Archive | November, 2013

Thank You

27 Nov

 

 

This is the second Thanksgiving we have celebrated at Benach Ragland.  Like last year, we are grateful for all the people who have helped make this firm an ongoing enjoyable place to do the work we love.  photo

But, let’s face it.  The past year has been rough.  A year ago, the President was re-elected and all the political leaders were saying that the time is right for immigration reform.  2013 began with such optimism for the first meaningful immigration reform since the disaster of 1996.  A year later, the Senate has passed a bill that immigrants and their allies are lukewarm to and the House is completely hostile to.  Immigrants and allies of immigrants have been torn over whether a comprehensive or a piecemeal approach is appropriate, the role of civil disobedience, and even the constitutional authority of the President.  Everyone is very deservedly cranky.

But Thanksgiving is supposed to be a time when we express our gratitude for the many things we have rather than the things that we do not.  At BR, we are all grateful that our families are together as we recall so many immigrant families that spend holidays, birthdays, weddings and funerals separated by an unfair immigration system.  At BR, we are grateful that we are able to perform meaningful and inspiring work and earn comfortable livings when so many workers have to leave their family dinners for the altar of consumption.  At BR, we are grateful for the deep and abiding relationships we have made with so many through our work.

Our profound gratitude goes first to our stellar staff.  Liana Montecinos, Sandra Arboleda and Mariela Sanchez Odicio make this firm run and their dedication to serve our clients and to seek justice on their behalf remains a daily inspiration.  As many of our clients will attest, they are the best part of this firm.  We are grateful that Rachael Petterson choose BR as a place to develop her career as a lawyer.  We are thankful for her strong dedication to our clients and work and her unfailing charm and grace in the office.  Finally, as partners, Dree, Jen, Thomas and I could not have asked for better partners.  They say partnership is like a marriage and we have experienced a number of challenging issues all of which have reinforced the bonds of partnership and friendship we share.

We are grateful to our families.  Every minute we are here is time that we are not with husbands, wives, children and parents.  Their support for our work, our ideals and our goals makes it possible.  Their love at the end of a day keeps us revitalized and refreshed.

We are grateful to the clients who have shown the confidence in us by asking us to handle the important matter of their right to live and work in the U.S.  We are inspired every day by the strength, optimism and resilience of our clients and we are grateful for the opportunity to serve such an inspiring community.

We are grateful to companies and individuals who have partnered with us and helped us provide our services.

Lastly, we are grateful to the vast group of people we call Friends of Benach Ragland (“FOBR”).  Your support and friendship mean the world to us.

Happy Thanksgiving.

Does the President Have the Power to Stop All/Most Removals?

25 Nov


As official Washington administers last rites to immigration reform for 2013 only to have it pop up again with a barely detectable pulse, undocumented immigrants and their allies continue to press the President to use his power as the executive to suspend removals.  Marches, sit-ins, hunger strikes, and social media combat for #notonemore deportation have reached a fever pitch as the House seems to be putting the last nail in the coffin for the comprehensive immigration reform bill passed by the Senate in June.  A family feud exploded into the open today when activist Ju Hong challenged the President of the United States as the President delivered a steaming bowl of bromides to a friendly pro-immigrant crowd.  Hong challenged the President and told the President that he has the power and the authority suspend deportations.  The President engaged Mr. Hong and said that he did not possess such authority.

So, who’s right?  Is Hong right and the President can, as a function of executive power, halt deportations?  Or is the President right that he is obliged to enforce the law and Congress must act in order to reform our broken immigration system?  The answer, like always, is very unclear.  In the President’s favor is that his constitutional obligation to “take care that the laws are faithfully executed” prohibits his ignoring the laws contained in the Immigration & Nationality Act.  However, in Hong’s favor is the fact that the President, through Deferred Action for Childhood Arrivals (DACA), relief for certain widows of American citizens, and the recent Parole-in-Place memo for military families, has already exercised his executive authority not to enforce certain portions of the immigration law.  As Hong might argue, if the President can choose not to enforce the law for certain sub-groups of immigrants, what is there to stop him from expanding the beneficiaries of his grace to other groups?  The question is whether there is a difference between a limited exercise of discretion versus a wholesale refusal to enforce the majority of the the Immigration & Nationality Act (“INA”).  Let’s also agree before we look at this that it would be better if Congress passed a humane and comprehensive reform that kept families together.  However, as it appears that Congress has no intention of doing that, let’s take a look at what the President could do without Congress.

