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BR Clients of the Month- January 2015

5 Jan

Irma and Kenny

At a time of year when we honor togetherness and fresh starts, we are comforted to know that Benach Ragland clients, Kira and her four-year-old son Ricky, have finally been granted asylum and are reunited with their husband/father, Andre, here in the United States.*  This family of faith was tornapart by targeted and systematic violence at the hands of the M-18 gang, the de facto government in Guatemala, all because they preached about peace and encouraged non-violence in their community – in the eyes of the M-18, a message of disloyalty and dissidence that needed to be eradicated.

In 2010, Kira and Andre, a deacon in the local church and the M-18’s main target, decided that he should flee in an attempt to save the family and protect their unborn son Ricky.  They believed and hoped that Andre was the gang’s only target; they were wrong.  Immediately following Andre’s escape to the United States, the gang began its relentless pursuit and persecution of Kira and their son because the gang believes that families breed disloyalty.  They threatened her with rape and murder, restrained her and beat her face bloody on multiple occasions, threatened to cut her unborn son out of her belly, threatened to kidnap Ricky after he was born, and grabbed and held Ricky at knifepoint on multiple occasions.  The gang made their reasons clear: Andre, a man of faith who preaches his message of peace and non-violence against their way of life, is their enemy who must be targeted and punished for his disloyalty and dissidence.  Since Andre was no longer available to target and punish, Kira and their young son Ricky would be his proxy.  By harming them, the M-18 could continue to harm Andre and punish him for his message of peace and non-violence – his disloyalty and dissidence.  Kira went to the police twice, begging for help, but they turned her away, refusing to provide meaningful protection.  After first escaping to her sister’s home, the gang pursued and found Kira there, held her four-year-old son Ricky at knifepoint, and threatened them again.  With no place to hide, Kira and Ricky fled to the United States in search of safety.

After four years filled with horrific and nearly daily violence, followed by a harrowing journey to the United States, Kira and Ricky sought help from a U.S. immigration ofIMG_1537ficer to beg for protection.  Instead of help, these refugees were among the first to be detained at the Federal Law Enforcement Training Center in Artesia, New Mexico, a makeshift detention facility in the middle of the desert, hidden out of sight and out of mind as the Obama Administration sanctioned a series of procedures meant to deport them as quickly as possible right back to the danger from which they had fled.  But the arrival of the American Immigration Lawyers Association’s pro bono project halted the deportation of Kira, Ricky, and the hundreds of other mothers and children detained in Artesia.  Benach Ragland Partner Dree Collopy spent a week volunteering in Artesia to provide pro bono legal services to women and children.  While there, she met Kira and Ricky and was inspired by their courage and strength.  She took their case pro bono, demanding compliance with U.S. and international law and due process on their behalf.

Ricky's additions to Dree's notes.

Ricky’s additions to Dree’s notes.

After five months of detention in inhumane conditions, two lengthy bond hearings, one status hearing, three hearings on the merits of their asylum claim, generous donations to secure an expert witness, Dree’s several trips to Denver and Artesia, and hundreds of pro bono hours by Benach Ragland and the volunteer AILA attorneys on the ground in Artesia, Kira and Ricky have been granted asylum and released from detention.  They are finally safe and have been reunited with Andre in the United States.  2015 is going to be a good year.

EXECUTIVE ACTION: The New Enforcement Priorities Memo

21 Nov

As part of the executive actions reforms announced by the administration yesterday, the administration has redefined the enforcement priorities for Immigration & Customs Enforcement.  Briefly, any law enforcement agency with limited resources can not realistically enforce the law against everyone who may have broken it.  Law enforcement agencies must pick and choose how to allocate their limited resources and where to expend their efforts.  The new enforcement priorities memo provides very clear guidance to ICE as to who their efforts ought to be focused upon.  Groups of people have been classified into three priorities for enforcement, in declining orders of priority.  Individuals not within this memo are, presumably, not priorities, and should be eligible for benefits and not subjected to enforcement actions like detention and removal.  The three classes of priority are as follows:

