Archive by Author

BR Has Another New Lawyer!

5 Feb

We are thrilled to welcome and announce the newest addition to our BR family, Elanie Cintron. Elanie has joined us in DC as an associate attorney from North Carolina by way of Brooklyn, New York (where she received countless awards and honors as a law student at Hofstra University, including the prestigious Lesbian, Gay, Bisexual and Transgender Fellowship) and Denver, Colorado (where she immediately set herself apart as a rising star in the immigration field as an associate attorney with powerhouse firm Lichter Immigration).

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(Elanie with her asylum clients from Honduras)

As the child of two U.S. military service members, Elanie learned from her parents a sense of duty and service to our country. Rather than defending our country through military service, however, Elanie has dedicated herself and her career to defending the American ideals of justice and equality as a true advocate for vulnerable populations. Most recently, Elanie completed about six “tours of duty” volunteering at the Federal Law Enforcement Training Center in Artesia, New Mexico as part of the American Immigration Lawyers Association’s pro bono project.

IMG_1535  image1  In Artesia, Elanie represented detained women and children refugees seeking protection from the domestic and gang violence they had fled in Central America. It is in that setting in which BR Partner Dree Collopy met Elanie and was immediately impressed by her skills as an attorney and passion as an advocate for justice. Through her work in Artesia, Elanie won asylum for a woman and her young son from Honduras, who had fled years of horrific domestic violence. Applying her client’s compelling story to the legal minefield of gender-based and particular social group asylum claims, Elanie convinced an immigration judge that her client and her client’s young son merited protection in this country. Upon being granted asylum, Elanie’s clients were released from the horrific conditions in Artesia, the Obama Administration’s detention center that has now been shut down in shame. Living freely and safely in the United States, Elanie’s clients still send her nearly-daily messages of gratitude for her selfless devotion to their cause.

It is this kind of attorney that we at BR seek out to join us in our shared mission. Elanie, welcome to our family! Fig too, of course.

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(Elanie’s dog, Fig)

Video Journal from Artesia

14 Sep

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(Water tower in the remote town of Artesia, NM)

I have recently returned from my trip to the detention center in Artesia, New Mexico, after 5 days of pro bono legal work on behalf of the refugee women and children detained there. After five 20-hour work days and personally experiencing all of the awful and heartbreaking things that I saw, I have returned exhausted and emotionally drained, but also inspired by the strength of these refugees and the dedication of my fellow volunteers.

I wanted to share with you the video journal that a fellow volunteer and Friend of Benach Ragland (“FOBR”), Sandra Grossman, and I put together in an attempt to shed light on what is happening there and to encourage other immigration lawyers to make the trek to Artesia to do some pro bono work for these women and children. Our Day 1 Video discusses our journey to Artesia (an oil town in the middle of a desert), our introduction to the pro bono program that has been established by the volunteers before us, and our expectations for our pro bono work there.

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(Scenes from the road to Artesia, New Mexico)

Our Day 2 Video describes what it is like to see children as “inmates” in a detention center, the illnesses from which they suffer and the lack of adequate medical care, and the horrific stories they are exposed to on a daily basis.

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(My notes from my client’s bond hearing, showing what it is like to have a

four-year-old boy sit next to you while his mother recounts horrific violence

– doodles amongst my cross-examination notes and a “regalito” (little gift)

he made for me out of a dry cleaning receipt he had found on the ground)

Our Day 3 Video discusses the logistics of volunteering in Artesia, what the detention conditions are like, what it is like to be a volunteer in Artesia, and some of the many due process violations that are occurring on a regular basis in Artesia at the Federal Law Enforcement Training Center, where these women and children are detained, including lack of access to interpreters and legal counsel.

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(The Federal Law Enforcement Training Center entrance; in the distance,

the trailers where the pro bono attorneys meet with their clients and represent them before Immigration Judges;

and attorney visitor badge requiring ICE escort at all times)

Our Day 4 Video depicts the heart-wrenching circumstances and seemingly impossible challenges that these women and their children are facing from jail in the middle of the desert in Artesia, New Mexico.  Finally, our Day 5 Video introduces you to some of the other pro bono attorneys volunteering their time and energy on behalf of the women and children in Artesia.  The volunteers describe what inspired them to come to Artesia and what it has been like for them on the ground.

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(AILA volunteers discuss macro and micro level legal

strategies for representing their detained clients in Artesia)

I think the videos show the progression of emotions for the volunteers there, and they highlight the lack of human dignity and lack of due process in Artesia. What is happening there is a tragedy and is fundamentally un-American. The government’s attempt to conceal this embarrassment in the middle of a barren desert is shameful. Please share these videos on your own social media and with your family and friends to help spread the word about this travesty that will surely be seen as a dark mark on American history.

What else can you do? Please call your Senators and Representatives to implore them to shut down Artesia.  If you are an immigration attorney, please go to Artesia to volunteer, help remotely with bond and I-589 filings, donate office supplies, or donate funds (tax-deductible) to help alleviate the financial burden on those immigration attorneys who are taking time off of their practices and traveling to Artesia to volunteer.

Journey to Artesia

7 Sep

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Tomorrow I will be heading to Artesia, New Mexico – unfortunately not to tour the beautiful Southwest, but rather, to address the smothering of due process at the remote Federal Law Enforcement Training Center, which has been converted into a detention center for women and children who have fled horrific violence and danger in Central America. In Artesia, women and children are being detained at length in inhumane conditions, intimidated and coerced by immigration officers, refused a chance for a fair hearing and access to counsel, hurled through a removal process with predetermined results, and ultimately, being sent directly and expeditiously back to the danger from which they fled – all in violation of U.S. legal obligations under existing domestic and international law.

