Archive | March, 2014

GUEST BLOG: Catholic University Law Students Win Protection for South African Client!

20 Mar

Judy and Tarun

By Judith Muñoz and Tarunpal Dhillon, Student Attorneys with the Catholic University Law School Immigration Litigation Clinic

 

We met our client, Tanya,[i] for the first time on December 18, 2013 at the Baltimore Immigration Court. She stood behind a glass door, in a navy blue jumpsuit, handcuffed and shackled. As she told us her story of survival in South Africa, a few points became very clear about our client: she is a source of inspiration, a fighter, and a seeker of justice. Her story is similar to that of David and Goliath.  She is an individual who, against all odds, dared to question and challenge a powerful, dominating, and resourceful enemy. The enemy in our client’s story is not a single individual but an all-powerful entity, consisting of hundreds of corCorrupt SA police 1rupt men going against the very principle of righteousness they vowed to abide by and the very principle of justice they vowed to uphold – the South African Police. The South African Police conspired with a notorious criminal gang to target and harm our client, Tanya, due to a deeply rooted animosity surrounding the controversial death of Tanya’s brother, a former police reservist.  Tanya had sought answers from the corrupt South African Police regarding her brother’s death, answers the police did not want to give.  For that, she became their target.

Fleeing imminent death threats, Tanya came the United States with a J1 visa in 2005. Once in the United States, Tanya obtained a U visa as a victim of domestic violence. In 2011, however, Tanya’s U visa was revoked after she was found guilty of a criminal offense during which she was acting in self-defense against her abuser. She was placed in removal proceedings before the Baltimore Immigration Court, and ultimately, she was ordered removed to South Africa, the very country she had fled years before. Although she had an appeal pending before the Board of Immigration Appeals, the Department of Homeland Security deported Tanya to South Africa.  In an effort to hide and protect herself from the police and the gang, Tanya relocated and took extreme measures to change her identity. Despite her efforts, however, the police used its mighty resources to track her down. Again, they used the notorious criminal gang to do their dirty work for them. The gang found Tanya and attacked her on two different occasions, threatening her life and destroying any sense of security she had gained by her relocation and change of identity. Tanya moved around, staying in the homes of friends and acquaintances, trying to stay out of reach of the police and the gang, until December of 2013, when she received news that the Board of Immigration Appeals had granted her appeal. The Board remanded her case back to the Baltimore Immigration Court and requested that she return to the United States to litigate her application for protection under the Convention Against Torture.

After hearing our client’s story, we quickly realized the enormous responsibility that we agreed to put on our shoulders. We were to become protectors, fighters-for-justice, and zealous advocates for a woman who feared she would be brutally and viciously attacked and killed by a notorious criminal gang working under the orders of the South African Police. Our most important and challenging task was to establish the relationship and collusion between these two criminal, corrupt entities and relay it persuasively in front of the immigration judge during Tanya’s individual merits hearing.

Corrupt SA police 2

We spent the next three months dedicating our lives to fighting for our client’s life. As law students, the real world of immigration practice had arrived very quickly and was knocking on our door. We made the choice to open that door and step through it to try to save our client. The process was overwhelming and stressful because the stakes were so very high, but at the same time, this case was an opportunity to transition from inexperienced first-time litigators to zealous advocates fighting for justice for our deserving client. We seized the opportunity and have felt a true transformation from students to advocates, a trait that has now become a part of our identities.

The individual merits hearing represented the most difficult and costly law school exam that we agreed to partake in. We agreed, amongst ourselves, to view the outcome as an indicator of our skill level.  We were students, up against an experienced attorney for the Department of Homeland Security.  We had a decision to make: we could either act like students and fall back to our insecurities and uncertainties, or we could step into the real world of advocacy and put everything on the table for our client. We viewed the hearing as our opportunity to fight for Tanya, for justice, and for humanity – everything Tanya was unable to procure in her native South Africa. After months of preparation, there was nowhere else in the world we would have wanted to be other than at our client’s side, defending her and seeking justice.

The hearing consisted of three-and-a-half hours of direct and cross examinations, client and witness testimony, evidentiary challenges, responses to objections by opposing counsel, and answers to tough questions from the immigration judge.  It ended with an oral decision given by the immigration judge. When the immigration judge stated that he was ready to make his decision, we took a big breath and silently prayed. The wait was unbearable and our hearts were beating at an exceptionally high rate, but we knew we had done everything in our ability to fight for our client. When the immigration judge announced his decision to grant our client deferral of removal under the Convention Against Torture, we experienced a type of joy and accomplishment never before experienced by either of us in our lifetime. It hit us: we had saved our client’s life.

