Tag Archives: GW Law

GUEST BLOG: Gender-Based Asylum Victory in Virginia by the George Washington University Law School Immigration Clinic

15 Apr

This post was written by Sydney Barron, a law student at George Washington University Law School and a member of the school’s Immigration Clinic, under the direction of Professor Alberto Benitez.  Benach Ragland periodically offers this space to law students and non-profit organizations to discuss their immigration cases.  If you are a law school professor or a non-profit organization that wishes to tell the story of one of your immigration cases, please write us at acbenach@benachragland.com.

 

On March 11, 2014, my client, Julia[1] won the asylum that she requested over a decade ago. Julia fled horrific domestic violence in her home country, Guatemala, and came to the United States in 2002. Unfortunately, Julia was not able to bring her children with her when she fled. After she entered the United States, the George Washington Immigration Clinic helped her file her asylum claim. Julia had to live with uncertainty for over a decade as her case wound its way through the immigration system. By the time Julia was finally granted asylum twelve years after fleeing her abuser, she had appeared before three different immigration judges, and worked with twenty different student-attorneys from the GW Immigration Clinic.

Sydney Barron Photo

GWU Law Student Sydney Barron

Julia filed for asylum in 2003. There was insufficient time for all of her testimony and cross-examination at her first individual merits hearing in 2004, so she had an additional individual merits hearing scheduled. The next hearing was not held until 2006 because the immigration court was so busy at the time.

When Julia first filed for asylum, the law of asylum for victims of domestic violence was far from favorable. At that time, the immigration courts were waiting for regulatory guidance on the issue of granting asylum to victims of domestic violence, but were hesitant to grant asylum while such guidance remained pending. For this reason, the immigration judge administratively closed Julia‘s case in 2006. This situation provided only temporary protection, and her case could be reopened at any time. Additionally, even though Julia could remain in the United States while her case was administratively closed, she could not bring her children here unless she was granted asylum.

A year later in 2007, the Department of Homeland Security (“DHS”) requested that the case be reopened. In June 2009, the immigration judge issued a written decision finding that Julia was credible and had suffered harm rising to the level of past persecution, but there was no “nexus” between the harm she suffered and her membership in a particular social group. The immigration judge therefore denied Julia‘s asylum claim.

The GW Immigration Clinic assisted Julia in appealing her case to the Board of Immigration Appeals (“BIA”). Before Julia‘s appeal was decided by the BIA, the law on asylum for victims of domestic violence shifted and became more favorable. The most well-known case on the eligibility of victims of domestic violence for asylum is Matter of R-A-. In Matter of R-A-, a Guatemalan woman suffered terrible abuse from her husband.[2] Fourteen years after R-A- applied for asylum, in December 2009, an immigration judge granted R-A-’s request for asylum.[3] Another central case regarding asylum for victims of domestic violence, Matter of L-R, ended in 2010 with a grant of asylum.[4] In both Matter of R-A- and Matter of L-R-, DHS submitted briefs describing the circumstances that they considered sufficient for a domestic violence victim to be eligible for asylum.[5] Given these two historic asylum grants, a prior student-attorney at the GW Immigration Clinic submitted a Motion to Remand Julia‘s case with the BIA.

When I first met Julia, she had not yet heard back from the BIA about the Motion to Remand. During my first semester in the GW Immigration Clinic, the BIA remanded Julia’s case to the Arlington Immigration Court. My first appearance in immigration court was for Julia‘s master calendar hearing. The GW Immigration Clinic Director, Professor Alberto Benitez, and my other supervisor, Mr. Jonathan Bialosky, prepared me to ask for a grant of asylum at this hearing. They explained that this was an unlikely outcome, and was extremely unlikely without DHS’s support. However, if I were able to convince DHS to agree to a grant, the immigration judge might grant Julia asylum given the prior immigration judge’s findings on credibility and the violence Julia suffered.

On the day of the master calendar hearing, the DHS trial attorney had not yet received Julia‘s file from the BIA, and could not support a grant. Luckily, the immigration judge recognized that Julia had already been waiting for over a decade, and scheduled the merits hearing for March 11, 2014. This was a huge relief to Julia, and myself, since some cases are scheduled up to two years from the master calendar hearing date.

