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Five Things We Have Learned about the I-601A Provisional Waiver Program

12 Jan

<p><a href=”http://vimeo.com/39267368″>Don’t Think Twice It’s Alright [Bob Dylan 1962]</a> from <a href=”http://vimeo.com/user8051179″>Dan Pick</a> on <a href=”https://vimeo.com”>Vimeo</a&gt;.</p>

Last week, we had another I-601A provisional waiver approved.  This makes us 6 for 6, so far, with a few more pending.  We have learned quite a bit in the past 18 months or so that we have done provisional waivers.

  1. Don’t underestimate your own hardship.  We think that people endure a lot of hardship and have grown accustomed to it and accepted it as the normal state of affairs rather than recognizing that things could be better.  We think that many people living with an undocumented spouse have come to accept the anxiety  surrounding the risk of separation, financial ruin and uncertainty.  Of course, this is a common human coping mechanism.  As Bob Dylan sang, “I’ve never gotten used to it, I just learned to turn it off.”  Many people that come into our office states that they can not point to any specific hardship that they would suffer if their spouse were forced to remain in their home country; they just know it would be bad.  We have found that the sense merely scratches the surface and that by digging, speaking, and, most importantly, listening, the details of the hardship can be identified.  Extreme hardship may be financial, emotional or health and safety related.  It can be a combination of these factors or it can be the presence of a single form of hardship.  The bottom line here is that too many people wrongly assume that they do not have the hardship to meet the standard and a honest and open conversation with an attorney can reveal hardship that an individual may have learned to turn off.
  2. The availability of the provisional waiver changes the game in removal proceedings. Many cases where the only relief has been a long-shot cancellation of removal are now strong provisional waiver cases.  We have found that the government is willing to terminate and reopen cases where a good claim to a provisional waiver case can be made to ICE.  These practices change from office to office, in fact, from ICE attorney to ICE attorney, but, as a general rule, we have found tremendous flexibility in removal proceedings for people who qualify for provisional waivers.
  3. The family is alive and well.  Back in 2012, when DACA came out, we were heartened to see all the young people who came to our office with their parents to discuss how DACA could change their lives.  The parents were always apprehensive and elated simultaneously to see the possibility that the dreams they had for their children being realized, if only partially.  we decided then that the family is alive and well in America.  With the provisional waiver, we are meeting all sorts of people who are raising families under the trying circumstances of one of the spouses lacking legal status.  The lives that people have been able to build despite this challenge are impressive.  However, the opportunity of obtaining lawful status opens up so many doors for families and removes the anxiety and stress of uncertainty over immigration.
  4. The National Visa Center remains a hold-up.  The NVC has been good at putting a hold on immigrant visa processing where a provisional waiver has been filed.  However, once the Visaprovisional waiver is approved, the NVC reverts to its standard practice of being an impediment, rather than a facilitator of orderly processing of immigrant visas.  For example, one challenge we have seen relates to police clearances from El Salvador.  According to the State Department, those police certificates must be obtained by the applicant in person in El Salvador.  That’s fine, except for the case of provisional waivers, where the applicant is in the U.S.  Since the NVC will not schedule an appointment until it has all the documents, this issue could force an applicant to return to El Salvador and wait several months for an interview, undermining the benefit of certainty that the provisional waiver is supposed to provide.  We are working on this specific issue and will update this blog as circumstances merit.
  5. There is nothing better than solving this situation.  When an individual goes to the Embassy, gets the visa, and returns to the U.S. as a permanent resident, we are lucky to be the first ones called.  We share the joy and relief of our clients and can immediately see the reduction in tension in their lives.  Getting to be a part of and a witness to that transformation is one of the great things about being an immigration lawyer.

Think you or someone you know may qualify for the provisional waiver? Contact us at consults@benachragland.com or 202-644-8600.

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.

BR Has a New Lawyer!

17 Dec

Adi

We have waited just over three months for this day, where we can introduce Adi Nuñez as an attorney at Benach Ragland!  Although Adi has been with us since September, Adi was sworn in as a member of the bar of the State of Maryland today and now has all the rights, privileges and obligations of being a licensed attorney.  We welcome Adi into this profession that we love and know that Adi will use her powers to benefit our clients, their families and communities for years to come.IMG_1537

This is not to say that she has not already used those powers.  Behind the scenes, Adi has poured her heart and soul into some of our most significant cases, such as Dree Collopy’s recent victory in a gang-based asylum claim for a woman and her son detained at the federal gulag in Artesia, NM.  She also was there for the great jamon and wine event last week to celebrate the holidays at BR.