In 1984, the Supreme Court heard a case called Heckler v. Chaney.  In this case, inmates scheduled to be executed by lethal injection argued that the lethal drugs were not being used in conformity with their use as approved by the Food and Drug Administration (FDA) and they brought suit to compel the FDA to take enforcement action against the sheriff’s departments that were improperly using the drug.  The Supreme Court held that the decision to initiate, terminate or suspend enforcement proceedings were squarely within the unreviewable discretion of the executive branch.  The Supreme  Court  wrote:

This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion (citation omitted).   This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.  The reasons for this general unsuitability are many.  First, an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise.  Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all.  An agency generally cannot act against each technical violation of the statute it is charged with enforcing.  The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.  Similar concerns animate the principles of administrative law that courts generally will defer to an agency’s construction of the statute it is charged with implementing, and to the procedures it adopts for implementing that statute(citation omitted).  In addition to these administrative concerns, we note that when an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect.  Similarly, when an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner.  The action at least can be reviewed to determine whether the agency exceeded its statutory powers (citation omitted).  Finally, we recognize that an agency’s refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict — a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to “take Care that the Laws be faithfully executed.” U.S. Const., Art. II,  3.

In this instance, the Supreme Court seems to support Hong’s position when it states that a decision not to prosecute or enforce is left to the agency’s unreviewable discretion.  This would support the argument that the administration could make a decision not to enforce the Immigration & Nationality Act.  Yet, the Supreme Court did not give the President the carte blanche to ignore the statute.  “We emphasize that the decision is only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.  Thus, in establishing this presumption, . . .  Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers.  Congress may limit an agency’s exercise of enforcement power if it wished, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.”

As an example, the Supreme Court cited a discrimination case, Adams v. Richardson, in which a court ordered federal education officials to enforce portions of the Civil Rights Act of 1964.  In that case, a court determined that education officials had failed to enforce a clear statutory directive from Congress and ordered the officials’ compliance.  It could be argued that Congress provided in the INA very specific guidance to the executive branch about how to enforce immigration law.  The INA provides for mandatory detention of certain foreign nationals, bars many removable individuals from all relief, and restricts jurisdiction in federal court over agency actions.  In fact, when the President established DACA, a number of ICE bureaucrats brought suit arguing that the INA provides a mandatory duty upon ICE to initiate removal proceedings against all removable foreign nationals that ICE encounters.  While the ICE bureaucrats thankfully lost, they lost on an employment law/ standing issue and the initial decisions of the judge suggested that he accepted the bureaucrats’ claims.

Thus, while the President and his appointees have considerable discretion in choosing how to enforce the law, it is less clear that they have the ability to decide to suspend all removals, or even a substantial majority of them.  While principles of prosecutorial discretion– the authority of an enforcement agency to utilize limited resources in the best way it seems fit– legitimately empower the President to identify priorities, the President would not seem to have the power to decide not to enforce immigration law.

This is not to say that the President could not be bolder with his use of his discretionary authority.  DACA has been the boldest step he has taken so far in asserting his executive authority to remedy the harsh effects of U.S. immigration law.  Could the President extend his discretion to limit the removal of parents of U.S. citizens?  Could he expand DACA to include more people?  Could he decide that no children below 16 should be removed?  This is where the legal question turns political.  The anti-immigrant right wing already believes that, despite the record number of removals, the President is not enforcing immigration law.  Should the President grow the universe of those eligible for favorable exercises of discretion, it is likely that whatever life remains in positive immigration reform in Congress will evaporate immediately.  As long as the promise of immigration reform remains flickeringly alive, the President is unlikely to antagonize his Congressional tormentors.  The House GOP seems to get that and feeds us all little scraps of “immigration reform is alive” every now and then in an effort to stave off unilateral action.

