accomplish this goal. Instead of getting into the relative merits of the bills, the BBA instead endorsed a broad position in support of the procedures, and urged the conference committee to ensure that the opportunity to include these important measures in the criminal justice reform package was not missed. Thankfully, these measures were included in the final package (which also included a number of our other recommendations!).

Amicus Brief Request

While we already noted that Sections are often asked to provide comments on amicus brief requests from outside the BBA, members are also encouraged to submit their own requests if they believe the litigation at issue fits the specific criteria. According to the Amicus Brief Policy, the BBA will, “as a general rule…only file or join an amicus brief related to the practice of law or the administration of justice,” though “possible exceptions will be considered on a case-by-case basis.”

The drafting or joining of a brief, however, takes a significant amount of time and resources, so we urge those requesting BBA involvement to begin this process as early as possible. For requests that require the BBA to draft a brief, three months is typically required to obtain the appropriate approvals from BBA leadership and prepare the brief for filing. If, however, the request asks the BBA to join a brief being prepared by another party, only two months is required, with the draft brief being submitted to the BBA for review one month prior to the filing deadline.

Our Amicus Committee has a long history of submitting briefs on some of the most significant and timely matters facing the profession and the general public, including the Dookhan Drug Lab Scandal, Access to DNA Testing, and Diversity in the Legal Profession.

Just this year, the Amicus Committee worked hard to produce three briefs related to juvenile justice, prosecutorial misconduct, and attorney-client privilege and First Amendment rights. Read more about these briefs:

BBA Files Amicus Brief in Litigation Arising from Amherst Drug Lab Scandal

BBA Files Amicus Brief in U.S. v. Brian Joyce

BBA Files Amicus Brief in Commonwealth v. Lutskov

This year, we are excited to work with you on the full range of policy opportunities here at the BBA. Looking ahead, you can be sure that we will continue advocating for funding for civil legal aid, the Trial Court, and the Committee for Public Counsel Services, as well as our long-held criminal justice reform priorities, including opposition to the death penalty and repeal of mandatory minimums. And, ICYMI, be sure to get up to speed on the report recently issued by our Immigration Working Group and the accompanying principles and positions adopted by the BBA Council last month!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Announces New Immigration-Related Principles and Positions

At the BBA Council meeting in May, then-BBA President Mark Smith appointed a Working Group to consider the rapidly unfolding immigration-related developments impacting our community and country. This Group, chaired by BBA Vice President Martin Murphy of Foley Hoag, worked hard over the summer, ultimately establishing a set of four principles, and an accompanying report, to guide the BBA’s response to these issues. The BBA Council considered, and adopted, these principles at their meeting in August. At that same meeting, the Council also endorsed three policy positions that align with the spirit of the principles and past BBA positions.

Keep reading for an overview of the new BBA principles, the three new policy positions, and a brief history of our past positions.

The New BBA Principles

Given the recent, and continuing, sweeping changes in immigration policy and enforcement practices, the BBA Council determined it would be worthwhile to produce a set of guiding principles that will help to frame and improve the Association’s response to these developments as they arise. As mentioned above, immediate Past President Mark Smith established a ten-person Working Group, chaired by Martin Murphy, which produced the principles and an accompanying report on the BBA’s role in the immigration policy space and the reasoning in which the four principles are based. The Working Group was composed of immigration law experts–including both Co-Chairs of the BBA’s Immigration Law Section–and volunteer BBA leadership.

The four principles provide:

Principle 1: Immigration is a defining feature of the American experience. Immigrants play a critical role in the civic, economic, and cultural life of our city, state, and country.

Boston is largely a city of immigrants, no less now than in the past. Our history, culture, economy, and traditions have been shaped by immigration, and the unique and valuable contributions of immigrants continue to strengthen our city’s civic, economic, and cultural life.

Principle 2: No person’s rights or human dignity should be devalued on the basis of immigration or citizenship status. 

All human beings are the bearers of fundamental rights and freedoms that are embodied in the United States Constitution and the Universal Declaration of Human Rights (a declaration adopted by the United Nations General Assembly in 1948 to establish a common standard of fundamental human rights that should be protected for all peoples and nations). National governments must respect human rights when people enter their countries, and judicial systems must uphold these rights. The BBA affirms that all human beings have these fundamental rights, regardless of how they entered the United States. 