Our client’s reaction made the three months of insanity, stress, frustration with complicated legal theories, and uncertainty as students in the challenging world of immigration law all worthwhile.  Tears poured down her face while she repeatedly whispered the words “thank you”. Tanya was released from immigration detention that afternoon, and we were able to walk out of the immigration court building with our client, who was literally jumping and skipping for joy, a free woman who can now live safely in the United States. Walking out of the court with Tanya was an amazing feeling. Fighting for justice to save a woman from torture at the hands of the corrupt South African Police is an accomplishment we will never forget. It was one of the best days of our lives.

The success of our case is attributable to a number of exceptional individuals that worked tirelessly and vigorously with us over the three-month timeframe. We had the support of two amazing supervising attorneys, our professors, Michelle Mendez and Dree Collopy, who taught us immigration law and the skills we needed to practice before the U.S. immigration courts, and prepared us for the countless scenarios that could be thrown at us during the individual hearing. They were our mentors and educators, and were always present as a source of optimism and encouragement. We were also fortunate to have had the opportunity to work with an exceptionally wonderful human being, who donated many hours of her time to work with us as our expert on police collusion in South Africa, Dr. Fran Buntman of George Washington University.  Lastly, we had the tremendous support of our fellow classmates and participants in the Immigration Litigation Clinic at the Catholic University of America Columbus School of Law.

As a direct result of our particDavid-Vs-Goliathipation in Catholic University’s Immigration Litigation Clinic, we were blessed with the opportunity to meet an amazing client who came to us with a David and Goliath scenario, but left us with the confidence to face seemingly impossible odds and the passion to fight for what’s right. For us, the clinic was not just a class…it was a transformation.


[i] Our client’s name has been changed to protect her identity.

Good News on I-601A Provisional Hardship Waiver Applications!

18 Mar

VisaToday, the US Citizenship & Immigration Service announced a fix to one of the more serious problems with the provisional waiver process for unlawful presence.  As you may know, the CIS instituted the I-601A provisional waiver process last year to allow immigrants who are immediate relatives of U.S. citizens but are also ineligible to seek residence in the U.S. due to unlawful entry to seek a provisional waiver of inadmissibility in anticipation of seeking a visa at the U.S. embassy abroad.  The provisional waiver, sought on form I-601A, only waives inadmissibility due to unlawful presence (i.e., entering without inspection and remaining more than 6 months in the U.S.).  The waiver does not waive any other ground of inadmissibility such as inadmissibility due to criminal convictions or fraud.  To address this issue, the CIS decided early on that where another ground of inadmissibility may be present, such as due to criminal convictions, the CIS would deny such applications because there was a reason to believe that inadmissibility might apply.  This approach left a lot of people out of eligibility for the provisional waiver, many of whom are not, in fact, inadmissible despite having criminal convictions.  This is because not all convictions create inadmissibility.  The largest class of crimes that cause inadmissibility are those that are considered to involve “moral turpitude.”  Crimes involving moral turpitude are those offenses that are inherently base, vile, or depraved.  They usually involve theft, dishonesty, or violence.  However, many crimes, such as trespass, disorderly conduct, or a simple driving under the influence, clearly do not involve moral turpitude.  In addition, there is an exception to inadmissibility for “petty offenses.”  A petty offense is one in which the maximum possible sentence does not exceed one year and the individual is sentenced to less than 180 days in prison.  A crime involving moral turpitude that falls within the petty offense exception does not cause inadmissibility.  However, under the reason to believe standard, CIS was denying waiver applications simply because an offense could create inadmissibility, which was patently unfair to those who were not, in fact, inadmissible.