Priority 1 (Most serious)

  • individuals suspected of terrorism, espionage or who are otherwise a threat to national security
  • individuals apprehended at the border while trying to enter the country illegally
  • individuals involved in gangs or gang activity
  • individuals convicted of a felony unless the essential element of the offense is the individual’s immigration status
  • individuals convicted of an aggravated felony

Priority 2 (Medium serious)

  • individuals convicted of three or more misdemeanors, not including traffic offenses or offenses where an essential element is the individual’s immigration status
  • individuals convicted of a “significant misdemeanor”, which is defined as: an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug trafficking or distribution, driving under the influence, or any offense not included above for which the individual was sentenced to 90 days or more in custody (unlike in most immigration situations, a suspended sentence does not count)
  • those who have entered the U.S. unlawfully after January 1, 2014
  • significant visa or visa waiver abusers

Priority 3 (Less serious)

  • Individuals with a final order of removal entered after January 1, 2014, unless there are other factors that suggest that the individual should not be a priority for enforcement.

 

Once again, presumably, an individual not on any of these lists should not be considered a priority for removal and ICE is directed not to expend resources of seeking their detention and removal.  We will be watching ICE to see how the agents in the field respond to these revised priorities.

Court of Appeals Limits Mandatory Detention

9 Oct

Detention

On October 6, 2014, the U.S. Court of Appeals for the First Circuit issued a decision in Castañeda v. Souza that greatly limits the ability of Immigration & Customs Enforcement to subject individuals to mandatory detention during their removal proceedings.  In Castañeda, the First Circuit interpreted the not very confusing language “when the alien is released” and rejected the Board of Immigration Appeals’ formulation, articulated in Matter of Rojas that the “when released” means “any time after release.  The First Circuit determined that the Board got that wrong and concluded that “when released” means “at the time the individual is released” rather than “any time after release not matter how many days, weeks, months or years later.”  Amazingly, two other circuit courts, the Third and the Fourth, have already upheld the Board’s decision.  Thus, the First Circuit’s decision creates a “circuit split” that may result in the Supreme Court resolving the two differing interpretations.

The Immigration & Nationality Act (INA) allows Immigration & Customs Enforcement (“ICE”) to detain someone without any right to release on bond if they are removable for having been convicted of certain offenses.  This “mandatory detention” causes certain individuals to be held in detention for the duration of their removal proceedings.  They are not entitled to an individualized determination as to whether they present a danger to the community or are not likely to appear for removal proceedings.  The section of the INA that allows for mandatory detention states that DHS “shall take into custody” certain foreign nationals who are deportable on specific criminal grounds “when the alien is released” from criminal custody.  Stewart

For years, individuals have challenged their mandatory detention by arguing that they were not taken into custody “when released,” but weeks or even years later.  By filing actions for habeas corpus in U.S. District Court, individuals obtained decisions from courts nationwide ordering DHS to give the detainee an individualized bond hearing where issues of dangerousness or flight risk could be assessed by an independent judge.   The overwhelming majority of district courts to consider the “when released” language concluded that the Immigration & Nationality Act only subjected those who were taken into custody within a reasonable period of time from criminal custody to mandatory detention.  Courts concluded that mandatory detention did not apply to those who ICE apprehended long after their release from custody and those individuals must be given an individualized bond hearing.  Over the past few years, the government has appealed some of these district court decisions.  The first decision from a Court of Appeals occurred here in the 4th Circuit.  In Hosh v. Lucero, the government appealed a district court’s order that DHS provide Mr. Hosh with a bond hearing in light of the three year gap between his release from criminal custody and his apprehension and detention by ICE.  The 4th Circuit reversed the decision of the district court determining that the Board of Immigration Appeals’ interpretation of the “when released” language was reasonable and not plainly in opposition to the INA and therefore, was entitled to the court’s deference.  About a year after Hosh, the Third Circuit reached the same conclusion in Sylvain v. Attorney General.  Thus, although several district courts across the country rejected the Board’s interpretation, the two circuit courts that considered the question deferred to the Board.