A Californian of Mexican heritage, Adi joins an office that represents much of Latin America- Cuba (Andres), Colombia (Sandra), Honduras (Liana), and Peru (Mariela).  If Cubans played soccer (excuse me, futbol), we could have a World Cup.  Adi moved east to attend Catholic University for law school.  While there, she was a Student Attorney aHoliday luncht the Immigration Clinic taught by Dree Collopy.  She made quite an impression on her professor who scooped her right up after her graduation.

While Adi’s academic career included a couple of unfortunate detours working for the government on immigration enforcement issues, we do not believe that it was anything that a few months of winning cases for people won’t fix.  Also, some of her mother’s Mexican food would help too.

Adi has the care, passion and intellect to represent immigrants and their families well.  We expect many more great things from her as she grows into her career and congratulate her on this important milestone.

 

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.

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.

GUEST BLOG: Special Immigrant Juvenile Status: Maryland Closes Gap with Federal Law to Expand Courts’ Jurisdiction. By Michelle Mendez

25 Aug

This blog post was written by FOBR Michelle Mendez, Senior Managing Attorney at Immigrant Legal Service of Catholic Charities of the Archdiocese of Washington.MM

 

On April 8, 2014, Maryland Governor Martin O’Malley signed into law Chapter 96, which, through a small, technical fix that closes a gap between state and federal law, expands the jurisdiction of an equity court to include custody or guardianship of an immigrant child pursuant to a motion for Special Immigrant Juvenile Status (SIJS) factual findings. 2014Md. Laws, Chap. 96. The law expands the jurisdiction of the court by defining a child for the purposes of SIJS factual finding determinations in guardianship or custody proceedings as an unmarried individual who is not yet 21 years of age thus aligning the definition of child with the federal definition. The idea for this change in law arose from the experience of Catholic Charities Archdiocese of Washington Immigration Legal Services staff as they continued to encounter youth with harrowing life situations that rendered them SIJS eligible but who were already 18 years old. This law goes into effect October 1, 2014, but some judges have already begun accepting cases of those who have already reached the age of 18.

 

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What is SIJS?

There are few groups more vulnerable than immigrant children who are SIJS-eligible. As we have seen with the recent surge of unaccompanied minors fleeing Central America, many have arrived in the United States fleeing APphoto_Immigration Obamaa combination of violence, threats, natural disasters, human trafficking, child labor, and abuse, neglect, and abandonment from their families. Though SIJS-eligible, without competent counsel to guide them through the complexity of this family law and immigration law hybrid relief, these children face the constant threat of deportation and without legal status, access to student loans and work authorization, they face significant barriers to becoming stable, productive members of society. That is why it is imperative that we as attorneys know and understand SIJS.

A Special Immigrant Juvenile is an immigrant child who has been declared dependent on a juvenile court because a state court judge has determined that (1) his or her reunification with one or both parents is not viable due to abuse, neglect, or abandonment and (2) it is not in the best interest of the child to be returned to his or her home country. A juvenile court is defined as “a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles,” and can include a juvenile court, family court, probate court, county court at law, or child welfare court. SIJS is the only area of immigration law that incorporates the best interest of the child principle to take into account the special needs of abused, abandoned, or neglected immigrant children. When introducing SIJS back in 1990, Congress designated this task to state juvenile court judges because federal immigration authorities are not equipped to determine the best interests of children. State juvenile judges do not make immigration determinations and instead only determine if the facts required for SIJS are present in a case; U.S. Citizenship and Immigration Services (USCIS) has sole authority to grant SIJS status via the approval of Form I-360 Petition for Amerasian, Widow(er), or Special Immigrant, subject to extensive background and biometrics checks.