In an email today, U.S. CIS stated that on January 24, 2014, it issued Field Guidance to its offices instructing officers not to find a reason to believe someone might be inadmissible where the applicant is clearly not inadmissible.  The Field Guidance provides:

USCIS officers should review all evidence in the record, including any evidence submitted by the applicant or the attorney of record. If, based on all evidence in the record, it appears that the applicant’s criminal offense: (1) falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I-601A adjudication, or (2) is not a CIMT under INA section 212(a)(2)(A)(i)(I) that would render the applicant inadmissible, then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview solely on account of that criminal offense. The USCIS officer should continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful presence waiver, including whether the applicant warrants a favorable exercise of discretion.
The CIS has also agreed to reopen, on its own motion, cases that were denied on “reason to believe” to determine whether an applicant denied was, in fact, inadmissible.  If not, the CIS would proceed to consideration of the merits of the I-601A provisional waiver application.
This is a tremendous improvement from the previous position that CIS took.  It is a credit not only to CIS but to the many individuals and groups who pushed CIS on this issue.

Nine Ways Obama Could Make Immigration Law Better Without Bothering to Wake Congress

13 Mar

dwi-obama-copy

The House of Representatives passed the Enforce Act yesterday.  This piece of legislation, which is never going to become law, provides a cause of action to Members of Congress to sue the President for failure to enforce the laws as they see fit.  The Enforce Act is aimed squarely at the President’s Deferred Action for Childhood Arrivals program, which has given hope to so many young undocumented immigrants.  How this vote fits with the immigration statement of principles that the House GOP released in January is beyond us.  When in doubt, votes, much more than “statements of principles,” reflect where Congress truly is.  And the House actually managed to get worse on immigration.  So, in case, it is not perfectly clear- THE HOUSE HAS NO INTENTION OF PASSING ANY MEANINGFUL IMMIGRATION REFORM.  IF THE PRESIDENT WANTS TO BE A CHAMPION OF IMMIGRANTS, HE NEEDS TO DO SO ON HIS OWN.  Got it??Grumpy-Cat

My internet marketing professionals tell me that lists are very effective ways to get readers to a blog.  And cats in a foul mood.

So, here are nine things that the President could do administratively to grant some relief from the deportation machine.  That is, nine things that the President could do without Congress acting.  Any of these steps would ease the deportation crisis and provide relief and assistance to hundreds of thousands of people left hopeless by Congressional inaction.

Now, we have heard a lot from this President that he does not have the authority to simply ignore the law.  That simple statement is true enough.  However, the President does have broad authority to determine how to interpret ambiguous statutory language.  And the Immigration and Nationality Act is pretty darn ambiguous.  For example, Congress has stated that cancellation of removal for people who are not permanent residents is limited to those who have U.S. citizen or permanent resident family members who would suffer “exceptional and extremely unusual hardship” if the applicant were deported.  It is the role of the immigration agencies to define what is “exceptional and extremely unusual hardship.”  Whereas the Board of Immigration Appeals has been pretty stingy with that standard, the agency could depart from such a parsimonious interpretation and create a more generous standard.  The President’s power to fill-in the details and context of statutes was discussed by the Supreme Court in Chevron v. National Resources Defense Council.  In that case, the Supreme Court stated that it will defer to an agency’s reasonable interpretation of ambiguous statutory language.  As a practical matter, where a court finds a statutory command to be ambiguous, it will almost always defer to the agency’s interpretation of the statute.  Most statutory language is ambiguous.  Recently, for example, courts of appeals have found the term “when the alien is released” to be ambiguous as to time.  If an agency’s interpretation conflicts with an ill-expressed Congressional mandate, the Court reasoned, Congress could legislate more specifically.  It is here that the President can use Congressional inaction in his favor.  Since Congress seems incapable of passing any legislation, it is unlikely that the President’s liberalized policies will be overturned by a vengeful Congress.

Another Supreme Court case sheds some light on the powers of Congress vis-a-vis the President.  In INS. v. Chadha, the Supreme Court invalidated a statutory scheme in which the House of Representatives could veto a INS decision to grant relief from removal known as suspension of deportation to a particular individual.  The Court reasoned that the power to decide particular immigration cases has been delegated by statute to the executive and that it violated the Separation of Powers for the Congress to be able to veto a decision regarding a particular individual.  This case shows that Congress may disapprove of decisions that the agency makes, but absent legislation, can not do anything about them.  Again, the difficulty of getting legislation through Congress gives the President a lot of leeway.

Presumably, the President, a constitutional law professor, knows all that, so he is ready to take actions that would dramatically improve the lives of immigrants in America, re-capture his status as “immigration reform champion in chief,” and get himself measured for a monument on the Mall.