FirstIn Castañeda, the First Circuit determined that the “when released” language did not permit the government to subject an individual to mandatory detention when she was taken into custody ten years after her release from criminal custody.  The First Circuit did not require complete immediacy and stated that ICE’s apprehension must occur within a reasonable period of time after release from criminal custody.  The Court noted the arbitrary nature of mandatory detention and why it offends due process when it is undertaken long after a person completes their criminal sentence:

Despite its years long delay in bringing removal proceedings after the petitioner’s release from custody, the government has offered no explanation for either the delay or the eventual decision to prosecute in these individual cases or for that matter, in the other cases where individuals have been detained years after release.  Indeed, when the district court ordered that the petitioners be given bond hearings, the government actually viewed them as neither dangerous nor likely to flee.  Castañeda was even released on her own recognizance (i.e., without a monetary bond) and before her bond hearing even took place.

Mandatory detention of individuals such as the petitioners appears arbitrary on its face.  We are left to wonder whether the petitioner’s sudden arrest and detention is not to “facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons,” which would offend due process.

The decision in Castañeda creates a circuit split between the 1st Circuit and the 3rd and 4th Circuits.  When federal law is different in different parts of the country, there is a strong incentive for the Supreme Court to step in.  However, the Supreme Court can only step in if the government chooses to appeal.  We will be watching to see what the Department of Justice does.

In each of these circuit court cases, Benach Ragland has submitted amicus (“friend of the court” ) briefs on behalf of the American Immigration Lawyers Association and will continue to do so as long as the issue is litigated.

Montgomery County Maryland Says No to ICE!

8 Oct

MoCo

Great news right out of our own backyard.  Montgomery County, Maryland, the county that surrounds most of Northwest Washington DC and the most populous county in Maryland, announced today that its jails would no longer honor detainers issued by Immigration & Customs Enforcement except under very specific circumstances.  This decision places a vice grip on one of the region’s most reliable ICE enforcement pipelines and is further evidence that local municipalities are rejecting the damage done to communities by the heavy-handed enforcement activities of the current administration.  We answer some basic questions about what this change means.

What is a Detainer?

A detainer is a request filed by Immigration & Customs Enforcement with a jail or prison asking the jail or prison t0o continue to detain an individual beyond their release date so that ICE can assume custody over the individual.

Is this like an “ICE hold?”

Yes, an “ICE hold” is a common name for a detainer.

Are there any rules about detainers?

Yes, under U.S. immigration law, ICE may only request that a jurisdiction hold an individual up to 48 hours beyond their scheduled release date (not including holidays and weekends) for ICE to assume custody of a detainee.

Why does ICE issue detainers?

ICE issues a detainer when it learns that an individual being held in local law enforcement custody may be subject to removal from the United States.  The issuance of a detainer is how ICE expresses an interest in an individual.  It does not necessarily mean that an individual is subject to removal.  A detainer allows ICE to assume custody and determine whether to charge an individual with removal.

Is a jurisdiction obligated to honor ICE detainers?

No.  An increasing number of jurisdictions are rejecting ICE detainers as inconsistent with their own law enforcement prerogatives.  Over 250 jurisdictions including the State of California, New York City, Washington DC, Boston, Denver and San Francisco refuse to honor ICE detainers.

What happens if ICE does not assume custody over an individual after 48 hours?

The facility should release that individual.  The authority to detain an individual beyond their release date is limited to 48 hours.  Municipalities that detain individuals beyond that period are at risk of liability for unlawful detention.

Can an ICE hold prevent someone from being released on bail pre-trial?

