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GUEST BLOG: Gender-Based Asylum Victory in Virginia by the George Washington University Law School Immigration Clinic

15 Apr

This post was written by Sydney Barron, a law student at George Washington University Law School and a member of the school’s Immigration Clinic, under the direction of Professor Alberto Benitez.  Benach Ragland periodically offers this space to law students and non-profit organizations to discuss their immigration cases.  If you are a law school professor or a non-profit organization that wishes to tell the story of one of your immigration cases, please write us at


On March 11, 2014, my client, Julia[1] won the asylum that she requested over a decade ago. Julia fled horrific domestic violence in her home country, Guatemala, and came to the United States in 2002. Unfortunately, Julia was not able to bring her children with her when she fled. After she entered the United States, the George Washington Immigration Clinic helped her file her asylum claim. Julia had to live with uncertainty for over a decade as her case wound its way through the immigration system. By the time Julia was finally granted asylum twelve years after fleeing her abuser, she had appeared before three different immigration judges, and worked with twenty different student-attorneys from the GW Immigration Clinic.

Sydney Barron Photo

GWU Law Student Sydney Barron

Julia filed for asylum in 2003. There was insufficient time for all of her testimony and cross-examination at her first individual merits hearing in 2004, so she had an additional individual merits hearing scheduled. The next hearing was not held until 2006 because the immigration court was so busy at the time.

When Julia first filed for asylum, the law of asylum for victims of domestic violence was far from favorable. At that time, the immigration courts were waiting for regulatory guidance on the issue of granting asylum to victims of domestic violence, but were hesitant to grant asylum while such guidance remained pending. For this reason, the immigration judge administratively closed Julia‘s case in 2006. This situation provided only temporary protection, and her case could be reopened at any time. Additionally, even though Julia could remain in the United States while her case was administratively closed, she could not bring her children here unless she was granted asylum.

A year later in 2007, the Department of Homeland Security (“DHS”) requested that the case be reopened. In June 2009, the immigration judge issued a written decision finding that Julia was credible and had suffered harm rising to the level of past persecution, but there was no “nexus” between the harm she suffered and her membership in a particular social group. The immigration judge therefore denied Julia‘s asylum claim.

The GW Immigration Clinic assisted Julia in appealing her case to the Board of Immigration Appeals (“BIA”). Before Julia‘s appeal was decided by the BIA, the law on asylum for victims of domestic violence shifted and became more favorable. The most well-known case on the eligibility of victims of domestic violence for asylum is Matter of R-A-. In Matter of R-A-, a Guatemalan woman suffered terrible abuse from her husband.[2] Fourteen years after R-A- applied for asylum, in December 2009, an immigration judge granted R-A-’s request for asylum.[3] Another central case regarding asylum for victims of domestic violence, Matter of L-R, ended in 2010 with a grant of asylum.[4] In both Matter of R-A- and Matter of L-R-, DHS submitted briefs describing the circumstances that they considered sufficient for a domestic violence victim to be eligible for asylum.[5] Given these two historic asylum grants, a prior student-attorney at the GW Immigration Clinic submitted a Motion to Remand Julia‘s case with the BIA.

When I first met Julia, she had not yet heard back from the BIA about the Motion to Remand. During my first semester in the GW Immigration Clinic, the BIA remanded Julia’s case to the Arlington Immigration Court. My first appearance in immigration court was for Julia‘s master calendar hearing. The GW Immigration Clinic Director, Professor Alberto Benitez, and my other supervisor, Mr. Jonathan Bialosky, prepared me to ask for a grant of asylum at this hearing. They explained that this was an unlikely outcome, and was extremely unlikely without DHS’s support. However, if I were able to convince DHS to agree to a grant, the immigration judge might grant Julia asylum given the prior immigration judge’s findings on credibility and the violence Julia suffered.

On the day of the master calendar hearing, the DHS trial attorney had not yet received Julia‘s file from the BIA, and could not support a grant. Luckily, the immigration judge recognized that Julia had already been waiting for over a decade, and scheduled the merits hearing for March 11, 2014. This was a huge relief to Julia, and myself, since some cases are scheduled up to two years from the master calendar hearing date.

In preparation for the individual hearing, I met with Julia multiple times a week. Her family members had alerted her to continued threats made by her abuser, including threats to beat, rape, and kill her. I submitted affidavits from Julia and her family about these threats.   I also submitted evidence from a psychiatrist, which supported Julia‘s testimony, and multiple articles about Guatemala and its institutionalized acceptance of domestic violence.

