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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.

Federal Court Victory for Hospital Staffing Services Company

10 Dec

hospital

Just beforeTKR Thanksgiving, we filed suit in federal district court against U.S. Citizenship and Immigration Services (USCIS) on behalf of a hospital staffing services company. Our lawsuit challenged the agency’s denial of an H-1B specialty occupation visa to a foreign physician whom the company sought to employ to care for patients in a low-income, medically underserved area. This is a story of why litigation matters, and why suing the government is sometimes the only way to achieve a just outcome. Last Friday, a mere fourteen days after the lawsuit was filed, USCIS reopened the case, reconsidered its prior denial, and approved the H-1B visa. The company will get its physician, the physician will get to stay in the U.S. and continue his work in internal medicine, and the residents of the medically underserved area will be afforded the quality medical care they so desperately need. But there’s more to the story …

Many communities throughout the U.S. lack sufficient, quality health care services. Their local hospitals are not sufficiently staffed and the specialties and expertise that many patients require are simply unavailable. Thus, certain regions of the country are designated by the federal government as health professional shortage areas, because they struggle to attract qualified doctors and nurses who are willing to live and work in often rural areas where the residents may be poor or low-income. In an effort to meet this need, Congress passed a law whereby foreign physicians who would otherwise have to leave the U.S. upon completion of their residency – and remain outside the country for at least two years – can waive this Physicianrequirement by committing to spend three years in a health professional shortage area. The program makes sense – patients in medically underserved communities get a qualified, committed physician and the foreign doctor avoids a two-year exile from the United States.

The physician whom our client sought to employ is typical of those who benefit from the program. After completing his residency at a U.S. hospital, he was granted a waiver of the two-year home residency requirement in exchange for his agreement to serve in one of the state’s health professional shortage areas. He was offered a position as an internal medicine physician by the hospital staffing services company, which then filed a petition for an H-1B visa on his behalf. Everything appeared to be in order and it seemed only a matter of time before the visa would be issued. But the immigration service had other ideas.

Rather than approve a straightforward petition filed by a company that had never before been denied an H-1B visa, USCIS issued a lengthy request for additional evidence (RFE), questioning the nature of the job of the viability of the petitioner. The company promptly submitted a detailed response. The agency then issued a second RFE, asking for yet more information and documentation – all of which had previously been provided. Once again, the company filed a thorough response and gave the agency everything it asked for. But USCIS was not convinced, and issued a lengthy decision denying the H-1B petition – based on a purported (and insignificant) discrepancy that had not been raised in either of the RFEs. Remarkably, the agency expressed doubt that the company had made a “credible offer of employment as an Internal Medicine Physician.”

At this point, we were contacted by the attorney who represented the company before USCIS. She knew the agency’s decision was wrong and sought our help in overcoming the denial. Once we’d reviewed the decision and the underlying materials, we agreed, and proposed that litigation in federal court – rather than a protracted administrative appeal – was the best course. The company agreed, so we filed suit challenging the agency’s decision under the Administrative Procedure Act (APA) as arbitrary, capricious, contrary to law and past agency practice, and unsupported by substantial evidence. We described the merits of the petition and detailed the hardships visited upon the company, the physician, and the medically underserved community impacted by the loss of a qualified doctor. To fast-track the case, we also filed a motion for preliminary injunction, asking the Court to enjoin USCIS from its erroneous decision and order the agency to issue the visa.

And it worked. Our litigation forced the agency to reexamine the petition and consider whether its myopic decision could withstand the scrutiny of a federal judge. Just two weeks after the case was filed – and one week before a scheduled court hearing – USCIS reopened the case on its own motion and granted the H-1B petition. Today, instead of packing his bags and preparing his family for an early and unexpected departure from the United States, the physician will go to work in a community in dire need of his services. Suing the government isn’t always the best option, but sometimes it’s the only strategy that works.

GUEST BLOG: GWU Law Clinic Victory in Domestic Violence Case! By Paulina Vera

10 Nov

Vera Blog PhotoThis blog post was written by Paulina Vera, a student at George Washington University Law School, who is part of the Law School’s outstanding immigration clinic.