SIJS factual findings are issued in state courts in accordance with foster care, guardianship, delinquency, adoption, or sole custody proceedings, meaning that the request for SIJS factual findings must accompany one of these types of filings. Submitting only a motion for factual findings for SIJS will not vest the state court with jurisdiction. Dependency on a juvenile court does not require state intervention; a judge may commit a minor to the care of a private individual through a guardianship or sole custody determination, which was clarified by William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. A finding for SIJS purposes does not require formal termination of parental rights or a determination that reunification will never be possible, but Special Immigrant Juveniles are ineligible from ever sponsoring their parents for immigration status so the “chain migration” arguments do not apply to this relief.

What does Chapter 96 change?

Maryland law already permitted courts to issue SIJS factual findings. However, prior to Chapter 96, juvenile courts in Maryland could only exercise jurisdiction to consider individuals for SIJS up to age 18, which is the age of majority for guardianship and custody matters, even though federal immigration law permits anyone to apply for SIJS who is under age 21. This three-year gap significantly abrogated the federal law and caused undue hardship on the most vulnerable immigrant children. Chapter 96 closes this gap for this discrete class of Marylanders to carry out the will of the federal law on SIJS.

How Does Chapter 96 Benefit Maryland?

By expanding Maryland courts’ jurisdiction when determining whether immigrant youth qualify for SIJS, Maryland will have more stable families and community members. Through guardianship and sole custody proceedings, private individuals who want to take on the full legal and financial responsibilities of youth who have been abused, neglected, and abandoned can do so, providing an adult role model and easing reliance on state resources. At the tender age of 18, adult supervisiMD mapon makes a critical difference – studies show that involvement of surrogate parents is a key factor in educational achievement and avoiding risks such as alcohol and drug abuse, teen pregnancy, and violence. SIJS youth can gain protection against being forced to return to unstable, life-threatening environments as well as obtain legal status, making it easier to qualify for student loans and attend school, learn English, and work legally. These youth become productive members of society, benefiting Maryland’s economy and increasing tax revenue and consumption. Moreover, SIJS proceedings are fiscally neutral to the state: the Department of Legislative Services determined the changes made by Chapter 96 fit within existing judicial procedures and carry no additional fiscal effect.

With children from Honduras, El Salvador, and Guatemala seeking safety in United States and Maryland having received 2,205 of these children from January 1 to July 7, 2014, Maryland will be able to serve the families of these children better than any other state thanks to Chapter 96. Chapter 96 will allow SIJS-eligible children to pursue this relief consistent with the intent of the Congressional framework, and not needlessly close the courthouse door on them on their 18th birthdays. This is crucial because the number of non-profit and private attorneys with SIJS competency do not meet the demand for representation for SIJS-eligible children so the wait lists are long and the cases slow-moving. Thanks to Chapter 96, the abused, abandoned, or neglected undocumented immigrant children who come to Maryland will have better chances and a longer opportunity of becoming documented, fully-contributing members of our society.

To learn more about SIJS, consider taking a case pro bono case from one of the following reputable non-profits with in-house SIJS expertise and a pro bono program offering mentorship and sample materials:

 

Catholic Charities of the Archdiocese of Washington

Immigration Legal Services

Pro Bono Coordinator Jim Feroli, James.Feroli@catholiccharitiesdc.org

 

Kids in Need of Defense (KIND)

Washington, DC Office

Christie Turner, cturner@supportkind.org

Baltimore Office

Liz Shields, lshields@supportkind.org

 

Catholic Charities of the Archdiocese of Baltimore

Esperanza Center

Managing Attorney Adonia Simpson, asimpson@catholiccharities-md.org

 

Capital Area Immigrant Rights (CAIR) Coalition

Legal Director Heidi Altman, haltman@caircoalition.org

*Detained cases only

 

To learn more about how this law came to fruition, visit: https://cliniclegal.org/resources/articles-clinic/maryland-law-expands-eligibility-special-immigrant-juvenile-status

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

22 May

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

 

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

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

Congratulations dear friends.

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

1 May

Ana and Brittni

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

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

The Master Calendar Hearing

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

Learning about Joe’s Tragic Past

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

Developing the Legal Strategy

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

Joe’s Wife Succumbs to Breast Cancer

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

Preparing for the Individual Hearing

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

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

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

The Judge Grants Joe LPR Cancellation of Removal Relief from Removal

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

Brittni Ana and client

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

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

 

* An alias has been used.