Before the individual merits hearing with the immigration judge, the GW Immigration Clinic held a moot hearing with Julia. Professor Benitez and Mr. Bialosky explained that I should not have a set of questions written down, because they had seen student-attorneys become dependent on a list of questions, ignoring what their client was actually saying. I wrote out the main issues that I wanted to get Julia to testify about, and practiced asking non-leading questions with other student-attorneys.  On the day of the moot hearing, I realized the difficulty of an actual direct examination, especially the difficulty of asking non-leading questions to get Julia to provide necessary details. Additionally, Professor Benitez and Mr. Bialosky asked the student-attorney playing the role of the trial attorney to try to surprise and rattle me by objecting to my evidence and submitting new evidence during the moot. The moot hearing taught me the importance of carefully listening to the client’s testimony and asking sufficient follow-up questions to ensure the client mentions all relevant details. It also taught me the importance of projecting confidence in my questions and responses, especially when unexpected issues arise.

The day before the hearing, I called the trial attorney who was assigned to Julia‘s case. I left her a message asking if she had received my pre-trial filing, and offering to answer any questions she might have. That afternoon the trial attorney returned my call while I was in class, and while I was able to excuse myself to an empty room, I did not have any of my notes with me. My lack of notes initially worried me; however, once the trial attorney started asking me questions about the case, I realized that the months of preparation had hammered all of the facts into my head, and I could easily discuss the case without any notes.   We discussed the procedural history of the case and the evidence that Julia’s abuser continued to threaten her. After answering all of the trial attorney’s questions, I felt confident that the trial attorney appreciated the grave danger that Julia would face if she were forced to return to Guatemala.

On the day of Julia’s individual merits hearing, Professor Benitez, Mr. Bialosky, and many of the other student-attorneys who came to support Julia were present in the courtroom. Immediately before the hearing, the trial attorney informed me that she would not be opposing a grant of asylum. Julia was extremely excited, but I explained that nothing was certain until the immigration judge granted her asylum. The immigration judge requested that I do a short direct examination of Julia, and after my direct examination the trial attorney did a short cross-examination. After Julia returned to her seat, the immigration judge gave his oral decision granting Julia asylum. To the surprise of everyone in the courtroom, Julia asked the judge if she could hug him. The judge explained that he could not hug her in person, but that he would “hug” her from where he was. Both Julia and the immigration judge hugged the air in front of them in a very touching moment. Julia also hugged the trial attorney after the hearing was over. Professor Benitez told me later that it was the first time that he had ever seen a client ask to hug the immigration judge or the trial attorney.

I am grateful to the GW Immigration Clinic for the opportunity to assist Julia in her search for safety. I am grateful to my supervisors, Professor Benitez and Mr. Bialosky, who guided me through the process, set up moot hearings, and provided feedback on my pre-trial filing and hearing preparation. I am grateful to all of the other student-attorneys for their help throughout the year, providing feedback and helping to prepare Julia for cross-examination. Finally, I am grateful to Julia, an inspiring woman who persevered with immense strength. The opportunity to help protect her from further abuse and finally bring her a sense of peace and closure was an amazing gift.


[1] My client’s name has been changed to protect her identity.

[2] Matter of R-A-, 22 I&N Dec. 906 (BIA 1999), vacated, 22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), remanded, 24 I&N Dec. 629 (A.G. 2008).

[3] Lisa Mendel-Hirsa, Recent Landmark Victories in the On-Going Struggle for U.S. Immigration Law to Recognize and Fully Protect Women’s Human Rights, Empire Justice Center (Nov. 19, 2010),

[4] Id.

[5] Department of Homeland Security’s Position on Respondent’s Eligibility for Relief,

Matter of R-A-, 22 I. & N. Dec. 906 (Feb. 19, 2004) (File No. A 73 753 922); Department of Homeland Security’s Supplemental Brief, Matter of [L-R-, redacted] (Apr. 13, 2009).

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

20 Mar

Judy and Tarun

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


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

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

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

Corrupt SA police 2

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

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

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

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

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

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

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

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

13 Mar


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

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

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

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

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

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

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

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

GUEST BLOG: Asylum Victory by GW Law Student in Immigration Court

2 Jan

By: Jessica Leal, Student Attorney in the George Washington Law School Immigration Clinic and 3L at GW Law

Jessica Leal Picture

On November 26, 2013, my client, M-L-R-, won the opportunity to sleep at night.  M-L-R- was granted asylum by Immigration Judge Paul W. Schmidt.  She fled El Salvador after she was brutally raped and beaten by an MS-13 gang leader and was told that she would have to be subject to his sexual demands in the future.  A mere twenty-two days after this horrific attack, M-L-R- left her husband, her family, and the only country that she had ever known, to journey to the United States.  Like so many generations of immigrants before her, she believed that our country was the only one where she would be able to escape her persecutor’s reach and establish a new life.  Fortunately, she will now have the chance to petition for her husband and live in peace out of harm’s way.

