BR Has Another New Lawyer!

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

(Elanie with her asylum clients from Honduras)

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

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

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

(Elanie’s dog, Fig)

BR “Stars” at American Immigration Lawyers Association Conference

The Benach Ragland crew just returned from the annual conference of the American Immigration Lawyers Association in Boston, Massachusetts.  The annual meeting is the largest gathering of immigration lawyers and provides an opportunity for lawyers to learn from each other and improve their services to their clients.  This year, Benach Ragland attorneys Dree Collopy and Andres Benach, served on the conference faculty.  On Friday, Dree spoke on a panel that encouraged lawyers to think about issues in removal proceedings that go beyond the availability of relief entitled “Challenges and Strategies Beyond Relief.”  On Saturday morning, Andres served as a “Star” on the “Litigating with the Stars” panel, which challenged lawyers in the audience to think through common (and uncommon) scenarios and share their strategy.  The “stars” then critiqued the answers.  It was, indeed, a pretty sharp group of lawyers, as the stars gave out lots of “9s” and “10s.”

AILA also asked Andres to serve a third year as a member of the amicus curiae committee, the committee that decides which cases AILA will support with amicus briefs and prepares briefs on behalf of the organization.  In 2013-14, the committee submitted sixty briefs.  Dree was chosen again to serve as the Chair of the AILA asylum committee.  Thomas Ragland will continue to serve on the Federal Court Section Steering Committee.

The highlight of the conference was Saturday evening, when AILA gave its 2014 Joseph Minsky Young Lawyer Award for Outstanding Contributions in the Field of Immigration and Nationality Law.  In presenting her with this award, AILA cited Dree’s full caseload at Benach Ragland, as well as her leadership of the Catholic University Law School Immigration Clinic and her stewardship of the AILA National Asylum Committee.  Lastly, AILA noted that Dree is writing the upcoming edition of AILA’s Asylum Primer, a practical how-to for anyone seeking to represent an asylum seeker.  AILA subsequently published Dree’s speech accepting her award on its Leadership Blog.  Dree cited the humanitarian crisis on the border, the lack of due process, and the failure of the political branches to address the serious policy issue of immigration:

We are now faced with a humanitarian crisis at our borders.  CBP and ICE officers are using excessive force, inhumane detention conditions, and “no process” removals. We are faced with immigration courts fighting against insufficient resources, overcrowded dockets and cabined legal discretion. And we are faced with a renewed assault on our asylum system by Congress and the agencies themselves.

Yet, no actions are taken by those in power to fix our system. Instead we have a Congress that points fingers and strikes a pose in Capitol Hill hearings and an Administration which, on the back of an immigration reform-focused campaign, has taken to putting Band-Aids on gashes rather than treating the underlying wounds.

Until we have leaders who are going to work together to solve real problems that affect real people, American businesses, and separated families, it is up to us. It is for these reasons that this award is only the beginning of my journey.

After the awards ceremony, BR and many FOBRs headed out for a night of dancing, before getting back to the work that we knew awaited us.

 

More on Asylum Litigation and the Meaning of Particular Social Group

Last week, we told you about two cases that the U.S. Court of Appeals for the 4th Circuit heard oral arguments on.  As we discussed, these cases will go a long way towards setting the law on what constitutes a particular social group for purposes of asylum.

One of these cases, Martinez, dealt with the issue of whether a former gang member can be granted protection in the U.S. because of a clear likelihood of persecution because of his status as a former gang member.  In Martinez, there is no doubt among the government or the courts that he will be harmed if he returns to El Salvador.  The question is whether he falls within a group meriting protection under U.S. asylum law.  The Board of Immigration Appeals said that Congress did not intend for someone to gain protection in the U.S. because they were once part of a criminal enterprise, which the Mara Salvatrucha certainly is.  The BIA reasoned that a person should not be able to get a benefit like protection for removal because of involvement in a gang and that gang membership is not what Congress had in mind when it allowed for protection for members of particular social groups.  Mr. Martinez’s lawyers, a very talented group led by FOBR Maureen Sweeney of the University of Maryland Law School Immigration Clinic, argued that Congress established a number of bars to asylum and withholding of removal and that previous gang membership was not among them.  Had Congress wished to exclude such individuals, it could have easily specified in the statute.  Martinez argued that the BIA created a bar to asylum and that was, in fact, Congress’ job, and not the Board’s.

