Case 2:18-cv-00928-MJP Document 49 Filed 09/20/18 Page 1 of 13 The Honorable Marsha J. Pechman 1 2 3 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 4 5 Yolany PADILLA, et al., 6 No. 18-cv-0928 MJP Plaintiffs, v. 7 8 DECLARATION OF HOLLY U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., S. COOPER 9 Defendants. 10 11 t2 13 I, HOLLY S. COOPER, hereby declare: 14 1 15 18 l9 20 2l 22 23 24 25 a resident of the State of California. I have personal knowledge of the facts set forth in this declaration. I6 t7 I am If called as a witness, I could and would testify competently to the matters set forth below. 2 I have knowledge of the conditions in many immigration detention centers within the State of California, Aizona and Texas. I have been a lawyer for almost 20 years and for the majority of my career, I have provided free legal representation and consultations to individuals in immigration detention centers. I am currently the Co-Director of the U.C. Davis School of Law Immigration Law Clinic where I seek to serve men, women, and children detained by the federal government. Over the course of my career, I have interviewed thousands of men and women in the custody of Immigration and Customs Enforcement (ICE) and unaccompanied children in the custody of the Office of Refugee 26 COOPER DEC. - 1 Case No. 2: 1 8-cv-0928-MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957 - 86ll Case 2:18-cv-00928-MJP Document 49 Filed 09/20/18 Page 2 of 13 1 Resettlement. I have also been permitted special access to certain detention 2 centers to inspect detention centers in my capacity as the Co-director of the a J University of California, Davis School of Law's Immigration Law Clinic, 4 counsel for the Flores v. Reno Settlement Agreement (Case No. CV85 4544 5 (C.D.Cal. 1996), and in my capacity as a former member and advisor of the 6 American Bar Association's Immigration Commission. I have received the l following awards: a. b. 8 c. 9 d. e. 10 l1 f. t2 g. h. i. j. k. 13 l4 Congressional Woman of the Year Award 2018 International Educator Hall of Fame Award 2018 California State Assembly Woman of the Year Award 2018 Mexican American Concilio Community Award20l7 Legal Services for Children's Community Partner Award20l7 Yolo County District Attorney's Multi-Cultural Community Council Award 2017 UC Davis Immigration Law Clinic Recognition State Senate 2017 UC Davis Immigration Law Clinic Recognition State Assembly 2016 National Lawyers Guild - Carol Weiss King Award 201 I King Hall Legal Foundation - Outstanding Alumni Award 2011 UC Davis Immigration Clinic Alumni Council - Public Interest Award2007 15 16 For almost 18 years, I have documented, witnessed, and listened to detainees J T7 recount their experiences enduring systemic, sub-human conditions in 18 immigration custody in public and private immigration detention centers and in t9 the custody of the Office of Refugee Resettlement. I visit immigration detention 20 centers in California almost every week and interview at least 30 individuals in 2l immigration custody every month. The following are my observations and 22 experiences from my visits and investigations of detention centers throughout 23 my career: 24 o Spoken to detainees on the telephone who are contemplating suicide while they are describing feces smeared on their segregated cell; 25 26 NORTHWEST IMMIGRANT COOPER DEC. -2 Case No. 2: 1 8-cv-0928-MJP RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957- 8611 Case 2:18-cv-00928-MJP Document 49 Filed 09/20/18 Page 3 of 13 I o Speak almost weekly (sometimes daily) to children in the custody of the Office 2 of Refugee Resettlement contemplating suicide due to their despair in a J detention and have frequently noted self-mutilation wounds on their wrists and 4 arms during my interviews with them; 5 o the phone was not even connected to a phone line; 6 7 o o t2 I3 o o o I4 15 o 20 o Witnessed many detention centers with attorney-client visit rooms that are not Felt many attorney-client visit rooms were kept so cold that I have had to wear Heard detainees recount life threatening medical issues that are not being treated; o o 2l 22 Witnessed retaliation against clients for demanding humane medical treatment; a ski jacket to maintain a comfortable body temperature during meetings; 18 l9 Witnessed almost universally inadequate law libraries; sound proof, where clients are afraid to speak for fear of being overheard; 16 T7 Had children repeatedly tell me how the federal govemment coerces statements from them after arrest; 10 ll Had a child show me visible bullets still lodged in their bodies that had gone untreated; 8 9 Inspected a rape phone hotline in a children's detention center only to reahze Some detainees have told me they have been raped while in detention; Some children detainees have witnessed guards performing oral sex on other guards; o Witnessed clients (both adults and children) suffer from inadequate food 23 sources in detention centers-one said her food supply was so insufficient she 24 was losing her hair; 25 26 NORTHWEST IMMIGRANT COOPER DEC. - 3 Case No. 2: 1 8-cv-0928-MJP RIGHTS PROJECT 615 Second Ave., Ste.400 Seattle, WA 98104 Telephone (206) 957 - 861 I Case 2:18-cv-00928-MJP Document 49 Filed 09/20/18 Page 4 of 13 o I Clients and detainees have complained about being transported in shackles- 2 which can be extraordinarily painful for elderly detainees and detainees with J disabilities; and o 4 Children have also been shackled during asylum interviews and suffered injuries from shackles being too tight around the wrists. 