Tag Archives: immigration litigation

More on Asylum Litigation and the Meaning of Particular Social Group

7 Nov


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 to be Honored at National Immigration Lawyers Conference

25 Jun


On Thursday, June 27, 2013, the American Immigration Lawyers Association (AILA) will bestow its highest annual honor, the Edith Lowenstein Memorial Award for excellence in advancing the practice of immigration law, to our very own Thomas Ragland.  AILA is the most comprehensive and significant professional organization of immigration lawyers, comprising more than 11,000 lawyers practicing U.S. immigration law around the globe.  For the past 22 years, AILA has awarded the Lowenstein award to the lawyer who has most positively impacted impacted immigration law over the past year.  Thomas is being recognized not only for his recent important victories in Congress  and in federal courts, which have provided significant benefits for immigrants nationwide, but also for his leadership of AILA’s National Federal Court Litigation Committee, which helps lawyers around the country improve their litigation skills and share knowledge and efforts in advancing immigrant rights in the courts.  In honoring Thomas, AILA wrote, “He has done much to promote aggressive, careful and competent litigation to counter irrational and abusive decisions by the government.”

Thomas was nominated for the award by his fellow AILA members.

  • Denyse Sabagh wrote: “He is truly  outstanding  and most deserving.  He is the consummate litigator.  He leaves no stone unturned and is dogged in his pursuit of justice and getting the right results for his clients. His work in the Waheed case and the Akinsade and Abusamhadeneh litigation have been excellent.  These were extremely difficult cases and Thomas’ litigation skills won the day.  His work not only benefited the clients but created decisions which are beneficial to us all.”
  • Joe Hohenstein from Philadelphia wrote: “Thomas is a tireless litigator, I have no doubt that he is one of the most – if not the most – astute immigration practitioners in the United States today.  I am impressed with the way in which he has managed several complex cases along with increased duties for AILA on a national level – not to mention being a partner in his own firm. The thing I most appreciate about Thomas is that he has the exactitude of an engineer and the soul of a philosopher.”
  • Many Vargas and Isaac Wheeler of the Immigrant Defense Project wrote: “The Immigrant Defense Project enthusiastically supports Thomas Ragland’s nomination for the Wasserman award.  Thomas has done pathbreaking work in the field of criminal immigration law.  His outstanding advocacy on behalf of A.Waheed contributed significantly to the Fourth Circuit’s decision in Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012) striking down Matter of Silva-Trevino.  His ceaseless efforts for Akinsade resulted in important precedential victories in not one but two circuit courts, a truly impressive accomplishment.  IDP has also sought Thomas’s wise advice in other criminal immigration litigation and benefits from his valuable contributions to national litigation strategy discussions through the AILA federal litigation section, the AIC national litigation strategy network, and other fora.  He richly deserves recognition for his superb work and commitment to the rights of the some of the most vulnerable and disadvantaged noncitizens.”
  • Rekha Sharma-Crawford of the Kansas City Sharma-Crawfords wrote: “Thomas has been a leader in litigating complex, cutting edge issues while being a passionate advocate for a fair and reasonable interpretation of the immigration laws.  His dedication to his community and his clients is out shined only by Thomas’ commitment to his colleagues in helping them reach their full potentials.”
  • Bob Pauw, a scholar on representing individuals before the courts wrote: “His work in the Akinsade litigation and the Waheed case has been of the highest caliber and has provided benefits not only to his own clients but to many other non-citizens as well.  In addition, through his work as chair of the Federal Court Litigation Section he has provided assistance and guidance to other litigators throughout the country.”
  • Jeff Joseph from Colorado wrote: ““Thomas is one of the most prominent immigration litigators in AILA’s ranks.  We are so blessed to have stolen him from OIL.  He is known for taking on the most complex and challenging issues and has a track record of success.  He has also taken on leadership of the federal court litigation section and the very active list serve and has grown the section into an enormous success.”
  • Scott Pollock from Chicago wrote: “In addition to his successes in the federal courts and steering the Federal Litigation section, he is always available to mentor other litigators.  He has participated as faculty for several AIC litigation institutes.  All in all, he has done a great job to promote aggressive, careful and competent litigation to counter irrational and abusive decisions  by the government.”
  • Erich Straub of Milwaukee wrote: “I have taught with Mr. Ragland at AIC’s Litigation Institute, and I have presented with him at other immigration CLE’s.  What impresses me so much about him in those contexts is that he is able to clearly and concisely communicate how he litigates to other practitioners.  His courtroom victories speak for themselves, but his constant commitment to making other attorneys better is what makes me confident that he is having a much deeper, longer lasting impact on the immigration bar and litigation.”

Thomas’ dedication to precise, incisive, and intelligent lawyering distinguishes his practice in a field where many are content to settle for “good enough” representation. Thomas craves complexity, welcomes the last-ditch effort where all other lawyers have failed, and wields a mighty red pen.  He recognizes that clarity and details matter – on paper or in oral argument, Thomas’ words are chosen with surgical precision. And like surgical patients, his clients quite literally owe him their lives.

At Benach Ragland, we are proud and lucky to have Thomas on our team.  We learn from him everyday and are inspired by his meticulous strategy and execution.  We appreciate his friendship and his quiet and steady intensity to serve our clients to the best of his ability.

Congratulations Thomas!  We love you!