In preparation for the individual hearing, I met with Julia multiple times a week. Her family members had alerted her to continued threats made by her abuser, including threats to beat, rape, and kill her. I submitted affidavits from Julia and her family about these threats.   I also submitted evidence from a psychiatrist, which supported Julia‘s testimony, and multiple articles about Guatemala and its institutionalized acceptance of domestic violence.

Before the individual merits hearing with the immigration judge, the GW Immigration Clinic held a moot hearing with Julia. Professor Benitez and Mr. Bialosky explained that I should not have a set of questions written down, because they had seen student-attorneys become dependent on a list of questions, ignoring what their client was actually saying. I wrote out the main issues that I wanted to get Julia to testify about, and practiced asking non-leading questions with other student-attorneys.  On the day of the moot hearing, I realized the difficulty of an actual direct examination, especially the difficulty of asking non-leading questions to get Julia to provide necessary details. Additionally, Professor Benitez and Mr. Bialosky asked the student-attorney playing the role of the trial attorney to try to surprise and rattle me by objecting to my evidence and submitting new evidence during the moot. The moot hearing taught me the importance of carefully listening to the client’s testimony and asking sufficient follow-up questions to ensure the client mentions all relevant details. It also taught me the importance of projecting confidence in my questions and responses, especially when unexpected issues arise.

The day before the hearing, I called the trial attorney who was assigned to Julia‘s case. I left her a message asking if she had received my pre-trial filing, and offering to answer any questions she might have. That afternoon the trial attorney returned my call while I was in class, and while I was able to excuse myself to an empty room, I did not have any of my notes with me. My lack of notes initially worried me; however, once the trial attorney started asking me questions about the case, I realized that the months of preparation had hammered all of the facts into my head, and I could easily discuss the case without any notes.   We discussed the procedural history of the case and the evidence that Julia’s abuser continued to threaten her. After answering all of the trial attorney’s questions, I felt confident that the trial attorney appreciated the grave danger that Julia would face if she were forced to return to Guatemala.

On the day of Julia’s individual merits hearing, Professor Benitez, Mr. Bialosky, and many of the other student-attorneys who came to support Julia were present in the courtroom. Immediately before the hearing, the trial attorney informed me that she would not be opposing a grant of asylum. Julia was extremely excited, but I explained that nothing was certain until the immigration judge granted her asylum. The immigration judge requested that I do a short direct examination of Julia, and after my direct examination the trial attorney did a short cross-examination. After Julia returned to her seat, the immigration judge gave his oral decision granting Julia asylum. To the surprise of everyone in the courtroom, Julia asked the judge if she could hug him. The judge explained that he could not hug her in person, but that he would “hug” her from where he was. Both Julia and the immigration judge hugged the air in front of them in a very touching moment. Julia also hugged the trial attorney after the hearing was over. Professor Benitez told me later that it was the first time that he had ever seen a client ask to hug the immigration judge or the trial attorney.

I am grateful to the GW Immigration Clinic for the opportunity to assist Julia in her search for safety. I am grateful to my supervisors, Professor Benitez and Mr. Bialosky, who guided me through the process, set up moot hearings, and provided feedback on my pre-trial filing and hearing preparation. I am grateful to all of the other student-attorneys for their help throughout the year, providing feedback and helping to prepare Julia for cross-examination. Finally, I am grateful to Julia, an inspiring woman who persevered with immense strength. The opportunity to help protect her from further abuse and finally bring her a sense of peace and closure was an amazing gift.

 

[1] My client’s name has been changed to protect her identity.

[2] Matter of R-A-, 22 I&N Dec. 906 (BIA 1999), vacated, 22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), remanded, 24 I&N Dec. 629 (A.G. 2008).

[3] Lisa Mendel-Hirsa, Recent Landmark Victories in the On-Going Struggle for U.S. Immigration Law to Recognize and Fully Protect Women’s Human Rights, Empire Justice Center (Nov. 19, 2010), http://www.empirejustice.org/issue-areas/domestic-violence/battered-immigrants/articles/domestic-violence-and.html#.U0Ac3fldVHI.

[4] Id.

[5] Department of Homeland Security’s Position on Respondent’s Eligibility for Relief,

Matter of R-A-, 22 I. & N. Dec. 906 (Feb. 19, 2004) (File No. A 73 753 922); Department of Homeland Security’s Supplemental Brief, Matter of [L-R-, redacted] (Apr. 13, 2009).

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!