  • Parole in place.  This is the big kahuna of administrative reform.  Parole in place is a mechanism that would allow the agency to “parole” individuals who entered without inspection into the U.S.  While parole is normally thought of as something done to allow people to enter the U.S., parole in place allows the government to parole them from within the U.S.  The administration recently did this for the undocumented spouses of members of the U.S. military, but there is no reason why the concept can not be applied to tens of thousands of others.  Through parole in place, people who have U.S. citizen family members or job offers may be able to adjust their status.  Friends of Benach Ragland (FOBRs) Cyrus Mehta and Gary Endelman wrote the definitive piece on parole in place, so we will not go into excessive detail here.
  • Reconsider Matter of Rojas.  In Matter of Rojas, the BIA held that ICE may hold someone as a mandatory detainee regardless of how long it has been since the individual was released from criminal custody when ICE encounters the immigrant.  Many district courts have held that a person is only subject to mandatory detention if ICE apprehends them “when released” from criminal custody.  By reconsidering Rojas, ICE would allow immigration judges to determine whether particular individuals are dangerous or likely to flee before a removal hearing.  This would have the effect of drastically reducing the detained population.
  • Redefine custody.  Alternatively, ICE could interpret “custody” to include alternatives to detention such as ankle bracelets and home monitoring, as many criminal agencies do.
  • Issue a regulation stating that the separation of a parent from U.S. citizen child is, per se, presumptively “exceptional and extremely unusual hardship.”  This would allow parents of U.S. citizens to have more solid claims to cancellation of removal, removing the biggest obstacle to grants of cancellation of removal.  The INS created a presumption of hardship before when it issued regulations underillegal-immigrants-children-deport-parents NACARA allowing certain Central American and Eastern European immigrants to seek suspension of deportation.  The INS issued a regulation stating that NACARA applicants were entitled to a presumption of extreme hardship.  The immigration agency would be free to limit the presumption of exceptional and extremely unusual hardship, but should begin with the recognition that deporting the parent of a U.S. citizen child is an inherently traumatic act with horrific long term consequences.
  • Issue a directive to ICE and CBP stating that, unless significant criminal issues are present, the agencies should decline to enter administrative removal orders and instead seek removal through removal proceedings in immigration court.  DHS issues a wide variety of administrative removals.  Only about one-third of removal orders are entered by an immigration judge.  The rest are issued by ICE either due to reinstatement of a prior removal order, visa waiver overstays, expedited removal of arrivals and of non-resident criminals and voluntary returns.  DHS could issue a directive (not guidance or suggestions but orders) requiring ICE to bring these cases before an immigration judge, where the individual could apply for relief.
  • Issue a directive to ICE attorneys in immigration court to seek two year continuances in all cases in immigration court where there is no criminal ground of removability and no relief.  This would force ICE to work on the hardest cases and clear the backlog of cases where a person has done nothing more than entered illegally or overstayed a visa.
  • Issue a directive that detainers should only be lodged where a person has been convicted of a deportable offense.  Detainers are issued to people who have been arrested regardless of whether there is a conviction.  Removal proceedings are often started due to an arrest that does not lead to any criminal charge because a detainer has been issued.  Limit detainers only to those who have been convicted of a deportable offense.
  • Issue a precedent decision affirming the low standard for the exceptions to the one year rule for asylum.  The law requires an asylum applicant to seek asylum within one year of entry to the U.S.  There are exceptions to this rule and the statute requires that an applicant must prove the applicability of the exception “to the satisfaction of the attorney general.”  This is the lowest legal standard.  Yet, courts routinely hold applicants to a much higher standard.  The Attorney General can issue a decision making it clear to the courts that the exception to the one year rule should be liberally applied.I-821-TPS-Facts
  • Grant Temporary Protected Status to Mexicans, Salvadorans, Guatemalans, Hondurans, Venezuelans, and Ukrainians.  Temporary Protected Status is granted to nationals of countries where there is disaster or upheaval.  It provides individuals already in the U.S. with temporary status, protection against removal, and work authorization.  It is possible to make a cogent claim to TPS for each of those countries.  Mexico and the Central American countries have been beset by drug and gang violence creating a humanitarian disaster on the ground and Ukraine is the flashpoint of a major crisis in Europe.  These are all legitimate uses of Temporary Protected Status.

The House’s action yesterday makes it clear that the House has no intention of moving on immigration reform.  The only thing that the President has to lose is his dwindling support in the immigrant community.  And he loses that by not acting, rather than acting.