At the end of the hearing, Judge Schmidt encouraged M-L-R- to thank her lawyers.  I could not have asked for a better client or better colleagues for my first Immigration Court hearing.  I am a Student Attorney in the GW Immigration Clinic, and I represented M-L-R- under the supervision of Professor Alberto M. Benitez and Jonathan C. Bialosky, Esq.  I started working on this case in July 2013, over a-year-and-a-half after the Clinic undertook my client’s representation.  I am the fourth Student Attorney to act on her behalf.  M-L-R- was previously represented by Rachael Petterson (Attorney at Benach Ragland LLP and former Interim Director of the Clinic), Jason Boyd, Denisse Velarde-Cubek, and Cleveland Fairchild.  Each of these individuals helped to craft my client’s affidavit, compile supporting evidence, and obtain her work authorization.  In addition to their legal roles, they met with M-L-R- countless times and helped her to work through the traumatic events that she endured.

This semester, I was tasked with preparing the pre-trial filing (PTF) and representing M-L-R- in her individual hearing, which was originally scheduled to take place on October 1, 2013.  When I met M-L-R- in July, I did not have very much experience meeting with clients or discussing persecution.  My lack of experience was further compounded by the language barrier.  M-L-R- is a Spanish-speaker and, although I am also a native Spanish-speaker, I found it incredibly difficult to converse with M-L-R- about the terrible details of her persecution.  I had never had to discuss rape or abuse in Spanish.  When I did not know how to translate a word, I would gesture and she would fill in the gaps.  M-L-R- helped me to work through my own insecurities with the language as she worked through the details of her story.  This was only one of the many surprising challenges that I encountered in representing a client in Immigration Court for the first time.

I have had several immigration-related internships throughout my law school career.  Each of these internships introduced me to a different piece of the complex immigration system puzzle.  Although I attended individual hearings before this semester and was exposed to asylum law, I could not imagine the stress of preparing for a hearing.  Nor could I have anticipated the number of people and details that affect the outcome of an asylum claim.  In this case, I had the good fortune of working with an experienced professor, a knowledgeable staff attorney, and an excellent group of Student Attorneys.  I was able to rely on this support system in confronting and overcoming the many obstacles that led to my client’s victory.  I also benefitted from working with an extraordinarily helpful DHS trial attorney, Justin Leone.  Mr. Leone patiently discussed the intricacies of particular social group (PSG) claims and was prepared well in advance of the hearing to discuss the issues.

After I submitted the PTF two weeks before the original hearing date, I encountered yet another hurdle in the process of winning asylum.  I checked EOIR’s automated phone system to make sure of the hearing date and time.  The system reflected that the next hearing was a master calendar hearing scheduled for March 20, 2014, not an individual hearing scheduled for October 1, 2013.  I notified Professor Benitez and proceeded to contact the Arlington Immigration Court.  A legal assistant attempted to figure out why the date had been changed, but she could not find an answer in the computer system.  Judge Schmidt’s legal assistant, Glenda Britt, was extraordinary helpful in resolving this problem.  She checked with Judge Schmidt and found an open time slot on the Tuesday before Thanksgiving because the original time slot had already been filled.  Judge Schmidt helped to find a date and time that would accommodate my academic schedule.  This was a huge victory at the time and proved to be serendipitous as the federal government shut down on October 1, 2013.  There is no way of knowing how much longer M-L-R- would have had to wait for her day in court if the hearing had not been rescheduled.

In the days leading up to the rescheduled hearing, I felt overwhelmed by how little I knew about PSG case law.  Objectively speaking, there is almost no way of knowing every case in every jurisdiction that might affect the outcome of a claim; however, I could not help but feel insecure about my knowledge base.  To that end, mooting was very useful.  It helped me to realize that I could argue the law without specific case names and that, for this particular hearing, the case law was not as important as the facts.  In addition to my insecurity about case law, I worried that I had not reviewed the record sufficient times and that I would forget essential details. To help combat my fears, I prepared several documents to take to the hearing, including: a list of themes to guide my questioning, a case chart with key facts, a timeline, and an outline of my closing statement.  To further minimize the stress, I spent the weekend before the hearing unwinding with family.  I also made sure that I arrived in Crystal City over an hour before the hearing and encouraged M-L-R- to do the same.

At the hearing, I tried to keep the amount of paper on the table at a minimum to avoid cluttering my space and relying too much on the documents.  I kept my note-taking to a minimum to ensure that I maintained eye contact with M-L-R-.  I also attempted to smile often, however that proved difficult because I tend to maintain a serious expression when I am focused.  In lieu of smiling, I nodded as often as I could.  My voice was shaky when I began the direct examination, but it steadied as I progressed.  I felt most confident as I delivered my closing statement because it afforded me the opportunity to piece together my client’s testimony.

In preparing for this hearing, I learned that winning an asylum case is just as much about the facts as it is about the people presenting them and the people adjudicating them.  M-L-R- had particularly compelling facts; however, the gang element of her claim presented an obstacle.  With the help of the Clinic, she was able to submit a thorough PTF articulating the nuances of her PSG.  Judge Schmidt also carefully considered every detail of her claim and appreciated the fact that I was a Student Attorney.  His flexibility and patience allowed me to get through my questioning and my closing statement without significant interruptions.