We tend to look at our times as if the political atmosphere was never more poisonous.  That is simply not true.  There have been plenty of times in our history where a President took a very expansive view of his authority.  Andrew Jackson did it on a nearly daily basis.  Lincoln utilized his powers as commander-in-chief to imprison half of Maryland and emancipate millions of enslaved humans.  Franklin Roosevelt threatened to add six new justices to the Supreme Court to tilt the balance on the Court to favor his agenda.  Harry Truman took over steel mills during the Korean War.  These were bold political moves in response to urgAdelantoent situations.

As the atmosphere grows more poisonous, perhaps the President will channel his inner Jackson or Roosevelt and take these drastic steps.  Perhaps Mr. Hong’s biggest contribution was to serve as Jefferson’s “firebell in the night” to tell the President that the situation has grown desperate.  As the President spoke, young activists, chained themselves in civil disobedience at the Adelanto detention center in California.

As Congress fails to deliver any relief to immigrant communities, the pressure will continue to mount on the President to take a leap of faith and assert a robust exercise of discretion and reap whatever political harvest is unleashed.

Witnessing Justice: Transgender Woman Granted Asylum in Baltimore by FOBR Liz Keyes

22 Nov

This is a guest post by FOBR Liz Keyes, who direct the Immigrant Rights Clinic at the University of Baltimore.

Today was a beautiful day in Baltimore immigration court. A young woman from Honduras, born male but always feeling female inside, won asylum after suffering relentless torment from her earliest days until she fled at age 17. Everyone she ever knew in Honduras treated her with cruelty, from the teachers who brutally punished her, to the classmates hurling slurs, to her father who beat her viciously, and her sister who attacked with her with a machete when she saw our client wearing girl’s clothes. The brutality escalated the older she got, and after being attacked with knives and a gun by homophobic gang members, she finally fled, deeply traumatized by her experience. She knew nothing of asylum in the United States, and did not apply within one year, as the law requires. When she came to the attention of immigration authorities in New Jersey, she was placed in detention for months–and the wonderful non-profit Immigration Equality found her there, filed an initial asylum application for her, and got her out of immigration detention.

Since she had friends in Maryland, she moved here and became a client of the University of Baltimore School of Law Immigrant Rights Clinic. We assigned her case to a second year law student, Jose Perez, who threw himself into the case, interviewing our client many times, finding a psychologist through Physicians for Human Rights who could provide an evaluation of our client’s level of trauma, and developing an extraordinarily comprehensive set of evidence corroborating exactly how bad life was for transgendered individuals in Honduras, as well as a compelling legal brief addressing the complications of the case. Jose could have handed off his work to another student this fall, but he wanted to stay on and see it through–even knowing that his firstborn child was due three weeks before the hearing date.

Today, his work and commitment paid off.

As a clinical teacher, it is hard to let a student stand in the well of the court alone, even when you know how prepared they are. The burden feels too great, and I well remember being in the same position twice as a law student. But he had done his preparation, and as he said in a last email to me last night, “LET’S DO THIS THING.”

So he did. And it went so well that I felt bewildered. Grateful and moved, but bewildered. First, the attorney for the government let him know it was a strong case, and he only had a few reservations. Then the judge said that because the written application was so extensive and detailed, we could skip over much of our planned testimony. Jose asked a few questions about our client’s childhood experiences, eliciting some tremendous emotion, after which he simply asked her if her statement in the record was truthful and correct. She said yes, and Jose moved quickly through remaining issues, including what the client’s hopes were for her life here. This question finally elicited a small smile, as she said she hoped she could marry some day and adopt a child. She spoke of how she wanted to study and work, if the court was kind enough to grant her status here.

