Archive | May, 2012

Welcome Dree Collopy!

31 May

Benach Ragland is proud to announce that Dree K. Collopy has joined the firm as a Partner. By adding Dree, the firm enhances its focus on innovative and creative removal defense and litigation.  In addition, Dree’s arrival at the firm is a bit of a family reunion, as Andres Benach and Thomas Ragland worked with her during the first years of her career.  Though we separated for a time, our common resolve to provide high quality representation and compassionate service to our clients has brought us together again.

Dree has seven years of experience handling challenging removal defense, immigration litigation, and resolving complex procedural and factual problems on behalf of her clients.  Dree was counsel in Crespo v. Holder, 631 F.3d 130 (4th Cir. 2011) a published opinion of the U.S. Court of Appeals for the Fourth Circuit, where the Court of Appeals reversed a decision of the Board of Immigration Appeals that found her client had been “convicted” under the immigration law.  The decision brought a large measure of common sense into the immigration act and gave effect to the intent of Congress.  In addition, she was counsel on several successful federal court actions challenging lengthy delays in the adjudication of applications for citizenship and residence.

Dree has also been a formidable presence in Immigration Court.  She has handled cases involving criminal removability issues, battered spouses, abandoned children, victims of crime, and waivers of removal for long-term permanent residents who have been convicted of crimes.  She has also obtained asylum or other humanitarian protection for victims of persecution from a wide array of countries and circumstances, including political opinion, sexual orientation, domestic violence, and gang violence.

Finally, Dree shares our commitment to education and to advancing the law.  Dree is a prolific author, offering solutions to vexing immigration problems and shining a spotlight on the harsh injustices often caused by our immigration laws and their erroneous application by the government.

We could not be happier for Dree to join us and look forward to the successes she will achieve on behalf of our clients and immigrants nationwide.  Welcome home Dree!

Memorial Day

28 May

On Memorial Day we pause to remember the sacrifices of so many that made this country what is today.  It is fitting that Memorial Day grew out of the Civil War, arguably the most defining event in the history of the United States.  As always, Lincoln had just the right words, “The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”

It is possible that Lincoln’s “new birth of freedom” was not limited to those who suffered “bondsman’s two and a half centuries of  unrequited toil,” enslaved in the U.S., but also included those immigrant groups that became American on the the battlefields of Gettysburg, Pennsylvania, Sharpsburg, Maryland and Chancellorsville, Virginia.  For example, the “Irish Brigade” of the Army of the Potomac was formed from the Irish ghettos of New York.  Many of the leaders of the Irish Brigade were recent immigrants who fled persecution from the British Empire while fighting for self-determination in Ireland.  It’s Colonel, Thomas Meagher, was an amazing individual.  An Irish Republican, he was tried by the crown for sedition and sentenced to exile in Australia.  He escaped from Australia and made his way to New York, where he became a prominent figure in the New York Irish community.  When shots were fired at Fort Sumter, Meagher raised a regiment that joined the Army.  Its most notable success came in the Battle of Antietam, where it pierced Robert E. Lee’s line at the Bloody Lane at a cost of 60% casualties.  The Irish Brigade also suffered grievously at the Battle of Fredericksburg, two months after Antietam.  After the war, Meagher became the governor of the Montana territory.  Meagher’s story is a truly American story- an exile who comes to the U.S. in search of freedom, embraces its values and becomes a leading figure. Such a rise was impossible in the Old World and vividly illustrates Lincoln’s “new birth of freedom” nearly as much as the Emancipation Proclamation does.

Germans also strongly embraced the civil war effort.  Over 200,000 German-Americans fought for the Union.  Like the Irish, many Germans were revolutionaries who fled the continent after the failed Revolutions of 1848.  German-Americans believed in American democracy and fought to preserve it.

Another group that joined the war effort were Italians.  Like the Irish and German, they were a new and largely unwelcome presence in America.  Italians formed the Garibaldi Brigade named after the great Italian revolutionary unifier, who had offered his own services to Lincoln if only Lincoln would declare the war as an effort to abolish slavery.  In 1861, Lincoln was not quite ready to do that.

