Professional blog

_________

Luis H. Zayas, PhD, professor and Sutherland Chair in Mental Health and Social Policy, Steve Hicks School of Social

Work, professor of psychiatry and behavioral sciences, Dell Medical School, University of Texas, Austin, TX.

Copyright © 2022 Authors, Vol. 22 No. 1 (Spring 2022), 33-45, DOI: 10.18060/25294

This work is licensed under a Creative Commons Attribution 4.0 International License.

Social Work Advocacy in Federal Immigration Courts: A Consultant’s

Reflection on Successful Cases

Luis H. Zayas

Abstract: Advocacy for immigrant families undertaken by social workers, attorneys, and

other supporters to protect against deportation, detention, and unfair government policies

occurs mostly in immigration and federal courts. Social workers bring unique knowledge and skills that enhance legal teams’ representation of immigrants. This paper provides

case illustrations of social work’s contribution in three types of legal actions. One

illustration from immigration court demonstrates the social work consultant’s role in cancellation of removal cases when undocumented immigrants have US-citizen children.

A second case is a federal class-action lawsuit to end the detention of asylum-seeking

families. The third case was a federal lawsuit to dismantle bureaucratic policies and

procedures that undermined the legal rights and well-being of unaccompanied children. In each of these actions, social work knowledge influenced lawsuits that can have lasting

policy impact. While this paper focuses on social work advocacy in immigration cases,

social work extends to many other areas of advocacy in the legal system. Social work consultants must have a clear understanding of what the attorneys are requesting to ensure

that they have the requisite knowledge and skill to be optimally effective and to practice

ethically within the scope of their expertise. Other implications include maintaining familiarity with contemporary social and behavioral research and providing expertise

confidently in written reports and oral testimony in court. When social workers bring their

expertise to legal teams in immigration cases, they promote the profession’s expertise and

help families facing oppressive policies.

Keywords: Advocacy, deportation, detention, immigration courts, federal courts

In today’s complex and highly charged immigration environment, effective advocacy

occurs when interdisciplinary teams of immigration attorneys, medical and public health specialists, and behavioral scientists bring their unique perspectives to pursue legal

remedies for immigrants. Organized professional challenges to the government’s treatment

of asylum-seekers, unaccompanied minors, and undocumented immigrants and their United States-born and foreign-born children can effect change in immigration policies and

enforcement practices of federal agencies. To demonstrate how social work expertise can

be brought to bear in advocacy collaborations, this paper presents examples of social work

advocacy with immigrant and human rights attorneys to protect undocumented parents on the verge of deportation and children and mothers from Central America seeking asylum

in the U.S.

As callous as the immigration debates appear to be in the 21st Century, this is not the first time in American history that hateful vitriol has been spewed in the public square and

the press. In fact, immigration has been a major battleground in the U.S. since the founding

of the republic. As far back as 1751, Benjamin Franklin bemoaned the immigration of

French, Swedes, and others as insufficiently White. Franklin questioned if German

ADVANCES IN SOCIAL WORK, Spring 2022, 22(1) 34

immigrants would “Germanize us instead of our Anglifying them,” predicting that they could never adopt our language or customs any more than they could acquire our

complexion (Rampell, 2015, para. 3). In 1882, the Chinese Exclusion Act became the first

significant law restricting immigration into the U.S. (Davis & Morrison, 2015; Railton,

2013). The difference now is that the same mean-spirited, anti-immigration rhetoric and unwelcoming national policies are inflamed by a 24-hour television news cycle and social

media that push false narratives, distorted facts, and conspiracy theories to the deepest

corners of society.

