Archive | June, 2012

Benach Ragland heads to the Music City!

13 Jun

For the next four days, the partners at Benach Ragland will be at the 2012 Annual Conference of the American Immigration Lawyers Association (AILA) in Nashville, Tennessee.  Despite Nashville’s world class music scene, BR attorneys will be busy presenting to other immigration lawyers, attending strategy meetings, raising funds for immigrant defense and learning from other immigration attorneys instead of listening to the famous Nashville twang.  Thursday night, Benach Ragland partner Thomas Ragland will receive the President’s Commendation from AILA President Eleanor Pelta in recognition of his leadership of the newly created AILA Federal Litigation section, which provides ideas, support and inspiration to attorneys seeking to challenge agency action in federal court.  On Friday, Thomas will serve as discussion leader for a panel discussion entitled “Federal Court Litigation Masters,” which will focus on creative litigation strategies and solutions to the most vexing problems.  On Saturday, Andres Benach will serve as discussion leader for a panel discussion entitled “The Latest Developments in Crimmigration Law,” which will help attorneys navigate the shifting landscape of criminal removability issues.  In addition, throughout the meeting, BR attorneys Jennifer Cook and Dree Collopy will participate in strategy sessions on detention issues, asylum and other hot topics.  And, on Friday night, there is a fundraising event for the American Immigration Council, which provides advocacy services and legal support for immigrant rights.  If you can’t be there, please consider donating online.

Even with this busy schedule, you can be sure that we will take some time to catch up with old friends, find a good meal, and reflect on this amazing year.

High Stakes for Seasonal Stablehands

9 Jun

Horse racing fans held their breath this week over potential triumph and disaster – I’ll Have Another was poised to take the Belmont Stakes on Saturday to become the first Triple Crown champion since 1978, but the local chapter of the International Brotherhood of Electrical Workers , the union that represents 280 members at Belmont Park racetrack, including the starters who set the horses running when the gates open, was poised to shut down the race by striking over a contract battle with the New York Racing Association: no starters, no race.  But even though the racing industry’s hopes for a Triple Crown champion were crushed on Friday when I’ll Have Another withdrew from the Belmont Stakes with early stage tendinitis, the strike was averted and the race will go on, albeit without its brightest star.

After the crowds have placed their bets, cheered, collected their winnings, and left Belmont Park, the racetrack and those whose horses train and race there have a longer-term labor problem than negotiating with union-backed starters: no horses, no race.  Horse training – and the specific tasks of thoroughbred groomers, exercise riders, and hotwalkers – is tough, dirty, and often dangerous work, with low pay, early morning hours, and seven-day work weeks during the racing season.  Extensive knowledge of horses is essential.  New Yorkers rarely respond to trainers’ advertisements for such challenging seasonal jobs, and the positions are most often filled by Mexican and South Americans steeped in horse culture.  These temporary workers form the backbone of the racing industry, and their temporary worker petitions have been approved routinely for years.

However, last fall, several horse trainers based at Belmont Park – represented by Benach Ragland LLP partners Thomas Ragland and Jennifer Cook, at their former firm Duane Morris LLP – filed suit in federal district court seeking to overturn denials of H-2B (temporary non-agricultural worker) visas for their thoroughbred stablehands.  U.S. Citizenship and Immigration Services denied the visas, which previously had been routinely granted, on the ground that the stable work was not truly “seasonal” since the labor shifts to horse trainers’ stables in Florida during the non-racing winter.  USCIS and the trainers – whose suit was supported by the New York Thoroughbred Horsemen’s Association – ultimately reached a settlement, and the stablehands were permitted to continue working with the horses that run at Belmont Park this racing season, to the delight of New Yorkers and racing fans around the country.

But H-2B visas continue to pose challenges.  On April 26, 2012, a federal district court in Florida enjoined the Department of Labor from enforcing new rules revising the H-2B program, which would have imposed various bureaucratic filing and paperwork requirements on employers and decreased the number of months an employer may employ an H-2B worker – a negative factor for long-season (but clearly “seasonal”) work such as horse training.  These rules also would have required employers to pay round-trip airfare and subsistence costs of H-2B employees – a distinct benefit for stablehands, but not if trainers could no longer afford to hire stablehands and groomers from South America.

Until regulations governing nonimmigrant workers are revised to recognize seasonal industries dependent on specific skills found most often in workers outside the U.S., employers in those industries must continue to challenge those regulations and their interpretations in federal court.  As racing fans gear up to watch the Belmont Stakes this afternoon, let the horses themselves serve as a reminder that the unique skill sets that form everyday life – and special occasions like a horse race – in the United States are often performed by those whose livelihood hangs on a common-sense interpretation of our immigration laws and regulations.