And when the government assured the Judge that it had no opposition to asylum, the Judge issued her opinion, welcomed our client to America, and said, “America is grateful you are here.”

The words stunned me. And perhaps I misheard. I tend to prepare for the worst, and imagine every way a case could go off track. So I was already disoriented by how well everything had gone. But this is what I heard, and these words moved me deeply. They seemed to create a perfect symmetry: this young woman who had known nothing but suffering and rejection for the first 17 years of her life, was being accorded respect and welcome by our government, by every single individual in that courtroom.

I know that life for transgender people in the United States remains dangerous and difficult. But this morning was a beautiful, inspiring measure of how far our society has moved toward tolerance and acceptance. The child who had been so unloved was finally welcomed, and not one person this morning stood in the way of that just outcome.

For our client, today meant safety, and the promise that she could start building the life she dreamed of, free from fear of returning to a country where she would likely be killed for being herself.

For my student, it was a beautiful reminder of why he had come to law school, and why he wants to be an immigration lawyer.

And for me, it was a much needed reminder of what justice can look like. It was a privilege to be in that court this morning to observe justice in action. May it always be so. La lucha sigue.

Administrative Relief for Military Families via Parole in Place

19 Nov

Image

Members of the U.S. military make significant sacrifices in order to serve their country.  Yet, many dedicated U.S. citizens and lawful permanent residents are either prevented from serving in the military or their service is considerably limited because of who they love and who their family members are.  Active service members are often stripped of their security clearances, unable to advance up the ranks, and threatened with discharge from service if they have undocumented spouses, parents, and children.  Even more shocking, just recently the Pentagon confirmed that it plans to bar American citizens and lawful permanent residents from enlisting in any branch of the U.S. military – the Navy, Marine Corps, Air Force, Army, and Coast Guard – if those citizens and permanent residents have undocumented spouses and children.  The Pentagon confirmed that the reason for this rule is that citizens and permanent residents who have undocumented spouses and children living with them are thought by the Pentagon to be committing the crime of “harboring.”  Obviously, there may be security reasons behind these policies; however, there must be a way to both protect the security of the United States while also assisting and honoring U.S. citizens and permanent residents who want to dedicate their lives to serving this country.  U.S. citizens and lawful permanent residents should not be faced with the impossible choice between serving their country and being with the ones they love.

For these reasons, there is concern that members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve face stress and anxiety because of the immigration status of their family members In the United States.  Military preparedness can be adversely affected if active military members, who can be quickly called into active duty, are worried or anxious about the immigration status of the spouses, parents, and children.  Veterans, who have served our country and made significant sacrifices for the United States, may also face stress and anxiety because of the immigration status of their family members.  In response to these concerns, the Obama Administration and the President’s previous Secretary of Homeland Security, Janet Napolitano, attempted to address some of these issues by applying existing legal remedies in ways that assist members of the U.S. military, veterans, and their families.  One of these policy initiatives revolves around the legal mechanism of Parole in Place.

Pursuant to INA § 245(a), adjustment of status to that of lawful permanent resident is only available to an individual “who was inspected and admitted or paroled into the United States.”  Thus, an individual who has entered without inspection is ineligible to become a permanent resident while physically present in this country, even if married to a U.S. citizen.  Instead, the individual must depart the U.S. in order to obtain an immigrant visa at a U.S. consulate abroad.  However, such a departure from the U.S. consequently renders the individual inadmissible to reenter this country for ten years after the date of departure.  As a result, the process to obtain permanent resident status for an individual who entered the U.S. without inspection affects not only that individual, but also, his or her U.S. citizen or permanent resident family members.