Those arguments, made in briefs to the 4th Circuit, framed the argument held last Thursday.  Maureen Sweeney argued for Mr. Martinez and FOBR Ben Casper argued for the American Immigration Lawyers Association, which filed a brief supporting Mr. Martinez’s claim to protection.  After the hearing, Maureen emailed the following report:

We had oral argument this morning, and I’m not one to draw overly optimistic conclusions from such things, but I will say that two of our 3 judges seemed to really get what the case was about. Our panel was Judges Wynn, Neimeyer and Flanagan (sitting by designation). Judge Neimeyer pretty much spent 40 minutes arguing our case for us – completely got the analytical distinction between current and past gang members, and spoke admiringly of how our client was trying to do the right thing and be a person of conscience, and how they’d just kill him for it if he had to go back. Judge Wynn seemed concerned about being asked to actually find all the elements of particular social group, but he didn’t seem to object to the idea of finding immutability and remanding the case for the BIA to do the rest of its job. Judge Flanagan was the hardest to read. Ben Casper from AILA did a great job pointing out how the Bd decision just adds to the chaos that is PSG jurisprudence right now. Judges seemed uninterested in whether initial membership in the gang was voluntary or not – they seemed to get that once the person left, that became the defining characteristic. And they didn’t seem particularly worried about letting in a bunch of bad guys. As Judge Neimeyer said, “That’s what you have all those bars in the statute for.” We will, of course, see what their decision says when they get around to writing it.

Thanks to all of you for all your help and support with this case and this new adventure in appellate work for me and our clinic. It made a big difference to me to feel like we had the support of such a great community behind us.

And the interesting trivia fact of the day is that we believe we were arguing in the courtroom where Jefferson Davis was tried after the Civil War. So if anybody ever asks you what Julio Martinez and Jeff Davis have in common, now you know!

A very encouraging report, to say the least.

A bit of bad news is that, on the day the case was argued in Richmond, the Court of Appeals for the First Circuit sitting in Boston issued a terrible decision on the same issue. In Cantarero v. Holder, the First Circuit held, “The BIA reasonably concluded that, in light of the manifest humanitarian purpose of the INA, Congress did not mean to grant asylum to those whose association with a criminal syndicate has caused them to run into danger.  Such recognition would reward membership in an organization that undoubtedly wreaks social harm in the streets of our country.”  It then added, preposterously, that recognition of such a social group “would, moreover, offer an incentive for aliens to join gangs here as a path to legal status.”  In rejecting protection, the 1st Circuit set up a circuit split between itself and the 7th Circuit and the 6th Circuit which had already concluded that former gang membership was a legitimate particular social group for asylum purposes.

Whatever the 4th Circuit does in Mr. Martinez’s case, it appears that this issue is teeing up for a showdown at the Supreme Court.

Thomas Ragland’s Speech at the AILA Awards Ceremony

Thomas Ragland received the Edith Lowenstein Award for Excellence in the Advancement of the Practice of Immigration Law from the American Immigration Lawyers Association.  He made a speech.  Here it is:

Things are about to get really interesting

As Washington, DC has seemed to jump from winter to summer, the politics of immigration reform are heating up.  For the rest of this week, the Capital will be inundated with activists, lawyers, politicians and celebrities all advocating for immigration reform.  Among all this activity, the Senate “Gang of Eight” is prepared to release their proposed bill.  Rumored to be nearly 1500 pages, the Gang of Eight will provide the meat on the bone that all of us have been waiting to chew on.  Benach Ragland will provide you with the latest and most comprehensive information regarding the politics, the proposal, and discussions as to how the proposals will affect the lives of immigrants.

Today, April 10, 2013 at 3:30 PM on the West Lawn of the Capitol, tens of thousands of immigrants and their friends will hold a rally for commonsense immigration reform that includes a path to citizenship.  Over the past few days, buses of immigrant supporters have departed from cities all across the United States to attend the rally.  Along with the rally, immigrants are lobbying Congress, meeting with the media, and demonstrating the urgent need for immigration reform.

Tomorrow, on April 11, the American Immigration Lawyers Association (AILA) National Day of Action for Immigration Reform is being held.  Immigration lawyers and their clients will meet with their representatives to share their stories of the  hardships of the U.S. immigration laws.

If you can not make any of these events, we urge you to make your voice heard by contacting your representatives. 

Finally, we learned today that the Gang of Eight will release their bill as early as Thursday, April 11 and the House is not far behind.  As deportations continue, people organize, and the CIS runs out of H visas in a week, the urgency of immigration reform could not be more obvious.