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Evidence from the ground in Artesia has shown that the conditions there make it virtually impossible for these refugee women and children to consult with their attorneys, access legal help, obtain notice of their hearings, and meaningfully prepare their claims for asylum or other defenses to deportation. To provide an example, a significant percentage of the women at Artesia are victims of extreme violence, death threats, rape and domestic violence, and other forms of persecution. Rather than a confidential screening with an immigration officer, these women are being forced to answer traumatic questions, including detailed descriptions of rape, while their children are present. Not only are these women met with hostility and inhumanity by the procedures in place, but also by the officers who are detaining them, calling them degrading names like “cerdos” (pigs), refusing their children medical treatment, screaming at them for asking to speak to their attorneys, and forcing them to sit in their own filth for hours. This treatment and this purposeful disregard of our current laws and procedures for processing those who have fled persecution and torture in search of safety and protection in the United States makes me feel embarrassed and ashamed. This is not the America I know and love.

This is why I am heading to the remote detention center in Artesia, New Mexico (via flights from DC to Dallas to El Paso, followed by a four-hour drive through the desert). There, I will be volunteering a week of my time to counsel and represent these mothers and children, in the hope of restoring a little bit of humanity to our system and shedding a little bit of light on this dark place. As an immigration attorney who focuses my practice on representing refugees and asylum-seekers, who speaks Spanish, and who has years of experience representing individuals who have fled Central America due to the unfettered violence that is often met with impunity by those countries’ governments, I did not feel that I had a choice in the matter. Moreover, as an attorney, justice and the rule of law are two principles that are so central to the foundation of my belief system and my work that I feel compelled to do my part to restore these values in Artesia. These ideals, in addition to these women and children, need an advocate. We should not be sacrificing fundamental fairness for political posturing and valuing expediency over justice, especially in matters of life or death.

Stay tuned for updates from the ground…

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America’s Leaders Are Failing the Children

19 Jul

Our country is facing one of its greatest moral challenges in years: how will we treat the migrant children fleeing violence in Central America and seeking refuge within our borders? I know how I want us to treat them. Fairly, humanely, and within the parameters of the anti-trafficking law passed by bipartisan consensus in 2008 and signed by then-President George W. Bush.

UACs

Under the TVPRA of 2008, a child apprehended by Customs and Border Protection (CBP) undergoes initial processing and screening to see if he or she is an unaccompanied child (UAC) from a non-contiguous country, such as El Salvador, Honduras, or Guatemala. CBP must notify Immigration and Customs Enforcement and the Office of Refugee Resettlement (ORR) and transfer the child within 72 hours of apprehension to ORR custody. ORR places the child in the least restrictive setting available that is in the best interest of the child, and then completes a screening to determine whether: (1) the child has been a victim of trafficking; (2) there is credible evidence that the child is at risk if returned; and (3) the child has a possible claim to asylum. The child is not automatically permitted to stay in the United States. Rather, he or she is placed in removal proceedings before an immigration judge pursuant to section 240 of the Immigration and Nationality Act. While proceedings are pending, the child is released to the custody of a family member or to an ORR shelter or foster home. If the child is not eligible for any relief, he or she is ordered removed from the United States and is repatriated.

But this process, which allows for proper screening for trafficking and persecution, as well as fair and full consideration of their legal claims available under U.S. law, and which takes the best interest of the child into consideration, is not what others are advocating. Instead, we have an administration that is prejudging these children’s eligibility for relief and proposing streamlined procedures that would prejudice real claims for protection. Instead, we have Congress focusing its efforts on undermining the legal protections already in existence under U.S. law for these children and curtailing due process. Recently, the Texas-duo of Senator Cornyn (R-TX) and Representative Cuellar (D-TX) have introduced their HUMANE Act, and even more troubling, Representatives Goodlatte (R-VA) and Chaffetz (R-UT) have introduced the Asylum Reform and Border Protection Act, a bill that shows zero understanding of how difficult it is under our current laws to seek and be granted asylum in the United States.

The Asylum Reform and Border Protection Act would eviscerate our already stringent asylum process, strip away the protections that do exist under current law to offer these children a fair chance at due process, and shut out bona fide refugees, returning them to situations of persecution and torture in violation of our domestic and international legal obligations. This legislation would place these children’s fate in the hands of CBP officers, a law enforcement branch with a terrible track record of unaccountability and no transparency, abuse with impunity of those apprehended, and coercion of bona fide refugees to accept removal with no process in lieu of protection. This legislation would subject these children to streamlined procedures, resulting in the removal of children after cursory screenings that have already proven entirely inadequate in identifying genuine refugee claims and the return of these children to dangerous and deadly situations.

Specifically:

  • All children caught at the border would be subject to expedited removal, a process allowing removal without a hearing before an immigration judge if a child has no credible fear of persecution or torture, and which triggers an automatic five-year bar on legal reentry.
  • The screening standard of review for children’s asylum claims would be raised, requiring a child to convince an asylum officer that his or her claim was “more probable than not” in order to even appear before a judge.
  • Under the proposed new definition of “unaccompanied,” all children would be detained until their asylum applications were adjudicated.
  • The arbitrary one-year deadline requiring adults to file their asylum applications within one year of their entry to the United States would be extended to children.
  • Children apprehended at the border could be immediately removed without any asylum screening to a “safe third party country,” such as Mexico, without any agreement from that third party country, as required under current law.

Presenting these changes as “fair” and “humane” is simply offensive. These changes are anything but fair, anything but humane. Using children who have suffered horrific violence and abuse in their home countries, survived a dangerous journey of over 1,000 miles, and arrived in search of protection as political pawns to push partisan agendas is heartless and un-American. We need real leadership, not leaders who decide that treating migrant children from Central America humanely is too difficult, and not leaders who prefer politicking and political posturing to problem solving and standing up for our country’s values.