An example of harsh enforcement practices is the creation of “family residential

centers” under the Obama Administration in 2014 to detain all female-headed families,

including children, in secure, unlicensed facilities for the duration of their asylum hearings. The practice came from a misguided belief that doing so would deter other Central

American migrants from coming to the U.S. Under the Trump Administration, the use of

family detention centers was expanded and children’s “tent cities” were erected, including

the notorious ones in Tornillo, Texas, and Homestead, Florida (Fernandez & Dickerson, 2018; Jordan, 2018). Perhaps the cruelest act of mistreatment occurred in the spring and

summer of 2018 when the Trump Administration implemented a zero tolerance policy that

separated children from their parents (U.S. House of Representatives, 2019). In the period between May 5 to June 9, 2018, over 2,340 children were separated from 2,200 parents at

the border (Kates, 2018). The total numbers of families held in immigration detention is

difficult to locate in government sources, but it is well in the tens of thousands (Detention Watch Network, 2021). As an example of the magnitude of immigration detention, the U.S.

held 69,550 migrant children in custody between 2018 and 2019, including infants,

toddlers, children, and teenagers (Sherman et al., 2019). Such policies and practices compel

social workers to engage in policy advocacy activities that are often indirect, non- confrontational, episodic, and coalitional to fight the increasingly restrictive actions (Roth

et al., 2018).

Advocacy to help immigrant children and families requires engagement with a complex federal system of legal, bureaucratic, administrative, and political structures. But

effective legal advocacy does not happen through the efforts of lawyers alone. In the case

of immigration, legal action requires the contribution of behavioral scientists, such as social

work scholars and practitioners, to make compelling arguments for preserving human rights and avoiding damage to immigrants. The courts are a means for social work to

demonstrate its expertise in cross-system, cross-disciplinary collaborations (Finno-

Velasquez & Dettlaff, 2018). By bringing our unique expertise in human behavior, mental health, trauma, and family and community integration, social workers can enrich the effort

of legal advocates (Brabeck & Xu, 2010; Furman et al., 2015; Hardina, 2014; Jaggers et

al., 2021). Indeed, the contribution of social and behavioral sciences knowledge can be

highly influential in the decision-making of immigration and federal courts.

To illustrate how social work knowledge and practice can be used in collaborative

advocacy practice, this paper presents social work contributions to lawsuits brought by or

on behalf of immigrants and represent cases that reflect the salient and influential role of social work knowledge. One example involves advocacy in immigration court to prevent

the deportation of parents whose citizen-children will experience exceptional hardship. A

Zayas/SWK ADVOCACY 35

second example illustrates advocacy in federal courts to end the practice of holding families requesting asylum in prison-like detention centers. The third case helped dismantle

bureaucratic procedures of immigration detention that undermine the legal rights and

mental health of unaccompanied children through federal courts, both under the U.S.

Department of Justice.

Immigration Courts: Cancellation of Removal Hearings

In mixed-status families, undocumented parents are subject to “removal” (i.e., deportation) by the government. Immigrants have the right to appeal their deportation

orders in immigration courts, operated by the Executive Office for Immigration Review

under the Department of Justice. In immigration court, children who are U.S. citizens have

no legal basis to protect their parents from deportation. But the presence of a U.S.-born offspring provides a starting point for requesting a cancellation of removal. Deportees must

act pro-actively to have the court consider the “exceptional and extremely unusual

hardship” that would befall their children if the parents were deported. Sadly, immigration courts do not observe the “best interest of the child” standard used in family court, which

places the child’s welfare as the center of attention and decision-making. In immigration

court, the best-interest standard is not present or observed; all decisions focus on the parent facing removal (Thronson, 2011; Wessler, 2011; Woltjen, 2014). The burden is on

immigrant parents, not the court, to raise the issue of their children and to prove the

potential hardship and suffering.

In proving hardship on citizen-children, legal teams will bring in at least two types of expert witnesses: country experts and behavioral science experts. The country expert brings

knowledge of the public health issues, crime and violence, police and government

functioning, and cultural, social, and economic conditions of the country that a U.S. citizen- child will face. The behavioral expert is the child mental health expert who can demonstrate

why and how the removal of the parent will harm the citizen-child’s functioning and

development. This expert must clearly articulate the potential damage of a parent’s deportation if the child must stay behind in the US or must move to a country the child has,

in most instances, never known. In all cases, parents and child will be asked to consent to

the evaluation and to have the evaluation entered into the court record and possibly

augmented by testimony from the social work consultant.

