Visa Granted at U.S. Embassy in Brazil after I-601A Provisional Waiver Approved!

First, let us state outright: the inclusion of this Motley Crue video was done only at the suggestion of the client.  Benach Ragland is not, and never has been, a fan of Motley Crue.  But, as dedicated counselors, we will tolerate hair metal for the needs of the client.

 

We are happy to report that today we received our first visa at a U.S. Embassy abroad for an individual who required an I-601A provisional waiver.  Our clients received the passport with the immigrant visa in the mail from the U.S. Consulate in Rio de Janeiro.  The clients left the U.S. last month for the visa application after we obtained approval of an I-601A provisional hardship waiver.  This required the leap of faith that they would be able to return.  While inadmissibility due to unlawful presence had been waived, if the consulate were to find any other inadmissibility, our client would not be able to return.  we carefully scoured his record and determined that there was no other ground of inadmissibility.  The clients then took the risk based upon our advice.  Gulp.  After some typical bureaucratic miscues, such as the physician failing to deliver the report and a request for a document that the consulate had returned, the visa was issued today.

Our client got to see his family for the first time in over a decade.  His parents met their U.S. citizen granddaughter.  Husband, wife and child will return after a month spent reconnecting with family in Brazil solid in the knowledge that U.S. immigration law should never require their separation again.

Congratulations dear friends.

Confidentiality of Asylum Applications at Risk

If the internet is good for anything, it is exposing a person to articles and information one ordinarily would not encounter.  So it was when I stumbled across this article on Fox News Latino.  The article discusses the Mexican government’s statement that Gaston Azcarraga, the former owner of the defunct Mexicana Airlines was in the United States and seeking asylum.  At BR, we know nothing about Mr. Azcarraga’s claim to asylum or whether it is likely to succeed.  But we do know that asylum applications are supposed to be confidential and that it is particularly important that a claim to asylum not be revealed to the government of the country where the applicant fears persecution.  To see a Mexican government official state that an Mexican national is seeking asylum in the United States is inimical to the entire concept of asylum and undermines the trust in the asylum system that confidentiality is supposed to enhance.

I have been to hundreds of asylum interviews.  They all begin the same way with the asylum officer informing the applicant that asylum applications are confidential and that the information provided by the applicant will not be shared with the applicant’s home country.  The reason for this promise of confidentiality is obvious.  If an asylum applicant is not confident that her information will be kept secret, she is unlikely to be able to tell the full story of why she is seeking asylum.  Because a grant of asylum is anything but guaranteed and there is a good chance that an asylum applicant will be returned to the country where she fears persecution, without the promise of secrecy, an asylum applicant will understandably be reticent to tell the full story.

The requirement of confidentiality is enshrined into the asylum regulations.  The regulations provide that the information in an application for asylum, including the fact that an individual applied for asylum, shall be kept confidential.  There is an exception for disclosure to U.S. government officials under limited circumstances.  There is also an exception that allows for disclosure “at the discretion of the Attorney General.”  While that latter exception may seem wide enough to drive a truck through, such an exercise of discretion has been rare.  If the Attorney General is increasingly exercising his authority to disclose the fact of an asylum application, that abuse of discretion would undermine the entire regime of confidentiality.  It appears that this is a growing problem.  Friend of Benach Ragland (FOBR) Jason Dzubow wrote last fall that U.S. Embassy officials in China routinely violate the confidentiality provisions of the law. And, of course, some rogue official revealed a few years ago that President Obama’s aunt had applied for asylum.

In rare circumstances, the unlawful disclosure of an application for asylum has been found to generate a new basis to seek asylum.  In an unpublished opinion last year, the Board of Immigration Appeals reopened asylum proceedings based upon a breach of confidentiality.  The BIA wrote:

The respondent’s motion alleges that a United States official advised her that in obtaining the respondent’s travel documents, for the purpose of removal, he communicated by email with the Chinese Consulate in such a way as to breach the confidentiality requirements at 8 C.F .R. § 1208.6.  According to the respondent, she asked the official for copies of the emails, and he advised her that he deleted them. The respondent has proffered evidence of her attempts to obtain copies of the emails as well as other evidence concerning information supplied to the Chinese Consulate. The respondent asserts that circumstances in China have changed based in part on the government’s awareness that the respondent is a failed asylum seeker.  While the DHS has filed a statement of opposition to the motion, the DHS does not dispute the respondent’s claims that confidentiality requirements may have been breached.  We find it appropriate to reopen pursuant to 8 C.F.R. § 1003.2(a) and remand the record to the Immigration Judge for proceedings on whether the respondent is eligible for withholding of removal under the Act or protection under the Convention Against Torture in light of the new evidence in this matter.

Now that Mexican officials are aware of the application, it seems that Mr. Azcarraga’s claim has grown stronger.  There is widespread acknowledgement of the heavy hand of Mexican law enforcement.  Ironically, the desire to punish Mr. Azcarraga may have grown and his claim approved as a result of  this revelation and the embarrassment of the Mexican government.

Welcome Back Rachael and Satsita!

