The Green Card

Welcome to the Newsletter of the FBA’s Immigration Law Section Eileen Scofield, Chair

Quotes of the Month “The discretion of a judge is said to be the law of tyrants; “Courts are the mere instruments of the law, and can will it is always unknown; it is different in different men; it is nothing. When they are said to exercise a discretion, it casual and depends upon constitution, temper, and pas- is a mere legal discretion, a discretion to be exercised in sion. In the best, it is oftentimes caprice; in the worst, it discerning the course prescribed by law; and, when that is is every vice, folly, and passion to which human nature is discerned, it is the duty of the court to follow it. Judicial liable.” power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving —Lord Camden, Case of Hindson and Kersey, 8 How. St. effect to the will of the legislature; or, in other words, to Tr. 57 (1680). the will of the law.”

—Chief Justice John Marshall, Osborn v. Bank of the United States, 22 U.S. 738 (1824).

PUBLISH IN THE GREEN CARD!

The Green Card always seeks news items and articles of all sorts. Have you formed a new firm, gotten promoted, or won a big case? Send me an article. I’m especially interested in hearing about Section activities (with photos!), such as luncheons, CLE’s and Younger Lawyer activities. Here is your chance to gain the respect and admiration of your friends and colleagues! Send your article to me at [email protected] in Word format. Photos should not be imbedded in the Word docu- ment. Please attach them as jpegs to your email.

Larry Burman, editor, The Green Card

In This Issue

Immigration Law Section Seminar at Harvard...... 3 Interview with an Immigration Judge: John F. Gossart, Jr...... 3 The Curse of the “Recommended Approval”...... 5 Our Broken Immigration Courts...... 6 Ethical Concepts For Immigration Lawyers: The “Cap” of Conscience...... 8 Diop Motions In The Third Circuit: Is A Habeas Writ A Precondition To Seeking Bond Before The Immigration Court?...... 12 Younger Lawyers Division Hosts Successful Happy Hour at Annual Conference in Memphis...... 14 Backlogs in Immigration Court Create Concerns...... 16 Cognizability of Gang-Related Asylum Claims: Looking Back and Looking Forward...... 17

Fall 2015 Published by the Immigration Law Section of the Federal Bar Association Immigration Law Section Seminar at Harvard

On Nov. 6, 2015 the FBA-ILS Law Student Committee, the Harvard Immigration and Refugee Clinical Program and the Harvard Immigration Project sponsored a judi- cial panel about adju- dicating immigration and asylum cases. This was entitled “Access to Justice and Judging in the Immigration Context: A View from the Bench.” The three pan- elists were: Honorable Michael A. Chagares of the United States Court of Appeals for the Third Circuit; Honorable Robin Kneeling Lucy Cummings (Harvard Law Clinical Program Administrator), Katrina Fleury (Co-Chair, Harvard Law School’s E. Feder of the Boston, FBA Immigration Law Section) MA Immigration Court Standing: Sabi Ardalan (Assistant Clinical Director and Lecturer on Law at Harvard), Maggie Morgan (Albert M. Sacks and Hon. Dorothy A. Clinical Teaching and Advocacy Fellow), Hanne Sandison (Co-Chair, Harvard Law School’s FBA Immigration Law Section) , Harbeck of the Elizabeth, Deborah Anker (Harvard Law Clinic Director and Clinical Professor), Hon. Robin E. Feder, IJ (FBA-ILS Immediate Past Chair New Jersey Immigration and Immigration Judge from Boston EOIR Court), Hon. Michael A Chagares, USCJ (Third Circuit Court of Appeals), Hon. Dorothy A. Harbeck, IJ (Immigration Judge for Elizabeth EOIR Court) Court.

Immigration Judge Discrimination Case Settled

The Department of Justice has at the integrity of the immigration agreed to settle the discrimination court system. case filed by Immigration Judge A. Under the settlement agreement, Ashley Tabaddor [see Green Card, Oct/ DOJ agreed to lift the recusal order, Nov 2014, page 5]. and pay Judge Tabaddor $200,000 in Judge Tabaddor was very active in attorney fees and damages. her Iranian-American community in She was represented by Ali M. M. Los Angeles. As a result, EOIR ordered Mojdehi, Janet Dean Gertz, John her to recuse herself from hearing all F. Cieslak, Allison Rego, and Erin cases involving Iranian nationals. She Trenda of Cooley LLP. The case is filed suit in U.S. District Court, alleg- Tabaddor v. Holder, no. 2:14-cv- ing unlawful discrimination based on national 06309, in the U.S. District Court for the Central origin, and a violation of her freedoms of speech District of California. and association. The National Association of Judge Tabaddor is a member of the Board of Immigration Judges (NAIJ), and several bar advo- Governors of the Immigration Law Section. She cacy groups, filedamicus briefs in her support. is a former Assistant U.S. Attorney, and teaches NAIJ argued that a blanket recusal order strikes immigration law at UCLA law school.

2 | The Green Card Interview with an Immigration Judge: John F. Gossart, Jr. By Jason Dzubow

In 2014, Immigration Judge John F. Gossart, Jr. retired Asylumist: Are there any cases that you worked on that after more than 30 years on the bench. He sat in Baltimore, were particularly memorable? where he was well-known and well-liked by attorneys on both side of the aisle (I myself had many cases with him), JFG: I was the IJ in two Nazi war criminal cases. In the case and his absence is still felt in his Court. Aside from his judi- of George Theodorovich, the trial lasted 3½ weeks. He was cial work, Judge Gossart was (and is) an adjunct professor a Ukrainian police officer who came to the U.S. under an of law and a legal educator in the wider community. The executive order. He denied all charges and claimed that the Asylumist caught up with Judge Gossart to ask about his case against him was a Russian plot. I went to the Russian career, some memorable moments, and his opinions on the embassy to review documents, and at trial, several Survivors issues of the day in Immigration Court: testified. I entered a 154-page decision, (my longest deci- sion), where he was found deportable. He appealed to the Asylumist: How did you get to be an IJ? And why was this BIA. While the case was on appeal, Theodorovich fled the position interesting for you? U.S. and went to Paraguay.

John F. Gossart: I came to immigration law totally by acci- Asylumist: As an IJ, what are some common problems that dent. I wanted to work for the Department of Justice, in you see when lawyers present cases? public sector law, and I applied for a position there. While I was waiting, I hung my own shingle and practiced law JFG: Dr. Stanley Sinkford, a renowned doctor and professor out of my house. When DOJ hired me to work at INS (the at Howard Medical School, always told his medical students, Immigration and Naturalization Service), I couldn’t even “Proper Preparation Prevents Poor Performance,” meaning spell immigration. it is usually a lack of preparation that leads to problems. My first position there was as a Naturalization Attorney. Some lawyers become too comfortable with their role; they At the time, applicants for naturalization had to file their think they can come into court and wing it. Also, proper petitions in U.S. District Court and present two character wit- vetting of clients and—more importantly—witnesses is very nesses. I would interview the petitioner and the witnesses, important. You cannot meet the witnesses 30 minutes before and make recommendations about whether the applicant the hearing and hope everything goes well. I’ve also seen should be permitted to naturalize. I remember one Judge in instances where the lawyer did not know the applicable law. the Eastern District of Virginia—“Roarin” Orin Lewis—who This was a particular problem among lawyers who dabble roared at all the attorneys. In those days, homosexuals were in immigration law. A number of attorneys came before me ineligible to naturalize because they were considered “sexual who thought that the IJ has equity powers. They would ask deviants.” I argued for a grant of naturalization for an admit- the court to allow the respondent to stay in the U.S. even ted homosexual because he abstained from sexual activities. where there was no basis to allow him to stay. I fear that The petition was denied by Judge Lewis. In another case such lawyers portray this idea to their client—that the IJ can involving two Russian “swingers” who had admitted to adul- let you stay, even without a legal basis for relief. tery, Judge Lewis called me into his chambers and read me the riot act. The two were consenting adults, but that didn’t Asylumist: How do you handle cases where you feel that matter to Judge Lewis. He denied the case. At the time, the the applicant may have relief, but lawyer errors and/or inef- statute held that persons who committed adultery lacked fective assistance of counsel might cause the alien to lose? good moral character. Then, after a stint as Deputy Commissioner of JFG: As an IJ, you almost never want to admonish an attor- Naturalization, I became a trial attorney for INS. Eight years ney in public; it is better not to be on the record or in the later, I had the opportunity to become an Immigration Judge. presence of the client. I have talked to lawyers in chambers, On October 30, 1982, I was appointed an IJ by Attorney however. I’ve told them, “If you are not familiar with law, General William French Smith. you need to become familiar. You have a duty to do your best As an IJ, I rode circuit and heard cases in many locations: for your client.” Also, if I am aware that the client appears Baltimore, DC, Philadelphia, Pittsburg, Buffalo, Hartford. I eligible for another form of relief, I will ask why the attorney loved the job. I enjoyed the challenge and I loved dealing is not pursuing it. Attorneys appreciate that a Judge is will- with people. One concern for me was that the private bar ing to talk to them in private. might view me as a prosecutor in a judge’s robe. On the other hand, sometimes when I ruled in favor of the respon- Asylumist: Have you had cases where your gut tells you dent, people at INS complained that I had “crossed over.” In to rule one way, but the evidence requires that you rule the fact, I don’t think I played favorites; I just tried to follow the opposite way? How do you deal with that? law. My mantra was to be “Fair, Firm, Decisive.”