5 6 The issues are systemic, pervasive, and have not abated throughout the 18 years I 7 have been working with adults and children in immigration detention centers. 8 Unsanitary and unsafe conditions continue to exist in detention facilities in 4 California. For instance, during 9 a visit to RCCC in January 2014,I observed 10 that the facility was old, loud, and dirty. As we walked down the halls, the 11 concrete was wet and t2 detained with other county inmates who were in criminal custody. Some pods 13 were open with bunks out in the open, and other pods were double-tiered with l4 locked down cells. Last year around March 2017, detainees at RCCC were 15 evacuated due to high levels of lead and copper in the drinking water was t6 discovered by local government inspection officials. a thin sludge on the ground. Men were Inadequate Mental Health Care T7 18 dirty-like 5 Suicidal ideation is a major issue for persons and children in prolonged t9 detention. Children have called me from detention during the Christmas 20 holidays crying in total despair that they just want to be with their mothers. I and 2t other child advocates receive so many calls from detained children voicing 22 suicidal ideation from the affects of detention that we have started group therapy 23 sessions to learn how to cope with suicidal children and to support one another. 24 Most detained children are hundreds of miles from family and often are only 25 able to speak with parents less than an hour per week. Mothers and fathers who 26 NORTHWEST IMMIGRANT COOPER DEC. - 4 Case No. 2: I 8-cv-0928-MJP RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957 - 8611 Case 2:18-cv-00928-MJP Document 49 Filed 09/20/18 Page 5 of 13 I are detained have particularly profound trauma at being separated from their 2 children. Detainees are not permitted to touch their children throughout their a J detention, and walking through the family visitation rooms I often see children 4 and parents crying, placing their hands over the plexiglass dividers trying to 5 touch. One very unique aspect of immigration detention is that many individuals 6 are applying for immigration defenses that require them to provide detailed 7 narratives about their past traumas. Many asylum seekers, abused children, and 8 crime victims must provide sworn testimony regarding their past rapes, past 9 torture, past child abuse, and past traumas. Detailing past traumatic experiences 10 in a public court takes a tremendous psychological toll on immigration 11 detainees. This trauma is compounded by the fact that most do not have their 12 traditional support networks to sustain them because they are detained. For l3 example, a woman may be required to provide specific, graphic detail of all past t4 rapes for her asylum hearing, and then must retum alone to her cell at the 15 detention center. Detainees have shown me where they self-mutilate due to the I6 despair of prolonged detention and tell me of their suicidal thoughts. It is so 17 frequent to have to counsel individuals who are having suicidal ideations that I l8 now include trainings on how to cope with suicidal clients in my law student 19 Immigration Law Clinic Orientation. Many children who have psychological 20 issues in detention cannot speak confidentially to a 2t are shared with immigration authorities and can be used to the child's detriment 22 in their asylum cases and in their detention reviews. One detainee told me how 23 he witnessed one detainee cut his wrists and watched the blood spill out from the 24 bathroom stall. He cried to me as he recounted how people were in complete therapist-the medical files 25 26 NORTHWEST IMMIGRANT COOPER DEC. - 5 Case No. 2: I8-cv-0928-MJP RIGHTS PROJECT 615 Second Ave., Ste.400 Seattle, WA 98104 Telephone (206) 957 - 861 I Case 2:18-cv-00928-MJP Document 49 Filed 09/20/18 Page 6 of 13 1 despair and not getting adequate psychological care. Another child attempted to 2 hang himself in detention and then was repeatedly, forcibly sedated. 3 Inadequate Medical Care 4 6. Medical indifference to immigration detainees is pervasive and unabated. 5 Detainees with medical or psychological issues rarely receive adequate medical 6 care. Throughout my 18 years visiting immigration detention centers I have 7 observed that detention centers: (1) 8 in 9 care providers when necessary (and a fail to meet health care needs of individuals timely manner; (2) often fail to refer individuals to higher-level medical in some cases this failure has resulted in 10 death); (3) fail to provide adequate staff and medical personnel; (4) fail to 11 communicate critically important information about individuals' medical t2 conditions between staff and especially during transfers; and (5) fail to l3 adequately screen individuals for illnesses. 