It was very helpful to be able to moot in anticipation of the hearing several times and to have an experienced attorney, Rachael Petterson, serve as the Immigration Judge.  Mooting almost replicated the experience of appearing in court, but nothing came close to actually representing an individual in a high-stakes situation.  Despite the four months of preparation, I felt anxious.  When I walked through the gate in the courtroom, I did not know how I would react.  I realized that I work well under pressure, but that I have nervous habits.  As much as I tried, I could not stop leaning forward and I often clenched my hands.  I also had to remind myself that this was a real hearing and that I could not jump up and down when Judge Schmidt announced his decision.            approved

Preparing for this hearing was very time-consuming.  In addition to compiling the PTF and mooting for the hearing, I had other academic and extracurricular commitments.  As I got closer to the hearing date, I had to budget my time carefully to keep up with my obligations.  I also had to forego taking on additional commitments to ensure that I devoted enough time to the hearing.  Ultimately, the hearing itself was not as stressful as the months of preparation.  I know that, when I become an attorney, I will not have the luxury of spending months on a case, but I am confident that my nerves will fade with time.  This client, this hearing, and this victory reassured me that there is no other type of law that I would rather practice than Immigration.  I am ecstatic to have been a part of the team that won M-L-R- the chance to sleep at night, and I would not trade the experience of preparing for her hearing for the world!

The 212(h) Aggravated Felony Bar: The BIA versus the Courts

16 Dec


This article was written by Thomas K. Ragland and he will present it to the South Florida Chapter of the American Immigration Lawyers Association annual Continuing Legal Education Conference in February 2014.

Among the most hotly litigated immigration law issues in recent years centers on the meaning and scope of the so-called “aggravated felony bar” in section 212(h) of the Immigration and Nationality Act (“INA”). A number of federal courts – including the U.S. Court of Appeals for the Eleventh Circuit – have rejected the interpretation articulated by the Board of Immigration Appeals (“BIA” or “Board”) in Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), and reaffirmed in Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012). These circuit courts have unanimously espoused a narrower construction based on the plain language of the statute. To determine whether a particular court’s holding may benefit an individual client, it is essential to understand the BIA’s position, the contrary views among the circuits, and the arguments that underlie these opposing interpretations.

We begin, as always, with the language of the statute. Section 212(h) of the INA provides, in relevant part:

The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I),[1] (B),[2] (D),[3] and (E)[4] of subsection (a)(2) and subparagraph (A)(i)(II)[5] of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if –

(1)   (A) in the case of any immigrant it is established to the satisfaction of the Attorney General that —

(i)       the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for a visa, admission, or adjustment of status,

(ii)      the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and

(iii)    the alien has been rehabilitated; or

(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; or

(C) the alien is a VAWA self-petitioner; and

(2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.

No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if … since the date of such admission the alien has been convicted of an aggravated felony …. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection. (Emphasis added).

The INA defines the terms “admission” and “admitted” to mean, with respect to a noncitizen, “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”[6] This statutory definition, which was added to the INA by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),[7] is central to the ongoing dispute between the agency and the courts over the reach of the 212(h) aggravated felony bar.

The BIA’s Interpretation


The BIA historically has construed the term “admission” to include both inspection and authorization to enter at a port of entry and adjustment of status to lawful permanent resident (“LPR”).[8] More than 20 years ago, in Matter of Rainford, the Board declared that “an adjustment of status is merely a procedural mechanism by which an alien is assimilated to the position of one seeking to enter the United States.”[9] Likewise, in Matter of Rosas, the Board held that noncitizens who are lawfully admitted for permanent residence through adjustment of status are considered to have made an “admission,” because to conclude otherwise would mean that persons who entered without inspection and later adjusted status have never been “admitted,” and in removal proceedings, such persons would be ineligible for certain forms of relief .[10] As the BIA explained, unless adjustment is treated as an “admission,”

an alien who entered without inspection and resided in this country for many years as a permanent resident after adjustment of status … would be ineligible for relief under section 212(c) or 240A(a) because he or she would not be considered to have been “admitted” for permanent residence.[11]

According to the Board, such an interpretation would be inconsistent with the overall structure of the Act.[12]

One effect of the Board’s interpretation, which equates admission at a port of entry with adjustment of status, is to give a broad construction to the aggravated felony bar in INA §212(h). Under this approach, any noncitizen convicted of an aggravated felony after becoming an LPR is rendered ineligible for a 212(h) waiver – whether she acquired LPR status upon being admitted to the U.S. as an immigrant or, alternatively, through adjustment of status after arrival. Over the past few years, this construction of the statute has been consistently spurned by the federal appellate courts. In response to challenges brought by creative immigration litigators, five circuits have flatly rejected the BIA’s expansive reading and another has done so indirectly.