This situation presents more serious, unique hardships on military families, which is why the Department of Homeland Security (“DHS”) identified Parole in Place (“PIP”) under INA § 212(d)(5)(A) as an administrative mechanism that could avoid imposing such difficult circumstances on military families.  In a letter to Congress dated August 30, 2010, the Secretary of Homeland Security identified several tools that the Department utilizes “to help military dependents secure permanent immigration status in the United States as soon as possible.”  Among these tools, the Secretary identified PIP as a tool “to minimize periods of family separation, and to facilitate the adjustment of status within the United States by immigrants who are the spouses, parents and children of military members.”  PIP is especially significant in the support it provides to military families during wartime.  It is a purely discretionary remedy that takes into account the negative impact that the separation of family members may have on a military member’s morale, readiness, or ability to complete his or her service.

Despite this clearly articulated policy from the Secretary of Homeland Security, however, some U.S. Citizenship and Immigration Services (“USCIS”) offices, the agency within DHS responsible for adjudicating applications for immigration benefits, questioned whether PIP should be granted to certain family members of active duty members of the U.S. Armed Forces, individuals in the Selected Reserve of the Ready Reserve, or individuals who previous served in the U.S. military.  Similarly, even when PIP was granted to spouses, parents, and children of U.S. military members and veterans, some USCIS offices questioned the legal authority to actually grant adjustment of status to these individuals based on their PIP.  These questions led to inconsistent adjudications of PIP requests and adjustments of status based on PIP throughout the country.  Ultimately, USCIS decided that it needed to clarify its policy regarding these two questions by issuing a policy memorandum.  In response, many USCIS offices put such PIP requests and PIP-based adjustment of status applications on hold, awaiting the clarified policy from its Office of the Director.  Accordingly, many members of the U.S. military, veterans, and their families have been waiting – some for several years – for their family members’ PIP requests and PIP-based adjustment of status applications to be adjudicated.  This resulted in revoked security clearances and the inability to advance for many military members, as well as negative impact on service members’ morale and readiness to serve.

Thankfully, the waiting is now over.  In a policy memorandum dated November 15, 2013, the Office of the Director for USCIS clarified the agency’s policies regarding PIP.  First, USCIS confirmed that PIP is a discretionary remedy available to spouses, parents, and children of active members of the U.S. Armed Forces, individuals in the Selected Reserve of the Ready Reserve, and individuals who previously serviced in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve.  Second, after a lengthy legal analysis and discussion of the specific language of the Immigration and Nationality Act, USCIS verified that a grant of PIP cures inadmissibility for being present without having been admitted or paroled and for being one who “arrives” at an undesignated time and place.  This means that an individual who entered the U.S. without inspection, but subsequently received PIP, is not inadmissible for these grounds.  Consequently, if he or she is otherwise eligible to adjust status, he or she may do so while present in the U.S., thus avoiding lengthy separations and negative impacts on the U.S. military member’s morale, readiness, and ability to serve.

As stated by Secretary Napolitano in her letter to Congress, the purpose of PIP is “to minimize periods of family separation, and to facilitate the adjustment of status within the United States by immigrants who are the spouses, parents, and children of military members.”  USCIS has now reaffirmed that purpose and will move forward in adjudicating all of the PIP requests and adjustment of status applications that have been placed on hold.  Many members of the U.S. military will no longer have to wait with revoked security clearances and the inability to progress in their military careers.  Their ability to complete their service to our country will no longer be negatively impacted.  They will no longer be faced with the impossible choice between their service to the United States of America and their family members.  We commend USCIS for making these important clarifications and for doing its part to ensure that our military members are ready and able to complete their service and our veterans are cared for and honored for their service to our country.

This post was written by Dree K. Collopy.

Congratulations to the National Center for Transgender Equality: Let’s Hope ENDA Does Better than CIR!