In this form of advocacy, the social work expert assembles clinical impressions with

support from scientific evidence to support the conclusions and recommendations. Such

was the case of Carlos, an eight-year-old boy whose mother challenged her deportation orders. Carlos carried a diagnosis of Attention Deficit, Hyperactivity Disorder (ADHD) for

which he received medication and an individualized school program. His evaluation

showed a sensitivity to changes in his environment that led to rule-breaking and aggressive

behavior. Social work expertise showed that without access to medication, psychotherapeutic intervention, school programs for children with special needs, and

adequate parental monitoring, Carlos could face daunting challenges. From the country

expert, we learned that the town in Mexico to which the family would return was a six- hour drive from adequate medical and behavioral care. If Carlos stayed in the U.S., there

ADVANCES IN SOCIAL WORK, Spring 2022, 22(1) 36

was still the prospect that his father might be apprehended and deported. The report to the

court stated, in part, that

There is cause for concern with Carlos’s capacity to handle dramatic change in his

environment or in separation from either or both of his parents. He does best in

familiar settings that provide him with emotional stability and do not tax his attentional and hyper-motor problems. Carlos will be approaching puberty and

adolescence soon. Without parental and professional monitoring, children with

untreated ADHD risk developing conduct disorders under increased peer pressure and negative modeling of other youth. Too drastic a set of changes (such as places,

schools, people, geography) can place him at risk for additional negative social

behavior. Stability in his environment is essential for Carlos. Carlos benefits from medication and behavioral therapies, and these services cannot be overstated. They

are critical for his growth and development, his sense of competency and self-

efficacy, and his educational and occupational prospects. Removing these supports

will place him at risk for psychological and behavioral problems, affecting his long-term well-being. This knowledge is further supported by a recent scientific

report on health and mental health services for children in Mexico (Benjet et al.,

2009) which shows that even in Mexico City, with its more abundant resources, pediatric and psychiatric services for children with emotional and behavior

disorders are sorely lacking.

The judge ruled in favor of Carlos’ mother’s appeal, permitting her to remain in the US as a legal permanent resident. Knowledge of the scientific literature and clinical

insights that were conveyed in the evaluation, supported by direct court testimony, and

strategically introduced by the family’s attorney were put to great effect in the case.

Of course, not all children carry diagnoses or behavioral problems, and the legal approach may require a different strategy. In such cases, the evaluator can bring the

strengths perspective that is fundamental to social work. Such was the situation in the case

of 14-year-old Miguel whose exhaustive psychosocial evaluation and review of school and pediatric records revealed a well-functioning high-school freshman. He had been raised by

a single father, now facing deportation. Miguel admired his father’s soccer playing and his

father attended all his football games. Miguel said, “How am I going to live out my life

without him? He is the only one out there for me. Without him, I don’t know where I’d

be.” The report to the court concluded that

This is a remarkably well-adjusted young man. He is a bright, engaging, and

respectful teen who is full of life and respects and admires his father. It is a tribute to his father who raised Miguel since toddlerhood with exceptional care. He is a

very engaged father who has not relegated the care of his child to anyone else. His

knowledge of Miguel’s educational and medical histories, of Miguel’s friends and whereabouts, and of his son’s emotional states is indicative of the solid parenting

he has provided. In the absence of any other caregivers, his father’s deportation

would have devastating effects on Miguel.

The judge ruled in favor of Miguel’s father. These are just two examples of what competent legal and social work collaboration can achieve. Our teams of attorneys

Zayas/SWK ADVOCACY 37

representing two or more legal aid organizations and for-profit law firms and social workers has prevailed in these and about 90% of cases in which an evaluation demonstrated

the exceptional and extremely unusual hardships that U.S citizen-children would face if

they were separated from their parents or were to leave the US with their parents to

countries they had never known.

Federal Court: Class-Action Challenging Detention of Children and Parents

As noted earlier, in 2014 the U.S. Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) detained immigrant families and refused to

consider them for release on bond, recognizance, or other conditions (the “No-Release

Policy”, The Bronx Defenders, 2020). This happened despite findings by immigration

officers or judges that families had proven credible fear of persecution if they were to return to their home countries. Almost immediately, class-action lawsuits were filed against the

government.