Principle 3: The constitutional right to due process and equal protection, guaranteed to every person regardless of immigration or citizenship status, must be protected and enforced.

The United States Supreme Court has ruled that all people in the United States, including undocumented immigrants, are guaranteed protections under the Constitution’s Fifth Amendment (right to due process of law) and Fourteenth Amendment (right to due process and equal protection under the law). The BBA insists that these protections must be fully upheld and enforced.

Principle 4: 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. 

The BBA asserts that immigrants, like all other residents of the Commonwealth, must be free to access courthouses, law enforcement agencies, and other governmental agencies without fear that doing so will lead to immigration detention or deportation. The BBA also believes that immigrants in removal proceedings should be provided with a lawyer to ensure they are able to exercise their rights and legal options to the full extent possible. Finally, the BBA believes that immigrants must have access to a fair legal process with independent judges when seeking immigration relief.

The Three New Positions

Given our past positions, and the above principles, the BBA Council also determined that it was appropriate to immediately endorse three particular policy positions, elaborated upon below.

ABA Resolution on Family Separation

As noted, earlier this summer the BBA endorsed the ABA letter related to family separation, expressing strong opposition to the practice of separating children from their parents when arriving at the Southern border. That letter noted that “the systemic practice of separating parents and children is antithetical to our values as a country, appears to violate longstanding precedent protecting rights to family integrity, burdens the federal criminal justice and immigration adjudication systems, and increases costs to the government.”

As of August 20, 2018, over three weeks after a court-ordered deadline of July 26, more than 500 children still remained separated from their parents, according to court filings. It’s estimated that the parents of nearly 300 of those children have likely already been deported.

Following up on this letter, the ABA adopted a resolution on family separation at its House of Delegates meeting in August. That resolution, which the Council endorsed, urges executive and legislative action to ensure that:

(i) the federal immigration policies and practices of separating minor children from their parents at the border immediately cease and not be reinstated; any separation of a child and a parent shall occur only upon a determination of child endangerment, applying well defined criteria with due process protections for parent and child, and

(ii) children who have already been separated from their parents under such policies have a safe and expedited procedure for being reunited with their parents consistent with ensuring that parents’ and children’s individual and independent legal claims are protected.”

You can read the latest on the unfolding litigation  here, and we will continue to monitor the situation and alert you about opportunities for bar involvement.

ABA Resolution on Courthouses as Sensitive Locations

The BBA has also been paying close attention to the increasing instances of immigration enforcement in and around courthouses in Massachusetts. In March, we sent a letter to the Single Justice, requesting a full-bench SJC review of a petition asking the Court to ban ICE officials from making civil arrests in and around Massachusetts courthouses, stating:

“For the past year, the BBA has been monitoring, with increasing concern, reports that the U.S. Department of Homeland Security (“DHS”), acting through ICE, is using courthouses in the Commonwealth to effect civil immigration arrests…Such actions by ICE may significantly impair the ability of the Commonwealth to ensure access to our courts and fair administration of justice for all our residents.”

The Working Group’s report, in discussing Principle 4, calls attention to this specific issue as a key area of concern due to the negative access-to-justice implications of such enforcement activities. Many in the legal community have expressed similar concerns, including bar associationsjudgesprosecutors and defense attorneys, and advocacy organizations and elected officials throughout the country. Here in Massachusetts, Chief Justice of the Trial Court Paula M. Carey expressed her concern in a letter to an ICE Special Agent, noting that:

“It is essential that [victims and litigants] be free to seek relief from the Court without fear that their presence in Court will be the cause of an immigration enforcement action. If not, the unfortunate result will be that public safety will decrease, communities will become less safe and perpetrators of domestic violence will feel empowered to abuse their victims with impunity… Any increased immigration enforcement in these civil matters would mean fewer applications, more withdrawn cases, and more defaults, resulting inevitably in violence, injustice, and threats to public safety. In my view, it would ultimately affect the Court’s ability to carry out its mission to provide the protections guaranteed by the laws of this Commonwealth.”

It is worth noting that there are other locations, already designated as “sensitive,” where immigration enforcement actions are not allowed except under exigent circumstances, including schools, medical treatment and healthcare facilities, and places of worship. It is long overdue for the courthouse—a crucial locus for public interaction with our system of government–to be added to this list of locations deemed worthy of protection.

