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Daily Dicta: The Ick Factor in Who’s Funding the Migrant Caravan Class Action

Members of a US-bound migrant caravan stand on a road after federal police briefly blocked their way outside the town of Arriaga, Saturday, Oct. 27, 2018. Hundreds of Mexican federal officers carrying plastic shields had blocked the caravan from advancing toward the United States, after several thousand of the migrants turned down the chance to apply for refugee status and obtain a Mexican offer of benefits. (AP Photo/Rodrigo Abd)

On the surface, a new class action lawsuit on behalf of members of the migrant caravan against the federal government looks well-meaning—legally problematic perhaps, but well-meaning.

“President Trump continues to abuse the law, including constitutional rights, to deter Central Americans from exercising their lawful right to seek asylum in the United States,” states the suit filed in U.S. District Court for the District of Columbia on Nov. 1.

Do migrants who are still hundreds of miles away from the border and have not yet actually been denied asylum have standing to sue? I’m guessing no. But the suit does start to lay the groundwork for what such claims could look like down the road.

Except if you dig a little deeper, there’s also something a bit unseemly about it. Two of the four the lawyers who filed the suit work for Nexus Derechos Humanos Attorneys Inc. in Atlanta. The firm says it is “proudly funded” by Nexus Services, Inc. —a company that’s making millions by providing bond services for detained migrants.

To me, it’s as if the suit is suggesting “Let them in so we can bail them out.”

Ick.

Some context:

Nexus Services is the parent company of Libre by Nexus, which is facing its own class action in the Northern District of California for unfair business practices, as well as probes by the AGs of New York and Virginia.

The California class action plaintiffs allege that Libre by Nexus exploits Spanish-speaking migrant detainees’ vulnerability and limited understanding of English “to foist crushing financial terms” on them in exchange for bailing them out of detention.

The lead plaintiffs are asylum seekers from Honduras and Mexico who were placed in detention by Immigration and Customs Enforcement when they came to the United States. Immigration judges deemed them eligible for bail pending resolution of their claims, and set their bonds between $10,000 and $20,000—fairly typical.

But the plaintiffs had insufficient funds or collateral like a house or car to offer a conventional bail bonds company.

That’s where Libre by Nexus comes in.

“Without us, there is no one to serve them,” the company’s CEO, Mike Donovan, told The Washington Post last year. “The alternative would be that those people sit in custody.”

He makes a valid point. But the plaintiffs call the company’s terms “a shockingly bad deal, even relative to the other bad options available to immigrant detainees, and is unconscionable on its face.”

According to the suit, Libre by Nexus acts as a middleman, indemnifying the immigration bonds it arranges for with third parties. In exchange, it requires its clients to wear a GPS bracelet. The alleged charge?  An $880 “activation fee,” plus $420 per month to lease the device until the person’s case is resolved. Which given the backlog in immigration courts, is likely to take several years.

“To illustrate the unconscionable nature of these charges, on a $10,000 bond, a consumer will pay to Libre by Nexus approximately $9,000, nonrefundable, in the first year,” states the complaint.

The plaintiffs say the terms were not properly explained, and also say company employees suggested they would be placed back in detention if they didn’t pay up. (Libre by Nexus doesn’t even have such authority—only ICE does.). The company denies the allegations.

Currently represented by Gorby, Peters and Associates in Atlanta and Reallaw, APC in Walnut Creek, California, Libre by Nexus argues that the suit should be dismissed because the plaintiffs signed arbitration agreements (in English).

In August, U.S. District Judge Claudia Wilken in Oakland, California ruled that Libre by Nexus “fraudulently induced plaintiffs to sign the arbitration clause, which is void and cannot be enforced.”

The company is currently seeking to appeal her decision to the U.S. Court of Appeals for the Ninth Circuit.

So with all that in mind, what are we to make of the suit by Nexus Derechos Humanos? President Mario Williams (who is also a name partner at Williams Oinonen, which previously served as defense counsel in the California suit) did not respond to a request for comment.

Invoking sections of the Immigration and Nationality Act, the suitstates:  “The legal problem with Trump’s plan to stop caravan persons from entering this country is that plaintiffs are seeking asylum, and Trump simply cannot stop them from legally doing so by using military, or anyone.”

Yes. Both U.S. law and treaty obligations (which the suit doesn’t mention) seem to be pretty clear on this point.

The suit also notes that “the defendants have stated that their policy is to detain all migrants and caravanners, including asylum seekers indefinitely, without any bond hearing.”

I can’t help but think that would be bad for business for Libre by Nexus. There wouldn’t be anyone to bail out.  

If migrants with children are admitted, the suit argues, the administration can’t just stick them in a tent city surrounded by barbed wire and guards.

In detail, the complaint talks about requirements that migrant minors must be “placed in facilities run by licensed programs that provide adequate temperature control and ventilation, access to drinking water, and supervision as required by the Flores Agreement.” In other words, tent cities won’t cut it.

But, the complaint points out helpfully, “asylum-seekers can be provided bond and released into the United States temporarily.”

You could call it a win-win—but it comes at a price.

 

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