74 7 Almost every time I visit an immigration detention center, detainees complain of 15 medical neglect. On a recent visit a man told me that he had severe pain in his t6 mouth and believed his tooth was infected. He told me was going to pull out the t7 tooth himself because he was not receiving medical attention and feared the 18 infection would spread. 19 8. Another child told me his arm had been so badly disfigured and bludgeoned by it was causing him pain on a level of 20 persecutors in his home country that 2l of 22 said he had repeatedly complained to ORR officials but no one had treated him. 10 and he could not sleep. His arm was 25 visibly disfigured and malformed. He Language Barriers 23 24 10 out 9 The overwhelming majority of immigration detainees do not speak, write, or read English. Spanish is the predominant language of most detainees. Other 26 NORTHWEST IMMIGRANT COOPER DEC. - 6 Case No. 2: 1 8-cv-0928-MJP RIGHTS PROJECT 61 5 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957 - 86ll Case 2:18-cv-00928-MJP Document 49 Filed 09/20/18 Page 7 of 13 1 languages spoken by detainees are Tagalog, Vietnamese, Mandarin, Punjabi, 2 French, Wolof, Somali, Haitian Creole, Hindi, Urdu, Farsi, and indigenous a J languages from Guatemala and Mexico. Language barriers create eno(nous 4 obstacles for non-English speakers. Although detainees have simultaneous 5 translations during their removal hearings, they are not afforded a translator to 6 prepare the legal forms required by the 7 have the right to appointed counsel unless they have a serious mental disorder 8 pursuant to Franco-Gonzalez v. Holder, No. CV 10-102211 DG (C.D. Cal). The 9 vast majority of immigration detainees (most of whom do not speak, read, or court. Immigration detainees also do not 10 write English) represent themselves without the assistance of a lawyer. In some 11 California detention centers, only around 15% of the detainees have the I2 assistance of a lawyer. l3 10. Most defenses in immigration court are enorrnously complicated and require t4 submitting lengthy legal forms to the court. The immigration legal forms are 15 akin to Internal Revenue Service tax forms-they are lengthy and 16 incomprehensible to most persons. For example, if an immigration detainee t7 asked an immigration judge for the opportunity to apply for political asylum, 18 she would be given the Form I-589, a l0-page form I9 complex questions regarding persecution in her home country. The Form I-589 20 is required of anyone wishing to seek political asylum. If, for example, the 2t detainee was a monolingual Mandarin speaker from China, she would need to 22 complete the Form I-589 in English. If the person cannot read or write in 23 English, they cannot complete the form. Most detainees who cannot afford a 24 lawyer have no choice but to ask other detainees to assist them with the forms. 25 This forces immigration detainees to disclose very personal details about their in English that asks 26 NORTHWEST IMMIGRANT COOPER DEC. - 7 Case No. 2: l8-cv-0928-MJP RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957 - 8611 Case 2:18-cv-00928-MJP Document 49 Filed 09/20/18 Page 8 of 13 1 persecution, sexual orientation, or rape histories to other detainees. Detainees 2 helping non-English speakers usually have no legal training-and even though a J well-intended-often miss critical details or facts that can have 4 prejudicial effect on the person's asylum application. Even as a trained lawyer, 5 I can spend a minimum of 6 if I need to use a translator that timeframe can easily 7 pro se detainee who cannot read or write in English must author a legal brief to 8 the court of appeals, the legal process becomes afarce. To properly write a legal 9 appellate brief, the detainee must be able to read lengthy transcripts in English, 15 hours a serious completing a Form I-589 with my clients- be doubled. Moreover, if a 10 research case law in English, read relevant court cases in English, and write 11 legal briefs in English analyzingthe transcripts and case law applicable to their l2 case. Immigration detainees often stare at me 13 appellate process in the Board of Immigration Appeals and Ninth Circuit and t4 what will be reQuired in their legal briefs. I can confidently say that a person 15 who does not read or write English cannot represent themselves in a court of 16 appeals without assistance. Many immigration detainees give up valid claims t7 for relief because the language barriers make it extremely difficult to represent 18 themselves in pro se. Lack of Access to Telephones t9 20 in confusion, as I describe the 11. Telephone access has historically been an enorrnous issue