Fall 2015 | 3 neys and OIL attorneys; it has not been extended to retired JFG: That is when a judge feels stressed, alone, and badly IJs. The Immigration Judges’ Association has been advocat- about the decision he must render. Such decisions are dif- ing for senior status as well, so retired IJs could return to ficult; I suppose that’s why we’re paid the big bucks. But we help address the backlog or cover for a Judge who is absent. are judicial officers, and we are required to follow the law. Imagine how efficient it would be for someone like me to It’s been said by the Supreme Court in Knauf v Shaughnessy, step in and work for a week or a month while another IJ was “Judicially we must tolerate what personally we regard as a on detail or leave. We have a number of IJs who are retired. legislative mistake,” but that is our role as an administrative They have decades of experience and are willing and able judge. Your gut may tell you one thing, and you may have to do this. sympathy for the person in front of you, but unless that per- In addition, we need to provide courts with adequate sup- son satisfies the requirements for relief under the law, you port staff, and IJs need more administrative time to keep up cannot get to discretion, and you cannot provide equitable with motions, read case law, and stay on top of the profes- relief. As a Judge, we have to make these kinds of difficult sion. Judges also need more training—one live conference in decisions. It is what the law requires. Ultimately, to do jus- five years is not adequate. tice, you have to read, know, and follow the law. I would also like to see implementation of the sanction recommendation that was part of the 1996 statutes. This Asylumist: Over the past couple years, we’ve heard reports would give IJs more authority to sanction attorneys for mis- about the problem of IJ burnout. Was that a factor for you? conduct. They could impose fines. Some lawyers need this How did you protect yourself? type of lesson as a wakeup call. If we are to implement a sanction process, it should apply equally to private attorneys JFG: I was constantly assessing myself, and I remained on- and government counsel. DHS had wanted sanctions only guard for burnout. Whenever necessary, I took a recess from against the private bar, but IJs generally oppose that idea— court, or I took a day off. My colleagues were very support- you have to treat both sides the same. ive in this regard; it was helpful to have someone to vent to. EOIR recently held a conference in Washington, DC— Asylumist: The definition of a particular social group the first live conference in five years. Such events are very (“PSG”) has expanded pretty significantly in the last 20 important. Judges are able to bond with colleagues. They years, mostly through litigation. What is your opinion of brought a psychologist to discuss stress. this? How do “flood gate” arguments influence IJ thinking regarding PSGs? Asylumist: What do you think EOIR could do differently to better support IJs and make the system more efficient? JFG: Since the 1980 Act came into effect, it has been litigated and litigated. I think this is healthy. PSG is the most difficult JFG: First, we need more judges and this should be done provision of the statute; other protected categories are more promptly. Preferably, we need candidates with a strong self-explanatory. immigration or judicial background. More than 50% of the IJ As to the flood gate argument, as an IJ, we cannot have bench is currently eligible for retirement. So we need regula- that as a factor for consideration. tions for phased retirement and we need to implement the One area I struggled with was PSG cases involving domes- Moving Ahead for Progress Act. This Act would permit IJs to tic violence. We are still waiting for the government to issue work part time, which is something many IJs are interested regulations to help guide us. Maybe domestic violence cases in. would be better addressed through legislation instead of try- Also, we should institute senior status for IJs, so retired ing to fit them into a PSG, especially when we have such IJs could return to the bench to help with the workload. I little guidance. Such cases are difficult because they are had proposed this idea several years ago, but personnel felt often very sympathetic. Perhaps it might be better to pass it would be difficult to do. However, in the last year, EOIR legislation to benefit the abused, rather than to try to figure has instituted a recall program, which allows Department of out how to craft this group of abused individuals into a par- Justice attorneys with sufficient experience to fill temporary ticular social group. judgeships. This program seemingly targets BIA staff attor-

From the Editor

Please send all news items to me at [email protected]. We really want to know what is happening in the Section, and in the professional lives of our members. We especially would appreciate photographs. Kindly send submis- sions in Word format.

Larry Burman, editor

4 | The Green Card Asylumist: It seems fairly common for cases referred from case on the Court’s docket. the Asylum Office to the Court to be granted by IJs. Do you If you don’t want applicants to get two bites at the think this is a systematic problem? Might there be some apple, you can require asylum applicants who are out of sort of “fix” that could take place between EOIR and the status to go directly to Court. Asylum Offices? Asylumist: Do you have any thoughts on how to reduce JFG: To do that, you would have to change the adminis- the backlog? trative asylum process, and this is a question of resources. When an asylum case is presented to the Asylum Office, JFG: DHS could better prioritize which cases are prose- there are no witnesses, there are time constraints, the cuted. We could have more pre-trial hearings. Why have a applicants must bring their own interpreters (who may be lengthy hearing if DHS won’t oppose the case in the end? good—or not). It is an imperfect system. There could also be more stipulations and more admin- When the case is referred to Court, many applicants istrative closures. Of course, there is always the issue of get a lawyer—and that makes a big difference. Attorneys Monday-morning quarterbacking. What if a person whose know what evidence to include, they present witnesses, case is admin closed commits a crime? The government they can get a psychological evaluation. This evidence is does not have the resources to prosecute all cases, but how often not presented at the Asylum Office. The system we do we know which cases to pursue? I do think if DHS had have in Court is a more perfect system. But of course, we more time for stipulations, it would ultimately save time for like the Asylum Office. Every case they grant is one less everyone. ◆

Immigration Rant

The Curse of the “Recommended Approval” By Jason Dzubow

In November 2012, we received a “recommended approv- for some reason the decision cannot yet be issued. The al” from the Asylum Office for one of my Afghan clients- Asylum Office generally won’t give the reason why they -we’ll call him Dave, though as you might guess, that is not cannot issue the decision, but in most cases, it seems to be his real name. because the security background check is not complete. We were pleased with the news. Dave had worked for the So what is the “security background check,” you ask. United Nations and as a contractor for USAID- and NATO- Every asylum applicant has their biometric and biographic funded agencies in Afghanistan. The Taliban became aware data checked against several government data bases to deter- of his work and threatened him. They contacted him by mine if they might be terrorists or criminals. While these phone. They said he was an infidel and an American spy. checks never seem to cause delay in Immigration Court They told him, “We are watching you. We know everything cases (defensive asylum cases), they can take a long time for about you and your family. We know where you are.” A Asylum Office cases (affirmative asylum cases). Why is that? bearded stranger approached his children after school and I don’t know. I asked once at a USCIS meeting, and they said tried to lure them away from their classmates. The threats it was because there are different checks at the Court and escalated and so Dave decided to seek asylum in the U.S. at the Asylum Office. I’ve never found anyone who could Dave had a United States visa, but his wife and children explain why the two agencies (DOJ and DHS) use different did not, so he came alone, in the hope that this would end background checks, and because security issues are hush- the threats and that his family members could follow him hush, I doubt I’ll ever get a good answer on this point. later. So Dave’s case was delayed while we waited for the final In those days—before the asylum backlog--cases moved approval. In those pre-backlog days, the one benefit of a more quickly. We filed the case in September 2012. Dave was recommended approval was that the applicant could imme- interviewed the next month and received his recommended diately apply for an EAD--an employment authorization approval in November. So far, so good (but as Megadeth document. In general, if an asylum applicant does not have might say, “so what?”). a decision within 150 days of filing, he can apply for an EAD. But what does it mean, this “recommended approval?” With the current backlog, nobody gets a decision in 150 A person receives a recommended approval if the Asylum Office has determined that she is eligible for asylum, but CURSE continued on page 21

Fall 2015 | 5 Article

Our Broken Immigration Courts By Steven H. Schulman

Nearly everyone agrees that the U.S. immigration sys- after escaping horrific violence languish for years in a tem is broken, even as they disagree exactly what parts purgatory status. Even if they are given the right to work, are broken and how they should be fixed. As children they are often separated from their immediate families, and mothers cross our borders seeking safety, the Obama who cannot immigrate until the case is decided. Take, Administration puts them in detention and presidential for example, the family of a Syrian torture survivor. candidates compete to propose the biggest fences. The They remain stranded in war-torn Syria while awaiting Obama Administration sets records for deportations, and resolution of his asylum case. The wife and children of Republicans demand that more immigrants be locked up a Christian pastor targeted by Boko Haram are living in and removed from the country. The H-1B cap is hit within hiding in Nigeria while awaiting the pastor’s delayed day days of filing, with the government unable to satisfy cor- in court. Family separations often have additional danger- porations’ demands for foreign worker visas. See “USCIS ous consequences. Children who have been abandoned Reaches H-1B Visa Cap For Fiscal Year 2016,” http:// by a parent may flee from harm in their home countries, www.law360.com/articles/640395/uscis-reaches-h-1b-vi- undertaking life-threatening routes to seek safety in the sa-cap-for-fiscal-year-2016. And, according to new House United States. Speaker Paul Ryan, comprehensive immigration reform A disturbing by-product of this backlog is the obstacle is off the table, at least until after the 2016 presidential this creates to pro bono involvement by the private bar. election. Over the past two decades, asylum and other immigration All the while, the most broken part of the immigration matters have become some of the most pro bono popu- system goes largely unnoticed and unfixed: immigration lar cases at large law firms, in part because the process courts cannot come close to handling the burdens placed has been both predictable and relatively speedy. Now, upon them. This is not simply justice delayed leading individual lawyers are less likely to volunteer to handle to justice denied: it is a crisis of conscience, a matter matters that will take years to resolve, particularly when of humanity, and a moment of threatening consequence. the time frame is the result of systemic delay rather than More than 430,000 individual immigrants are awaiting normal case processes. This will have a particular impact hearings in administrative immigration courts around the on young associates, who are anxious to get in-court and country. Many immigrants, some seeking asylum, others client handling experience, but are also the most likely to fighting deportation for minor criminal offenses, will wait leave the law firm during the many years of immigration an average of 14 months, but many will wait two, three or court delay. Leaders of law firm pro bono practices have four years for their cases to be heard. become increasingly wary of allowing our firms to take Those Central American women and children who on new immigration court cases that may require multiple entered the U.S. in the summer of 2014 during the so- rounds of re-staffing before the case comes to trial. called “surge” and were promised a quick determination As a result there exists a very real possibility that the of their claims to asylum? Some have had their trials, but backlogs in immigration court will cause us to lose a new many have their initial immigration court dates scheduled generation of pro bono asylum lawyers. This could set in for 2019. motion an unfortunate cycle: fewer lawyers with experi- The problem facing the immigration courts is the same ence in immigration court available to supervise future one Lucille Ball faced on the candy factory assembly line lawyers interested in representing immigrants, possibly (http://bit.ly/lucycandy): the cases are coming faster repeating itself for decades, undoing the progress we have than they can be completed. During fiscal year 2015 made in the pro bono representation of immigrants. (ended September 30), immigration judges cleared more The fix is obvious andshould be easy. Adequate fund- than 198,000 cases, up 12,500 from FY 2014 (Immigration ing of the immigration courts is desperately and quickly Courts Increase Case Closings by 7.3%, Law360, October needed. Building fences and increasing our border patrol 19, 2015). The rate at which cases piled up was even are complex and expensive; our immigration system can greater, going from 408,000 to more than 456,000. But immediately start working better by hiring more judges, over the last 15 years, the number of immigration court expanding pilot programs designed to enhance representa- judges has declined dramatically, creating a chronic back- tion, growing the legal orientation program that provides log that has resulted in these delays. much-needed information to newly-arrived immigrants, The human costs of this backlog are serious. Applicants and creating an information desk pilot program for non- who can demonstrate a legal right to be in this country detained individuals in immigration court.