Martinez v. Mukasey and Yin Hing Sum


The first domino to fall was the Fifth Circuit, in Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), which held that “for aliens who adjust post-entry to LPR status, § 212(h)’s plain language demonstrates unambiguously Congress’ intent not to bar them from seeking a waiver of inadmissibility.”[13] The court rejected the government’s argument that section 212(h) is ambiguous and thus that the BIA’s interpretation merits “substantial deference” under Chevron.[14] To the contrary, Martinez explicitly declined to follow Rosas and held instead that it was constrained by the plain language of the statute to conclude that LPR “adjustment” does not constitute prior “admission” as an LPR for purposes of INA §212(h).[15]

In a related decision, the Ninth Circuit likewise held that the phrase “lawfully admitted for permanent residence” refers to a “substantively lawful admission for permanent residence,” because “[t]he term ‘lawfully’ denotes compliance with substantive legal requirements, not mere procedural regularity.”[16] In Yin Hing Sum v. Holder, the court distinguished this language from the phrase “previously been admitted” in section 212(h), finding that this refers to a procedurally regular, rather than substantively lawful, admission.[17] And in any event, the plain language of the statute verifies that the terms “admitted” and “admission” refer to “’the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.’”[18] Consequently, Yin Hing Sum supports the view that only a noncitizen who has been admitted to the U.S. as an immigrant – i.e., inspected and authorized to enter the country as an LPR – and subsequently has been convicted of an aggravated felony, is barred from seeking 212(h) relief.

Matter of Koljenovic

In response to Martinez, the BIA issued a decision reaffirming its long-held view that “adjustment” qualifies as “admission” for purposes of triggering the bar in section 212(h).[19] In Koljenovic, the Board declared that “[a]n alien may be admitted as a lawful permanent resident either by inspection and authorization to enter at the border or adjustment of status if the alien is already in the United States.”[20] According to the Board, “[a]djustment of status is essentially a proxy for inspection and permission to enter at the border, which is given as a matter of administrative grace.”[21] Koljenovic sought to reaffirm the BIA’s prior decisions in Rainford and Rosas that “adjustment of status is the functional equivalent of inspection and authorization to enter at the border.”[22]

The Board cited practical considerations for its refusal to change course and defended its long-held interpretation as the only way to avoid “absurd” results.[23] First, because Mr. Koljenovic entered the United States without inspection and later adjusted his status, the BIA argued that “[i]f his 2001 adjustment of status is not considered an admission, he would be in the absurd position of being a lawful permanent resident without ever having been ‘admitted’ in that status” – and thus subject to inadmissibility and ineligible for various forms of relief from removal.[24] Second, the BIA claimed support in the legislative history of INA §212(h) and insisted that a contrary interpretation would “frustrate” Congress’ purported attempt to “create congruity” in the 7-year residency requirements for a 212(h) waiver and LPR cancellation of removal under INA §240A(a).[25] Furthermore, according to the Board, Congress’ amendment of the terms “admitted” and “admission” in INA §101(a)(13) was meant to clarify when a departure from the U.S. is meaningfully interruptive of permanent residence and thereby “address complexities in the law” caused by the “brief, casual, and innocent” test articulated by the Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449 (1963).[26]

The BIA also labored to distinguish Martinez, while acknowledging the Fifth Circuit’s clear rejection of Rosas and determination that the plain language of INA §212(h) “demonstrates unambiguously” Congress’ intent not to bar from relief “aliens who adjust post-entry to LPR status.”[27] The Board contended:

However, Martinez did not consider whether the same rule would apply in a case like the respondent’s where the alien was not previously admitted. Indeed, if we were to literally apply the Fifth Circuit’s holding to this case, the respondent would have no admission date at all. Given that the Fifth Circuit did not have to confront the factual scenario presented here, we are not persuaded by respondent’s contention that Martinez should control.[28]

Koljenovic thus sought to limit the impact of Martinez by insisting that its reasoning should apply, at most, to individuals who were “admitted” on nonimmigrant visas and later adjusted to LPR status, but not to those who originally entered without inspection and then adjusted.

Lanier and Bracamontes

Despite the Board’s valiant attempt to reinforce its position, not long after Koljenovic was issued in April 2010, two more federal appellate courts rejected its interpretation of section 212(h). The Eleventh and Fourth Circuits instead concurred with Martinez, in each instance finding that a narrower interpretation of the aggravated felony bar is compelled by the plain language of the statute.[29] These courts agreed that the bar applies only to those noncitizens convicted of an aggravated felony after having been physically admitted to the United States as LPRs (i.e., as immigrants), but not to those who were first admitted as nonimmigrants, or entered without inspection, and later adjusted to LPR status prior to being convicted. The distinction turns on the specific language of section 212(h), which provides that “no waiver shall be granted” to an alien “who has previously been admitted to the United States as an alien lawfully admitted for permanent residence” and subsequently convicted of an aggravated felony.