Our leaders should be working together to secure and implement the coordination and resources necessary to address this major regional humanitarian crisis and ensure due process for children who have braved a harrowing journey to seek safety and protection from violence, persecution, torture, and trafficking. I encourage all AILA members, stakeholders, and constituents to call their Senators and Representatives and implore them not to support the HUMANE Act or the Asylum Reform and Border Protection Act. If this legislation is passed, our country would be turning its back on these children and on our nation’s values.

[This blog post was originally written by Dree Collopy for the AILA Leadership Blog.]

Catholic University Law Students Develop Novel Legal Argument that is Gaining Traction in the Courts

8 Jul

This post was written by Adilene Nunez and Francisco Lopez, law students at the Catholic University of America Columbus School of Law.

 

Meeting our client and gaining his trust

In the fall of 2013, a man sat in an office at Catholic Charities awaiting our arrival. Neither of us had ever advocated on behalf of a client, so we were both nervous. Although our professors trained us in our clinic about how to interview a client and how to gather the facts and evidence to build a strong case, we were not sure what to expect from our client.

We walked into the office where our client, Joe[1], was waiting. We spoke with him about our Immigration Litigation Clinic, explained our roles, and began the process of getting to know our client. We listened to his story and asked him questions. He was concerned, however, with our abilities to represent him. He didn’t say it, but it was notable in his face. Joe was reserved and had few things to say at this initial meeting. He did not smile. When we asked him the reason for his visit to Catholic Charities, Joe responded that in his quest to become a lawful permanent resident, he had been defrauded by a notario. Immediately, we both understood why Joe was apprehensive, and we recognized that we would have to work to gain his trust.

stop notario fraud

            Over the next few months, we had extensive meetings with Joe, constantly called him with questions or requests for documents, and we made sure that he was always aware of what we were doing and what the next steps would be. Gathering facts and getting the client to open up and trust us was a difficult process because Joe fled his native Guatemala during the civil war and he had never told anyone such private, personal, and painful details. However, Joe fled his native country over thirty years ago, so at times it was difficult for Joe to remember details of the trip that placed him in deportation proceedings. It was our compassion and diligence that, in the end, led Joe to say to us, “Yo confió en el trabajo que están haciendo,I trust in the work you are doing, as he smiled at us.

Keeping the case on the docket

On its face, Joe’s case appeared to be a straight forward adjustment of status case. He was a Temporary Protected Status (“TPS”) beneficiary,[2] a model resident, and hard working individual. However, as we continued to research the issues in our case, like advance parole and admission, we realized that our biggest struggle was going to be convincing the immigration judge to keep the case on her docket. That was because, statutorily, someone who returns to the United States on a grant of parole, generally, cannot adjust status in front of an immigration judge.[3] We wanted to keep the case in front of the immigration judge because Joe’s case had been pending in immigration court for almost thirty years, he had been deceived and defrauded by a notario, and if the judge chose to send the case to USCIS for adjudication, we would not be able to see the case through until the end as the representatives Joe trusted.

We spent about five months conducting extensive research and we had several meetings with our supervisors to work on strategy and to craft creative legal arguments. There were times when we felt extremely overwhelmed from our research because it seemed that we were dealing with a novel issue. Joe’s facts were complicated and involved two eras of immigration law: present day and pre-IIRAIRA immigration law.

We needed to prove that Joe had already been admitted, so he would not be designated an arriving noncitizen.[4] Being classified as an arriving noncitizen in immigration court leaves limited options for individuals in removal proceedings.[5] Therefore, an arriving noncitizen classification should not be conceded too easily. However, Joe was a TPS beneficiary, a status that we hoped we could use to our advantage in proving Joe’s statutory eligibility for adjustment of status. We wanted to argue that when Joe was granted TPS he was inspected and admitted into the United States, as this would allow Joe to adjust his status in front of the immigration judge. Admittedly, arguing that a grant of TPS is an admission was going to be a challenge as we had more negative than favorable case precedent on the matter.[6] The case that was most favorable, Flores v. USCIS,[7] was not binding; it was merely persuasive authority arising outside of our circuit. The plain language of the Immigration and Nationality Act, the Code of Federal Regulations, and case precedent formed our argument in Joe’s favor.

Additionally, with the help of our professors, and after several individual moot hearings, we composed two briefs, one was the brief in support of Joe’s adjustment application, and the second was a supplemental brief where we argued that Joe’s grant of TPS was an inspection and admission. We planned the supplemental brief as a last resort and developed persuasive oral arguments for our individual hearing before the immigration judge.

briefs

Joe was very cooperative and maintained a positive attitude throughout this process, even after we explained the possibility that the immigration judge might not be able to exercise jurisdiction over his case. He said that he had faith in us and in the work that we had done, and that he could only hope for the best. Joe was different from the person we met in the fall. He smiled and felt comfortable communicating with us. He went from stoic to wanting to make us laugh. We were glad to see him happy.

Finding justice for Joe

When Joe’s individual hearing date arrived in late April, we were confident that we had done everything possible to prepare for Joe’s case. Our goal was to convince the immigration judge that both the regulation and case law supported our position that she could exercise jurisdiction over Joe’s case. Joe appeared confident about offering his testimony and communicating his story to the immigration judge. However, things did not go as planned. The immigration judge couldn’t move beyond the charging document. Since Joe’s case had been pending for about thirty years, his charging document was an Order to Show Cause, and since Joe had most recently returned to the country on a grant of advance parole the immigration judge believed that an Order to Show Cause wasn’t the proper charging document.