“Good Moral Character” Triumphs In Federal Court

7 Jun

Last night, Mr. J.A. slept soundly for the first time in more than four years.  On June 5, 2012, Judge James C. Cacheris of the U.S. District Court for the Eastern District of Virginia issued a 90-page decision finding Mr. J.A. to be a person of “good moral character” who meets the requirements for naturalization under the Immigration and Nationality Act (INA). Abusamhadaneh v. Taylor, 2012 U.S. Dist. LEXIS 78195 (E.D. Va. June 5, 2012).  This rare federal court challenge to a denial by U.S. Citizenship and Immigration Services (USCIS) of a naturalization application was prepared and argued by Benach Ragland LLP partners Thomas K. Ragland and Jennifer D. Cook and Senior Paralegal Cyndy Ramirez Clark at their former firm, Duane Morris LLP.  Lead counsel in the case was Denyse Sabagh, a partner and head of the immigration practice group at Duane Morris.  The decision is a tremendous victory for Mr. J.A. and a stinging rebuke of the government’s relentless efforts to deny him U.S. citizenship.

In his decision, Judge Cacheris admonished USCIS for its inaccurate, incomplete, and biased decision-making and for its unfounded conclusion that Mr. J.A. provided false testimony during his naturalization interview. The Judge also denounced the government’s conduct during trial as deceptive, misleading, and wholly unpersuasive.

Background

Mr. J.A. was born in Jordan, a devout Muslim with more than a dozen siblings; a conservative, shy, and quiet former science teacher and computer technology expert who came to the United States in the early 1990s to visit, and then to study, and finally to work and build a life.  He married, fathered four children, and regularly attended the local mosque.  He worked for an organization supporting American Muslims, obtained his green card, and acquired a taste for Five Guys hamburgers.  Over the more than 20 years that he has lived here, Mr. J.A. has been a model member of society.  However, following the terrorist attacks on 9/11, tension levels were high for members of the Muslim community in Northern Virginia, as they were throughout the country.  Many perceived themselves as targets of unfair government scrutiny and needless delay in their immigration proceedings, among other injustices.  Mr. J.A.’s Muslim activist boss was indicted and sent to prison, and the Muslim organization he worked for was raided and shut down.  But Mr. J.A. is intelligent and resourceful, and he was able to find other technology jobs, including in a local police department.  In 2008, he and his wife decided to apply for naturalization.

Mr. J.A. and his wife consulted an attorney from their community to prepare the N-400 naturalization applications and file them with USCIS. The attorney advised Mr. J.A. that he was not required to list membership in any religious organizations on his application, and he followed that advice.  His wife was interviewed and naturalized without problems.  But Mr. J.A.’s application languished, despite repeated status inquiries.  Finally, his attorney filed a mandamus action in federal court to compel the agency to act on the application; it worked, and Mr. J.A. was finally scheduled for his naturalization interview.

In October 2009, Mr. J.A. and his attorney attended the N-400 interview, which was conducted by a senior officer and was videotaped.  During the interview, Mr. J.A. clarified several matters on his application and repeatedly stated that he was not a “member” of any organization, not even the mosque where he prayed.  After another lengthy delay, his application was denied.

In its decision, USCIS declared that Mr. J.A. was ineligible for naturalization as a person lacking in “good moral character,” because he allegedly gave false testimony during his N-400 interview to obtain an immigration benefit.  The government accused Mr. J.A. of misrepresenting his memberships and associations in the U.S. and in Jordan, his relationship with his former boss, and his past encounters with law enforcement.  Notably, the adjudicating officer relied on an unverified FBI report in the file, which contained a number of serious allegations from an unnamed source, including that Mr. J.A. belonged to the Muslim Brotherhood and certain other Muslim organizations.  The report was not shown to Mr. J.A. and he was not offered an opportunity to respond to these allegations.  The officer assumed the report was trustworthy, concluded that Mr. J.A.’s statements and clarifications were false testimony, and denied the N-400 on the basis that Mr. J.A. is “lacking in good moral character.”

Mr. J.A. filed an administrative “N-336” appeal and attended a second interview at USCIS, which was conducted by a different senior officer.  However, the appeal was denied in classic rubber-stamp fashion.  The government simply refused to admit a mistake – or even a misperception – and instead resolutely stood by the previous decision.  Frustrated by what they perceived to be a clear injustice, Mr. J.A. and his attorney sought the assistance of Denyse Sabagh and the law firm of Duane Morris.