For that reason, the BBA Council endorsed a 2017 ABA Resolution that urges Congress to amend Section 287 of the Immigration and Nationality Act to expand and codify the Department of Homeland Security guidelines to include courthouses as “sensitive locations” in which immigration enforcement actions can only be taken upon a showing of exigent circumstances, such as a threat to public safety, pursuit of an arrest, or risk to evidence in a criminal investigation, and with supervisory official approval. In addition, the Resolution urges the U.S. Immigration and Customs Enforcement and Border Protection to, with or without congressional action, revise its existing guidelines to include courthouses as a sensitive location.

We are proud to join the ABA in advocating for this sensible, yet highly important protection, in order to ensure that the courts in the Commonwealth and across the country are able to fulfill their vital function.

Protecting the Independence of the Immigration Adjudication Process

As an association of attorneys, we have often spoken about the importance of judicial independence and the dangerous consequences when political pressure is applied to those serving on the bench. Twice in recent months, immediate Past President Mark Smith felt compelled to speak out when judicial independence was threatened in the Commonwealth, noting that “the independence of the judiciary is a foundational component of our democracy” and that “the public calls on our judges to make exceedingly difficult decisions every day, and relies on them to do so based not on what is popular but what is fair and just.” And, of course, more broadly, the BBA each year prioritizes funding for the judiciary in its annual budget campaign because we recognize that a well-functioning, fair, efficient, and fully independent judiciary is absolutely crucial to the fair administration of justice.

However, the current structure of the Immigration Courts renders them unable to function as fairly, efficiently, and independently as they should. Immigration Judges are career attorneys appointed by the Attorney General as administrative judges under a division of the Department of Justice and do not have the usual safeguards that protect judicial independence. The BBA Working Group’s report notes that Immigration Judges work under extraordinary circumstances, as increased enforcement has caused their caseloads to more than double since 2012, and immigration law is a notoriously complex subject matter. The shortcomings of the current structure have been made even more apparent by recent actions taken by the Department of Justice, which, as stated in the report, have “added to these pressures by adopting new measures intended to increase efficiency but which, as a practical matter, pose serious challenges to judges seeking to do justice in individual cases.” For example, earlier this year Attorney General Jeff Sessions announced new metrics for Immigration Judges, including the imposition of quotas. This sparked a quick and resolute outcry from a number of groups, including the National Association of Immigration Judges (NAIJ), whose President described the new requirements as “an egregious example of the conflict of interests of having the immigration court in a law enforcement agency.”

In addition, just last month the NAIJ filed a grievance asking the Justice Department’s Executive Office for Immigration Review to acknowledge in writing that it will not interfere with the “decisional authority” of judges in the assignment or reassignment of cases. NAIJ President Judge A. Ashley Tabaddor wrote, “The decisional independence of immigration judges is under siege.” And the American Immigration Lawyers Association (AILA) also recently issued a statement in response to another decision that limits the ability of judges to grant continuances, noting that “until Congress acts, the Attorney General will continue to encroach upon the independence of the courts, forcing judges to order people removed without a fair process.”

In order to address these serious judicial independence and due process concerns, many, including NAIJ and AILA, are calling for the restructuring of immigration courts under Article I, similar to existing federal Bankruptcy and Tax Courts. The idea, however, is not a new one; the Federal Bar Association has urged this reform since 2013, and the ABA has held this position for twelve years.

You can read the ABA’s full report on the matter and recent testimony on the subject. In short, an Article I court “is likely to be viewed as more independent than an agency because it would be a true judicial body; is likely as such to engender the greatest level of confidence in its results; can use its greater prestige to attract the best candidates for judgeships; and offers the best balance between independence and accountability to the political branches of the federal government.” The BBA is proud to join the ABA, and many others, in urging congressional reform of the Immigration Courts, restructuring them under Article I, in order to guarantee the level of independence needed to fairly administer justice and ensure due process for all involved.

A brief history of past BBA positions

These new developments build off of the BBA’s past work in this area, as we have The BBA has a lengthy history of adopting positions that help to ensure access to justice for immigrants and fairness in the immigration process. Though not comprehensive, the below highlights a number of key positions taken by the BBA over the past decade.