13 Nov

Our moment

Last night, Jen Cook and I went to the National Council for Transgender Equality’s  (NCTE) 10th Anniversary event.  The evening was themed “Our Moment,” reflecting the organization’s intention to build upon the successes of the gay rights movement in the past year, including the repeal of Don’t Ask, Don’t Tell, the Windsor decision, and the many states that have enacted gay marriage.  In fact, even as the party went on, the festivities were interrupted to announce that Hawaii became the 16th state to allow for gay marriage.  As acceptance of full rights for gays and lesbians has grown tremendously over the past few years, acceptance of the essential humanity of the transgendered has not moved as quickly.  There have been victories- the Affordable Care Act provides increased access to needed medical services to transgender individuals, transgender individuals such as Chaz Bono, Laverne Cox, and Lana Wachowski have upped awareness of trans issues in our culture.  Even Chelsea Manning has forced us to confront the dilemmas facing trans people in the military and in prison.

There was palpable excitement in the room last night.  Last week the Senate passed the Employment Non-Discrimination Act (ENDA), which would make it illegal nationwide to fire or discriminate in employment issues against someone for their sexual orientation or gender identity. Employment discrimination against trans individuals is a serious problem, with 90 percent of trans individuals reporting that they suffered some form of employment discrimination in their lives.  The Senate ENDA bill is termed “trans-inclusive,” because it has expressly included discrimination protections for transgender individuals, whereas previous incarnations had sacrificed the “T” in GLBT as protections for trans individuals were just a bridge too far for some.  But this years ENDA is trans-inclusive and is now headed to the House of Representatives.   As immigration lawyers, our hearts sank as we heard people express optimism over the chances for its passage in the House.  Over the last four months, we have watched as the House has run out the clock on immigration reform.  Even after being confronted by young activists who brought their plights to him over breakfast, Speaker John Boehner made it clear today that no immigration legislation is moving this year.

 

If anyone believes that House members can be moved by hearing the personal stories of those effected by our terrible immigration laws or due to employment discrimination because of gender identity, Boehner’s cold response to these teenagers who spoke truth to power should put that notion to rest.  George Washington called the Senate the “cooling saucer” because it was meant to temper the excitable House of Representatives.  That role has changed and a group of 40 Tea Party Republicans in the House can stymie the hopes and aspirations of immigrants and trans men and women.  It is truly ironic because both pieces of legislation easily passed the Senate and would easily pass the House if the speaker would just bring it to a vote.  Yet, the Speaker cares more about the needs of his 40 Tea Party members than he does the suffering of 11 million immigrants or the need for employment discrimination protection for vulnerable minorities.

Our involvement in trans issues began when young trans women came into our office and asked us to help them apply for asylum.  Most had come from Central America and they all had stories of beatings, rapes, and rejection by their family.  They braved smugglers and human traffickers to make it to the U.S., where they found a chance to be themselves.  We have been able to obtain asylum for dozens of transgender individuals and not just from Central America.  Persecution of the non-gender-conforming is a worldwide pestilence.  To hear and know their stories and their bravery in leaving their homes under dangerous circumstances to have a chance to simply be themselves fills us with great admiration and respect for these individuals.  Their needs are far more fundamental than a job.  They come to America to be who they are.  It all starts there.  Over the years of representing trans individuals in asylum and then for green cards and, ultimately, citizenship, we have watched them grow into themselves, get stable employment, start relationships and family, and give back to their communities.  To watch a human being develop to her potential is like watching a flower bloom.  You can never grow tired of it.

The NTCE has done tremendous work to bring trans civil rights to the forefront of the political arena.  Like immigration reform, I am confident that full civil rights for trans people will occur in the future.  Last night, we heard from 33 year old Dylan Orr, a White House appointee, and 23 year old Sarah McBride, a political activist, about their professional experiences as a trans man and trans woman respectively.  They are the future and that gives us confidence and joy.

More on Asylum Litigation and the Meaning of Particular Social Group

7 Nov

SCOTUS

Last week, we told you about two cases that the U.S. Court of Appeals for the 4th Circuit heard oral arguments on.  As we discussed, these cases will go a long way towards setting the law on what constitutes a particular social group for purposes of asylum.