After a lengthy discussion with Joe, our supervisors, and DHS counsel, we all agreed that termination of the proceedings was the best option. So while we were unable to tell Joe’s story that day and give the many reasons why he deserves to be granted permanent residency, he now seeks adjustment of status before USCIS without the procedural encumbrances of deportation proceedings. Despite the unfinished nature of Joe’s case that day, Joe received closure because, by terminating deportation proceedings, we removed the impediment that precluded him from adjusting his status before USCIS for all of those years. It was not justice denied for Joe; it is merely justice delayed for Joe and his family.

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Setting our own precedent

While we did not achieve the result we wanted that day in court, we were very proud of our work. As student attorneys, we were novices when it came to complex immigration issues, but we did not allow this to discourage us. The challenges we encountered with finding positive binding precedent did not change our position that our client deserved to become a lawful permanent resident. We persisted in finding an answer for our client.

We wrote a persuasive supplemental brief using various legal authorities. Despite the fact that the immigration judge could not accept jurisdiction, she complimented us on our work. We wanted others to benefit from our hard work, so we shared a redacted copy of Joe’s brief with the American Immigration Council, an organization that was litigating the issue of whether TPS was an inspection admission. A few weeks after Joe’s individual hearing in April, we saw that the American Immigration Council had developed arguments similar to our innovative arguments that TPS may constitute an inspection and admission. In Ramirez v. Dougherty,[8] Ramirez a TPS beneficiary from El Salvador, was seeking to adjust his status. Ramirez argued that he should be granted LPR status based on his TPS status. It was reassuring for us to see that the very same arguments we made in our brief were compelling enough to succeed in a different circuit.

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It showed us that with the guidance of our brilliant professors, we were capable of dissecting the complicated immigration statute to develop strong, persuasive analysis. It also was a valuable lesson learned that when the law doesn’t seem to be on your client’s side, you can develop creative legal arguments to change it.

The toughest part was saying goodbye

Although Joe’s case was riddled with complications and complexities, the toughest part wasn’t getting creative with the regulations and case law. The toughest part of this entire process was saying goodbye to our client after the individual hearing. We got to know Joe not just as a client, but as a person, as someone for whom we were confident we could get justice. Joe got to know us and wished us success in our future careers as attorneys. We got to know his wife and his children. We learned about his dedication to his family. We spent time with Joe and his family at their home during our witness preparation sessions. We grew to care about Joe as both a client and as a friend. And best of all, Joe was able to trust an attorney through this process. He had been so terribly hurt by the notario that we were both pleasantly surprised when Joe finally opened up and put his trust in us. On our last phone call with Joe as his student attorneys, he thanked us for working with him. We told our client, and friend, that the honor was ours. This was truly one of the most challenging and rewarding experiences in our professional careers.

[1]Name and other identifying information have been changed.

[2] Temporary Protected Status (TPS) is a humanitarian benefit found under Section 244 of the Act. The Department of Homeland Security may designate a foreign country for TPS because conditions temporarily prevent the country’s nationals from returning safely or if a country cannot handle the return of its nationals. The Attorney General may designate a country for TPS if the country has an ongoing armed conflict, an environmental disaster, or if there are other extraordinary conditions preventing a noncitizen from returning to the country. See INA § 244(b)(1).

[3] A parolee is considered an arriving noncitizen under 8 C.F.R. § 1001.1(q). An arriving noncitizen is an applicant for admission who is coming or attempts to come to the United States at a port-of-entry.

[4] There are three classifications in removal proceedings: (1) an arriving noncitizen, (2) a noncitizen present in the United States who has not been admitted or paroled, or (3) a noncitizen who has previously been admitted, but is now deportable. See generally INA § 240(c).

[5] Matter of Silitonga, 25 I&N Dec. 89 (BIA 2009) (immigration judge has no jurisdiction to adjudicate an adjustment of status application for an arriving noncitizen unless the noncitizen has been placed in removal proceedings after returning to the United States on advance parole to pursue a previous filed application); Matter of Oseiwusu, 22 I&N Dec. 19 (BIA 1988) (arriving noncitizens are generally ineligible for bond);

[6] Matter of Sosa Ventura, 25 I&N Dec. (BIA 2010) (TPS does not create an admission); see also Bracamontes v. Holder, 675 F.3d 380, 386 (4th Cir. 2012) (recognizing that adjustment of status is not an admission for purposes of a waiver of a criminal ground of inadmissibility under Section 212(h) of the Act); but see Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013) (arguing plain language in the context of section 244 of the Act and the broader context of the statute as a whole show Congressional intent that TPS beneficiaries can adjust under section 245 of the Act).

[7] 718 F.3d 548 (6th Cir. 2013).

[8] C13-1236Z, 2014 WL 2439819 (W.D. Wash. May 30, 2014)

 

 

Fireworks: A Beacon in the Sky for the World

3 Jul

Fourth of July is one of my favorite holidays. My husband and I like to spend it with friends and “America’s Favorite Pastime” at Nationals Park. After the ballgame comes more time with friends and family, grilling and a table full of food, juicy watermelon, red, white, and blue décor galore, laughter, and celebration of our country and our great fortune to be a part of it. But most holidays are marked by celebrations with friends and family and food. What makes the Fourth of July stand out from all of the other holidays? The fireworks. Ever since I was a kid growing up in the Heartland of Iowa, the fireworks have been my favorite part – whether an hour-long professional show set to music, the town’s display, “Cappy’s” fireworks in our backyard, in-hand sparklers and poppers, or in the event of dreary weather, the sparks flying on television, taking place somewhere with fewer raindrops.