Many local judges and prosecutors wrongly assume that a person subject to a detainer can not be released on bail pre-trial.  A detainer does not render someone ineligible for release on bond.  Many jurisdictions have assumed that because a detainer exists, bail may not be ordered.  Sometimes if a person gets bail from a judge, the family has a hard time making the payment because the clerk believes she can not take it due to the detainer.  Individuals eligible for bail should seek bail despite the existence of a detainer.  Once the bail has been made, ICE may assume custody.  However, since an individual will not have been convicted of a deportable offense at that time, ICE’s ability to detain may be limited.  Criminal attorneys seeking bail for clients subject to detainers should coordinate with immigration counsel to pursue the most advantageous strategy for the client.

Why did Montgomery County do this?

In April 2014, Maryland Governor Martin O’Malley determined that jurisdictions in Maryland may face liability for detaining individuals after their eligibility for release.  As counties absorbed the impact of this opinion and sought to protect themselves, counties began to rethink the wisdom of cooperating with detainers.  In August 2014, the City of Baltimore stopped honoring detainers followed by Price George’s County in October.  With Montgomery County, Maryland’s largest county, following suit, the momentum against detainers is unmistakable.O'Malley

Why did Martin O’Malley do this?

O’Malley is widely believed to be running for President as a Democrat in 2016.  O’Malley has clearly chosen to take a more aggressively pro-immigrant stand than other potential Presidential candidates.

ICE Called Him a Terrorist. We Said He’s Not. We Won.

9 Sep

Ragland and Hamid

Our Client of the Month for September 2014 is Abdul Hamid. On July 31, 2014, Mr. Hamid walked out of the Stewart Detention Center in Lumpkin, Georgia and tasted freedom for the first time in more than 15 months. Stewart, an immigration detention center brought to you by the friendly folks at Corrections Corporation of America (CCA), is straight out of George Orwell. Along with the high fences and rolls of concertina wire are guards in crisp blue uniforms and inspirational posters on the walls lauding the CCA’s role in “serving America’s detention needs” and “leading the way in quality correctional care.” Not making this up. But call it “detention” or “custody” or “quality correctional care” all you want. The grim reality is that this place is a prison, situated in a truly godforsaken corner of Georgia more than a 3-hour drive from Atlanta, just far enough to make it very tough for lawyers or family members to visit on a regular basis. Stewart issues color-coded jumpsuits to its residents – red being reserved for the most dangerous inmates, violent offenders, and gang members. Mr. Hamid, a soft-spoken 61-year-old Pakistani gentleman who has lived with his family in the United States for the past 14 years, was made to wear red.Stewart

Mr. Hamid has never been arrested, charged, or convicted of any crime – in the U.S. or elsewhere. He fled Pakistan in 2000 to escape extortion and death threats from a group of thugs associated with the Jamaat-e-Islami political party. When he appeared before an Immigration Judge (IJ) in Atlanta in April 2013, Mr. Hamid applied for permanent residence – a green card – based on an approved visa petition filed by his adult U.S. citizen son. But then his case took an unusual turn. The lawyer representing the Department of Homeland Security (DHS) argued that Mr. Hamid’s actions in Pakistan in 1998-99, when he was assailed by representatives of Jamaat-e-Islami and forced on threat of death to pay a “jaga tax,” amounted to material support for terrorism – rendering him ineligible for a green card, deportable from the U.S. with no relief, and subject to mandatory detention by U.S. Immigration and Customs Enforcement (ICE). According to DHS, certain “evidence” (obtained primarily through internet searches) demonstrated a link between Jamaat-e-Islami – a fundamentalist political party in Pakistan – and Hizb-ul-Mujahideen – a militant group fighting to establish an independent Islamic state in Kashmir, India. The IJ agreed, ordered Mr. Hamid deported, and ICE agents immediately took him into custody and transported him from the court to his new digs at the Stewart Detention Center. Mr. Hamid and his family were stunned and distraught, unsure what had happened or how to correct such a grievous error.