Last week, Benach Ragland began to feel normal again as attorney Rachael Petterson returned from maternity leave and Satsita Muradova joined the firm.  It is really nice to have old friends close.

Rachael has been on leave since late January when baby Mae Bozelli decided to make her appearance nearly two months early.  Of course, earlier that week, we had just started our discussions about handling Rachael’s cases when she went on leave in April!  Mae gave Rachael and all of us a very real reminder that nature does what it wants regardless of our schedule.  Rachael and her husband, Joe, were delighted to welcome this little girl, who faced a number of challenges due to being born early.  Mae was able to go home just a couple of weeks ago and we can not wait to welcome her to Benach Ragland.  The BR Kid Crew, previously numbered at 7, is also beyond excited for a new playmate.  All of us know how difficult it is for a young mother to leave her baby home as she returns to work.  A week in, however, and Rachael has not missed a beat.

We are also happy to announce that Satsita Muradova has joined the firm as a Senior Paralegal.  This is also another homecoming.  Satsita began her career in U.S. immigration law with Andres Benach nearly a decade ago.  A lawyer in her native Chechnya, Satsita brought some of the first human rights cases against Russia in the European Court of Human Rights for atrocities in the Chechen wars.  As too many people have learned, there is a price to pay for standing up to Moscow and Satsita decided that she was no longer safe in the former Soviet Union and obtained protection in the U.S.   Years later, she helped one of Andres’ clients, a young Russian man seek asylum because he refused to join the Russian army because he did not want to participate in human rights violations in Chechnya.  In supporting the claim, we relied upon the cases that Satsita filed in the European Court of Human Rights to document the atrocities.  Satsita continued her career as an immigration paralegal with Dree Collopy and when Andres, Thomas and Dree reunited at Benach Ragland, it was only natural that one day Satsita would rejoin them in practice.

We know that these additions will help us continue to serve our clients better and will reinforce the sense of family and community that we have tried to build in our offices.  We know that a happy workplace is a key ingredient to serving our clients better and we just got a whole lot happier here to have our friends with us again.

GUEST BLOG by Catholic University Law Students: “From Tragedy to Triumph, One Man’s Second Chance”

By Ana Sami and Brittni Downs, CUA Immigration Litigation Clinic Students

Our work with Joe* started with a bang. Our Immigration Litigation Clinic had just begun when we were assigned his case and told that he had a master calendar hearing scheduled within a few days. With the help of our supervising professors, Dree Collopy and Michelle Mendez, we rushed to prepare for our first court appearance. Although we were nervous for our first court appearance, which we did not anticipate would happen so soon after our first meeting with Joe, our nerves were overshadowed by the urgency of his case. Joe found his way to Catholic Charities after an Immigration Judge had given him one final chance to find legal counsel. Since immigration removal proceedings are civil as opposed to criminal, Joe did not have access to government appointment counsel, and therefore, needed to find a pro bono attorney on his own. It was meant to be; Joe’s need was met with our desire to represent an indigent individual before the U.S. Immigration Courts. From September through April, we developed and prepared Joe’s case.

The Master Calendar Hearing

Our first court appearance went smoothly given the short time we had to prepare. While it was a quick master calendar hearing, it gave us an opportunity to get to know our judge, and to become accustomed to interacting with DHS counsel. As we were the first team in our clinic to appear in court, we were excited to recount to our classmates our experiences and tell them what we had learned. We enthusiastically provide our classmates tips, just as we benefited from their courtroom tips as their own cases progressed. While we did not know much about Joe at the time of the master calendar hearing, it was clear that he needed us. After the whirlwind of the first hearing settled, we buckled down and began meeting with Joe more. We learned about him in small increments. Joe’s story began as a young car mechanic in Sierra Leone. He explained to us that he, his wife, and three young children escaped the war-torn country of Sierra Leone in the late 90’s when Joe’s aunt assisted him in applying to come to the United States. Getting Joe’s paperwork together, however, was fraught with dangers. Because the U.S. embassy in Sierra Leone had been evacuated as a result of the dangerous conditions, Joe would have to travel through a war zone to neighboring Guinea and stay in a U.N. refugee camp for a full year in order to process his diversity visa paperwork. Throughout this time, Joe lost many family members at the hands of the “rebels” who killed indiscriminately.

Learning about Joe’s Tragic Past

After narrowly escaping death, Joe was finally able to bring his family to the United States. Although Joe was now in a safe country where his life was significantly better and where he went on to have three more children, he would often think about the brutality he witnessed in Sierra Leone, which to this day, weighs heavily on his mind. As time went on, Joe had a couple of run-ins with the law, but paid his fines and learned his lesson. Although Joe was a permanent resident, one of his run-ins with the law resulted in a misdemeanor conviction and was the type that could prompt the Department of Homeland Security to try to deport him. That day came ten long years after his conviction and after his fines were paid, despite the fact that he had kept a clean criminal record since then. Being placed in removal proceedings before the Immigration Court so long after his conviction took Joe by surprise and it could not have come at a worse time, as Joe was struggling to find employment.