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Those fireworks draw our attention as we all gaze up at skies filled with flashes of light, vibrant, streaming colors, and loud booms, pops, and crackles. Beyond the spectacle, fireworks are a symbol of celebration – on the surface, a celebration of our country’s independence. But for me, the fireworks aren’t just giant candles to celebrate America’s birthday; they conjure a deeper meaning. They are a celebration of our country’s history of offering a home to the discarded, freedom to the oppressed, and safe haven to the refugee. As Emma Lazarus famously wrote, “Cries she with silent lips.

‘Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!’”

statue of liberty

Just as the Statue of Liberty’s beacon of light in her lifted lamp guided immigrants to their new beginnings here in the United States of America, on July 4, we celebrate with fireworks recognizing our country’s historic steps toward a bright future and away from a dark past.

This Fourth of July, on our country’s 238th birthday, this same theme still resonates, perhaps more than ever. I think about the asylum-seekers I have worked with – the women seeking to break free from the cycle of violence and oppression, the LGBT youths searching for a place where they can be themselves without fear of harm, and the young girls and boys desperately fleeing gang recruitment and horrific violence. When I hear these brave men, women, and children tell me their life stories and describe their unthinkable journeys to the United States, I know that these asylum-seekers are all doing what they can to step away from their own dark pasts toward a brighter future in this land, where the very skies are a beacon of hope every Fourth of July.

On this Fourth of July, as I gaze up at the sky among the “ooos” and “aahhs”, I will be thinking about my clients and all of the asylum-seekers at our borders, who, like our founders, have come to a new land in pursuit of life, liberty, and happiness, the very principles we proclaimed as unalienable rights in our Declaration of Independence.

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As our country is faced with a humanitarian crisis at our borders, with asylum-seekers desperate, not only for new beginnings, but for protection from persecution and torture, I earnestly hope that our country continues to light the sky, to offer hope in the midst of darkness, to offer safe haven to children and refugees seeking freedom from violence and fear. I hope with all my heart that our leaders – and our own citizens – keep that beacon shining, lighting up the skies with color.

[This blog post was originally posted on the AILA Leadership Blog.]

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

1 May

Ana and Brittni

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.

Brittni Ana and client

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.

The Revised Credible Fear Lesson Plan: Enough is Enough!

25 Apr

Originally published on the AILA Leadership Blog

This is not just a blog post, but a call to action. Over the past six months, we have seen dog-and-pony hearings by Congress and a series of administrative changes to our asylum system that have deviated from the United States’ longstanding obligations under domestic and international law to the detriment of bona fide refugees. The most recent of these deviations is the U.S. Citizenship and Immigration Services (USCIS) Asylum Division’s revisions to its Lesson Plan on Credible Fear of Persecution and Torture Determinations.

dog and pony

Implicit in the core humanitarian purpose of U.S. asylum law is the requirement that it be as effective as possible in offering reliable protection to bona fide refugees. While effectively protecting refugees may seem like a simple concept, the human rights considerations involved in U.S. asylum law often collide with the challenges involved in maintaining the integrity of the application process. It is this collision that led to the development and implementation of the expedited removal and credible fear provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), which took effect on April 1, 1997.

Expedited removal was a direct result of the Congressional perception that individuals arriving at ports of entry with false or no documentation were abusing the asylum system. Nonetheless, under U.S. asylum law – which was derived directly from international law – the government is prohibited from returning refugees to countries where they would face persecution. In an attempt to address the potential for violations of this obligation of nonrefoulement through the implementation of the expedited removal process, the credible fear provisions were also enacted. Under these provisions, rather than being subjected to immediate removal, an individual arriving at a port of entry who expresses a fear of persecution or torture will be referred to an asylum officer for a “credible fear” interview. If the individual substantiates a “significant possibility” she could establish eligibility for asylum under INA § 208, the asylum officer will find her to have a credible fear of persecution. Such a finding grants the individual her rightful day in court, allowing her to present a full asylum claim before an immigration judge in INA § 240 proceedings.

For those who have been following recent developments in U.S. asylum law and procedure, the rhetoric surrounding – largely unsubstantiated – claims that our asylum system is under attack by abuse and calling for sweeping changes that threaten the core humanitarian purpose of U.S. asylum law sounds all too familiar. With a significant and steady influx of refugees fleeing the violence and turmoil stemming from the entrenchment of gangs and drug cartels in Central America, the human rights considerations involved in U.S. asylum law are once again colliding with the challenges involved in maintaining the integrity of our asylum system. Unfortunately, this collision has resulted in a series of changes that have deviated from the United States’ longstanding obligations under domestic and international law to the detriment of bona fide refugees.

                                                                                                                                                   central america

Over the past six months, we have seen border officers overzealously using expedited removal to deny individuals fleeing real persecution and torture the opportunity to seek asylum. We have seen Congress focus its attention on a series of hearings entitled “Asylum Laws and Abuse,” designed to attack those seeking protection rather than the faulty implementation of the expedited removal and credible fear provisions by Customs and Border Protection and Immigration and Customs Enforcement. We have seen the Board of Immigration Appeals, in Matter of M-E-V-G- and Matter of W-G-R-, dramatically increase the evidentiary burden on asylum-seekers while seeking to rationalize a legal test that is irreconcilable with U.S. obligations under domestic and international law. And just last week, we saw the USCIS Asylum Division join in the backlash against the influx of refugees at our borders with a notable narrowing of the “significant possibility” standard for credible fear determinations made by its asylum officers. Is anyone else out there thinking, “Enough is enough!?”

