Tag Archives: gangs

Guest Blog: NOTHING IS PERFECT: TWO CLIENTS, TWO STUDENT ATTORNEYS AND THE IMMIGRATION SYSTEM THAT BINDS THEM

9 Dec

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

rsz_0196-l

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

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

A Great Big Hug

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

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

She Fell to Her Knees

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

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

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

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

Keep in Mind What the Immigration Laws Are Supposed To Do

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

More on Asylum Litigation and the Meaning of Particular Social Group

7 Nov

SCOTUS

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.