In keeping with our core mission, much of the BBA’s past work in immigration relates to access to justice, and specifically, the provision of counsel for low-income individuals. In 2008, the BBA’s Task Force on Expanding the Civil Right to Counsel produced the report Gideon’s New Trumpet. The Task Force’s Immigration Law Committee, noting the complicated nature of immigration proceedings and the severe consequences facing those caught up in them, recommended that representation should be provided in all cases where individuals are detained, face deportation as a resolution of a criminal offense, or are seeking asylum.

In 2017, the BBA expanded on this position by adopting ABA Resolution 115, which supports “the appointment of counsel at federal government expense to represent all indigent persons in removal proceedings before the Executive Office of Immigration Review (in Immigration Courts and before the Board of Immigration Appeals), and if necessary to advise such individuals of their rights to appeal to the federal Circuit Court of Appeals.” You can read more about that position here.

Many of our other immigration positions also relate to the fair administration of justice in the immigration application and adjudication processes. In 2008, for example, the BBA endorsed an ABA Resolution on immigration fees, asking the Executive Branch and Congress to ensure that fee levels for immigration benefits were not so burdensome as to deter individuals from applying. In addition, the BBA endorsed ABA Resolution 111B, which opposes the detention of noncitizens except in extraordinary circumstances and urges that “… a practice be put in place that speeds up the detention process, [that] outside parties be allowed to monitor detention conditions, and that the legal, mental, and health conditions of children whose parents are detained get properly addressed.”

Many of the BBA’s past positions specifically address the treatment of youth. In 2016, we submitted an amicus brief and supported legislation which would ensure that all juveniles under the age of 21 had the ability to apply for Special Immigrant Juvenile Status, which offers a pathway to seek legal permanent resident status for youth that have faced abuse, abandonment, or neglect, upon showing it would be unsafe to return to their home country. (We are very happy to report this important protection was finally signed into law this year!) And in 2017, we endorsed ABA Resolution 301, which supports the preservation and development of policies that protect due process and other safeguards for immigrant and asylum-seeking children, especially those who have entered the U.S. without a parent or legal guardian.

The BBA has also been responsive to a number of the more recent developments, including filing an affidavit in February 2017, as part of a suit calling for constitutional scrutiny of the Executive Order banning individuals from certain predominantly Muslim countries from entering the U.S. and highlighting the BBA’s strong opposition to proposals which would use national origin, race, ethnicity, religion, sexual orientation, and gender identity as the basis for discrimination. In April 2018, the BBA submitted a letter to the Single Justice in support of full bench review of the case petitioning the SJC to issue a writ of protection banning civil arrests of individuals in, around, and traveling to and from courthouses, and in June 2018, the Council endorsed a letter from ABA President Hilarie Bass in opposition to the practice of separating families at the border, and urging their prompt reunification.

While we are thrilled to have in place the three new positions outlined above, our work is only getting started, and we look forward to keeping you updated on the Association’s ongoing advocacy efforts to stand up for the rights of immigrants and work towards access to justice for all. Finally, we’d like to extend a big thank you to the members of our Immigration Working Group, and Chair Martin Murphy, for all their hard work in producing the principles and the report!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association


State House Update: Recap of BBA Legislative Priorities as Formal Session Ends

As you know, each legislative session, we advocate on a range of issues, including family law, criminal justice reform, and civil rights. One of our big priorities this year was Criminal Justice Reform, and you can read a recap of where that ended up here. As usual, this year ended with some highs and lows. Keep reading to learn more about the good, and not-so-good, news, and a forecast for our advocacy in the years ahead!


As mentioned last week, we are very pleased with the action taken by the Legislature on our priorities in the final FY19 budget, which saw a significant increase in funding for civil legal aid through the Massachusetts Legal Assistance Corporation (MLAC), full-funding for complete statewide expansion of the Housing Court and the important Tenancy Preservation Program that court provides, strong appropriations for both the trial court and CPCS, and even inclusion of an outside section that offers a long-overdue step to provide access to justice for vulnerable immigrant youth.

For the full wrap up on the budget, visit our past Issue Spot blog. Since then, we’re happy to report that the legislature overrode the governor’s veto that would have reduced the residential re-entry services funding by half. Instead, the Legislature restored that appropriation to the full $5 million.