As the Eleventh Circuit explained in Lanier, the term “alien lawfully admitted for permanent residence” is a term of art that “encompasses all persons with lawful permanent resident status,” whether they gained that status through admission on an immigrant visa or after adjustment of status while living in the United States.[30] But the statute clearly bars only those aliens “previously … admitted to the United States as [LPRs]” from section 212(h) relief.[31] Lanier held:

The term “admitted” has expressly been defined by Congress as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” INA §101(a)(13)(A), 8 U.S.C. §1101(a)(13)(A). This definition is limited, and does not encompass a post-entry adjustment of status. … Thus, when the statutory provision is read as a whole, the plain language of §212(h) provides that a person must have physically entered the United States, after inspection, as a lawful permanent resident in order to have “previously been admitted to the United States as an alien lawfully admitted for permanent residence.”[32]

Under this reading, the aggravated felony bar applies only to persons who were admitted as LPRs and later convicted of an aggravated felony. “Based on this unambiguous text,” the court affirmed, “we find that the statutory bar to relief does not apply to those persons who, like Lanier, adjusted to lawful permanent resident status while already living in the United States.”[33]

Soon after Lanier was issued, the Fourth Circuit joined the chorus in Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012). Mr. Bracamontes had entered the U.S. as a temporary resident and subsequently adjusted to LPR status before being convicted of an aggravated felony.[34] Following the lead established in Martinez and Lanier, he argued that his post-entry adjustment did not qualify as an “admission” within the plain meaning of INA §212(h).[35] The Fourth Circuit concurred:

We agree that this reading accords section 212(h) its plain meaning and properly utilizes the definitions of terms Congress provided in the INA, as codified at 8 U.S.C. § 1101. “Admission” and “admitted” are defined as “with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). Clearly, neither term includes an adjustment of status; instead, both contemplate a physical crossing of the border following the sanction and approval of United States authorities.[36]

Bracamontes rejected the government’s argument that Congress could not have intended to disrupt the “settled principle” that adjustment of status and inspection and admission are “functionally equivalent,” and thus that the BIA properly found Mr. Bracamontes ineligible for 212(h) relief.[37] The court disparaged “the BIA’s speculation concerning congressional intent” and united with its sister circuits in concluding that “the statute plainly says what it says, and the fact remains that the definition of ‘admission’ provided by Congress simply does not include an adjustment of status.”[38] The government’s tally in the circuits thus far was 0-4.

Matter of E.W. Rodriguez     

Undeterred by the drubbing it was taking in the federal courts, the BIA once again defended its approach in Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012). The Board conceded, as it must, that it is “obliged to follow” the decisions flatly rejecting Koljenovic in those circuits – the Fifth, the Eleventh, and the Fourth – that have interpreted the 212(h) aggravated felony bar more narrowly based on the plain language of the statute.[39] The Board also retreated from the purported distinction, which it had advanced in Koljenovic, between noncitizens who were originally admitted to the U.S. as nonimmigrants and those who entered without inspection.[40] E.W. Rodriguez conceded that the “breadth” of the Fifth Circuit’s holding compels equal treatment of both categories of individuals, because “[i]n the Martinez court’s view, the section 212(h) aggravated felony bar applies only if the applicant was admitted as a lawful permanent resident at the border, but not if he was merely admitted to lawful permanent resident status.”[41]

Rather than abandon its increasingly untenable interpretation of the aggravated felony bar, however, the BIA announced that it would follow the narrower interpretation only in those circuits where Koljenovic had been explicitly rejected.[42] Elsewhere, because “the language of section 212(h) is ambiguous when understood in the context of the statute taken as a whole,” E.W. Rodriguez insisted that “the proper resolution of that ambiguity is to interpret the statute as barring relief for any alien who has been convicted of an aggravated felony after acquiring lawful permanent resident status,” irrespective of whether the individual became an LPR through admission as an immigrant or through adjustment of status.[43]

Hanif, Papazoglou, and Mendoza-Leiba

The BIA was waging a losing battle, however, as two more circuit courts promptly rejected Koljenovic, and the Fourth Circuit made clear that there is no meaningful distinction, for purposes of the aggravated felony bar, between a noncitizen who was originally admitted as a nonimmigrant and later adjusted to LPR status and one who entered without inspection and then adjusted.[44] In Hanif v. Attorney General, the Third Circuit considered the BIA’s approach and conceded that the argument in favor of a broader interpretation of the aggravated felony bar “has some appeal.”[45] But the court disagreed that abiding by the plain meaning of section 212(h) produces an absurd result, because “Congress could have had reasons to treat LPRs differently based on whether or not they were admitted to the United States in that status.”[46] Ultimately, though, Hanif simply concluded that “we cannot substitute our judgment for that of Congress. We can, and in fact, must, give the statute the meaning Congress intended.”[47]