In this most recent development, USCIS revised its April 14, 2006 Lesson Plan on Credible Fear of Persecution and Torture Determinations, which it uses to train asylum officers. In releasing the revised Lesson Plan, USCIS issued a memorandum describing the changes and the reasons for these changes. In explaining the need for these revisions, USCIS notes the significant increase in credible fear referrals to the Asylum Division and its need to allocate more resources to credible fear adjudications than ever before. Instead of recognizing that this increase in resources devoted to credible fear adjudications may be due to the overall increase in individuals seeking protection at our borders, however, USCIS seemingly attributes this increase to its concern that “the application of the ‘significant possibility’ standard has lately been interpreted to require only a minimal or mere possibility of success.” Although USCIS claims that “these modifications…do not change the ‘significant possibility’ standard or alter the screening function of the credible fear process,” in practice these revisions will considerably narrow the longstanding “significant possibility” standard.

The main problems with the 2014 Lesson Plan stem from deviations that thwart the legislative intent behind the expedited removal and credible fear provisions. The legislative history of IIRAIRA indicates that Congress intended the credible fear provisions to be a safety net and the “significant possibility” standard to be a low standard that would catch any potential refugees in that net. The 2006 Lesson Plan previously included several explicit references to this intent, but in the 2014 Lesson Plan, all such references have been removed.

safety net

Moreover, Congress intended the credible fear process to serve as a threshold screening mechanism for protection claims to ensure that, in its implementation of the expedited removal provisions, the United States was still abiding by its longstanding obligation under domestic and international law not to return an individual fleeing persecution to his or her persecutor. The credible fear process was not intended to be a full assessment or adjudication of an asylum claim, but rather, a gateway to the full assessment and adjudication process.

Contradicting this Congressional intent, the 2014 Lesson Plan: (1) directs officers to apply the significant possibility standard through the lens of a full adjudication, (2) emphasizes that a claim that has only a minimal or mere possibility does not meet the “significant possibility” standard, (3) creates a three-prong test that did not exist in the previous 2006 Lesson Plan standard, requiring the asylum-seeker’s testimony to be “credible, persuasive, and…specific”, and (4) includes extensive statements of the current regulations and case law, similar to those discussions included in the Lesson Plans on full asylum assessments and adjudications. These changes seem to require an asylum officer to complete a full assessment of the asylum-seeker’s potential asylum or Convention Against Torture (CAT) claim, rather than a safety net preliminary screening for a potential refugee.

These changes are likely to yield confusion among asylum officers, as well as a blending of the credible fear standard with the full asylum and CAT standards. Furthermore, they will likely lead to officers applying prohibitively high standards during credible fear interviews, creating yet another source for the increasing number of bona fide refugees who are denied the opportunity to seek asylum in the United States. Finally, since these changes are likely to generate assessments that are closer to full asylum and CAT adjudications than screenings for potentially successful claims, these changes are ironically likely to cost USCIS even more time, money, and resources. Notably, USCIS did not consult key non-governmental organizations or non-governmental stakeholders during its revision process.

Although these Lesson Plan revisions may seem minor in the grand scheme of our broken, punitive, and increasingly unworkable immigration system, to me, they signify another drastic deviation from our system’s founding principles and legal obligations. I don’t know about you all, but for me, “Enough is enough!”ENOUGH

As another AILA year concludes and a new AILA year begins in June in Boston, let us re-commit ourselves to working together on all fronts.  Only together can we fill the next six months with developments that restore protection for bona fide refugees and renew our obligations under domestic and international law, while still maintaining the integrity of our asylum system.  This is not just a blog post, but a call to action.

Written by Dree Collopy, AILA Refugee & Asylum Liaison Committee Chair

GUEST BLOG: Catholic University Law Students Win Asylum Case…23 Years in the Making

24 Apr

Ana and MartinAna and Martin

By Ana Victoria Perez and Elmer Martin Uribe, Student Attorneys with the CUA Immigration Litigation Clinic

“Asylum has been granted. Congratulations.” Those are the magic words that Judge David Crosland uttered on the morning of April 21, 2014. As he said those words, a flood of emotions overcame all of us. Happiness, relief, and excitement were felt throughout the small courtroom where Bill had just been granted asylum, twenty-three years after arriving in the United States. His mother and cousin, who were present at the time, could not contain their tears of joy as we hugged and celebrated the positive outcome of his case.

We met Bill on September 2013.  Only a week earlier, we had a chance to review his case file and study his immigration history for the first time. Bill greeted us with a smile; we shook hands and sat down with him to hear his story. His smile faded quickly as we delved into the general outline of his story. At first, Bill was reluctant to go into too much detail, and he made general statements about certain aspects of his life. It was at this point that we realized that our client was trying to block out some of the more painful moments of his life and he was hesitant to tell us about his current personal struggles. Fast-forward to April 2014; after several long nights, many discussions with our client and his family, and endless research, we knew our client’s life experiences as if they were our own. His story is filled with traumatic experiences, terrifying events, and personal struggles that few people ever encounter in their lifetimes, yet Bill overcame his own insecurities and fears and gained the courage to apply for asylum. Thanks to his determination, his family’s encouragement, and the amazing support team behind his two student attorneys, Bill is now able to celebrate his safety and freedom in the United States.

Bill’s Story

Bill came to the United States in 1991 fleeing the brutality of the First Liberian Civil War. Because of his father’s associations with Sierra Leone and his mother’s Americo-Liberian background, the family was perceived as supporters of either side and made them a target for any of the warring factions involved in the conflict. However, the most painful event that Bill endured was the day soldiers trespassed into his cousin’s house where they were hiding. The soldiers ordered the women to one side and lined up the men against the wall. As Bill stood against the wall, he pleaded for his life and heard his mother do the same. The soldiers did not listen to reason and beat the men with their weapons, but just as the soldiers were getting ready to execute them, the ECOMOG peacekeeping forces arrived. The soldiers relented from their attempt to execute the family and the ECOMOG forces transported the family away.