In response to the no-release policy, a class-action, R.I.L.R. v Johnson 2014, was filed in U.S. District Court in Washington, D.C., by a coalition of legal advocates to challenge

the idea of detention as deterrence. Another lawsuit, Flores v. Johnson 2015, filed in the

U.S. District Court for the Central District of California, asserted that, by detaining children and mothers for extended periods of time, the government was in violation of the “Flores

Agreement” (Center for Immigration Studies, 2019). This 1997 consent decree affirmed

that the Immigration and Naturalization Service must release a minor from its custody

“without unnecessary delay” to ensure the minor’s safety or that of others. For the RILR case, a declaration was authored (i.e., a statement made under oath and signed under

penalty of perjury) on the mental health impact of detention on children and mothers

drawing on the author’s practice experience and the extant research literature.

The declaration was comprised of two sections. One section drew from the findings

from interviews with more than 20 mothers and children in an ICE detention center located

in Karnes, Texas. The other section contained a review of literature on the effects of detention on children. It was necessary to draw on neighboring social science literature

because there was insufficient social work research specifically detailing the effects of

immigration detention on children and parents. In addition to citing research on women’s

imprisonment and juvenile detention, the declaration described a body of work on disrupted attachment and such consequences as maladaptive social and emotional development,

cognitive impairments, academic failure, criminal involvement, and other behavioral,

emotional, and psychological outcomes.

Disruptions in attachment affect general growth and development of the brain as well

as social functioning, aggression, and reactions to stress (Byrne et al., 2012; Evans & Kim,

2013; McLaughlin et al., 2014). Focusing on children’s reactions to their mothers’

incarceration demonstrated the long-term damage to children’s capacity to make friends and navigate social situations, and that maternal incarceration predicted the children’s

future antisocial and delinquent outcomes (Murray & Farrington, 2005; Nesmith &

Ruhland, 2008). Detention or institutionalized living, and child-rearing in prisons, is a major childhood traumatic stressor, even under conditions of short or brief detentions

ADVANCES IN SOCIAL WORK, Spring 2022, 22(1) 38

(Foster & Hagan, 2013). Findings show that the childhood trauma from maternal incarceration increases depressive symptoms among children (Abram et al., 2014). This

has led researchers to conclude that incarceration-specific experiences place children at

higher risk for maladjustment than exposure to general environmental risk in community

settings (Dallaire et al., 2015).

In anticipation that the government attorney would argue that the typical stay for

children in detention was but a few weeks and, therefore, not harmful, the declaration

presented research showing that even short periods of detention constituted adverse childhood experiences. As such, the declaration concluded with an unambiguous statement

about the harm of detention on children:

I can unequivocally state that the children in the Karnes facility are facing some of the most adverse childhood conditions of any children I have ever interviewed or

evaluated. Untold harm is being inflicted on these children by the trauma of

detention. What’s more is that the children at Karnes are experiencing trauma upon

trauma upon trauma. That is, they not only suffered the trauma of having their lives threatened and disrupted by fleeing their native countries, but they also

experienced, witnessed, and heard of violent, traumatic events in their crossing

through Mexico. On top of these two serial and often long-term traumatic experiences, the children are exposed to the deprivation and constant threat of

living in a facility in which they have no sense of their future. . . . Based on my

professional background and expertise . . . I can say with certainty that detention is inflicting emotional and other harms on these families, particularly the children,

and that some of these effects will be long-lasting, and very likely permanent

(Zayas, 2014, p. 15).

In both R.I.L.R. v Johnson and Flores v Johnson, federal judges found in favor of the plaintiffs and issued temporary injunctions. The government continued its practices by

appealing and circumventing the judges’ orders. Nevertheless, they were significant

victories that forced the government to reconsider its approaches.