Within days, Mr. Hamid’s son, Nadeem Sheikh, drove from Atlanta to Washington, DC to consult with Thomas Ragland about how to overcome the IJ’s decision and secure his father’s release. Ragland took the case and immediately began preparing an appeal to the Board of Immigration Appeals (BIA). The appeal contended that the IJ had committed a number of errors, including finding that the evidence presented by DHS established a “subgroup” relationship between Jamaat-e-Islami (the political party) and Hizb-ul-Mujahideen (the terrorist group). We argued that DHS and the IJ had failed to distinguish between the various different organizations that exist under the Jamaat-e-Islami banner – in Pakistan, in India, in Bangladesh, and in Sri Lanka – or to recognize that these disparate groups operate independently of one another. We argued further that even if the evidence did establish a subgroup relationship, Mr. Hamid fell within the “knowledge” exception to the material support bar – because he did not know, and should not reasonably have known, that money he paid under duress to the Jamaat-e-Islami thugs in Lahore, Pakistan might be used to support violent activities by an entirely different group, Hizb-ul-Mujahideen, in Kashmir, India. A few days before Halloween 2013, and more than six months after Mr. Hamid began his tenure at Stewart, the BIA agreed and remanded the case to the Atlanta Immigration Court for further proceedings.

In the months that followed, Ragland traveled to Atlanta for half a dozen more hearings in Mr. Hamid’s case. The proceedings were repeatedly delayed by confusion over which IJ should be assigned, by the disqualification of two successive court-appointed Urdu interpreters, by a federal government shutdown, and by a system-wide crash of the Immigration Court’s computer system. Meanwhile, Mr. Hamid stoically endured his imprisonment and the indignity of being transported from Lumpkin to Atlanta in chains and leg irons, being handcuffed throughout his court hearings, and being repeatedly vilified by DHS counsel as an untruthful witness and a supporter of terrorism. Mr. Hamid’s entire family – his wife, his sons and daughters and their families, his grandchildren – attended each and every hearing to demonstrate their tireless support and unwavering belief in his innocence of the government’s charges.

In addition to extensive background research, numerous written briefs, and hours of in-court testimony, we deployed a secret weapon that proved crucial to our defense of Mr. Hamid. Pakistan’s former Ambassador to the United States, Mr. Husain Haqqani, is husain_haqqaniamong the world’s foremost authorities on the politics, history, and economy of Pakistan. He has advised four presidents, held various high-level posts over a long and distinguished diplomatic career, and recently authored a best-selling book entitled Magnificent Delusions: Pakistan, the United States, and an Epic History of Misunderstanding. More importantly, he is a long-time client of Benach Ragland. Ambassador Haqqani volunteered to serve as an expert witness in Mr. Hamid’s case, free of charge, authored a lengthy written opinion and flew to Atlanta to testify in Immigration Court. In off-the-record comments after the hearing, the IJ remarked that he was “very impressed” by our expert, and the DHS attorney griped that we had brought in a “million dollar witness.” Faced with great injustice and overwhelming odds, good lawyers must do what it takes to win the day.

Ultimately, the IJ was persuaded by our arguments and evidence, rejected the government’s contentions, and ruled in Mr. Hamid’s favor. Reversing his prior ruling, he found that the evidence failed to demonstrate a subgroup relationship between Jamaat-e-Islami and Hizb-ul-Mujahideen. After 15 months in prison, thousands of dollars in legal fees, and the traumatizing prospect of being deported to a country he had fled in fear for his life, Mr. Hamid was granted permanent residence and allowed to return home to his family. Justice delayed, but not denied. Our heartfelt congratulations to a very deserving client.

California Drops a Day and Improves the Lives of Immigrants

22 Jul

jerrybrown

In a move that will help thousands of immigrants, California governor Jerry Brown signed SB 1310 into law today.  This law imposes a maximum sentence of 364 days in prison for those convicted of misdemeanors in California.  The law is set to take effect on January 1, 2015.  Under current California law, a person convicted of a misdemeanor may be sentenced up to one year, or 365 days, in prison.  The change of subtracting one day from the maximum sentence can help many people convicted of minor crimes avoid certain detention and removal from the U.S.