After that incident, Bill’s family decided to escape Liberia. Bill and his younger brother were sent to the United States to live with their older brother and sister. After arriving in the U.S., Bill suffered from intrusive flashbacks, nightmares, exaggerated startled responses, anxiety, and various other symptoms associated with Post-Traumatic Stress Disorder (PTSD).

As if suffering through a brutal civil war was not enough, Bill also had to deal with his own personal struggles. During his teenage years, Bill began to realize that he was not like the other boys his age. While the other boys talked about girls and had girlfriends, this was a topic that did not interest him. He pushed his emotions and confusion aside and decided to focus on academics and athletics at school. As he grew up, he began to think that he was gay, but this thought scared him because he knew what happened to anyone who was perceived as gay in Liberia. He was haunted by his uncle’s story of being brutally beaten, arrested, and detained for almost a week in Liberia because his persecutors perceived him as gay. Bill knew that Liberian society was not open to homosexuality and he did not want to put himself in that position, so he denied his own identity, refused to accept his true self, and suppressed his feelings towards men.

WP Photo on African Gays

Then, in 2012, Liberia introduced two bills in their legislature that would make homosexuality a crime. These laws were used as a rallying point by several politicians and it spurred intensified homophobic sentiments in the streets. Several organizations reported that Liberian sexual minorities were being discriminated against, stigmatized, harassed, and subjected to violence by neighbors, friends, strangers on the streets, and even family members. Whenever one of these victims attempted to seek protection from the police, the Liberian National Police would either ignore their requests or charge them with engaging in “deviant behavior” and arrest them. The Human Rights Watch report on Liberia and the LGBT community highlights these incidents with the police. One particularly compelling story came from the report. Hassan, a 23-year-old gay man, said “he considered the police to be complicit perpetrators, in demeaning and insulting victims and their friends. He recalled an incident in which he was detained together with his friend Leroy after reporting being attacked by a gang of neighborhood boys. He said the police disregarded his report and concentrated on the counter allegation about their sexual orientation. [He said] ‘I have lost all faith in the police. They act like gays deserve the abuse and humiliation.’” With the backdrop of this intensified homophobic atmosphere in Liberia, Bill began to fear for his safety if he had to return to Liberia. It was not until 2013 that Bill finally accepted his true self and worked up the courage to tell the person he loved most about his sexual orientation. Bill was nervous when he told his mother, but once he saw that she loved him and accepted him regardless of who he was, he felt a like huge weight had lifted off his shoulders.

HRW report liberia

Road to Asylum

Shortly thereafter, Bill began the process of applying for asylum. When we first met him, he had a happy-go-lucky attitude that did not fully reflect all the experiences he had endured up to this point. He always brushed aside questions about his time in Liberia during the civil war and his own sexuality. It was a long process, but week after week, we met with him and slowly gained his trust, discussing all the details of his case.

We spent almost eight months preparing for that one day, April 21st, the day that would decide our client’s fate. We collected every piece of evidence necessary to meet our burden of proof that Bill had a subjectively genuine and objectively reasonable fear of going back to Liberia. We also reached out to several experts on Liberia and LGBT issues, as well as respected psychiatrists who were willing to donate their time and expertise to strengthen our case and assist Bill in overcoming an over 20-year filing delay.

Balt Imm Ct

On the day of the hearing, we were ready for every possible scenario that the DHS attorney and the immigration judge could throw at us. We reviewed our closing arguments with our supervisors while Bill silently sat with his mother and cousin, who had come to testify on his behalf. He was clearly nervous the whole ride to Baltimore; he barely spoke. He kept repeating that he wanted it all to be over soon. We had been preparing for this day for many weeks, and when we heard the DHS attorney say she would stipulate to asylum, we almost could not believe our ears. All of our efforts to prepare the best case possible had paid off. For us and for Bill, it was vindication of so many late nights, excess of caffeine, and several months of arduous work solely focusing on our client. It was the best result we could have ever hoped for, and we learned a very valuable lesson that we will carry with us into our careers: win the case before setting foot in the courtroom.

We have so many anecdotes of our time working with Bill and his family while building our case for his asylum claim. While we would like to share them all, we will leave you with one of the most recent ones. As we drove back from the Baltimore Immigration Court, after Bill was granted asylum, a song played on the radio called: “On Top of the World” by Imagine Dragons.

Shortly thereafter, Bill started singing the lyrics to the song, and a flow of emotions consumed us all. There is, literally, no better description to how we all felt at that moment – on top of the world! Few things in life can give you greater satisfaction than how we felt that day. To make such a remarkable difference in Bill’s life is more than we could have asked for, and while we helped make his life better, Bill made a difference in our lives too. He taught us that, despite the many challenges that life can place in front of us, hope, courage, and perseverance must never die.

What is Extreme Hardship?

28 Jan

With all the excitement and buzz about the new I-601A Provisional Waiver process, described in Benach Ragland’s live video chat and our previous posts, it is important to remember that what has changed for certain non-citizens and their family members is the procedure for applying for a waiver of inadmissibility, not the substance of the legal standard.  I-601A Provisional Waivers of inadmissibility for unlawful presence in the United States will soon be available to assure family unity for certain eligible applicants who seek permanent resident status.  Among other requirements, to be eligible for such a waiver of inadmissibility, applicants for I-601A Provisional Waivers must demonstrate that they have the requisite qualifying relative – in this case, a United States citizen spouse or parent – and that their U.S. citizen spouse or parent will suffer “extreme hardship” if the applicant is not allowed to re-enter the United States as a lawful permanent resident.  Of course, every family member who is forcibly separated from their loved ones suffers some degree of hardship.  But the I-601A Provisional Waiver requires a showing that the hardship would be extreme.  So, what is extreme hardship, and how can an applicant demonstrate extreme hardship?