6 | The Green Card First, the Executive Office for Immigration Review Desk Pilot Program, and expand legal orientation pro- (EOIR), an agency within the Department of Justice, needs grams for custodians of unaccompanied immigrant chil- the resources to hire as many as 250 additional immigra- dren. These will create further efficiencies, save addition- tion judges. The backlogs will not go away without more al money, and impact many more of the lives of those who judges to hear cases. are entitled, under our laws, to seek safety and shelter in Second, as EOIR hires more judges, it also should invest the United States. in programs that bolster pro bono resources. Augmenting But the problem will not be fixed without more fund- the Justice AmeriCorps program, and promoting pro bono ing of the immigration courts. Until then, as Lucy yelled involvement throughout the private bar, will improve the to Ethel as the candy piled up, “I think we’re fighting a level and quality of legal representation for vulnerable losing game.” ◆ populations, including unaccompanied children, protect children from mistreatment, exploitation and traffick- Steven H. Schulman is the pro bono ing, and make the entire process more just and efficient. partner at Akin Gump Strauss Hauer & Children who are without an attorney are wholly over- Feld LLP and is the immediate past presi- whelmed by a system they cannot understand. They dent, and current board member, of the are less likely to appear for their court dates, leading to Association of Pro Bono Counsel. He is great costs and inefficiencies in the operation of the court also the co-author of a report by Appleseed system. And the cost to due process, safety, fairness and on the immigration courts, Reimagining respect for the law is incalculable. Funding these efforts the Immigration Court Assembly Line will, in the end, save a great deal of money and will honor (http://bit.ly/AppRICAL). The opinions our system of justice. expressed are his alone. EOIR can also support the creation of an Information

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Ethical Concepts For Immigration Lawyers: The “Cap”1 of Conscience By Hon. Dorothy Harbeck, IJ

According to Aristotle, ethics is the attempt to offer a the lawyer goes beyond client - it is an obligation rational response to the question of how humans should to the profession itself and to the public and its best live.2 The practice of law is not a natural or constitu- faith in the legal system. Conduct is unethical if it tional right; it is not a right granted to anyone who asks undermines that faith in the honesty, fidelity, or for it; rather, it is a particular privilege, conferred only to integrity of the profession and the law. This also those who demonstrate certain standards of intellectual encompasses a commitment to improve the justice and ethical fitness. Years of post-graduate study, struggling system and advance the rule of law, to make a over law review articles, sweating through moot court limping legal structure stand straight, and ensure competitions, cramming in bar review prep classes, filling equality of access to justice and to protect judicial out labyrinthine applications, the wrenching bar exam and independence. the endless three month wait for results, sitting around Albany for two days waiting to be asked questions about When I was going to law school, I worked for a very having a driver’s license suspended for excessive speeding smart lawyer named Jerry Graham. He suggested that I ten years earlier before getting the rubber stamp to get the read The Bramble Bush: On Our Law and Its Study, writ- admission certificate…it all brings back the memories of ten especially for first-year law students by Professor Karl what we endured to obtain the privilege to practice law. Llewellyn.5 Llewellyn was a prominent American jurispru- As lawyers, we don’t just practice a craft; we have a dential scholar associated with the school of legal realism. profession. Our field is the very framework of how society The most important legacy of American legal realism is its functions. We have a duty to the public good. It is that challenge to the classical legal claim that legal reasoning characteristic which distinguishes law from business--this was separate and autonomous from moral and political symbiotic relationship with public trust. As such, we have discourse.6 Llewellyn encapsulated the realist view when a professional responsibility to adhere to ethical prin- he wrote that what judges, lawyers, and law enforcement ciples. These ethical principles keep us grounded in the officers "do about disputes is, to my mind, the law itself." public good. John Adams in 1761 wrote of the lawyer’s 7 responsibility. He asked: “to what greater object, to what To neglect the law is really to allow chaos to prevail. In greater character, can we aspire as lawyers than to assist Henry VI, Part II, Shakespeare wrote ''…the first thing we the helpless and friendless in a worthy cause [?] I say there do, let's kill all the lawyers.'' This was uttered by Dick the is none. To devote your skill and energy to the plight of Butcher, a follower of the rebel Jack Cade, who thought another, without the promise of a material reward for one- that if he disturbed law and order, he could become king. self, is what sets us apart as professionals.”3 In spite of the derogatory cartoons, t-shirts and mugs showing this slogan, Shakespeare meant it as a compli- THREE QUALITIES OF A PROFESSIONAL (DO THINGS ment to attorneys and judges who instill justice in soci- AS IF YOUR MOTHER WAS WATCHING): ety.8 Lawyers keep order. Lawyers set rules and lawyers challenge the rules, according to even more rules….that’s 1) Competence - the ability to perform basic tasks a lot of rules. Of course, lawyers also want to make a liv- well. But merely being a competent lawyer does ing…but we have to balance our ambitions with our duty not make you a good one. As Karl Llewellyn put it: to the public trust. And for this we have…rules. “Technique without ideals is a menace… ideals with- These rules are continuing—they are neither dispensed out technique are a mess." 4 with nor lowered after admission to the practice. Our continued enjoyment of this privilege depends upon 2) Ethics- an ethical code governing the conduct our compliance with the ethics and rules of our profes- of persons engaged in the practice of law and persons sion. It is also important to recognize the distinction more generally in the legal sector. Largely this is a between professionalism and ethics, even though they go list of basic prohibitions and obligations. It is elemen- hand in hand. The ethics rules (codified in the Rules of tal to abide by these Rules. But merely avoiding bad Professional Conduct) are mandatory, black letter stan- deeds is not enough. dards that establish a minimum level of conduct. Failure to abide by the rules may result in disciplinary sanction. 3) Professional responsibility- The obligation of Professionalism, however, is grounded in aspirational

8 | The Green Card goals and traditions that seek to encourage the bar, and provide alternative personnel for the client to use bench, towards conduct that preserves and strengthens to relay messages. While the attorney may delegate the dignity, honor, and integrity of the profession.9 much client contact to paralegals, the attorney is In June 2000, the Executive Office for Immigration obligated to maintain a direct relationship with the Review (EOIR) implemented a regulation, Professional client. Clients must be kept reasonably informed Conduct for Practitioners – Rules and Procedures,” to of the status of the case and provided with enough protect the public, preserve the integrity of immigration information to make decisions. Withdrawal from proceedings and adjudications, and maintain high profes- a case requires special steps. The client must be sional standards among immigration practitioners10. The informed and, in most instances, the client’s file must term “practitioners” applies to private immigration attor- be made available upon request. One last rule: Model neys and representatives who are authorized to represent Rule 5.3 refers to the lawyer’s duty with regard to aliens before EOIR’s immigration court and the Board of nonlawyer assistants:(a) a partner, and a lawyer who Immigration Appeals (BIA), EOIR’s appellate component.11 individually or together with other lawyers possesses These Rules were updated in 2008. There is also a Code comparable managerial authority in a law firm shall of Ethics and Professional Conduct for the Immigration make reasonable efforts to ensure that the firm has in Judges. 12 There are Rules of Professional Conduct in every effect measures giving reasonable assurance that the state13 and there are the American Bar Association’s Model person’s conduct is compatible with the professional Rules of Professional Conduct 14 but the best maxim to rely obligations of the lawyer;(b) a lawyer having direct upon is this: supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct DO THE RIGHT THING, IN THE RIGHT WAY, FOR THE is compatible with the professional obligations of the RIGHT REASON lawyer; and(c) a lawyer shall be responsible for con- duct of such a person that would be a violation of the The Six Cs of Legal Ethics: When you consider ethics Rules of Professional Conduct if engaged in by a law- issues, there are six areas you should pay attention to and yer if:(1) the lawyer orders or, with the knowledge of each begins with the letter C15. the specific conduct, ratifies the conduct involved; or 1) Competence - do the job right Competence. (2) the lawyer is a partner or has comparable mana- Model Rule 1.116 refers to the duty of the attorney to gerial authority in the law firm in which the person possess the legal knowledge and expertise to handle is employed, or has direct supervisory authority over the client’s issues. Have the resources and the time the person, and knows of the conduct at a time when to handle the client’s case, including properly trained its consequences can be avoided or mitigated but staff and the necessary equipment. Be sure to attend fails to take reasonable remedial action. appropriate continuing education events. Manage 3) Confidentiality - protect the client time effectively so that deadlines are met. Assess staff Confidentiality: Model Rule 1.6 refers to the duty to workload regularly to be sure work is getting done. keep all information related to the representation of a Delegate work according to ability. client confidential. Never discuss client matters with 2) Communication - with client and other counsel anyone outside the office. There are some exceptions Communications. Model Rule 1.4 covers the duty to the confidentiality rule: to prevent the client from to adequately and appropriately communicate with killing or seriously harming someone; to prevent the clients. Be sure clients understand that the attorney client from committing a crime; to bring or defend a is not always available for immediate response and claim against a client. In each of these situations, the

PUBLISH IN THE FEDERAL LAWYER!

The Federal Lawyer continues to accept submissions for feature articles of 3000 to 8000 words, as well as letters to the editor, book reviews and commentaries. Guidelines for submission can be found at the fedbar.org website under publications/federal lawyer. Deadlines fall on the first of each month from December 2015 through most of 2016. There is no immigration theme issue in 2016, but a general issue is scheduled for the end of the year, with article submissions due Aug. 1, 2016. If authors wish to submit an article with the official endorsement of ILS, they can send their draft at least two weeks in advance of the FBA deadline to Dr. Alicia Triche at [email protected]. She will consider whether ILS will endorse the submission and, if so, provide edits and submit on the author’s behalf.

Dr. Alicia Triche is Chair of the Section’s Publications Committee

Fall 2015 | 9 attorney may disclose only information essential to How? Am I sure? the matter. IS IT BALANCED? Is it fair and appropriate for both 4) Conflicts - be sure you have none Conflicts: sides, and all others concerned, in the short term as Model Rules 1.7-1.11 refer to conflicts of interest that well as the long term? attorneys may encounter. Here are some tips to avoid IS IT THE RIGHT THING TO DO? How will it make conflicts: Have a system in place to check conflicts. me feel about myself? Will my decision make me 5) Candor - to court and client proud? What if it was in the paper? If an action 6) Civility - modifies the antagonism of an adver- doesn’t feel right or ethical, it probably isn’t. Every sarial system state bar association maintains an ethics hot line. Call yours if you have questions. How is it we become blinded to basic principles of behavior? Most of the time, when dealing with "gray decisions," ILL CONCEIVED GOALS—goals and incentives to just one of these questions is not enough. But by taking the promote desired behavior, that in fact encourage time to reflect on all three, you will often times find that negative results. the answer becomes very clear. MOTIVATIONAL BLINDNESS—overlooking unethi- cal behavior of others when it's in our interest to The Five P’s of Ethical Power: The Blanchard-Peale remain ignorant. Model also urges us to regain our ethical power utilizing INDIRECT BLINDNESS—we hold others less account- these ideas, all beginning with the letter P.18 able for unethical behavior when it's carried out through third parties. 1) Purpose— Do you see yourself as ethical? ls THE BOILING OF THE LOBSTER—we are less able your conscience your guide19? Whatever happens, to see others' unethical behavior when it develops can you look yourself in the eye and feel good? Your gradually. purpose is the road you choose to travel, the meaning OVERVALUING OUTCOMES- We give a pass to and direction of your life. It’s the driving force of why unethical behavior if the outcome is good. you do what you do. Aligning the activities of your MISGUIDED GROUP ETHICS—we overlook sketchy life according to your purpose gives you a clear sense behavior if everyone is doing it. of direction, so when you’re faced with challenging GROUP OR INDIVIDUALLY, it is important to be circumstances or difficult decisions, you’re able to fil- aware of your own blind spots, which may permit, ter those occasions through the lens of your purpose or even encourage, the unethical behaviors you are and make choices that keep you on track. trying to extinguish. 2) Pride— Do you feel good about yourself? Do you need the acceptance of others to know your The Six As of Ethical Traps: When you think about the importance? Can you keep ego and the desire to be perils of practice, you should watch out for these areas, all accepted from influencing your decisions? A proper beginning with the letter A. sense of pride mixed with a good dose of humility 1) Ambition -Making decisions for personal is the balance you’re seeking. Being driven by false advancement pride causes you to seek the approval and acceptance 2) Ardor- Getting carried away by the moment of others which can overly influence you to take the 3) Animus- toward opposing counsel or party easy way out when faced with a tough situation. 4) Aptitude and Ability (Lack of) An ethical law- 3) Patience— Do you believe most things will yer must have basic competence. The obligation is to work out, or need everything to happen right away? do the right thing requires you do things right - it is Are you at peace with what comes your way? We live not unethical to offer less than adequate lawyering. in a hyper-connected, instantaneous world where vir- 5) Avarice- Greed is a dangerous thing. The need tually anything we want is just a click away. Giving to pay the bills does not excuse a transgression. in to instant gratification is one of the biggest tempta- Maintain the independence to say NO to a client tions we face and it causes us to make decisions that when no should be said. aren’t in alignment with our purpose and values. 6) Anticipation (Lack of) - Lack of preparation 4) Persistence—This component of ethical power cannot be overlooked by bending the rules. is about staying the course, staying true to your pur- pose and values. Persistence is about commitment, According to Kenneth Blanchard and Norman Vincent not interest. When you have interest in something Peale, authors of The Power of Ethical Management17, there you do it when it’s convenient. When you’re commit- are three questions you should ask yourself whenever you ted, you do it no matter what20. are faced with an ethical dilemma. 5) Perspective— Do you take time each day to think quietly in a mood of reflection? This can help IS IT LEGAL? Will I be violating any law, ethical you get focused, and allows you to listen to your rule, official policy, or other applicable restriction? inner self and see things, both big and small, more