U.S. immigration law attaches consequences to many convictions based upon what the potential sentence is or what the sentence imposed is.  Immigration law treats a suspended sentence as the equivalent of a served sentence.  So, an individual convicted of petty larceny who gets a year in prison with a full year suspended is considered to be an aggravated felon because he has been convicted of a theft offense with a sentence of a year.   Even though the sentencing judge s1.reutersmedia.netdid not see fit to incarcerate, the Department of Homeland Security will jail and likely removal such an individual.  The new law goes a long way to preventing this inequitable result.  For example:

  • A noncitizen is deportable for a single conviction of a crime involving moral turpitude committed within five years of admission, if the offense has a potential sentence of one year or more. INA § 237(a)(2)(A), 8 USC § 1227(a)(2)(A).   As of the effective date, a single California misdemeanor conviction will not cause deportability under this ground, because it will carry a maximum possible sentence of 364 days.
  • Conviction of certain offenses becomes an aggravated felony only if a sentence of a year or more is imposed. For example, crimes defined as: crime of violence, theft offense, obstruction of justice, forgery, perjury, receipt of stolen property are only aggravated felonies if the sentence imposed is a year or more.  And, yes, misdemeanors can be aggravated felonies.  However, with the change in California law, misdemeanor versions of these categories of offenses can not be aggravated felonies.  Designation of an offense as an aggravated felony is often very prejudicial to a non-citizen as not only does it establish removability, it causes mandatory detention and serves as exclusion to nearly all forms of relief from removal.

There are myriad other ways that this simple change in the law will aid immigrants and their families.  As Congress remains stuck, inventive advocates are pursuing a variety of creative remedies in a variety of fora to slow down the deportation machine and improve lives for thousands of immigrants, their communities and their families.

 

FOBR Olsi Vrapi Tries to Represent a Child in Artesia, New Mexico

21 Jul

kob ice facility artessia

Olsi Vrapi is a Friend of Benach Ragland who practices in Albuquerque, New Mexico.  He recently found himself on the front line of the battle of how to handle the major influx of refugee children at the Southern Border.  In this chilling blogpost entitled “The Artesia Experience,” Olsi describes his experience visiting his client in the new facility in Artesia, New Mexico where the government is detaining Central American children and families.  His conclusion is brutally honest:

My impression of the Artesia makeshift detention center is that it is a due process travesty.  Is it really coincidence that a detention center was set up overnight in the middle of nowhere where the closest immigration lawyer or non-profit (which by the way can’t provide direct representation) is 3+ hours away?  In the few weeks it has been in operation, there have been no non-profits doing legal orientation programs, there are no non-profits that provide direct representation to those detained there and asylum interviews and hearings are happening so fast and are so short that even the most diligent detainees can’t get counsel fast enough to be advised before they are interviewed or are given any meaningful opportunity to tell their stories.  It appears the government is paying lip service to due process and just going through the statutory and regulatory requirements as fast as possible so they can give a semblance of compliance while the airplane to central America is warming its engines in nearby Roswell.  This is the same as a child being asked to clean his room, and he stuffs everything under the bed to “comply” with the command and ends up making it worse, except in our cases it’s not a matter of putting dirty laundry in the hamper, it’s women and children that can get killed if returned home.  As a father of three small children, I can’t help the kids’ analogies.

To make matters worse, Congress is using the crisis as an attempt to roll back well-established asylum protections.  Yesterday, Dree Collopy wrote about the horrendous legislation being proposed by Congressman Bob Goodlatte (R-VA) that would undermine critical protections for refugees and asylum-seekers.  As bad as the current system is, Congress can make it worse.  The Capital Area Immigrants Rights Coalition has a good summary of the legislation and provides a quick link to contact Congress.

Thanks to Olsi for representing families in Artesia and sharing their story with the world.

We will keep you informed about pro bono opportunities and donation opportunities as this crisis continues to unfold.