The Civil War provided an opportunity for these groups to demonstrate their loyalty to and love for the Union.  Yesterday’s heroes named Carl Schurz, Alexander Schimmelfennig, Patrick Kelly, Luigi Palma di Cesnola have given way to the Rodriguezs, Singhs, Mohammeds, and Nguyens that make up today’s brigades.  Let us hope that their sacrifices cement their status as much as those who fought and died in the Peach Orchard, Burnside’s Bridge, the Slaughter Pen, the Hornet’s Nest, the Sunken Road and the Bloody Angle.

The Benach Ragland Brigade at the Bloody Lane!

Waiver Victory in Baltimore Immigration Court

22 May

Today, Immigration Judge Elizabeth Kessler granted our client Mr. LCM adjustment of status and a waiver of inadmissibility due to misrepresentations he made in the 1990s.  After 26 years in the U.S., Mr. LCM was granted residence, ensuring that he can remain in the U.S. with his permanent resident wife and four U.S. citizen children.  For Benach Ragland, it ends a case that began in 2007 (two law firms ago!) and tested the patience and commitment of everyone involved.

LCM came to the U.S. in 1986, before the Sierra Leonean civil war began in 1991.  Mr. LCM had already married his wife and had his first child.  Unable to support his family in Sierra Leone, Mr. LCM came to the U.S. to study and find work.  Like many immigrants, he found that the streets were not paved with gold, but that they could be tough and unforgiving.  But Mr. LCM was tougher and worked menial and strenuous jobs to make a better life for himself and his family.  His wife joined him within two years, but the couple left their daughter with family so they could both work.  After several years in the U.S. and with little to show for all his hard work, Mr. LCM made the mistake that would define his life in America for the next two decades.  He sought the easy route and married an American to obtain residence.  But Mr. LCM was no con artist and could not keep it up.  The scheme unraveled at the then-INS office with the truth being divulged.  The case was closed and Mr. LCM continued his life in America, unmolested by the agency.  During the 1990s, LCM’s wife obtained her residence.  LCM had to explain to his wife what he had done and why he thought he was ineligible for residence.  By this time, the couple had another child and war was raging in Sierra Leone.  Disappointed but committed to her husband, LCM’s wife knew that that single episode did not define her husband. The couple had twins in the 90s.  With four mouths to feed, Mr. and Mrs. LCM went back to work.

In 2007, Mr. LCM came to see us.  He was tired of not having legal status and was willing to risk everything for a chance to correct his status.  Mr. LCM knew that he could either get residence or be ordered removed and that there were no guarantees.  We filed adjustment of status for him as a derivative of his wife’s employment-based petition.  We filed an application for a waiver of inadmissibility due to misrepresentation.  Mr. LCM came clean and explained that he made a terrible choice as a young man when he married the American woman and asked for forgiveness from the U.S. government due to the challenges that his family would face if he were returned to Sierra Leone.  At the time, Mrs. LCM had gone to nursing school and Mr. LCM was the sole breadwinner as his children were in college.  The Citizenship & Immigration Service denied his application for a waiver and placed him into removal proceedings before the Immigration Court.

Today the Court heard Mr. LCM tearfully describe his remorse for his error in front of his entire family and listened to Mrs. LCM try to explain how she would try to get by without her husband of 25 years.  Even the attorney for Immigration & Customs Enforcement (ICE) was moved and explained to the court that ICE would not oppose a grant.  Free from the possibility of appeal, the Judge happily said that she would grant the case.  A happy ending to a classic immigrant story.  This couple endured many hardships and sacrifices to make better lives for their children.  The results of a lifetime of work and sacrifice was on display this week as Mr. LCM’s daughter received her degree from Temple University.

In the end, none of us are defined only by our mistakes.  Lots of people do bad or dumb things, but a person should be evaluated based upon his or her entire life and not on a single incident.  This is why laws that do not allow judges to judge and adjudicators to adjudicate are so harmful.

The case was prepared and argued by Jennifer Cook with assistance from Andres Benach.  Longtime friend of Benach Ragland Nadeen Aljijakli started this case in 2007 and was an important part of today’s victory.  Cyndy Ramirez also made sure that no stone was left unturned and all documents were submitted perfectly.