10 | The Green Card clearly. All the other elements of ethical power 7The Bramble Bush, supra at p. 3 emanate from the core of perspective. Perspective is 8Act IV, Scene II, Line 73. about having the big picture view of situations and 9Professionalism and Independence—New Jersey understanding what’s truly important. Commission on Professionalism in the Law (2009) tcms.njsba.com/PersonifyEbusiness/images/con- IN SUM tent/1/0/1002058.pdf and see Between Law and Virtue, Be competent - be competent, but strive to be more than Joseph P. Tomain and Barbara G. Watts, 71 U.Cin.L.Rev competent. Take the opportunity to hear from others with 585 (2003). something worth saying - even if it's mandatory CLE! 10The regulation was amended on December 18, Be ethical - don't cheat, don't lie, don't steal, and 2008, (Federal Register 73 FR 76914) to enhance EOIR’s don't do things your mother wouldn't approve of. Disciplinary Program for immigration attorneys and But also be professionally responsible. Do more than representatives. The new rules and procedures took just be a licensed lawyer - exemplify what a true lawyer effect on January 20, 2009. These are found at www. should be. If you make your little corner of the profes- justice.gov/sites/default/files/eoir/legacy/2013/02/27/ sion nobler, you influence others to a higher sense of EOIRsDisciplinaryProgramFactSheet02272013.pdf. responsibility as well.21 ◆ 11Legal Ethics in Immigration Matters: Legal Representation and Unauthorized Practice of Law by Dorothy A. Harbeck is an Immigration Judge at the U.S. Margaret Mikyung Lee, Legislative Attorney (September Department of Justice Executive Office for Immigration 18, 2009 Congressional Research Service 7-5700) This Review (USDOJ-EOIR) Immigration Court in Elizabeth, guidance can be found at www.crs.gov R40822. trac.syr. NJ. She is writing in her personal capacity and her edu/immigration/library/P4026.pdf. views may not necessarily be the views neither of the 12www.justice.gov/sites/default/files/eoir/lega- U.S. Department of Justice nor of the Executive Office cy/2013/05/23/EthicsandProfessionalismGuideforIJs.pdf for Immigration Review. This article is solely for edu- 13The New York Rules of Professional Conduct can be cational purposes, and it does not serve to substitute found at www.dos.ny.gov/info/nycrr.html See also, www. for any expert, professional and/or legal representation nycbar.org/ethics/ethics-faq. and advice. Judge Harbeck is also an adjunct Professor 14www.americanbar.org/.../model_rules.../model_ of Law at Seton Hall University School of Law, a faculty rules_of_professional_conduct_table_of_contents.html. As member at the Madeleine Korbel Albright Institute for of 2013, 48 states have adopted a version of the American Global Affairs at Wellesley College, as well as a faculty Bar Association's model rules. California and Maine are member at the Women in Public Service Program (WPSP), the only states that have not adopted either—instead a joint initiative of the U.S. Department of State and the these states have written their own rules from scratch. Seven Sister Colleges. She is a Fellow of the Federal Bar 15See “Ethics Tip: Consider the 5 C’s” by Vicki Foundation. Voisin, ‘The Paralegal Mentor,’ is the author of Paralegal Strategies, a weekly ezine for paralegals. Endnotes 16ABA’s Model Rules. 1“Why should anyone be frightened by a hat?” Antoine 17Ken Blanchard and Norman Vincent Peale, The Power de Saint-Exupéry, The Little Prince (Reynal & Hitchcock of Ethical Management (Harcourt 1988) U.S.; Gallimard France, 1943) 18Ibid. 2Thomson, J. A. K. (1955). The Ethics of Aristotle: The 19“Take the straight and narrow path/and if you start Nicomachean Ethics. Penguin Classics. . Re-issued 1976, to slide/give a little whistle, give a little whistle/and revised by Hugh Tredennick. always let your conscience be your guide.” From "Give A 3The Legal Profession and the Unmet Needs of the Little Whistle” by Cliff Edwards & Dickie Jones from the Immigrant Poor, The Orison S. Marden Lecture of the soundtrack to Pinocchio (Walt Disney).The soundtrack Association of the Bar of the City of New York, February won the 1940 Academy Award for Best Original Score. 28, 2007Judge Robert A. Katzmann1US Court of Appeals 20Henley, William Ernest, Invictus,(1888) “ It matters for the Second Circuit, reprinted in 21 Geo. J. Legal not how strait the gate/How charged with punishments Ethics 3 (2008). the scroll/I am the master of my fate/I am the captain 4Llewellyn, Karl N. Jurisprudence: Realism in Theory of my soul.” See Quiller-Couch, Arthur Thomas (ed.) and Practice. [Chicago]: The University of Chicago Press, (1902). The Oxford Book of English Verse, 1250–1900, a 1962 pp. 320-321. favorite of the immortal spirit of the barrister, Rumpole of 5(1930). A new edition, edited and with an introduc- the Bailey, the fictional hero of legal ethics created by Sir tion by Steven Sheppard, was published in 2009 by John Mortimer. Oxford University Press. 21See, generally, Tolstoy, Leo What Is to be Done? 6Horwitz, Morton J. (1992). The Transformation of (sometimes translated as What Then Must We Do?) American Law, 1870–1960: The Crisis of Legal Orthodoxy (Russian, 1886. The first English language publication (1 ed.). Oxford University Press. p. 193. ISBN 0-19- came in 1887 as What To Do? A revised translation with 509259-7. p. 193 the current title was published in 1899).

Fall 2015 | 11 Article

Diop Motions In The Third Circuit: Is A Habeas Writ A Precondition To Seeking Bond Before The Immigration Court? By Amelia Wilson

With a growing number of courts nationwide rul- to establish that the individual’s continued detention is ing that indefinite detention without a custody review necessary to further the statute’s purpose.7 Importantly, is unconstitutional, individuals wishing to bring bond the Third Circuit states that upon passing a reasonable motions before the immigration courts are not always period of time, “the authorities must make an individu- clear on whether a writ of habeas corpus must first be alized inquiry into whether detention is still necessary filed in district court. It is the purpose of this article to to fulfill the statute’s purposes of ensuring that an alien argue that, in the Third Circuit, a habeas action is not attends removal proceedings and that his release will not necessary. Practitioners and respondents should be per- pose a danger to the community.”8 Two critical questions mitted to seek remedy to prolonged detention directly were not answered: how much time is “unreasonable,” or with the agency best situated to make an individualized which “authority” is vested with the ability to conduct the review as to the reasonableness of the detention, namely, individualized inquiry. the Executive Office for Immigration Review (EOIR). The Following the Diop decision, the Third Circuit contin- ability to bypass a lengthy and onerous action in federal ued to rule that prolonged detention was unconstitutional court not only shortens actual detention time, but better after a certain period of time and that individuals subject promotes the mandate and spirit of Diop v. ICE/Homeland to mandatory custody could seek a bond hearing after a Security and its progeny. certain period of time. One of those cases seemed to imply The constitutionality of prolonged detention has been that the district court was the appropriate venue to bring playing itself out in earnest since 2001 when the U.S. such a challenge. In Leslie v. Att’y Gen., the court reversed Supreme Court held in Zadvydas v. Davis that Section the District Court’s denial of the petitioner’s habeas peti- 241(a)(6) of the Immigration and Nationality Act (“INA”) tion and remanded “with instructions to conduct an indi- does not permit indefinite detention by Immigration and vidualized bond hearing as required by Diop within ten Customs Enforcement (“ICE”) following a final order of days of the date when this opinion and order are filed.”9 removal.1 Instead, an individual can only be detained However it did not mandate that Diop motions must be for the time “reasonably necessary” to effectuate actual heard before the District Court. removal—which the Court considered to be six months.2 Again in 2015, the Third Circuit reiterated its com- Those detained beyond that point could seek redress mitment to the notion that excessively long detention before the district courts by filing a writ of habeas corpus is unconstitutional. In Chavez-Alvarez v. Warden York to challenge continued detention and be released from County Prison,10 the Court reversed the District Court’s ICE custody. order denying the writ of habeas corpus and remanded Two years later, in Demore v. Kim, the Supreme Court with instructions to grant the petition and afford the examined whether the mandatory custody provision respondent a bond hearing.11 In its decision, the Third contained within Section 1226(c) of the INA, 8 U.S.C. Circuit “recognized the importance of judicial deference § 1226(c), authorized indefinite detention of those in to the Executive Branch in immigration matters” while removal proceedings.3 While the Court held that 1226(c) stating that courts must also make independent deter- was constitutional, it reasoned that the detention associ- minations as to whether lengthy detention is reasonable ated with removal proceedings was finite and likely to and necessary.12 Importantly, the Third Circuit specifically conclude in less than 90 days.4 included the immigration courts when offering guidance Respondents held for prolonged periods of time while as to when detention became unreasonable.13 facing deportation were able to file habeas petitions in That said, practitioners and respondents in the Third federal court, particularly as standard detention times Circuit continue to lack clarity on when a Diop motion continued to increase. A 2013 report, for example, found for bond can be brought directly before the immigration that those subject to mandatory custody who were court. Before the detained courts of New Jersey, it seems challenging deportation were detained on average 14 to be generally accepted that a Diop motion may not be months—over four times the 90 days cited by the Supreme made in the first instance before EOIR. Instead, a respon- Court in Demore.5 dent must first file a habeas petition before the New Jersey In 2011 the Third Circuit held that 1226(c) only autho- District Court. The Board of Immigration Appeals, in an rized the detention of a respondent for a “reasonable peri- unpublished decision from 2011, held that Diop did not od of time.”6 After that, the burden is on the government delegate the authority to immigration judges (IJs) to con-