On October 10, 2014, my client, S-G-L-, was granted asylum by Immigration Judge Paul W. Schmidt of the Arlington Immigration Court. S-G-L- fled Honduras in 2009 after her domestic partner attacked her with weapons and repeatedly beat and raped her. S-G-L- feared that her abuser would find her if she were to move elsewhere in Honduras and for that reason she made the decision to flee to the United States. Unfortunately, S-G-L- had to leave behind her 10-year-old daughter.

S-G-L-‘s hearing only lasted about ten minutes. But those ten minutes took years of preparation and I personally worked on the case for a little over three months. The GW Law Immigration Clinic first began to represent S-G-L- in the fall of 2011. However, because her hearing was rescheduled twice, S-G-L- had to wait years before appearing before the court.

Several of S-G-L-‘s former student attorneys attended her hearing. In fact, S-G-L- joked that she had never been surrounded by so many attorneys before. Their presence helped ease my nerves and I was reminded of just how lucky I was to have their support throughout the entire process. S-G-L-‘s former student-attorneys include Diane Eikenberry, Rachael Petterson, Denisse Velarde-Cubek, Gabriela Muñoz, Kelly Rojas, and Aimee Rider. They helped in many different ways, including putting together S-G-L-‘s affidavit, obtaining her work authorization, and gathering medical reports.

By the time I was assigned to S-G-L’s case, the main tasks left were to put together the pre-trial filing (PTF) and to represent S-G-L- at her individual hearing. My first challenge arose when I reviewed S-G-L-‘s approximately 30-page affidavit with her. Though I am fluent in Spanish, I found it difficult to find the right words to discuss the traumatic experiences S-G-L- had endured. As previously mentioned, S-G-L- had suffered years of abuse at the hands of her domestic partner. This was not a topic that I was used to talking about in Spanish. Thankfully, S-G-L- was incredibly patient with me. We were able to communicate by explaining concepts or words in several different ways and sometimes, even by using gestures.

I encountered another challenge in putting together the behemoth of a pre-trial filing. By the time I was done putting it together, it was a little under 300 pages, which is actually on the shorter side as far as Clinic PTFs go. There were so many details that I had to pay attention to at once – Did my cover letter succinctly and accurately explain why the elements of asylum were met? What information should I highlight in the table of contents? Was there enough information in the affidavit? Was there too much? In addition to all of these questions, I had to figure out all of those practical things you don’t learn in a law school classroom; for example, how to correctly number, copy, and file copies of the PTF to the Court and to Immigration and Customs Enforcement (ICE).

However, the preparation for my direct examination was the biggest challenge I faced. I was understandably nervous going into the moot of my hearing but I struggled to push past those nerves even as the moot went on. I kept trying to ask what I thought would be the “perfect” question and I would pause all too often to think about what answer I was trying to elicit from my client. No matter what point of my client’s testimony we started at, I just could not seem to get the hang of it. By the end of the moot, I was frustrated and disappointed in myself.

The feedback I received from my supervisors and fellow student-attorneys after my moot helped tremendously. They reminded me that I had all the reason to be confident in myself – I had spent months preparing S-G-L-‘s case and knew the PTF backwards and forwards. My supervisors, Professor Alberto Benitez and Jonathan Bialosky, advised me that there was no such thing as the “perfect” question. They also reminded me that in immigration court, a direct examination was more conversational, so I should not force it so much. Previous student-attorney, Rachael Petterson – who was kind enough to play the role of Immigration Judge at my moot – told me that there was nothing wrong with the way I felt and she shared that she too felt the same frustrations at her first moot.

Ultimately, I did not hEOIRave to conduct my direct examination at S-G-L-‘s hearing. Yet I was ready for it. When I entered the courtroom on October 10th, I was still nervous, but no longer in a way that was debilitating. Keeping in mind all of the advice that had been given to me, I felt more confident at the actual hearing. These are lessons that I will certainly use in practice after I graduate.

Another lesson I learned in preparing for S-G-L-‘s hearing was the importance of working with the DHS trial attorney. A week before my hearing, I reached out to Ms. Jill Parikh to see if we could discuss any issues in the case. After she returned my call and outlined the various issues

she had flagged, my supervisors and I felt confident that those specific issues had been addressed by the PTF. Therefore, before the hearing I approached Ms. Parikh and asked her if she would be willing to move straight to her cross-examination, which she agreed to. After her brief cross-examination, Ms. Parikh did not oppose a grant of asylum.