Federal Court: Dismantling Bureaucratic Practices

The third example of collaborative advocacy in federal court is a 2018 class-action

filed against the Office of Refugee Resettlement (ORR), U.S. Department of Health and Human Services (DHHS), and a residential treatment center. As an arm of DHHS, ORR’s

responsibility is to safeguard unaccompanied minor children who are found at the border

or the interior of the country. The lawsuit, L.V.M. et al., v Lloyd et al. 2018, filed in the Southern District of New York by the New York Civil Liberties Union, sought to rollback

a policy instituted in mid-2017 by the ORR director appointed by the Trump

Administration. That policy dictated that the ORR director would personally review all

cases of children held in highly restrictive government-controlled facilities in New York State and approve release and reunifications decisions. The case went to the heart of

whether ORR was indeed protecting youth in its custody. My role as the social work

consultant was to review the policy and youth’s case records to opine on its effectiveness and whether it represented typical best practices in child welfare. Of the 107 adolescent

Zayas/SWK ADVOCACY 39

males identified, 35 randomly selected cases were reviewed, roughly a third of the cases.

Predictably, the excessive bureaucratic overreach had, by early 2018, resulted in the

approved releases of a handful of boys. The policy was only slowing down the process of

getting the youth discharged into the custody of their parents or other sponsors.

Furthermore, case records showed that the delays in release and reunification were causing severe, potentially irreversible, harm to the youth. Three conclusions emerged from the

review that were included in the declaration.

1. The ORR director did not appear to be qualified to make release decisions. The director’s deposition showed that he did not have any professional credentials or

experience to make determinations on children’s clinical conditions, readiness for release,

or risk-of-harm. He had no previous history in the child welfare or child mental health system and held no academic degrees in a human service field. He was an attorney with no

expertise in family law. A question for the court was how could this official make decisions

that overruled mental health clinicians, social workers, case managers, and others with

relevant expertise working with the youth, or even his own qualified, subordinate staff who

had made recommendations to approve or disapprove releases of youth?

As illustration, the review drew the impressions of a psychiatrist about a 16-year-old

male written in the medical record: “I cannot find any clinical basis to determine that the patient is at risk for violence in the community. On the contrary, he seems to be violence

averse [and] observed behaviors have not been violent.” In many cases, the director’s

decisions were clearly contraindicated by the records and at odds with the recommendations of psychiatric and social work staff. Moreover, the director did not

explain his reasoning or provide any meaningful guidance to staff to ready the child for

release.

2. The policy requiring director-level review is contrary to best practices. Senior-level reviews of individual cases that occur—if they occur—in large, interstate health and social

welfare organizations are, in general, time-consuming. When such reviews are practiced,

the executive will frequently defer to the professionals on the ground, those most proximal to the cases. But it was clear that without competent child welfare knowledge brought to

bear on the director’s decisions, best practices were not being used. The social work

declaration read, in part,

None of the children whose cases I reviewed that were elevated to the Director level review exhibited behavior—either during or before custody—present the

sorts of extraordinary circumstances that would warrant elevation of release

decisions to senior management of such a large agency. Having read the director’s deposition and his rationale for instituting the new policy, it is clear that he is not

aware that the new policy represents a significant deviation from the manner in

which such decisions are made at a variety of human services and child welfare agencies, such as foster care agencies, group homes, hospitals, and residential

treatment facilities. . . . It is no surprise that the additional layers of review have

contributed to significant delays in the rendering of release decisions. . . . The

average length of time for a final review by the ORR director was approximately 35 days from when it was received in Washington but some cases took longer,

ADVANCES IN SOCIAL WORK, Spring 2022, 22(1) 40

from 86 days to 142 days. (Zayas, 2018, para. 25)

3. The director release review policy causes children in ORR custody severe and

potentially irreversible harm. The declaration included reference to authoritative reports

(American Academy of Pediatrics, 2017), including one by the Advisory Committee on

Family Residential Centers of the Department of Homeland Security (2016). The Advisory Committee report advised that “the separation of families for purposes of immigration

enforcement or management, or detention is never in the best interest of children” (p. 2).

The declaration to the court concluded that

Having reviewed the ORR policy documents, analyzed the lengths of stay, and the

children’s case files, it is my opinion that institutionalization in ORR facilities is,

for all relevant purposes, detention. ORR, even when contracting with [therapeutic residential facilities], restricts children’s movements, separates them from their

loved ones, exacerbates any psychological challenges the youth might have, affects

negatively their developmental trajectories, and causes more harm than

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