Mr. J.A.’s new legal team launched an aggressive challenge to the government’s decision by filing a Petition for Rehearing on Naturalization Application, under 8 U.S.C. §1421(c), in the U.S. District Court for the Eastern District of Virginia and requested a de novo hearing on Mr. J.A.’s eligibility to naturalize. Attorneys from U.S. Department of Justice Office of Immigration Litigation (OIL) were assigned to defend USCIS’s decision.  The parties engaged in extensive pre-trial discovery, including interrogatories, document production, and several days of depositions, and each side presented its theory of case. However, the OIL attorneys were not content to simply defend the agency’s conclusion that Mr. J.A. gave false testimony to obtain an immigration benefit. Rather, under the guise of de novo proceedings, they launched a malicious campaign of character assassination, accusing Mr. J.A. of being not just a liar, but a terrorist and a criminal to boot – in the government’s words, a person who is “undeserving of United States citizenship.”

Judge Cacheris conducted a three-day bench trial. The government doggedly attacked Mr. J.A.’s character and his credibility, introducing witnesses and evidence designed to reveal his unsuitability for U.S. citizenship.  Among other witnesses, the DOJ attorneys transported Mr. J.A.’s former boss, Mr. A.A., from federal prison in Kentucky and attempted to elicit damning testimony from him. Instead, Mr. A.A. turned out to be a superb witness for Mr. J.A.’s side. He disputed the confidential FBI report for which he was allegedly the confidential source, disavowing the statements about Mr. J.A. that had been attributed to him. Like the other character witnesses who were introduced, he described Mr. J.A. as a reserved, hard-working, devout man who was well-liked and respected in his workplace and the community. The Court found Mr. A.A. credible and persuasive, and it concluded that his testimony actually corroborated Mr. J.A.’s account of events and “effectively impeached” the government’s claims.

In furtherance of its character assassination strategy, the government also sought to introduce rebuttal testimony from a police detective along with two police investigative reports that purportedly exposed Mr. J.A.’s criminal behavior and terrorist sympathies. Mr. J.A.’s legal team objected to the testimony and reports as inadmissible hearsay and conducted a withering cross-examination of the government’s witness. The Court ultimately excluded the proffered evidence in its entirety, finding the investigative reports “untrustworthy” and the detective’s testimony “inadequate and incomplete.” The Court bluntly criticized the government’s actions, noting that the detective’s statements suffered from “serious credibility issues” and “quite simply failed to contradict or challenge any of the prior testimony” offered by Mr. J.A. or his witnesses.

Nearly three months after the trial, and more than four years after Mr. J.A. filed his naturalization application, Judge Cacheris issued an order finding Mr. J.A.’s testimony and evidence credible on every count. According to the Judge, the USCIS officers who adjudicated his application fell “far short” of the required standard. The officer who conducted his N-400 examination “repeatedly mischaracterized the record of Mr. J.A.’s testimony,” offered imprecise statements during the trial, and failed to comply with published agency guidance. The Court found “significant errors” in her decision-making and voiced “substantial concerns about the credibility of [her] conclusions.” Moreover, the senior officer who adjudicated his N-336 appeal “did not undertake a thorough and careful review,” “failed to accurately understand Mr. J.A.’s testimony,” was “confused” and “persistently mischaracterized” Mr. J.A.’s statements, failed to review the file or conduct her own independent investigation, and was likewise criticized by the Court as “lacking in credibility.”

In sum, Judge Cacheris found the government’s case to be “deceptive” and “misleading,” and he rejected their central arguments as “simply in error.” In contrast, the Judge found Mr. J.A.’s testimony to be credible, consistent, and “entirely truthful.” The Court discerned “no evidence that Mr. J.A.’s answers [during his N-400 interview] were made with intent to deceive to obtain an immigration benefit.” Judge Cacheris concluded that Mr. J.A. proved by “clear and convincing evidence” that he is a person of good moral character and deserving of naturalization under U.S. law.

Mr. J.A. can now sleep soundly, secure in the knowledge that his moral character and reputation for truthfulness are no longer in question. He has been freed of the sort of unjust scrutiny that can lead to paralyzing self-doubt and a crisis of faith, emerging stronger for having fought to achieve justice. Pursuant to the Court’s order, within 30 days Judge Cacheris will administer the oath of naturalization and swear in Mr. J.A. as a United States citizen  … just in time for Independence Day.