Why Dreamers Need Lawyers

Full disclosure, I’m a Dreamer. I’m also a full-time third-year law student. I work at an immigration law firm in Metropolitan Washington D.C. and I love my job.

Like many immigrants in the United States, my family and I were screwed over by immigration lawyers and school administrators, which left me without legal status in the United States. As such, I have an inherent dislike of immigration lawyers as there are many bad ones in the profession. At the same time, I’ve had the pleasure of knowing some really great immigration lawyers who’ve helped me out on innumerable occasions.

As such, I have to come out strong against several politicians and non-profits who are spreading the dangerous and irresponsible messaging that Dreamers do not need lawyers for the new deferred action process starting on August 15. I’d strongly advise my fellow Dreamers to get a competent immigration attorney to draw them an immigration history chart to ascertain precisely what benefits they could be eligible for now and in the near future. Not doing so, would be highly irresponsible. Laura Lichter, President of the American Immigration Lawyer’s Association (AILA) does a great job of telling us why we need lawyers, but I have a few more reasons to add.

First, since June 15 2012, dozens of Dreamers have walked into our immigration law firm. Close to half of them actually qualify for better relief than deferred action. We’ve had lawful permanent residents consult with us not knowing they were in fact, lawful permanent residents. We’ve had cases of people who would not qualify for deferred action but are eligible for special immigrant juvenile status, and hence, a green card. We’ve had cases of people who’ve been victims of serious crimes and persecution, who would qualify for asylum and withholding in the U.S., and some who would qualify for U-Visas. We even had a case of a Dreamer who was actually a U.S. citizen because his dad had naturalized as a minor — he just did not know that he automatically became a U.S. citizen. And we’ve many Dreamers, including myself, who are eligible for green-cards through non-LPR cancellation of removal in immigration court.

Now most Dreamers are probably just eligible for deferred action. However, I don’t think it hurts to see an immigration lawyer, especially if you may be eligible to adjust your status to that of a lawful permanent resident. It also does not hurt to see an immigration attorney especially if you have crimes or convictions on your record. Sometimes, a lawyer can get you post-conviction relief, and USCIS will most likely honor that.

Second, in most cases, local non-profits do not have the legal expertise to answer tough legal immigration questions regarding legal terms like continuous presence, unlawful presence, advance parole in individual cases. For the most part, they have never actually practiced immigration law. Legal help provided at workshops or clinics is often cursory and you need an immigration lawyer to devote more than 30 minutes to your case. Besides lack of legal expertise, there is also no way that non-profits can accommodate 1.76 million applicants. In such cases, private immigration attorneys are crucial for Dreamers to get expert advise and help.

Third, not all Dreamers are college-educated with the inherent ability to fill out immigration forms (and even college-educated Dreamers make mistakes). We could fill out forms incorrectly, which could get us a denial notice, with no appeal process. In some cases, checking the wrong box could result in a notice to appear in immigration court proceedings. For the most part, we all have only one shot at doing this right. We may as well make sure that several people look at our application before it is filed and that we have strong and highly experienced advocates to follow-up with USCIS if anything goes wrong.

And finally, regardless of what USCIS says about keeping your information private and confidential, experienced immigration professionals know that ICE will not hesitate to use your information against you if they ever initiate removal proceedings. We are talking about an agency and administration that has deported more people than ever before. During conference calls with USCIS, Director Mayorkas has made it clear that those with potentially negative immigration histories, including fraud and crimes, would be referred to ICE for removal proceedings. I don’t want to discourage anyone from applying by sounding an alarm — but this is not the easy, benevolent process that some people are painting it to be.

Application fees are $465. Reasonable private immigration attorney costs should be in the range of $500-$2000, not counting any fees and depending on the complexity of the case. Immigration attorneys would need to open your files, input your information into the system, ascertain what benefits you are eligible for, get their paralegals fill several forms for you, get certified copies of your court records in some cases, gather several hundred pages of documents proving your identity and proof of presence, make copies and send them in for you. They would need to follow-up with USCIS for any notice to deny or request for further evidence. All of this requires significant time and effort, even in the most compelling cases.

It is worth your pesos to make sure that your case is handled by competent professionals and not those who may not have the legal expertise that is required to handle your case or tell you that you actually qualify for more than just deferred action. Do yourself a favor and get yourself the best advocate you can afford. It will be well worth it.  If you truly can not afford a private lawyer, remember that some of the best immigration attorneys are not at firms, but at non-profits that dedicate the time and resources to running a first-class immigration shop.