Benach Ragland and DreamActivist Take up the Child Status Protection Act

14 May

On Friday, May 11, 2012, Benach Ragland filed an amicus curiae (“friend of the court”) brief on behalf of DreamActivist with the U.S. Courts of Appeals for the Ninth Circuit in Cuellar de Osorio v. Mayorkas asking the Court to reject the Board of Immigration Appeals decision in Matter of Wang, which unnecessarily limited the class of individuals who could gain the benefits of the Child Status Protection Act (CSPA).  This represents the first time that a Court will hear directly from Dreamers on a question of statutory interpretation and public policy.  The brief recounts the stories of six Dreamers who have “aged-out” of eligibility for residence through the petitions that provided residence for their parents and siblings.  The brief describes how the Board’s cramped interpretation of the CSPA has resulted in a limbo-like state for these six Dreamers who came to the U.S. as children and waited in long visa queues to immigrate with their parents only to age-out and “get to the back of the line.”  Should the 9th Circuit reject Matter of Wang, it will join the Fifth Circuit in rejecting the Board’s position,and it will allow many young people who were the derivative beneficiaries of previous petitions to apply for residence immediately taking advantage of the years they waited prior to their turning 21.  It will also allow them to avoid the possibility of lengthy separation from their families, their country and their dreams for their future.

This case represents a the opening of a new front for DreamActivist and Dreamers everywhere in the battle for reasonable immigration laws.  While Dreamers have organized admirably and display significant power in the executive and legislative branches, DreamActivist’s entry into the judicial realm provides another forum where the compelling stories of Dreamers can have a significant impact.  Dreamers long ago figured out that you can not count on the executive and legislative branch to always do the right thing and DreamActivist’s participation in this lawsuit against the Citizenship & Immigration Service (CIS) recognizes that courts are the final checks on government decision making and power.

Benach Ragland is honored to represent DreamActivist before the Courts of Appeals.  We are committed to the DREAM Act, comprehensive immigration reform and the belief that the Dreamers remain their own best advocates as they tell their stories of overcoming daunting odds to succeed in their adopted home and to realize the American Dream.

The Court will take up Cuellar de Osorio in June.  Ms. Amy Prokop is representing Ms. Cuellar de Osorio.  In addition to DreamActivist, the American Immigration Lawyers Association & the Catholic Legal Immigration Network filed a brief as amicus curiae.

The DreamActivist brief was written by Prerna Lal, Andres Benach and Thomas Ragland.

09-56786 Amicus Brief by Active Dreams LLC efiled copy.

AILA CLINIC amicus brief – PACER

Her name is Mother of Exiles

14 May

“…Here at our sea-washed, sunset gates shall stand/A mighty woman with a torch, whose flame/Is the imprisoned lightning, and her name/Mother of Exiles.” (from The New Colossus, by Emma Lazarus)

For Mother’s Day this year, the U.S. House Judiciary Committee decided to forgo enhancing the traditionally-bipartisan Violence Against Women Act (VAWA) on reauthorization, and sent flowers and a heartfelt card to anti-immigrant allies instead.  Immigrant women, especially unauthorized women, are more vulnerable to domestic violence and threats of deportation by an abusive spouse; rape, sexual abuse, and harassment in the workplace, and human trafficking.  Since 1994, VAWA has provided crucial confidentiality and other protections to immigrant victims.  Among other revisions to VAWA, the House bill that passed the Judiciary Committee last week (HR 4970) diminished the strong provisions protecting vulnerable immigrant women from their abusers.

This Mother’s Day message can only be read as an attempt to court the tough-on-immigration crowd at any cost: why else would anyone reduce protections to victims of domestic violence, deter victims from cooperating with law enforcement, and hold victims to a higher standard than other applicants for immigration benefits?  Congress’ priorities are so askew in this election year, it is possible that the committee members did not even realize the incredibly poor timing of this decision that affects mothers, grandmothers, and children from all walks of life.  HR 4970 will be on the House floor this week (scheduled for Wednesday May 16, subject to rule), and Congress has the chance to get its priorities in order.  Those representatives who are yet undecided – and those willing to cross party lines to defeat the proposed revisions to VAWA, like Rep. Ted Poe (R-TX) – must be reminded that it is not too late to send the right Mother’s Day message, and to the right recipients.