for detainees and 2l lawyers who are trying to reach their clients. One near-common characteristic 22 of immigration detention is its remoteness from California's urban centers or 23 distance from free legal service providers. Over the years, ICE has contracted 24 with detention centers located in El Centro, Marysville, Elk Grove, California 25 City, Bakersfield, and Adelanto, among other cities. Most of these are distant 26 NORTHWEST IMMIGRANT COOPER DEC. - 8 Case No. 2: 1 8-cv-0928-MJP RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957 - 8611 Case 2:18-cv-00928-MJP Document 49 Filed 09/20/18 Page 9 of 13 I from free legal services and major cities. Thus, phone access is critical to an 2 individual's legal case as many lawyers and nonprofit lawyers cannot afford the J time and expense to travel to remote detention centers. Persistent issues are: (1) 4 inability to call numbers with automated attendants; (2) inability to call legal 5 counsel on a confidential phone line; (3) inability of lawyers to reach clients on 6 confidential phone lines; (4) inability to leave messages (most detention center 7 phones disconnect the detainee call if no "live" person is there to receive the 8 call); and (5) the high cost of phone calls. The lack of inadequate phone access 9 impedes a person's ability to gather evidence in support of their claim, impacts a 10 lawyer's ability to effectively represent their client, and impacts residents who 11 must pay the high costs of the collect telephone calls from their family in friends 12 in detention. l3 I2 I4 Children frequently tell me that the federal government denies them calls to me as their lawyer. Inadequate Access to Legal Resources and Counsel 15 t6 13 Immigration law is extraordinarily complex yet law libraries in immigration t7 detention centers are universally inadequate. Rarely are relevant forms available 18 in immigration detention centers' law libraries. Immigrants in removal t9 proceedings often apply for relief from removal. Typical forms used to apply 20 for relief are: (1) applications for political asylum; (2) applications for U visas; 2t (3) applications for cancellation of removal; @) fee waivers; and (5) applications 22 for adjustment of status. It is common for law libraries not to have any of these 23 forms. 24 25 14. Immigrants also bear the burden of proof in applications for relief. For example, for political asylum, an applicant must show an objectively reasonable fear or 26 COOPER DEC. - 9 Case No. 2: l8-cv-0928-MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone (206) 957 - 861 I Case 2:18-cv-00928-MJP Document 49 Filed 09/20/18 Page 10 of 13 1 credible fear of persecution in her home country. This is typically demonstrated 2 through human rights reports, newspaper articles, and State Department reports J submitted by the applicant. However, law libraries in detention centers rarely 4 contain relevant human rights materials and applicants cannot meet their burden 5 without assistance outside of the detention center. 6 15 The bond process is equally confusing and inaccessible to detainees. Many 7 detainees are illiterate and monolingual Spanish speakers and cannot make 8 written requests to the Court or understand the documents that immigration has 9 filed against them. Under the law, they are required to prove risk-to a negative-that 10 they are not a danger or flight l1 recently arrived in the United States, who have no phone access, cannot write t2 letters to request evidence, this burden is impossible to meet. Imagine being 13 locked in a cell without phone access, without communication to your support l4 networks, being brought to court, confronted with documents you could not 15 read, having no representation, and being asked to prove to 16 were not a danger or a flight risk. I have witnessed some detainees so fearful to I1 enter the courtroom that 18 in the waiting rooms. I have spoken to some detainees who could not meet the l9 burden, are denied bond, and have emotional breakdowns back in their cells in 20 the detention center. The stakes for freedom are incredibly high, and the playing 2I field in 22 at stake. 23 16. will a bond hearing is out obtain a bond. For immigrants who a judge why you decide their freedom, that they have anxiety attacks of line with the fundamental liberty interest that is The bond appeal process is not accessible to almost all detainees and the 24 procedures for bond appeals are exceptionally unfair. First, detainees must be 25 able to write in English and understand complex detention laws to file Notices 26 NORTHWEST IMMIGRANT COOPER DEC. - IO Case No. 2: l8-cv-0928-MJP RIGHTS PROJECT 615 Second Ave., Ste.400 Seattle, WA 98104 Telephone (206) 957- 8611 Case 2:18-cv-00928-MJP Document 49 Filed 09/20/18 Page 11 of 13 1 of Appeal. This process itself of requiring literacy and English writing skills 2 divests almost all detainees of access to appeals. Second, even assuming a 3 detainee can write in English, the detainee does not have access to the written 4 substantive decision of the Immigration Judge until after he or she files and 5 appeal. The Executive Office for Immigration Review has a unique bond appeal 6 process where the judges do not write out written reasons for denying a bond 7 until after the appeal is filed. Judges are permitted to file post hoc decisions. 