12 | The Green Card duct a bond hearing for respondents subject to mandatory be settled. Until then ambiguity will persist and Diop’s custody.14 The Board stated that the Diop decision “did promise of a temporal limitation on detention will be not delegate jurisdiction to Immigration Judges to grant undermined. ◆ an alien who is subject to mandatory detention a bond hearing.”15 While true, neither did the Board specify that Amelia Wilson is the Senior Detention district courts command unique jurisdiction to conduct a Attorney with the Immigrant Rights bond hearing. Additionally, the Board’s unpublished (and Program of the American Friends Service therefore non-binding) decision pre-dates both Leslie and Committee (AFSC) located in Newark, NJ Chavez-Alvarez. where she represents detained, indigent A respondent should be permitted to bring a Diop motion individuals before EOIR. She specializes before EOIR, absent a habeas writ. Immigration courts are in competency hearings for the mentally already permitted to determine whether a respondent is impaired, asylum law, and deportation “properly included” within 1226(c).16 Without a doubt, defense for individuals with elevated IJs lack jurisdiction to decide constitutional questions.17 criminal backgrounds. But the constitutionality of indefinite detention has been decided, with only a fact-specific, individualized review Endnotes of the continued detention’s “reasonableness” remaining. 1Zadvydas v. Davis, 533 U.S. 678, 689 (2001). While Diop, Leslie, and Chavez-Alvarez involved a 2Id. at 701 (“After this 6 month period, once the alien challenge of a district court’s denial of a habeas petition, provides good reason to believe that there is no significant the Third Circuit clearly anticipated that IJs would make likelihood of removal in the reasonably foreseeable future, such case-specific assessments as to reasonableness. If the Government must respond with evidence sufficient to the district courts alone were vested with the authority to rebut that showing”). determine the reasonableness of a respondent’s detention, 3Demore v. Kim, 538 U.S. 510, 511 (2003). the Third Circuit would not have included the Attorney 4Id. at 529 (“Under §1226(c), not only does detention General and the immigration courts in its guidance.18 have a definite termination point, in the majority of cases On October 28, 2015 the Second Circuit held that a it lasts for less than the 90 days we considered presump- respondent must be afforded a bond hearing directly tively valid in Zadvydas”). before the immigration judge after six months of deten- 5Long, S. (2013) Expert Report of Professor Susan B. tion—without the necessity of a habeas action.19 The Long, Rodriguez v. Hayes, No. 07-3239 (C.D. Cal.) Court specifically stated that the “pervasive inconsistency 6Diop v. ICE/Homeland Security, 656 F.3d 221, 223 (3d and confusion exhibited by district courts in this Circuit Cir. 2011). when asked to apply a reasonableness test on a case-by- 7Id. case basis weighs, in our view, in favor of adopting an 8Id. at 231. approach that affords more certainty and predictability.”20 9Leslie v. Att’y Gen., 678 F.3d 265, 271 (3d Cir. 2012). Further, the Second Circuit held that allowing direct bond 10Chavez-Alvarez v. Warden York County Prison, 783 hearings before the immigration court “avoids the random F.3d 469 (2015). outcomes resulting from individual habeas litigation in 11Id. at 470 – 471. which some detainees are represented by counsel and 12Id. at 473-474. some are not, and some habeas petitions are adjudicated 13Chavez-Alvarez, 783 F.3d at 477, n. 11 (“But, for the in months and others are not adjudicated for years.”21 sake of providing clear guidance to the Attorney General, One of the most critical principals of administrative the Immigration Court and the District Court, we want to law as established by the Supreme Court is that courts specify more closely when the shift in balance occurred should defer to agency interpretations of highly special- between the benefits of using detentions based upon pre- ized law unless those interpretations are unreasonable.22 sumptions to achieve the statutory goals and the burdens The immigration court is in the best position to conduct to Chavez-Alvarez's liberty”) (emphasis added). such a hearing and make a determination as to whether 14Matter of Michel, A045-316-457 (BIA Nov. 18, 2011) continued detention furthers the purpose of 1226(c). (unpublished). Requiring intermediate review by the District Court of 15Id. New Jersey undermines Diop, Leslie, and Chavez-Alvarez 168 C.F.R. § 1003.19(h)(ii). while imposing a lengthy and complex step onto respon- 17Matter of Fede, 20 I&N Dec. 35, 36 (BIA 1989); Matter dents—some of whom are pro se—that further delays the of C-, 20 I&N Dec. 529, 532 (BIA 1992). remedy (a bond hearing) to which they are constitution- 18Supra footnote 13. ally entitled. 19Lora v. Shanahan, No. 14-2343-pr, slip op. at 24 (2d. Certainly the question of the necessity of a habeas peti- Cir. Oct. 28, 2015). tion is up for debate. If the Third Circuit were to assume 20Id. at 22. a bright-line rule—as the Second and Ninth Circuits did 21Id. at 23. before it—that any detention beyond six months without 22See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, a bond hearing affronts due process, the issue might Inc., 467 U.S. 837, 844 (1984).

Fall 2015 | 13 Younger Lawyers Division Hosts Successful Happy Hour at Annual Conference in Memphis

The Young Lawyers Division of the Immigration Law Section (ILS-YLD) was proud to host its first ever Happy Hour Networking Event during the Annual Immigration Law Conference in Memphis on May 16, 2015 The event was held for younger members of the ILS to meet one another and meet mentors. The ILS-YLD also opened the event to potential future ILS members from the surrounding legal community and law schools. The event drew dozens of younger members of the ILS and was received positively. Consequently, the ILS-YLD hopes to host a similar event at next year’s conference and plans to host additional events throughout the year in different parts of the country.

Rosanne Milano, ILS-YLD Committee Member

14 | The Green Card Section Leadership

Officers

Eileen Scofield, Hon. Lawrence O. Barry L. Frager, Elizabeth (Betty) Hon. Robin Feder, CHAIR Burman TREASURER Stevens, IMMEDIATE PAST VICE CHAIR SECRETARY SECTION CHAIR

Members of the Governing Board

Prof. Deborah Anker Regina Germain Prakash Khatri Margaret Stock Bob Beer Tina Goel Kristan Kimmelman Kimberly Sutton Prof. Richard Boswell Hon. John F. Gossart Jr. Kevin Lashus Hon. Ashley Tabaddor Hon. Lawrence O. (ret.) Brandon Lowy George Terezakis Burman Hon. Dorothy Harbeck Prof. Karen Musalo Robin Transgrud Justin Burton Hon. William P. Joyce Hon. Lee O’Connor Dr. Alicia Triche H. Raymond Fasano (ret.) Jan M. Pederson Kara Van de Carr Hon. Robin Feder Derek Julius Christine Lockhart David Ware Hon. Irene Feldman Claire Kelly Poarch Douglas S. Weigle Barry L. Frager Linda Kenepaske Eileen Scofield Amelia Wilson Amy Gell Hon. Amiena Khan Mark Shmueli Hon. Earle Wilson Elizabeth (Betty) Stevens Christine Young

Fall 2015 | 15 Article

Backlogs in Immigration Court Create Concerns By Andrew Denney, New York Law Journal

Growing case backlogs and wait times in immigration courts those cases to their front of the line. create uncertainty for clients and ethical and practical concerns "The fact that the immigration courts had been so under- for their attorneys, according to participants in a recent New resourced to the point of being anemic when the surge hit York City Bar Association forum. is part of the problem," said Marks, who is an immigration A former New York City Immigration Court judge, an immi- judge in San Francisco but said she does not speak for the U.S. gration judge from San Francisco, a New York City immigration Department of Justice. attorney in private practice and the chief counsel for the U.S. Marks also said immigration cases are taking longer to adju- Immigration and Custom Enforcement's New York office dis- dicate because case law has become more complicated. cussed the issues at a recent panel. According to a report from Human Rights First, a nonprofit According to data compiled by Syracuse University's based in New York City and Washington, D.C., the current fund- Transactional Records Access Clearinghouse, through September ing level for the immigration courts is $357.6 million, compared there were 65,660 pending immigration cases in New York, the with an overall budget of $18.5 billion for immigration law third largest number in the country after California and Texas. enforcement. The number of pending cases has grown steadily from the Human Rights First recommends hiring 280 more immigra- federal government's 2007-2008 fiscal year, when there were tion judges, along with support staff, to reduce the backlog of 29,112 pending cases in New York's immigration courts. cases. Marks said though that the DOJ has stepped up hiring of The average wait time for New York immigration cases was judicial law clerks and that there is currently one clerk for every 630 days while the average wait time nationwide was 643 days. two judges. New York ranked 13th in the country for the length of its wait Wen-Ting Cheng, the chief counsel for ICE's New York office, time. said that federal government funding issues also have affected The vast majority of New York cases are pending in the City her office of about 120 employees, of which 85 are attorneys, Immigration Court. and they have not "been able to do the kind of robust hiring we William Van Wyke, a former judge in the court and one of need to do." the panelists, said that the size of the backlog is mostly due to "The budget situation last year was kind of held hostage by the surge of undocumented children from Central America that Congress," Cheng said. She said that while her office has been flooded into the United States last year. able to ramp up hiring in recent months, roughly a quarter of "For political purposes, political reasons, we have the Central her staff have been on the job for two years or less. America kids put in an expedited situation that caused a lot of In New York, to avoid due process violations against immi- disruption," Van Wyke said, a move that he said was "plain grant detainees, a panel of the U.S. Court of Appeals for the wrong" on the part of the Obama Administration. Second Circuit issued a ruling in Lora v. Shanahan, 14-2343-pr, Paul O'Dwyer of the Law Office of Paul O'Dwyer, an immi- that implemented a rule requiring bail hearings for detainees gration attorney who moderated the event, said that while his held on a statute requiring mandatory detention within six clients wait for their day in court, they are in "suspended anima- months of the beginning of their detention. tion" in which they are "not here legally but not here illegally." The panel wrote that detainees held under 8 USC §1226(c) Panelist Cheryl David of the Law Office of Cheryl R. David who have pending removal proceedings against them spend said that because of the delays, attorneys are presented with "many months and sometimes years in detention due to the challenges in developing strategy with their clients. Some cli- enormous backlog in immigration proceedings." ◆ ents' claims for asylum could become meritless in the months leading up to their first court appearance, she said, or clients Andrew Denney can be reached at [email protected] or on may get married, get divorced or have children, which could Twitter @messagetime. Reprinted with permission from the alter the type of relief for which they are eligible. November 12, 2015 issue of New York Law Journal. (c) 2015 Additionally, some clients may apply for asylum knowing ALM Media Properties, LLC. Further duplication without permis- they do not have a strong case for eligibility, which could delay sion is prohibited. All rights reserved. Any reported comments their removal from the country. "It invites people to game the by Judge Marks were in her status of President of the National system," David said. Association of Immigration Judges. The views expressed do not Dana Leigh Marks, president of the National Association of necessarily represent the official position of the U.S. Department Immigration Judges and one of the panelists, said that the immi- of Justice, the Attorney General, or the Executive Office for gration courts had been largely overlooked until the 2014 flood Immigration Review. The views represent her personal opinions, of refugees from Central America and the creation of "surge which were formed after extensive consultation with the member- dockets" to speed up their deportations, thus effectively moving ship of the NAIJ.