Victory in 2d Cir., Court Scolds Gov’t for its Stance on Prosecutorial Discretion

10 May

On May 1, 2012, the U.S. Court of Appeals for the Second Circuit issued a decision in Akinsade v. Holder, No. 10-062-ag, 2012 U.S. App. LEXIS 8835 (2d Cir. May 1, 2012). The Court granted our petition for review and vacated the BIA’s decision finding our client to be an aggravated felon and ordering him removed to Nigeria. In a unanimous opinion, the Second Circuit held that our client’s conviction for embezzlement by bank employee in violation of 18 U.S.C. §656 did not qualify as an aggravated felony “offense involving fraud or deceit” as defined in INA §101(a)(43)(M)(i), because Mr. Akinsade never “actually and necessarily pleaded” to facts sufficient to establish that he committed the crime with a specific intent to defraud. Because 18 U.S.C. §656 is a divisible statute — and guilt can be established by proving either a specific intent to defraud or a specific intent to injure the employing bank — the Court applied a modified categorical approach and examined the underlying conviction record, including the transcript of plea colloquy. Although Mr. Akinsade accepted responsibility and admitted guilt during his Rule 11 plea hearing, the Second Circuit agreed with our arguments that the record fails to establish he “actually and necessarily pleaded that he acted with an intent to defraud or deceive.” According to the Court, the IJ and the BIA merely inferred that Mr. Akinsade acted with a specific intent to defraud and, athough this inference may have been reasonable, it was inadequate to establish removability under the modified categorical approach.

The Court also strongly admonished the attorney from DOJ’s Office of Immigration Litigation (OIL), who stated during oral argument that ICE would be unlikely in this case to exercise prosecutorial discretion under the Morton Memo, because Mr. Akinsade had appealed his removal order and filed a coram nobis petition challenging his criminal conviction. The Second Circuit declared: “We would be troubled if indeed it is the government’s position that petitioners will be penalized for exercising their legitimate rights to pursue their arguments fully.”

A terrific victory for our client and a valuable new precedent in the Second Circuit, which now joins the Third Circuit in finding that an embezzlement conviction under 18 U.S.C. §656 is not necessarily an aggravated felony under INA §101(a)(43)(M)(i). See Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. 2002).

The decision has also generated considerable publicity in the media, including the Wall Street Journal Law Blog, Reuters, and Bender’s Immigration Daily.



Why I am supporting the President’s re-election

7 May

I do not intend to give a comprehensive discussion of the Presidency of Barack Obama.  I am only writing on the one issue that I have true expertise on: immigration.  From all of the articles I have read, the conversations I have had, I know that a discussion of President Obama’s record on immigration will provide plenty of controversy, such that there is no need to get into any other topic.

The case against Obama is strong: record numbers of deportations, failed legislative action, an apparent unwillingness to fight restrictionist fire with fire, the debacle that is Secure Communities.  There is no doubt that these factors are a tremendous disappointment.  We had such high hopes with a young and idealistic (or so we imagined him to be) President who had engaged the immigrant community and Democratic control of both houses of Congress.  The stage seemed set for some form of comprehensive immigration reform.  But then came the economy, Rahm Emmanuel, and health care and immigration went to the back of the line.  It is reasonable to conclude that Obama sold the immigrants out.  And now he needs the Hispanic vote.

Despite these clear problems, I intend to vote and campaign for the President.  My reasons are simple.

First, I have over a dozen clients who have received discretionary stays, deferred action or otherwise favorable treatment from immigration that was unthinkable before.  These people are largely DREAMers, those who would benefit should Congress pass the DREAM Act.  In the absence of Congressional action, the administration has quietly allowed hundreds, if not thousands, of DREAMers to remain in the U.S. with employment authorization.  The expansion of the discretionary authority known as deferred action has been remarkable and was unthinkable under previous administrations.  I remember the turning point.  It was July 2009 and we were doing one of the first DREAM Act deferred action requests.  It was down to the wire and the client needed to depart the U.S. if discretion was not exercised in his favor.  Shortly after submitting the request for deferred action, I got the Miami Field Office Director of ICE on his cell phone.  He spent 15 minutes yelling at me, asking me who did I think I was, and didn’t I understand what an order of removal meant.  He told me that he would have to look at the case not only of my client but of his family, who did not have removal orders.  An hour later, Senator Bill Nelson’s office called me and told me that deferred action had been granted.   Thirty minutes after that I received a letter signed by the same Director granting deferred action.  I was unable to get him on the phone, but it is clear that the earth had moved under his feet and he only realized it when the political appointees in Washington let him know that it was no longer business as usual.  Now, deferred action for DREAMers is pretty routinely granted.

