Tag Archives: gang-based asylum

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.

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

2 Jan

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

Jessica Leal Picture

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

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

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

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

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

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

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

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

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

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

Two Big Asylum Cases at 4th Circuit This Week

28 Oct

index

This week, the U.S. Court of Appeals for the Fourth Circuit, the federal appellate court which sets federal law in Maryland, Virginia, West Virginia and the Carolinas, will hear two cases regarding U.S. asylum law.  In Temu v. Holder and Martinez v. Holder, the court will consider the contours of the protected ground of “particular social group.”  The decisions in these cases will determine whether asylum law will be more inclusive or whether the law will shut many deserving applicants out of the protection of asylum.

Asylum may be granted to an individual who can demonstrate that she has suffered persecution or has a well-founded fear of persecution in her home country on account of her race, religion, nationality, political opinion or membership in a particular social group.  These five bases for asylum are known as “protected grounds.”  Whereas political opinion, race, religion, and nationality are all fairly intuitive, U.S. law has had to define “particular social group” on a case-by-case basis.  The results have been fairly uneven.  The watershed decision establishing what constitutes a particular social group is a 1985 decision by the Board of Immigration Appeals, Matter of Acosta In Acosta, the Board defined a particular social group as a group of individuals who share a certain immutable characteristic that can not be changed or is so fundamental to their identity that they should not be required to change.  The Acosta definition served asylum law pretty well for two decades.  Since Acosta, homosexuals, members of clans, family relationships, women opposed to female genital mutilation, women who refuse to conform to strict religious codes, and women seeking escape from domestic violence have all been recognized as social groups for the purposes of asylum.

However, in the last few years, the Acosta standard has come under attack by the Board of Immigration Appeals.  In Matter of C-A-, the BIA added a new element to the standard Acosta definition: social visibility.  While purporting to uphold the Acosta definition, the BIA stated that members of a particular social group must “be easily recognizable and understood by others to constitute social groups.”  By emphasizing social visibility, the BIA added a new element and resulted in denying asylum to a confidential informant against the Cali cartel whose life was in danger as his informing activities had been discovered.  The BIA found that confidential informant, by their very nature were not recognizable to the public.  The carnage continued with Matter of SEG and Matter of EAG.  In Matter of SEG, the BIA held that Salvadoran youth whose life was in danger because they had resisted recruitment by gangs did not constitute a social group that was recognizable to members of society.  In Matter of EAG, the BIA also found that persons resistant to gang membership and those who might be mistakenly identified by police as gang members did not qualify as social groups.  CA, SEG and EAG have severely limited the class of individuals who could qualify for asylum by claiming persecution on account of membership in a particular social group.

Some courts have rejected the BIA’s analysis.  In Benitez-Ramos v. Holder, the U.S. Court of Appeals for the 7th Circuit in Chicago rejected the social visibility test, insofar as the BIA test required that a group member be visible on sight.  The 7th Circuit held that the social group of “former gang member” was immutable and that gang membership is easily identifiable, as is former gang membership.

The 4th Circuit will now consider in Martinez whether a young man who was conscripted into a gang and subsequently left can obtain protection under U.S. asylum law.  Mr. Martinez was attacked on multiple occasions and was aware that gang leaders had given the “green light” to other gang members that they were free to murder their former compatriot.  In its decision in Martinez, the BIA decided that Congress could not have intended gang membership and therefore former gang membership to create an opportunity for protection under U.S. law.  Congress could not have intended for criminal gangs to be social groups worthy of protections of U.S. law.  The 4th must decide whether former gang membership is immutable and how closely it will adhere to the BIA’s social visibility test.

In Temu, the 4th Circuit must consider whether a man who was imprisoned and tortured in his home country of Tanzania because he was acting erratically as a result of his mental illness qualifies for asylum.  When Mr. Temu was beaten in the prison in Tanzania, he heard the guards call him names reserved for the mentally ill, except in Tanzania the belief is that such behavior comes from demonic possession rather than biochemical origins.  The BIA held that Temu was imprisoned because of his behavior and not because of his mental illness, even though the record is clear that, once in prison, he was treated differently than other prisoners because of his mental illness.

Both cases are being argued by experienced and talented lawyers who are working pro bono.  Argument is this week and we expect decisions in the spring.  We will keep you updated and have our fingers crossed that the law will become more welcoming from those seeking violence and persecution in their home countries.