One of these cases, Martinez, dealt with the issue of whether a former gang member can be granted protection in the U.S. because of a clear likelihood of persecution because of his status as a former gang member.  In Martinez, there is no doubt among the government or the courts that he will be harmed if he returns to El Salvador.  The question is whether he falls within a group meriting protection under U.S. asylum law.  The Board of Immigration Appeals said that Congress did not intend for someone to gain protection in the U.S. because they were once part of a criminal enterprise, which the Mara Salvatrucha certainly is.  The BIA reasoned that a person should not be able to get a benefit like protection for removal because of involvement in a gang and that gang membership is not what Congress had in mind when it allowed for protection for members of particular social groups.  Mr. Martinez’s lawyers, a very talented group led by FOBR Maureen Sweeney of the University of Maryland Law School Immigration Clinic, argued that Congress established a number of bars to asylum and withholding of removal and that previous gang membership was not among them.  Had Congress wished to exclude such individuals, it could have easily specified in the statute.  Martinez argued that the BIA created a bar to asylum and that was, in fact, Congress’ job, and not the Board’s.

Those arguments, made in briefs to the 4th Circuit, framed the argument held last Thursday.  Maureen Sweeney argued for Mr. Martinez and FOBR Ben Casper argued for the American Immigration Lawyers Association, which filed a brief supporting Mr. Martinez’s claim to protection.  After the hearing, Maureen emailed the following report:

We had oral argument this morning, and I’m not one to draw overly optimistic conclusions from such things, but I will say that two of our 3 judges seemed to really get what the case was about. Our panel was Judges Wynn, Neimeyer and Flanagan (sitting by designation). Judge Neimeyer pretty much spent 40 minutes arguing our case for us – completely got the analytical distinction between current and past gang members, and spoke admiringly of how our client was trying to do the right thing and be a person of conscience, and how they’d just kill him for it if he had to go back. Judge Wynn seemed concerned about being asked to actually find all the elements of particular social group, but he didn’t seem to object to the idea of finding immutability and remanding the case for the BIA to do the rest of its job. Judge Flanagan was the hardest to read. Ben Casper from AILA did a great job pointing out how the Bd decision just adds to the chaos that is PSG jurisprudence right now. Judges seemed uninterested in whether initial membership in the gang was voluntary or not – they seemed to get that once the person left, that became the defining characteristic. And they didn’t seem particularly worried about letting in a bunch of bad guys. As Judge Neimeyer said, “That’s what you have all those bars in the statute for.” We will, of course, see what their decision says when they get around to writing it.

Thanks to all of you for all your help and support with this case and this new adventure in appellate work for me and our clinic. It made a big difference to me to feel like we had the support of such a great community behind us.

And the interesting trivia fact of the day is that we believe we were arguing in the courtroom where Jefferson Davis was tried after the Civil War. So if anybody ever asks you what Julio Martinez and Jeff Davis have in common, now you know!

A very encouraging report, to say the least.

A bit of bad news is that, on the day the case was argued in Richmond, the Court of Appeals for the First Circuit sitting in Boston issued a terrible decision on the same issue. In Cantarero v. Holder, the First Circuit held, “The BIA reasonably concluded that, in light of the manifest humanitarian purpose of the INA, Congress did not mean to grant asylum to those whose association with a criminal syndicate has caused them to run into danger.  Such recognition would reward membership in an organization that undoubtedly wreaks social harm in the streets of our country.”  It then added, preposterously, that recognition of such a social group “would, moreover, offer an incentive for aliens to join gangs here as a path to legal status.”  In rejecting protection, the 1st Circuit set up a circuit split between itself and the 7th Circuit and the 6th Circuit which had already concluded that former gang membership was a legitimate particular social group for asylum purposes.

Whatever the 4th Circuit does in Mr. Martinez’s case, it appears that this issue is teeing up for a showdown at the Supreme Court.