Developing the Legal Strategy

Upon reviewing the facts and the law, along with our professors, we decided that Joe qualified for Lawful Permanent Resident (LPR) Cancellation of Removal. We began learning the law of LPR Cancellation, and found out that the issues on Joe’s record did not disqualify him from this type of relief. However, while Joe qualified statutorily, discretion would weigh heavily to determine whether he would be granted LPR Cancellation. In our quest to construct a complete picture of Joe’s life and to prepare a court filing that would meet our burden of proof, we quickly learned that gathering information and preparing his evidence would require herculean efforts because Joe did not possess many of the documents we needed. In addition, his living situation was unstable, and therefore he was unable to maintain organized records.

Joe’s Wife Succumbs to Breast Cancer

While gathering documentation from such a vulnerable client was tough, nothing could have prepared us for what we heard on the line one cold January morning, a few days after school was back in session following our holiday break. Joe’s voice quivered over the phone as he said, “My wife just passed away.” Joe’s wife tragically passed away in the hospital after a long bout with breast cancer. We were in shock, especially because we had just communicated with Joe’s wife a few weeks ago as she happily recounted that she had just become a naturalized U.S. citizen, and then expressed her concern about Joe being in removal proceedings. Our worry for Joe grew as a flood of traumatic memories surrounding death and loss overwhelmed him. While we gave Joe space to grieve, we knew now, more than ever, that our mission to keep him here for the benefit of his U.S. citizen children was vital.

Preparing for the Individual Hearing

The race to collect documentation continued as our filing date in April was fast approaching. But, throughout the daily tasks of gathering information, we also had many memorable moments during the course of our representation of Joe. Perhaps the most solemn memory of our many long hours of meetings with him included the time when we read him the final draft of his affidavit, which we had worked tirelessly on to make sure it was an accurate representation of his life and voice. He sat and silently listened to his own story recounted to him, his head slightly bent. As we finished, reading the last sentence to him aloud, a stream of tears flowed silently from his somber eyes. Joe’s story was heartbreaking and we had to be the best and strongest possible advocates for him.

Joe’s application slowly came together with the help of his friends from church and his family. We sought their assistance in many ways, from being witnesses to arranging rides so that Joe could meet with us at Catholic Charities. Meeting with him was tough as Joe had found a job that required him to work throughout the night, meaning that he needed to rest during normal business hours. Joe would often come to our meetings restless, no doubt because of the fatigue, but also because he was anxious about his fast approaching case. The lack of sleep and the loss of his wife were too much for Joe to handle on some days. Joe’s strong faith in God and his love for his children were the anchors that he clung to during his darkest moments. And yet throughout the tumult of his days, Joe would periodically call us simply to say thank you, and to say that he would pray for us. Little did he know these small glimmers of hope he held in his heart would carry us to the end.

Our professors arranged a time in which we would be able to practice in a moot with a guest Judge and DHS attorney. Our classmates played the roles of our client and witness. The moot was the best practice we received that was as close to a real hearing as possible. We had to learn to think on our feet, to object to DHS counsel’s questioning when necessary, and, in general, pay close attention to every minute detail from our client’s demeanor, to the Judge’s reactions and commentary. While we had many practice moots with our professors, we felt especially prepared and confident after our formal moot. After all of our preparation, we knew we had a firm grasp on all the possible scenarios that could arise on our hearing date. This preparation in itself gave us confidence and helped to steady our nerves.

The Judge Grants Joe LPR Cancellation of Removal Relief from Removal

Our victory finally came on April 24, 2014 when the Immigration Judge in Arlington Immigration Court granted Joe LPR Cancellation of Removal. All those hours of preparation had come down to that one moment, and it was worth every last bit of effort we had exerted in those final days. We felt prepared to address both DHS counsel and the Judge, and had practiced enough with Joe so that we knew he would be comfortable on the stand. It felt invigorating to have a dialogue with the Judge, and to properly address DHS’s concerns within the direct examination of our client. In the end, the Judge thanked us for our efforts in taking the case pro-bono, thanked our professors for their guidance, and concluded that Joe was deserving of relief.

We had worked with Joe tirelessly throughout what seemed to be an emotional roller coaster. When we felt the pressure mounting, our professors’ steadfast presence around us held us upright. With the tremendous support of our classmates, we knew we would not waver. Throughout it all, the thought of Joe’s younger U.S. citizen children, ages 9, 11, and 12, who we have never met, but whose photos we carried with us, fueled our resolve to keep their father here so that they would not suffer another tragic loss. While there is more we are invested in doing to help Joe, like finding a good counseling center so that he may receive the emotional help he needs, we took a few moments to relish in our success. Outside the courtroom, smiles of relief came across all our faces. We took pictures outside of the court as mementos of our triumph, and we were thankful and extremely pleased with the outcome.

We can think of no person more deserving of a second chance than Joe. While we facilitated Joe’s journey in seeking relief from removal, we became students of his example of courage, faith, and tenacity. Joe’s devout belief in a better tomorrow, despite tremendous obstacles, will forever remain with us as a source of eternal strength.

 

* An alias has been used.