Civics Education:

As we reported last week, the Legislature passed a BBA-endorsed bill that would require the inclusion of civics education in all public schools. You can learn more about the language of the bill here. We are grateful the House and Senate both recognized how important it is that our next generation is armed with a thorough and equal understanding of civics, including the role of the oft-misunderstood judicial branch, and we hope the Governor will sign this bill soon


Two of our top legislative priorities this year involved Massachusetts adoption of uniform laws, including our support for adoption of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). Although the Senate adopted a version of the UCCJEA, the House did not act on it before the clock ran out on formal legislative sessions late on the evening of July 31. However, we are hopeful that this legislation will be passed by the House during the informal sessions to be held the rest of this year, and then sent to the Governor for his approval—which would make Massachusetts the 50th (sic!) state to join this compact, which preserves each state’s jurisdiction over custody matters, even when the custodial parent and child move to a new state.


The second uniform law we advocated for this Session is the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). Unfortunately, this was effectively sidelined for the year before the end of session, and we will spend the remainder of 2018 laying the groundwork for our continued advocacy on it when the Legislature reconvenes in January. Until legislation is adopted to clarify the rights of personal representatives to access electronic accounts of those who have died or become incapacitated, practitioners in this area will have to continue to grapple with existing uncertainty.

Financial Literacy:

Unfortunately, the financial literacy legislation which the BBA Council endorsed earlier this year also failed to make it through the Legislature, despite having broad support and passing the Senate in March. Of course, we will continue to operate in this space beyond the State House, as we enter our 14th year hosting the M. Ellen Carpenter Financial Literacy Program, and we will continue to push for these important provisions next Session, to expand student access to education on these invaluable skills that will help ensure their future financial outlook.

Conversion Therapy:

In a particularly disappointing last-minute series of events, the legislation that would ban the use of so-called conversion therapy on minors by licensed health care professionals failed to be adopted in the formal session. We first endorsed this legislation in 2015, and were hopeful, after it failed to pass in the prior session, that this year would finally be the year that Massachusetts joined the 14 other states and Washington, D.C., with these important protections. The Bill passed the House, and in the final hours of the Session, a version passed the Senate. The Senate version, however, was not identical to the House, and there was not time for the differences to be reconciled. We join advocates in expressing a deep disappointment that the Commonwealth has failed again to protect our LGBTQ+ youth from these harmful practices. You can be sure we will continue calling on the Legislature to adopt this important ban.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Retired Northern Ireland Appeals Court Judge Sir John Gillen Addresses BBA Council

In July, the BBA Council was honored to be joined by Sir John Gillen, a retired Lord Justice of Appeal of Northern Ireland, who was recently tapped to conduct a comprehensive review of the handling of serious sexual crimes by Northern Ireland’s legal system. The review originated following a controversial, high-profile case involving two professional rugby players, which highlighted the problems with the process of trying these cases. As part of the review, Sir John is examining the laws of 13 other countries, including the United States, and we were grateful to be a part of the process during his Boston stop.

Earlier in the day, Sir John had met with several judges and prosecutors, as well as a group of practitioners representing both victims and defendants, convened by the BBA. At the Council meeting Sir John offered an overview of his work, which he is undertaking with a team of seven staff members and an eleven-person advisory panel made up of academics, lawyers, and representatives from survivors’ advocacy groups.

Sir John noted that in Northern Ireland, less than 6% of people who complain of serious sexual offenses see a conviction of the alleged perpetrator and that these cases have a 45-50% conviction rate when they actually go to court, much lower than the 87% conviction rate for non-sexual offenses. He said that 44% of complainants (79% of whom are women, and 21% of whom are men, on average) drop out because of the daunting nature of the legal process. He also noted that an estimated 60% of sexual assaults in Northern Ireland are never reported. In his view, these statistics reveal that, in addition to legal and procedural changes, a radical cultural shift is needed.

In addition to looking at measures and reforms adopted in other jurisdictions, Sir John said that he had interviewed 20 complainants in these cases about their experiences with the legal system, and hoped to interview at least 20 more. Sir John said some areas he was examining as he crafted his recommendations included: whether modifications needed to be made to the concept of open justice and open courts in sexual assault cases, particularly in the social media era; the role of anonymity for both the complainant and the accused in these cases; the problem of juror bias, including with regards to the prevalence of rape mythology and a lack of common understanding of the concept of consent; the possibility of introducing an option for pre-recorded evidence, particularly in cases involving children; areas for tightening rape shield laws; the possibility of mandating the right to legal representation for complainants in sexual assault cases; and the introduction of government-funded public education campaigns to inform people about consent and to challenge common misconceptions about sexual assault.