Some DREAMers and their advocates have asked the President to announce a formal blanket-wide grant of discretion to the DREAMers and have used his reluctance to do so as proof that he is committed to lip service only.  I consider that wise politics on the President’s part.  A formal blanket-wide grant of deferred action would have been a direct challenge to Congress and invited even more controversy over whether the President is abusing his power to override U.S. immigration law.  It would have been a major talking point for the Fox News crowd and would have kept every immigration official testifying on Capitol Hill for weeks.  In addition, it would have placed a layer of notoriety on what is essentially a de facto situation.  I have heard some argue that, despite the rhetoric, the President is deporting DREAMers.  I suppose this is true.  One can not expect ICE to identify these folks on their own.  In my experience when ICE is alerted that a potential deportee falls within the very broad outlines of what is a DREAMer, favorable discretion is usually exercised.

I recently obtained deferred action and stays for DREAMers that expire after the next election.  I am worried about what is going to happen to them.  I do not believe that a Romney administration will extend their discretionary status.  These kids have no other legal options.  What happens to them if the President is not re-elected?  While their situation is far from perfect and the hope is that some form of the DREAM Act or immigration reform will pass, their ability to remain in the US with their families and to work and study is dependent upon continued administrative grace that has been exercised by this administration.

A second reason I am supporting this President is because I believe that he wants common-sense immigration reform.  His failure to achieve it says more about the poisonous state of political affairs where every piece of legislation requires sixty votes in the Senate and the Republican opposition has made it clear that they see their job as to thwart the President on every initiative he brings forward.  The DREAM Act failed with 55 votes in the Senate.  Five democrats voted against it as did 36 republicans.  While the five democrats that voted against it should be excoriated, the enmity that has flowed to President Obama when 52 out of 57 democrats voted for the Act is senseless when it was the other party that demanded the filibuster and provided the overwhelming opposition.  So-called moderates like Olympia Snowe and Susan Collins, previous supporters like Orrin Hatch, and finally, the inscrutable Marco Rubio all had a hand in bringing down the DREAM.  The failure of the DREAM Act is not the President’s fault.  It is the fault of a party captive by its most extreme anti-immigrant elements.

In addition, the President has taken several steps to liberalize the immigration process.  The administration has mandated that ICE officials consider whether their actions are consistent with the stated enforcement priorities of the agency.  This has resulted in the termination of removal proceedings for hundreds of people and has allowed many people to have an easier time seeking benefits. While more remains to be done in the discretionary realm (it takes a long time to turn a cruise ship around), the process has caught the attention of courts, which are now placing pressure on the government to exercise its discretion in cases before them.  The administration has unleashed this and one has to be pretty dim to think that they did not foresee these consequences.  In addition, the administration has also proposed changes to the waiver process that would allow people to seek waivers in the U.S. before traveling abroad and facing a lengthy stay abroad.  This step has the potential to provide residence to thousands of people without Congress lifting a finger.  Also, the Board of Immigration Appeals has become less hostile territory to the immigrant than it was before.  Many new appointees are beginning to have an impact and the Board’s recent decisions allowing for Judges to close cases over DHS objection and to hold the unlawful presence bar inapplicable to adjustment applicants who left on advance parole are enormous advances that will allow for more people to obtain status or protection without Congressional action.  Finally, the President has forcefully challenged hateful anti-immigrant statutes in Arizona, Alabama, and South Carolina.

Many challenges remain.  There are disappointments with this President, for sure.  However, this is not a race between Barack Obama and our vision of the perfect immigration President.  It is between President Obama and Mitt Romney.  Over the past year, Giovernonr Romney has staked out the most anti-immigrant position in the Republican field.  He has allied himself with Kris Kobach, the architect of SB 1070 and the other state laws.  He has promised to veto the DREAM Act.  In addition to the Governor’s own words, the Republican party has adopted the position of extreme anti-immigrant demagoguery.  This view of the world will be ascendant of Governor Romney wins.

One thing I have learned over the last five years is that Obama plays the long game.  He sees many moves ahead and while many folks on his team panic and jump ship, Obama steadily moves forward, slowly but resolutely.  If we have the nerve to follow, I am confident that a second term will bring significant positive change for immigrants in the U.S.