16 | The Green Card Article

Cognizability of Gang-Related Asylum Claims: Looking Back and Looking Forward By Jaclyn Kelley-Widmer

Gang-related asylum claims cover a wide swath of issues: of appeals, they provide a basic framework for evaluating an asylum applicant may request asylum on the basis of, other gang-related particular social groups. This article for example, membership in a particular social group made will outline the differing approaches taken to these types of up of former gang members; as a teacher with an anti-gang claims and discuss how courts might extrapolate this prec- political opinion; or as a Christian whose ideals conflict with edent in the analysis of other gang-related particular social the gang’s goals.1 As Central America and Mexico suffer groups. from high rates of gang-related violence, immigration courts, the Board of Immigration Appeals, and circuit courts of Current Gang Members appeals continue to develop precedent interpreting whether In Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007), the asylum claims based on gang issues may be viable. This Ninth Circuit found that a group defined as “American article will focus on some of the most-debated issues within Salvadorian U.S. gang members of a Chicano American gang-related asylum claims: (1) whether particular social street gang,” or, more simply, “tattooed gang members,” groups which are in some way linked to gangs may be cog- could not form the basis of a particular social group. Id. nizable; and (2) if a group is cognizable, how courts might at 942, 945–46. The applicant argued that he would be approach the subsequent issue of nexus. identified as a gang member due to his tattoos and placed in detention under the country’s “Mano Dura” laws meant Analysis of Particular Social Groups Based on Gang to crack down on gang activity, and thereafter be persecuted Membership by rival gang members. Id. at 943. The Ninth Circuit con- Although the Immigration and Nationality Act does not ducted a brief analysis of whether the applicant’s proposed define the phrase “particular social group,” the Board of group qualified as a particular social group. The court Immigration Appeals has interpreted it to be defined by three noted that, although the applicant was then suggesting that requirements: immutability, social distinction,2 and particu- his status as a former gang member might qualify him for larity. Matter of M-E-V-G-, 26 I&N Dec. 227, 237 (BIA 2014). relief, he had previously testified that he “wasstill a gang Immutability is established through a common characteristic member.” Id. at 945 (emphasis in the original). In any shared by all members of the group that they “either cannot event, the Ninth Circuit addressed the possibility that the change, or should not be required to change because it is applicant might be subjected to harm on account of the fact fundamental to their individual identities or consciences.” that his tattoos identified him as a member of a gang. See id. Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985). The The court concluded that a group composed of “[t]attooed requirements of particularity and social distinction were gang member[s]” fell outside of its definition of a particular discussed at length by the Board in Matter of M-E-V-G- and social group. Id. at 945 (internal quotation marks omitted) Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014), two rela- (discussing Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir. tively recent companion cases involving gang-related asylum 2003) and Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA claims. The Board explained that the primary focus of the 2007)). particularity requirement is that the group’s boundaries can Although its discussion of the standard social group be easily delimited and verified in the society in question. requirements was cursory, the Arteaga court conducted a Matter of W-G-R-, 26 I&N Dec. at 213–15. To establish social deeper analysis of the policy considerations behind granting distinction, an applicant must show that members of the current gang members asylum. The court found that even if social group are “perceived as a group by society.” Id. at it focused on the applicant’s “unique and shared experience 216; see also Josh Lunsford, Not Seeing Eye to Eye on Social as a gang member,” as opposed to simply the applicant’s “Visibility”, Immigration Law Advisor, Vol. 8, No. 2, at 1 tattoos, such a characteristic “is materially at war with those (Feb. 2014). we have concluded are innate for purposes of membership The circuit courts and the Board have reached varying in a social group.” Arteaga v. Mukasey, 511 F.3d at 945. The results when applying these criteria to gang-related asylum court reasoned that Congress did not intend for individuals claims, even where the proposed particular social groups who are part of “violent street gangs who assault people may appear to be similar. This article will first explore per- and who traffic in drugs and commit theft” to receive the haps the most basic of gang-related particular social groups: humane relief of asylum. Id. at 945–46. those formulated around the applicant’s past or present membership in a gang. Because these claims are common Former Gang Members and have already been evaluated by numerous circuit courts Since Arteaga, other circuit courts have followed the

Fall 2015 | 17 Ninth Circuit’s lead in finding that particular social groups 429. In considering particularity and social distinction, the based on current gang membership are not valid. See, Seventh Circuit found that the applicant’s membership in a e.g., Benitez Ramos v. Holder, 589 F.3d 426, 429 (7th Cir. “specific, well-recognized, indeed notorious gang” was suffi- 2009) (“Being a member of a gang is not a characteristic cient to establish a clearly delineated particular social group that a person ‘cannot change, or should not be required to because the group was “neither unspecific nor amorphous.” change,’ provided that he can resign without facing persecu- Id at 431. The Seventh Circuit in Benitez Ramos did not tion for doing so.” (quoting Arteaga v. Mukasey, 511 F.3d at discuss particularity, but criticized the then-called “social 945–46)); see also Martinez v. Holder, 740 F.3d 902, 912 (4th visibility” requirement, interpreting this requirement as the Cir. 2014); Urbina-Mejia v. Holder, 597 F.3d 360, 366 (6th Cir. literal ability for a group member to be “spotted at a glance” 2010). However, adjudicators have taken various approaches by a stranger on the street. Id. at 430. The Sixth Circuit to analyzing whether former gang membership may be a in Urbina-Mejia also did not go into great detail regarding protected characteristic for asylum. whether the applicant’s particular social group of former Basing its reasoning largely on policy arguments echoed members of the 18th Street gang was socially distinct or from Arteaga, the First Circuit has found that a particular particular. It instead relied upon the testimony of an expert social group based on former gang member status is not witness who opined that the applicant would be easily rec- cognizable under the Act. Cantarero v. Holder, 734 F.3d ognizable in Honduras as an ex-gang member and that his 82 (1st Cir. 2013). Subsequently, in Matter of W-G-R-, the life would be danger should he return. 597 F.3d at 366–67. Board found that “former members of the Mara 18 gang in In addressing policy concerns, the Seventh Circuit dis- El Salvador who have renounced their gang membership” agreed with the conclusion in Arteaga that gang member- did not constitute a particular social group under the Act. ship might be an invalid basis for a particular social group 26 I&N Dec. at 221. Based on the evidence of record, the because Congress would not have intended to grant asylum Board found that such a group was not socially distinct. to members of criminal enterprises. Benitez Ramos v. Holder, The Board reasoned that, though the record contained sub- 589 F.3d at 429–30. Rather, the court observed that Congress stantial evidence regarding treatment of gang members in had barred other types of criminals, but it had not expressed El Salvador, it contained very little information on the treat- the intention to categorically bar all former gang members ment or status of former gang members, and the relevant from asylum. Id. at 430. The Fourth Circuit similarly noted information was largely equivocal. Id. at 222. Turning to the that the Act contains specific categories of criminals who are particularity requirement, the Board stated that a particular barred from relief, including those who have engaged in past social group must be narrowly defined and “also be discrete persecution or committed a particularly serious crime, but and have definable boundaries—it must not be amorphous, that gang members are not listed. Martinez v. Holder, 740 overbroad, diffuse, or subjective.” Id. at 214. In considering F.3d at 912; see also section 241(b)(3)(B) of the Act, 8 U.S.C. whether the particular social group of former gang members § 1231(b)(3)(B). Rather than addressing particularity or was sufficiently particular, the Board found that the pro- social distinction, the Fourth Circuit concluded that “former posed group contained too large and diverse a population. members of a gang in El Salvador” are members of a cogni- Id. at 221. For example, the group could include an indi- zable particular social group that is based on an immutable vidual who was in the gang only briefly at a young age, yet shared characteristic, and that such a group is not barred also include a “long-term, hardened gang member” who had from relief as a policy matter. Martinez v. Holder, 740 F.3d only recently left the gang. Id. Thus, the group proposed in at 911–13. The court remanded the case for further analysis. Matter of W-G-R- was too diffuse because it could include a person of any age, sex, background, or level of involvement Analysis of Other Gang-Related Groups in the gang. Id. Because the record did not establish that the As the above precedent illustrates, circuit courts and proposed particular social group was either socially distinct the Board have reached various outcomes in applying the or particular, the Board found that it was not cognizable. requirements of immutability, social distinction, and par- Prior to the Board’s decision in Matter of W-G-R-, the ticularity to cases of former gang members. Some courts Seventh Circuit, the Sixth Circuit, and the Fourth Circuit have also used a fourth consideration—policy concerns— diverged from the above reasoning, rejecting Arteaga’s poli- to decide such cases. In comparing and contrasting the cy rationale and recognized former gang membership to be approaches circuit courts have already taken to social groups a basis for a particular social group. See Martinez v. Holder, based on gang issues, adjudicators may find guidance for 740 F.3d at 906 (finding that the Board “erred in its ruling evaluating whether other types of gang-related social groups declining—on immutability grounds—to recognize the par- meet each of the particular social group requirements under ticular social group of “former members of MS–13 who have the law as it currently stands. renounced their membership in the gang”); Urbina-Mejia v. Holder, 597 F.3d at 366; Benitez Ramos v. Holder, 589 F.3d at Immutability 429–30. The Seventh, Sixth, and Fourth Circuits based their In considering the immutability of other gang-related holdings largely on the immutability requirement, noting particular social groups, the focus must center on whether that being a former member of a gang is not a characteristic or not the characteristic is one a person “cannot change, that is possible for an individual to change, “except perhaps or should not be required to change.” Matter of Acosta, 19 by rejoining the group.” Benitez Ramos v. Holder, 589 F.3d at I&N Dec. at 233. Several circuit court decisions model this