Extreme hardship is hardship beyond the normal hardship that is suffered when family members are separated from one another.  This can be a difficult standard to meet and requires substantial supporting evidence, so it is important that applicants retain competent immigration attorneys who are experienced in preparing extreme hardship waivers.  The factors considered in determining whether the U.S. citizen spouse or parent will suffer extreme hardship may include:

  • The presence of family ties within and outside of the United States, particularly within the country of relocation;
  • The emotional and psychological impact of separation on the U.S. citizen relative;
  • The political, economic, and social conditions in the country of relocation;
  • The financial and professional impact on the U.S. citizen relative;
  • Any significant health conditions, particularly when tied to the unavailability of suitable medical care in the country of relocation;
  • The U.S. citizen’s ability to raise children in the country of relocation and other quality of life factors; and
  • The U.S. citizen’s age, length of residence in the United States, health, technical skills, employability, and other factors.

These factors are weighed in the aggregate, so it is important to highlight and thoroughly document every possible hardship factor – what matters in the extreme hardship analysis is the totality of the circumstances.  Moreover, the applicant should show extreme hardship to the U.S. citizen spouse or parent in each of two different scenarios: (1) if the U.S. citizen remained in the United States without the applicant; and (2) if the U.S. citizen accompanied the applicant to his or her home country.

The process of preparing an I-601A Provisional Waiver application, similar to preparing an I-601 application for a waiver of inadmissibility based on extreme hardship, is labor intensive and requires extensive documentation.  The applicant must document who he or she is, as well as any connections to the United States, familial and otherwise.  Such documentation may include government-issued identification, passports, marriage certificates, children’s birth certificates, a list of all U.S. citizen and permanent resident family members with proof of their immigration status and relationship to the applicant, a list of all relatives in the country of relocation, photographs with family members, personal declarations, and letters of support from relatives, employers, friends, and community members.  The applicant and the qualifying relative’s personal declarations are quite possibly the most important documentation for demonstrating extreme hardship, as they fully describe in the applicant’s and relative’s own words the totality of all of the hardship factors that would affect their family if the I-601 Provisional Waiver is not granted.  At Benach Ragland, we spend a significant amount of time with our clients, working with them to draft these important documents.

The applicant and U.S. citizen relative should also submit documentation that shows their financial ties to the United States, debt incurred in the United States, and the financial hardship that would be caused by the applicant’s continued inadmissibility to the United States.  This may include mortgage, lease, or deed documentation; documentation of property ownership; evidence of loans or other debts; monthly bills; insurance; other regular family expenses; tax returns and W-2 forms; social security records; evidence of current employment; or documentation showing financial support of family members in the U.S. and abroad.  Additionally, evidence of the economic and financial conditions in the applicant’s home country may assist in establishing extreme financial hardship.  If a country has a high unemployment rate or significantly lower wages than those paid for the same job in the United States, those factors may be helpful in showing that the U.S. citizen would suffer financially, either because she no longer has her husband’s income to help support the family or because she would be unable to obtain a similar position in the applicant’s home country.

Medical and psychological hardship is often one of the strongest hardship factors to highlight in preparing an extreme hardship waiver application, such as the I-601A Provisional Waiver.  To document this factor, applicants should obtain letters from medical professionals (including treating physicians, specialists, psychiatrists, psychologists, or therapists), which explain the family member’s diagnosis and his or her medical and treatment needs.  It is also helpful to submit documentation of doctor and hospital visits, prescription medications, and evidence of family medical history or risk factors.  Quite possibly the most important piece of evidence of medical hardship is a thorough report prepared by the family member’s treating physician or licensed mental health professional.  At Benach Ragland, we work with our clients’ doctors and therapists to finalize their reports and to ensure their legal sufficiency and effectiveness.  If mental health is a relevant hardship factor in our client’s case, we also assist our client in working with a forensic psychologist who is experienced in documenting extreme psychological hardship, which can range from anxiety and depression to more serious psychological disorders.  Finally, it is important to also document the health care system of the applicant’s home country, as well as any deficiencies, to demonstrate that the U.S. citizen family member could not relocate to that country without experiencing extreme medical hardship.

Although children are not considered “qualifying relatives” for purposes of the I-601A Provisional Waiver process, their hardship factors may still be relevant as well, as they could add to the qualifying relative’s own hardship.  For instance, if a child has a learning disability that requires special education and increased parental involvement, the inability of the applicant to remain with that child in the United States may cause his U.S. citizen spouse to suffer extreme hardship, because without the applicant, she would suddenly have to provide for that child’s needs on her own.  Thus, any documentation of children’s special needs, their progress in school, and their awards and activities may also be helpful evidence in demonstrating extreme hardship.

Finally, since there is an element of discretion involved in the adjudication of an I-601A Hardship Waiver, it is important to document the applicant’s good moral character and contributions to the communities of which the applicant is a part.

Of course, the hardship factors and types of evidence mentioned above are not exhaustive.  At Benach Ragland, we spend a significant amount of time with our clients to determine each individual’s extreme hardship factors and how they can best be presented through documentary evidence to achieve a successful resolution to a waiver application.  We plan to continue with this practice in our clients’ I-601A Provisional Waiver applications, and look forward to assisting our clients in fighting for togetherness based on the extreme hardship that a separation or relocation would bring to their families.