Likewise, the Seventh Circuit in Papazoglou v. Holder found itself bound to apply the statute as written, not as the BIA seemingly wishes it had been written but was not.[48] The court explained:

The government’s interpretation [of INA §212(h)] would conflate two requirements, and preclude waiver whenever a person was lawfully admitted for permanent residence. We will not interpret a statute in a manner that renders part of it irrelevant, particularly where, as here, the statute has an unambiguous meaning if we simply apply the definition provided in the statute itself.[49]

Explicitly agreeing with the other circuits that have rejected the Board’s construction of the aggravated felony bar, the Seventh Circuit held that the plain language of the statute confirms that section 212(h) relief “is precluded only when the person was a lawful permanent resident at the time of his or her lawful entry into the United States.”[50]

Finally, in Mendoza-Leiba v. Holder, the Fourth Circuit sought to resolve any lingering uncertainty over whether there is a meaningful distinction between an LPR who acquired that status after being admitted as a nonimmigrant versus after entering without inspection.[51] The court stated:

The government argues that accepting Mendoza’s interpretation would produce an absurd result in that there is no rational basis for favoring aliens like him, who entered the country illegally and only later obtained their LPR status through adjustment, over those aliens who entered the country illegally. As we have explained, however, that is an argument we specifically rejected in deciding Bracamontes. We are without authority to revisit it here.[52]


What does this all mean for the immigration practitioner whose client needs a 212(h) waiver to overcome inadmissibility due to a criminal conviction – particularly where that conviction qualifies as an aggravated felony? For cases arising in the Third, Fourth, Fifth, Seventh, Ninth, and Eleventh Circuits, only those noncitizens who were admitted to the United States as LPRs – i.e., after inspection and authorization at a port of entry – are barred from seeking a waiver under section 212(h). Clients who were originally admitted to the U.S. as nonimmigrants, or who entered the country without inspection, and later adjusted to LPR status before acquiring an aggravated felony conviction are eligible to apply for 212(h) relief. Outside these six circuits, the BIA’s broader interpretation of the bar, as articulated in Koljenovic and E.W. Rodriguez, prohibits any permanent resident convicted of an aggravated felony after acquiring LPR status from seeking a 212(h) waiver. But lawyers in these jurisdictions should continue to press the contrary arguments, until either the circuit court rules favorably or the Board surrenders its indefensible position.

* Thomas K. Ragland is a founding Partner of Benach Ragland LLP in Washington, D.C.

[1] For conviction of a single crime involving moral turpitude.

[2] For conviction of two or more crimes for which the aggregate sentences to confinement were 5 years or more.

[3] For engaging in prostitution.

[4] For involvement in serious criminal activity and assertion of immunity from prosecution.

[5] For violation of any law relating to a controlled substance.

[6] INA §101(a)(13)(A).

[7] Division C of Pub. L. No. 104-208, 110 Stat. 2009-546.

[8] See Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), vacated, Aremu v. Dep’t of Homeland Security, 450 F.3d 578 (4th Cir. 2006); Matter of Rosas, 22 I&N Dec. 616 (BIA 1999) (en banc); Matter of Rainford, 20 I&N Dec. 598 (BIA 1992).

[9] 20 I&N Dec. at 601.

[10] 22 I&N Dec. at 623.

[11] Id.

[12] Id. at 621-23.

[13] Martinez, 519 F.3d at 546.

[14] Id. at 543-44; see also Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845 (1984).

[15] Id. at 542.

[16] Yin Hing Sum v. Holder, 602 F.3d 1092, 1098 (9th Cir. 2010).

[17] Id.

[18] Id. at 1096 (quoting INA §101(a)(13)(A)).

[19] Koljenovic, 25 I&N Dec. at 223-25. The issue in Koljenovic is the 7-year continuous residence requirement in INA §212(h), rather than the aggravated felony bar. However, the question posed – whether an alien who became an LPR through adjustment of status has “previously been admitted to the United States as an alien lawfully admitted for permanent residence” – is the same.

[20] 25 I&N Dec. at 221 (emphasis added).

[21] Id.

[22] Id. at 223.

[23] Id. at 222.

[24] Id.

[25] Id.

[26] Id. at 223.

[27] Id. (quoting Martinez, 519 F.3d at 546).

[28] Id.

[29] See Lanier, 631 F.3d at 1366-67; Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012).

[30] Lanier, 631 F.3d at 1366.

[31] INA §212(h).

[32] Lanier, 631 F.3d at 1366-67.

[33] Id. at 1367.

[34] Bracamontes, 675 F.3d at 382-83.

[35] 675 F.3d at 385.

[36] Id.

[37] Id. at 386.

[38] Id.

[39] E.W. Rodriguez, 25 I&N Dec. at 788.

[40] Id.

[41] Id.

[42] Id. at 788-89.