18 | The Green Card approach in the gang-claim context. For example, the Sixth identifiable tormentor within MS-13” do not constitute a Circuit has noted that “tattooed youth” could not be the socially distinct and sufficiently particular group. 668 F.3d foundation of a social group because having a tattoo is not at 165–67. The court found that the latter group lacked an “innate characteristic.” Castellano-Chacon v. INS, 341 immutable family characteristics, which would also contrib- F.3d 533, 549 (6th Cir. 2003), abrogated on other grounds ute to an innate recognizability, and did not have sufficiently by Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006). well-defined boundaries so as to delineate a discrete class of Similarly, in evaluating whether a social group of “young, persons. Id. at 166. Americanized, well-off Salvadoran male deportees with Since Matter of W-G-R- and Matter of M-E-V-G-, the clari- criminal histories who oppose gangs” could be a cognizable fied standards for social distinction and particularity dis- group, the Fourth Circuit found that “Americanization” was cussed in those cases have been addressed in five published not fundamental to the applicant’s identity or a trait that he circuit court decisions. See Juarez Chilel v. Holder, 779 F.3d could not change given that his background was Salvadoran 850 (8th Cir. 2015); Kanagu v. Holder, 781 F.3d 912 (8th and it was possible for him to change his manner of speech Cir. 2015); Rodas-Orellana v. Holder, 780 F.3d 982 (10th Cir. and dress. Lizama v. Holder, 629 F.3d 440, 446–47 (4th Cir. 2015); Paloka v. Holder, 762 F.3d 191 (2nd Cir. 2014); Pirir- 2011). In contrast, in a case that involved gang persecution Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014). In Pirir-Boc and of a group defined as the applicant’s immediate family, the Rodas-Orellana, the courts analyzed a gang-related claim in First Circuit noted that a nuclear family can constitute a detail. particular social group based on common, identifiable, and In Pirir-Boc, the Ninth Circuit analyzed a proposed partic- immutable characteristics. Aldana-Ramos v. Holder, 757 ular social group composed of “persons taking concrete steps F.3d 9, 15 (1st Cir. 2014). to oppose gang membership and gang authority.” 750 F.3d at 1080 (internal quotation mark omitted). The petitioner’s Social Distinction and Particularity brother had joined the Mara Salvatrucha, a gang that the As mentioned above, guidance from the Board as to how petitioner strongly opposed. Id. at 1079–80. He convinced the social distinction and particularity requirements may his brother, within earshot of gang members, to defect from operate in gang-based claims can be found in its decisions in the gang. Id. at 1080. Afterwards, gang members came Matter of W-G-R- and Matter of M-E-V-G-. Prior to these cases, looking for the petitioner and eventually beat him severely. in considering the social groups of current or former gang Id. The IJ found that the petitioner was a member of the members, circuit courts mostly focused on the immutability above-defined particular social group because he had allied or policy questions and then, if necessary, remanded cases himself with anti-gang organizations and was outspoken and for consideration of social distinction and particularity. See, visible in his opposition to the gang. Id. However, the Board e.g., Cantarero v. Holder, 734 F.3d at 85–86 (deferring to the reversed the IJ’s decision. Id. at 1080–81. The Ninth Circuit Board’s finding that former gang members were not meant did not make a final determination as to the cognizability of to be protected by the laws regarding refugees); Martinez v. the particular social group in Pirir-Boc, but it found that the Holder, 740 F.3d at 912–13 (finding that former gang mem- Board should have conducted a specific, fact-based inquiry bership is an immutable characteristic and remanding the into the relevant society in that case, including consideration case for consideration of the remainder of the issues). of “how Guatemalan society views the proposed group.” Id. However, circuit courts have weighed in on the social dis- at 1084 (noting also that the Board “did not consider the tinction and particularity requirements with regard to other society-specific evidence” submitted by the petitioner). The gang-related social groups. Prior to Matter of W-G-R- and court noted that, in light of Matter of M-E-V-G-’s holding Matter of M-E-V-G-, the Seventh Circuit declined to afford that “[e]vidence such as country conditions reports, expert deference to the Board’s former “social visibility” standard, witness testimony, and press accounts of discriminatory and the Third Circuit rejected both the social visibility and laws and policies, historical animosities, and the like may particularity requirements. See Benitez Ramos v. Holder, 589 establish that a group exists and is perceived as ‘distinct’ F.3d at 430; Valdiviezo-Galdamez v. Att’y Gen. of the U.S., or ‘other’ in a particular society,” the Board should have 663 F.3d 582, 603–09 (3rd Cir. 2011). The Fourth Circuit considered the country conditions reports about anti-gang applied these standards to several gang-related claims prior efforts in Guatemala in the record. Id. (quoting Matter of to the decisions in Matter of W-G-R- and Matter of M-E-V-G-. M-E-V-G-, 26 I&N Dec. at 241) (internal quotation marks See Zelaya v. Holder, 668 F.3d 159, 166–67 (4th Cir. 2012); omitted). Crespin-Valladares v. Holder, 632 F.3d 117, 124–26 (4th Cir. After Pirir-Boc, the Tenth Circuit analyzed a case in which 2011). The Fourth Circuit found in Crespin-Valladares that a the applicant feared being targeted by gangs because he had particular social group based on a family that was targeted resisted their recruitment efforts. The Tenth Circuit found by gangs was immutable because of family bonds—espe- that the applicant had not demonstrated that “Salvadoran cially because of the limited size of the family—and socially males threatened and actively recruited by gangs, who resist distinct because the family relationship was easily recog- joining because they oppose the gangs” constitute a cogni- nizable. Crespin-Valladares v. Holder, 632 F.3d at 125–26. zable particular social group because he had not shown that In contrast, the Fourth Circuit in Zelaya held that “young such a group is socially distinct. Rodas-Orellana v. Holder, Honduran males who refuse to join MS-13, have notified 780 F.3d at 991–93. Rather, the violence the applicant suf- the authorities of MS-13’s harassment tactics, and have an fered at the hands of the gang “reflect[ed] generalized gang

Fall 2015 | 19 violence toward anyone resisting their efforts rather than the gang context, as they have instead analyzed the cog- defining a distinct social group.” Id . at 993. The court nizability of particular social groups and then remanded declined to remand the case to the Board, distinguishing it cases with valid groups to the Board for further fact-find- from Pirir-Boc in the following ways: the proposed particular ing as to the nexus question. In coming years, as courts social group did not resemble any group that had been rec- begin to more uniformly evaluate particular social groups ognized in the past; the proposed group had been analyzed based on gangs, the circuit courts of appeals will likely under a standard parallel to the Matter of M-E-V-G- standard increasingly reach the nexus issue. previously established in the Tenth Circuit; and the record contained no society-specific evidence that would have Conclusion changed the social distinction analysis, unlike the record in As more variations of gang-related particular social Pirir-Boc. Id. at 993–96. group claims arise, courts may find it useful to consider These early published circuit court decisions utilizing past approaches to gang-related claims involving cur- the standards of Matter of W-G-R- and Matter of M-E-V-G- to rent and former gang members as well as the analysis of evaluate a gang-based particular social group could signify published decisions since Matter of W-G-R- and Matter of that circuit courts will generally accept and apply those M-E-V-G-. For example, while some courts have found decisions. However, adjudicators should still be careful to that former gang membership is immutable because it is engage in a society-specific analysis in each case, consider- impossible to change except by rejoining the gang, others ing all country conditions evidence in the record and keeping have found that it is not immutable because it is not an in mind that the Board’s decisions “should not be read as a “innate” characteristic deserving of protection. Courts blanket rejection of all factual scenarios involving gangs.” may analogize to these and other gang-related cases in Matter of M-E-V-G-, 26 I&N Dec. at 251 (citations omitted). determining whether a social group is cognizable under the Act. Further, as guidance regarding nexus is devel- Nexus oped at the circuit court level, courts may analogize to Even where an applicant can show that he is a member Cordova, Madrigal, and Hernandez-Avalos when consid- of a valid particular social group, he must go on to estab- ering whether a protected ground is “at least one central lish nexus—that gang members wish to persecute him reason” for the applicant’s persecution. ◆ on account of his membership in that group. See, e.g., Cordova v. Holder, 759 F.3d 332, 339–40 (4th Cir. 2014) Jaclyn Kelley-Widmer is an Attorney Advisor at the San (considering the Board’s decision regarding nexus for a Francisco Immigration Court. This article was reprinted family-based particular social group persecuted by gangs); from the Immigration Law Advisor, vol. 9 no. 6. The Madrigal v. Holder, 716 F.3d 499, 505–06 (9th Cir. 2013) Immigration Law Advisor is a professional newsletter of (finding a nexus where the applicant’s former military the Executive Office for Immigration Review (EOIR) that is status was at least a partial motivation for his targeting by intended solely as an educational resource to disseminate members of a drug cartel). information on developments in immigration law pertinent Most recently, the Fourth Circuit analyzed a family- to the immigration courts and the Board of Immigration based claim brought by a mother who feared harm from Appeals. Any views expressed are those of the author and gangs as a result of refusing to permit her son to join do not represent the positions of EOIR, the Department them. Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. of Justice, the attorney general, or the U.S. government. 2015). In Hernandez-Avalos, the Fourth Circuit did not This publication contains no legal advice and may not be credit the Board’s finding that the applicant “was not construed to create or limit any rights enforceable by law. threatened because of her relationship to her son (i.e. EOIR will not answer questions concerning the publica- family), but was instead threatened because she would tion’s content or how it may pertain to any individual not consent to her son engaging in criminal activity.” case. Guidance concerning proceedings before EOIR may Id. at 949 (internal quotation mark omitted). The court be found in the Immigration Court Practice Manual and/or found that this holding was “an excessively narrow read- the Board of Immigration Appeals Practice Manual. ing” of the “on account of” requirement and that the analysis “dr[ew] a meaningless distinction” between sev- Endnotes eral reasons the applicant was targeted, which included 1See, e.g., Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014); her maternal relationship to her son. Id. at 949–50. The Perez v. Holder, 740 F.3d 57 (1st Cir. 2014); Martinez- court concluded that the applicant’s “relationship to her Buendia v. Holder, 616 F.3d 711 (7th Cir. 2010). son is why she, and not another person, was threatened 2The Board recently changed the name of the term with death if she did not allow him to join” the gang. Id. “social visibility” to “social distinction.” Matter of W-G- Therefore, the court ruled that her familial relationship to R-, 26 I&N Dec. at 216. This renaming clarified that the her son was at least one central reason for her persecu- requirement does not refer to “ocular” visibility. Rather, tion and that she had successfully established a nexus to the group must be perceived as a group by society, wheth- a protected ground. er or not the group is literally visible. Id. at 216–17. Beyond Cordova, Madrigal, and Hernandez-Avalos, cir- cuit courts have largely not addressed the nexus issue in