8 Oftentimes in the post hoc written decisions, judges change their reasoning from 9 the reason given orally in the bond hearing. Thus, detainees have no fair notice 10 of what is on appeal. Moreover, transcripts of the hearing are not provided to the 11 appellate court, and therefore, the judge's post hoc written decision may be the t2 only record of what allegedly transpired during the bond hearing. However, 13 because no evidence is allowed into the record on appeal, a detainee has no I4 ability to challenge the judge's summary of the facts on appeal. I successfully 15 challenged this practice in the Ninth Circuit for detainees in prolonged l6 detention; however, for arriving asylum seekers this is the process that prevails. I7 T7 Legal materials are generally out-of-date and inadequate. Typically, the of 18 situation is so dire, that I donate my old legal treatises and compilations t9 current human rights reports to detention centers. I have even asked publishers 20 to send me defective books (i.e. books with torn pages or spines) so that I can 2t donate them to the detainees. 22 and are accessible to only persons who can read English. z3 18. All immigration law source books are in English, During my visit to Mesa Verde Detention Center in 2015, I noted that the law 24 library was inadequate. During the inspection, I had the opportunity to 1og in 25 and run a search on the legal database available to detainees, and had three 26 COOPERDEC,-11 Case No. 2: I 8-cv-0928-MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste.400 Seattle, WA 98104 Telephone (206) 957 - 8611 Case 2:18-cv-00928-MJP Document 49 Filed 09/20/18 Page 12 of 13 with 1 concerns about the system. First, given that I 2 considerable experience using different legal search engines 3 out how to conduct a search without significant guidance from the librarian, I 4 doubted that most detainees could do the same. I queried the system on a basic 5 deportation question and the system told me it could not find any cases that met 6 a basic 7 information pertaining to their cases. Immigration law can change from week- 8 to-week and having up-to-date legal information is critical. Moreover, there 9 were no immigration forms or relevant human rights reports available in the law l0 library. A large number of immigration detainees apply for asylum, withholding 1l of removal, and relief under the Convention Against Torture, all of which l2 usually require immigrants to bear the burden of proof and present evidence 13 about conditions in their home countries. Without access to current human t4 rights reports, immigrants cannot present such evidence and meet their burdens. 15 Further, we were told if a detainee wanted to print any documents, they had to t6 be mailed to the law librarian and she would print them. This raised concerns t7 about the privacy of the data as many detainees are recounting private 18 information about torture and persecution that would have to be emailed to a t9 third party for printing. 20 l9 criteria. Detainees often do not have - a trained attorney - access to recent, could not figure critical Around January 20I4,I was given a "tour" of RCCC in Elk Grove. The law 2l library was in a large cage in the middle of a larger room. The library had no 22 relevant information for ICE detainees. The library appeared catered to persons 23 in criminal custody. 24 20 The ability to confer with counsel in immigration detention centers is also limited. For instance, 25 Mesa Verde Detention Facility did not have sound-proof 26 NORTHWEST IMMIGRANT COOPER DEC. - 12 Case No. 2: 1 8-cv-0928-MJP RIGHTS PROJECT 615 Second Ave., Ste.400 Seattle, WA 98104 Telephone (206) 957- 86ll Case 2:18-cv-00928-MJP Document 49 Filed 09/20/18 Page 13 of 13 of 1 rooms for attomeys. The attorney-client visitation rooms at RCCC were 2 varying sizes and were "first-come-first-serye." The smaller visitation rooms 3 could not reasonably accommodate more than one person, thus, if the lawyer 4 needed a translator, he or she would have to wait for the larger room. 5 Otay Mesa Detention Facility, I also had concems of the adequacy of the law 6 library due to lack of relevant forms and legal resources, and concerns over 7 phone access. At the 8 9 10 ll I declare under penalty of pe{ury of the laws of the State of California and the United States that the foregoing is true and correct to the best of my knowledge and belief. Executed this 19th day of September 2018 in Davis, Cali t2 13 S. Cooper l4 15 l6 17 18 19 20 21 22 23 24 25 26 COOPER DEC. - 13 Case No. 2: I 8-cv-0928-MJP NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Ave., Ste.400 Seattle, WA 98104 Telephone (206) 957 - 86ll