In response to a question by a Council Member, Sir John also noted the role of education, saying that proper training for jurors, judges, and both prosecutors and defense attorneys would be essential to improving the system. He also said he was continuing to learn more about the use of alternative resolution mechanisms, like those used at many American universities.

As mentioned, we at the BBA are very pleased we had the chance to convene a group of experts to discuss Sir John’s review, and we’ll be sure to keep you posted on the final report.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Important Protections for Vulnerable Immigrant Youth Included in FY19 Budget

In addition to the good news for a number of our key BBA budget priorities, which you can read more about here, the Legislature and Governor also took an important, and long overdue, step to provide critical access to justice for a very small but very vulnerable set of young people between the ages of 18 and 21. The final FY19 budget includes, in Outside Sections, language that would allow immigrants who are at least 18 years old, but have yet to turn 21, to make the case to federal authorities that they quality for special status under existing federal law, because they have been abused, neglected, or abandoned, and would be at risk if returned to their home countries.

The need for this statutory language tracks back to 1990, when the federal government began providing for Special Immigrant Juvenile (SIJ) status to children, defined by federal law as unmarried persons under the age of 21, as a pathway to seek legal permanent resident status. SIJ status requires a finding of abuse, abandonment, or neglect by a specialized state court, and a determination that the child is dependent on the state court, in order to merit SIJ consideration by a federal immigration agency or federal immigration court.

However, because the Massachusetts Probate and Family Court generally does not have jurisdiction beyond age 18, some judges felt constrained from making such findings for individuals who are 18, 19 or 20. Thus, in Massachusetts, there was a small class of individuals that would otherwise qualify for SIJ status, but might be barred from doing so simply because the Probate and Family Court would not make a finding due to their age. According to immigration law practitioners, anecdotally, the Probate and Family Court sometimes extended equity jurisdiction to hear these cases, but this was not uniform and judges had no guidance on the matter.

The BBA first weighed in on this issue in 2014, supporting An Act relative to abused, abandoned, or neglected immigrant juveniles, which would have statutorily extended Probate and Family Court jurisdictions to this discrete group. Then, in 2015, we filed an amicus brief in Recinos v. Escobar, arguing that the Probate & Family Court has jurisdiction, in equity, over those seeking status as special immigrant juveniles (SIJ’s) and may make predicate special findings to support SIJ applications for those up to age 21.

The court accepted the argument, but the ruling did not obviate the need for a statutory remedy as a permanent and comprehensive solution to this limited but urgent problem. In fact, the U.S. Citizenship and Immigration Services (USCIS) has recently begun acting in defiance of the spirit, if not the letter, of Recinos, finding that SIJ applicants who are over the age of 18 have not met their burden of proof, and claiming that the Legislature “has established that a child is someone under the age of 18” and that therefore our Juvenile Court lacks jurisdiction to make the necessary dependency findings for anyone between 18 and 21.

Now, Recinos is explicitly codified into law, granting the Court that statutory jurisdiction, applicable retroactive to the date of the Recinos decision and to any petitions that were wrongfully denied or revoked in this manner, based on the child’s age. As lawyers, we recognize that while the courts enjoy significant power to right wrongs through their equitable jurisdiction, only the Legislature can act to provide clear statutory parameters and guidelines for the courts’ authority. Here, given the position of the USCIS, it is even clearer that legislation was the only mechanism by which a pathway to stable legal status can be offered to all at-risk juveniles who meet the federal law’s requirements, without having to rely on the discretion and the legal interpretations of individual judges on a case-by-case basis. Furthermore, these provisions spell out a well-defined framework for the courts in handling such cases – helping judges and their staffs, as well as applicants and their legal counsel (if any) to understand how to file and pursue a claim.

You can learn more about our past legislative and amicus advocacy on this issue here. This year, we once again advocated in support of this important statutory provision, sending letters to the Chairs of the Judiciary Committee, and eventually the budget conference committee and the Governor.

A big thanks goes to bill sponsors Senator Cynthia Creem and Representative Louis Kafka, as well as the Governor, and the House and Senate for their support. And, of course, a very big thanks goes to the many supporters of the bill, including the courts, bar associations, and legal-service providers like GBLS who represent the individuals whose ability to stay in Massachusetts – and with it their safety and security – are at stake.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association