At the hearing, I learned that winning asylum is also very much dependent on the adjudicator. Judge Schmidt carefully reviewed the pre-trial filing before the hearing and was familiar with the horrific facts of the case. After he granted S-G-L- asylum, he took the time to address S-G-L- and advised her to “do good things for [herself], her daughter, and the country that granted [her] refuge.” His words moved S-G-L- to tears and she repeatedly thanked him. He also reminded S-G-L- to thank her student-attorneys and Ms. Parikh. I am grateful for Judge Schmidt’s kind words regarding my pre-trial filing.

I am grateful to the GW Immigration Clinic for the opportunity to help S-G-L- seek safety in the United States. There are many people in my support system that I want to thank. I would like to thank my supervisors, Professor Benitez and Mr. Bialosky, who answered my many, many questions, set up moot hearings, and gave me invaluable feedback on my pre-trial filing and my hearing preparation. I would like to thank all of S-G-L-‘s prior student-attorneys for putting countless hours of work into this case and for being a comforting presence in the courtroom on the day of S-G-L-‘s hearing. Many thanks to my fellow student-attorneys as well for their encouragement and their willingness to help out at S-G-L-‘s moot hearing. I would like to thank Professor Maggs for observing the hearing and for his continued support of the work the Clinic does. Finally, I would like to give a big thank you to S-G-L- for being the best first client I could have asked for. S-G-L- suffered unimaginable persecution in her home country and I am inspired by her strength and her perseverance.

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.

Victory! BIA finds Domestic Violence Victims May Qualify for Asylum

27 Aug

U.S. Agents Take Undocumented Immigrants Into Custody Near Tex-Mex Border

In a major victory for immigrants, the Board of Immigration Appeals ruled yesterday that women who are unable to leave domestic violence caused by their husbands may qualify as a particular social group for asylum purposes.  This decision brings to an end a lengthy period of uncertainty regarding the viability of claims to asylum by women fleeing domestic violence.  The Board’s decision in Matter of A-R-C-G-, 26 I.&N. Dec. 388 (BIA 2014), establishing clear and controlling law to the nation’s immigration judge that victims of domestic violence can qualify for asylum.  While the law has been moving in this direction for quite some time, there was still a lack of Board precedent obligating immigration judges nationwide to follow it.  While progressive judges cobbled together legal authority from circuit court cases and unpublished decisions, recalcitrant judges used the lack of directing precedent to deny domestic violence claims.  The Board’s decisions removes any uncertainty that victims of domestic violence can obtain asylum in the U.S. due to the domestic violence they suffered in their home country.  The decision could not be more timely as the influx of women and children on the Southern border being detained in Artesia, New Mexico has shone a spotlight on the ability of victims of domestic violence to seek protection under U.S. asylum law.  The decision gives these applicants a potent new weapon and undermines the administration’s ability to remove them with barely a semblance of due process.

The decision is the result of nearly two decades of litigation on the topic of victims’ of domestic violence eligibility for asylum.  This issue has been pushed for all that time by Karen Musalo of the Center for Gender and Refugee Studies at the University of California at Hastings, who conceived the legal basis for the asylum claim and saw through a terrible BIA precedent called Matter of R-A-, which, in the BIA’s first analysis, denied asylum eligibility to victims of domestic violence.  R-A- eventually got settled with Rodi Alvarado being granted asylum but without a precedent decision.  That precedent decision came down yesterday.

In yesterday’s decision, the BIA squarely held that ” ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.”  The Board considered a case where a married woman suffered atrocious abuse at the hands of her husband, who tried to leave the relationship, and who was rebuffed by the police when she sought help.  The BIA considered the development of case law on particular social groups, the facts of the case, and the social context in which domestic violence occurs and determined that the social group of “married Guatemalan women who are unable to leave their relationship” can support a claim to asylum.

Of course, the individual facts and social context of the case are extremely important.  However, the decision gives strong support to the thousands of women fleeing domestic violence by coming to the U.S. and provides hope that there is an alternative to the violence and degradation they experienced in their home countries.