[43] Id. at 789 (expressing concern that “refusal to treat adjustment of status as an admission can result in serious incongruities”).

[44] Hanif v. Att’y Gen. of the United States, 694 F.3d 479 (3d Cir. 2012); Mendoza Leiba v. Holder, 699 F.3d 346 (4th Cir. 2012); Papazolglou v. Holder, 725 F.3d 790 (7th Cir. 2013).

[45] 694 F.3d at 485.

[46] Id. at 487.

[47] Id.

[48] Papazoglou v. Holder, 725 F.3d 790, 793-94 (7th Cir. 2013).

[49] Id.

[50] Id. at 794.

[51] 699 F.3d 346 (4th Cir. 2012).

[52] Id. at 353 (internal citation omitted).


9 Dec

This article was prepared by the George Washington Law School Immigration Clinic and was written by  GW Law Professor Alberto Benitez (second from left) and Immigration Clinic Alumni Cleveland Fairchild (fifth from left), Binta Mamadou (seventh from left), and Rebekah Niblock (fourth from left).


One of the most common sound bites to emerge from the ongoing immigration debate is that the immigration system is somehow “broken.” I have directed the George Washington Law School Immigration Clinic since 1996, and I do not share this view. The reality is that most critics have never set foot in an immigration court or a detention center.

The immigration system is not broken. The system has flaws and there is room for improvement, but it works well for most people in most cases. The student-attorneys who I supervise are all in their third year of law school and come from different walks of life. Despite their differences, the students share a common objective of wanting to help people and be a part of an immigration system that saves lives and reunites families.

A Great Big Hug

A great big hug exchanged between a student-attorney and her client’s two children exemplifies the immigration system working as it should. Earlier in the day, the student-attorney accompanied her client to the Immigration and Customs Enforcement (ICE) Field Office to figure out what was going on with the client’s case. The client had recently come to the United States with her two children to flee gang-related violence.  The client found herself in a new country with a different language and swept into an immigration system that she did not understand.

As the student-attorney stood in line waiting to speak to an ICE official, the client stood trembling with her two children at her side. The client began to pray and perform the holy trinity in Spanish. After waiting for some time, the student-attorney asked to speak directly with the ICE officer managing the client’s case. The ICE official agreed to meet with the student-attorney and informed her that the client was in removal proceedings and would be receiving a court date shortly. The client was utterly confused and she did not understand the conversation until the student-attorney translated the information into Spanish. Even though the client learned that she was in removal proceedings, she felt a sense of relief because she now had answers and knew exactly what was going on in her case. When the student-attorney and the client parted, the client’s children reached up and gave the student-attorney a great big hug. While trips to the ICE Field Office are understandably terrifying for immigrants, news to the clients that they will have their day in court is proof that the system works.

She Fell to Her Knees

As the woman fell to her knees outside the courtroom following her hearing, I could tell that the student-attorney was caught off-guard. The woman was in tears, but these were tears of joy. After more than two years of uncertainties, countless meetings, and medical and psychological evaluations, she could now sigh in relief. At that point, she knew that she would never have to return to the country responsible for the disappearances and deaths of several family members and where she had suffered for expressing unpopular political views.

I observed the student-attorney’s reaction. I could tell that she maintained her composure because lawyers are taught to be stoic, particularly in front of their clients. In those few minutes, I recalled the student once telling me that she had dreamed about the ICE attorney who she had to face during the trial. I remembered how hard the student-attorney worked on behalf of the client and the emotional roller coaster that she endured. Her personal commitment to the case was extraordinary-she even gave the client a suit to wear to court! Naturally, she questioned the strength of the case and whether the client would be granted asylum even though the client’s claim was compelling.

On the day of the trial, the student-attorney went to court prepared to advocate for her client. After both sides made their arguments, there was a long period of silence while the immigration judge made notes and flipped through the evidence. Eventually, he looked up and announced his ruling.

That afternoon was a victory, but not just for the client or the student-attorney. It was a victory for the immigration system. It was evidence that the system works.

Keep in Mind What the Immigration Laws Are Supposed To Do

In considering what it is that we want to fix, we should remember what our immigration laws were written to accomplish. Lost in the talk of immigration reform is the fact that the current U.S. system is the world’s best at reuniting separated families, allowing foreigners to invest in the economy, and bringing talented students from around the world to our universities. The system is good at providing persecuted refugees with a chance to resettle in the U.S. and establish a better future. Many countries have smaller populations, smaller borders, and less demand for visas; yet, they have settled on having immigration systems that are hopelessly complicated and inefficient. It is my desire that any upcoming reform focus primarily on the day-to-day activities that an immigration system must necessarily accomplish. If the overwhelming focus is on having a system that effectively keeps people out, we might end up with a system that does not do much of anything at all. To me, that sounds broken.

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

25 Nov

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

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

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

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

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

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

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

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

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

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

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