20 | The Green Card CURSE continued from page 5 days and so everyone applies for the EAD. Prior to the back- What Is “Persecution”? log, many people received decisions in less than five months; Language is intensely personal. When I say the word others--like Dave--received a recommended approval in less “house,” I have one image in mind, and when you hear it, than 150 days. Such people could immediately apply for the you have your own image in mind. Indeed, every person on EAD. Dave applied for his EAD. Earth who hears the word “house” will have his own mental For asylum applicants with a recommended approval, the image of what that means. Despite all this, we manage to worst part about waiting is the uncertainty. When will the communicate. Asylum Office issue the final approval? Might something But when we move from interpersonal communication change so that the case is denied? For people separated from to the more precise language of the courts, the problem family members, the uncertainty and loneliness is extremely becomes more acute. Perhaps it was best summed up stressful. by Supreme Court Justice Potter Stewart, who famously As the months passed, our initial happiness with Dave’s declined to define the term “pornography.” Instead, he stat- recommended approval began to fade. When would the final ed, “I know it when I see it” (less well-known was his next decision come? I periodically made inquiries to the Asylum line: “And I enjoy seeing it at least twice a day”). Office. We never received a substantive reply. In asylum law, we have a similar problem--not with Then Dave’s wife got sick. He was worried about her, and pornography, heaven forbid--but with another “p” word: worried about his children, but he decided to stay in the “persecution.” U.S. and hopefully get a decision soon. More time passed. “Persecution” is not defined by statute, and the Board A year after we received the recommended approval, of Immigration Appeals--the agency tasked with interpret- one of Dave’s children became seriously ill. We notified ing the immigration law--has failed to provide much useful the Asylum Office and again requested a decision. We got guidance. And so the buck has been passed to the various no response. But Dave continued to wait and hope that he federal circuit courts. would receive his final approval so he could bring his fam- A recent article by Scott Rempell, an Associate Professor at ily to safety. South Texas College of Law/Houston, surveys the landscape The days and weeks and months continued to pass. with regards to definitions of “persecution.” Prof. Rempell Finally, as we reached the two-year anniversary of Dave’s finds that while certain conduct is universally viewed as per- recommended approval, he called me and told me that he secution, there exists “staggering inconsistencies” between had decided to return to Afghanistan. His children were the various federal appeals courts: “eleven different appel- suffering from health issues and he had not seen them late courts independently pass judgment on EOIR’s assess- (except via Skype) for more than two years. He was giving ments of whether harm rises to the level of persecution—a up on his asylum case and returning to his family, and to significant number of spoons stirring the persecution pot.” the danger. The study revealed what Prof. Rempell calls an “unequivocal So what can we learn from Dave’s story? My feeling chasm” in the consistency of persecution decisions: about the whole fiasco is that Dave would have been far better off if the Asylum Office had simply denied his case in For example, the results [of the study] illustrate how a November 2012 rather than issue a recommended approval. one-day detention involving electric shock compelled Under U.S. law, a person does not have a duty to rescue a finding of persecution, while a ten-day detention another who is in danger. However, if a person under- involving electric shock did not. Similarly, while takes a rescue, he is obligated not to act negligently. The several weeks of psychological suffering necessarily U.S. has created a system for asylum. People like Dave rely established persecution, several years of even greater on that system. In this case, the system failed Dave, and--at psychological suffering failed to cross the persecution least for him--the lure of asylum and of safety created by threshold. the asylum system cost him and his family dearly: Two- plus years with his wife and children lost, other options for To those of us who have litigated these cases in the federal safety missed, savings exhausted. courts, Prof. Rempell’s observation rings all-too true. But There is an ironic denouement to the story. A few quantifying the problem is quite difficult because, as Prof. months after Dave left the U.S. and 2.5 years after the rec- Rempell notes, the cases are so fact-specific: ommended approval, the Asylum Office sent a notice to get fingerprinted: “Please process the fingerprints as quickly as Courts... compare and contrast to previous persecution possible,” the note advised. Was this a cruel joke? I tried cases. And due to differing opinions on what the harm to have the fingerprints done at the U.S. Embassy in Kabul, threshold should be, panels are free to emphasize or but they could not (or would not) do it. We have still not deemphasize any factual nuance they choose between heard from the Asylum Office about Dave’s case. I suppose the cases that they are reviewing and previous cases it remains pending, but who knows? When last I emailed they have decided. Dave (about the fingerprints), he eplied,r “I still have hope and... I am hopeful.” Despite this problem, the article attempts to categorize

Fall 2015 | 21 the different types of harm and discern areas of consistency to quantify physical or psychological harm, but as Prof. and inconsistency. Prof. Rempell finds five broad areas of Rempell says, the “fact-intensive nature of persecution inqui- consistency--conduct that all courts consider persecution: ries... should not act as a shield to prevent the creation of general severity principles, by means of regulation or adju- (1) Brutal and systematic abuse, where the appli- dication.” cant has sustained harm on a consistent basis over a As a lawyer who frequently encounters the question prolonged period of time; (2) Sufficiently Recurrent “What is persecution?,” I believe Prof. Rempell’s article Combination of Cumulatively Severe Harms, where is important. He has quantified a problem that we have there is an ongoing pattern of physical, psychological, all experienced in our practice. Now it’s time for the BIA to and other types of harm, as long as the harms cumu- do something about it. latively establish a sufficiently high level of severity; (3) Recurrent Injury Preceding a Harm Crescendo, Lawyers vs. Clients where there are multiple incidents of relatively severe Presenting an asylum case to an Immigration Judge or harm that culminates in particularly egregious harm; an Asylum Officer can be tricky business. There are an infi- (4) Sufficient Harm Preceding a Substantiated Flight nite number of ways to tell the story: How much detail to Precipitator, where a series of harmful events culmi- include, what to keep out, how to deal with derogatory facts. nates in a credible and substantial threat of harm, caus- Not surprisingly, sometimes lawyers and their clients have ing the applicant to flee; and (5) Sufficiently Severe or different ideas about how the case should look. So what hap- Recurring Sexual Abuse. pens when lawyers and clients disagree? The problem with this list (aside from the fact that I did First, we should acknowledge that there are areas where not give you all the details of the Professor’s analysis) is the lawyer’s interest and the client’s interest are in harmony, pretty obvious--we are stuck using words to describe harm, and other areas where those interests diverge. For example, and this is difficult. One person’s idea of “brutal and sys- both the lawyer and the client want to win the case. They tematic abuse” may not be the same as the next person’s. both would like to finish the case as quickly as possible. Nevertheless, the list gives us the broad parameters of what They both want a good relationship with the other. constitutes persecution in all federal courts. There are also areas where the lawyer’s and the client’s interests differ. The lawyer often wants to do less work on the When the persecution is less severe--as it is in most con- case, while the client wants the lawyer to do more work. The tested cases--things become even more tricky. Prof. Rempell lawyer has to deal with many cases, but the client wants her identifies four areas where the appellate courts produce case, and her phone calls and emails, to receive the highest inconsistent decisions: priority. The lawyer has her own ideas about how the case should be presented; the client may have a different idea. (1) A single instance of physical abuse and detention; For attorneys in private practice (like yours truly), the lawyer (2) Psychological harm where there is a single fear- wants to charge more money; the client wants to pay less. A inducing incident; (3) Psychological harm where there good (i.e., ethical) attorney generally puts his own interests are continuous fear-inducing incidents; and (4) “Other behind those of his client, but only to an extent, and when Harm Inconsistencies,” where courts looked at similar discussing “lawyers vs. clients,” it is helpful to acknowledge incidents and reached opposite conclusions concerning that there are inherent tensions in the relationship. persecution. Here, though, I am less interested in the tension related to workloads and fees, and more interested in conflicts that The disparities between judges and circuits when it comes arise between the attorney and her client with regards to to determining persecution are stark. For example, the First strategy—how to present the case. But that conflict does not Circuit (New England) reversed the BIA’s persecution find- exist in a vacuum. Rather, it must be viewed in the context ing in just 5% of cases. The Ninth Circuit (California, et al) of all the other tensions inherent in the relationship, and—to reversed the BIA’s findings in 65% of cases. make matters worse—it exists in the stressful environment of Prof. Rempell attributes much of the disparity to “the way an asylum case, which can have life-changing implications courts interpret the meaning of persecution, and how they for the client and her family. All this, we must keep in mind. characterize and measure harm.” “The fact that decades of So what to do when the lawyer and the client cannot adjudications involving over a million asylum claims have agree? failed to yield a consistent approach on the systematic harm It happens to me periodically that I have a client who has question is nothing short of astounding.” So what’s to be his or her own idea about how a case should be presented, done? and that idea conflicts with what I think best. It is perhaps The article suggests some preliminary reforms, but the one of the downsides of experience, but the more cases I bottom line is this: Immigration agencies--and specifically do, the less patience I have for clients who question my the Board of Immigration Appeals--need to provide “guid- judgment. The problem with this attitude, of course, is that ing principles” on what constitutes persecution. Of course I am sometimes wrong, and if my experience blinds me to these inquiries are fact specific, and of course it is difficult that fact, I am clearly disserving my client. For this reason,

22 | The Green Card I try to practice humility and always carefully consider the living with great uncertainty. As lawyers, we absorb some of client’s viewpoint. As the old prayer goes: “Lord, give me that stress. By communicating effectively with our clients, patience, and give it to me right now!” we can reduce their stress and our own, and we maximize Sometimes, however, the client is simply wrong about the chances for a successful outcome in their case. something: A “friend” told the client to hide her trip to Iran from the U.S. government; a person who is still legally The BIA’s Tepid Response to Asylum Fraud married but separated wants to claim that he is single on A recent Board of Immigration Appeals (“BIA”) decision an immigration form; someone with a criminal conviction upheld an Immigration Judge’s adverse credibility finding wants to explain to the Judge that “it wasn’t my fault!” In where the respondent’s affidavit was “substantially similar, cases like these, the lawyer needs explain the problem, and and in some regards identical, to an asylum application pre- usually the client understands (the U.S. government prob- viously filed by respondent’s brother in a different proceed- ably already knows about the trip to Iran, so trying to hide ing.” Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015). it is a mistake; even though you are separated, you need In this case, the first brother came to the U.S., filed for to indicate “married” unless the marriage is terminated by asylum, and was granted. In his asylum application, brother death or divorce; the Judge wants to hear you take responsi- # 1 stated that he was arrested two times--in 2004 and 2006- bility for the crime, apologize, and explain how you will not -and he described what happened during those arrests. repeat the same mistake). Later, the second brother (respondent or R-K-K-) came to Other situations are more subtle: The client wants to add America and filed for asylum. He also claimed to have been too much irrelevant information to her asylum affidavit, for arrested two times--in April and May 2010. R-K-K- described example. In a situation like this, I explain my point of view his arrests in terms remarkably similar to his brother’s case, (the fact-finder will become frustrated if they get bogged including the time of day when he was arrested, the abuse down in unimportant details and it will distract from the endured, conversations with abusers, and psychological thrust of the case) and usually the client agrees. If not, as harm. R-K-K- even included in his affidavit the same spelling far as I am concerned, it’s the client’s case and ultimately it’s and grammar mistakes as his brother. his decision to make. My concern is that the client’s decision After informing R-K-K- of the problem, the Immigration is made knowingly (maybe this is why lawyers are called Judge (“IJ”) gave him time to gather evidence and explain “counselors” and not “deciders”). himself. R-K-K- claimed that the similarities were the result In cases where the client and I cannot agree, and where I of the brothers’ “common backgrounds and experience,” think the client’s decision will negatively affect the outcome and because they were assisted by the same transcriber. of the case, I write down my position and make the client The IJ asked R-K-K- to locate the transcriber, but R-K-K- was sign it. It’s rare that I have to do this, but I want to have a unable to do so. record of what happened in case the client decides to blame The IJ did not accept R-K-K-’s explanation. He found me for losing the case (the technical term for this is CYA - R-K-K- not credible and denied the application for asylum. “cover your ass”). Also, if I make the client sign such a docu- R-K-K- appealed. ment, it helps underscore the seriousness of the client’s deci- The BIA affirmed the IJ’s decision and issued a published sion, and hopefully dissuades him from harming his case. decision in order to set forth a “procedural framework My feeling is that it is better to avoid a conflict with the under which an Immigration Judge should address... inter- client before it begins. So what can be done to minimize proceeding similarities.” The short answer here is that (1) conflicts related to case presentation? the IJ must give the respondent notice that her case has been The most obvious solution is communication, and this is found substantially similar to another case; (2) allow her an primarily the lawyer’s responsibility. As lawyers, we need opportunity to explain what happened; and (3) determine to be transparent about what we do. If we over-sell our the respondent’s credibility based on the totality of the cir- services, and promise the client the moon and the stars, we cumstances. The shorter answer is, Who cares? really can’t complain when the client expects us to deliver. I do not know how often “inter-proceeding similarities” It’s the same with case presentation. The client needs to are an issue, but I imagine it happens now and again. When understand the lawyer’s role, and what the lawyer can and I was a Judicial Law Clerk at the end of the last century, cannot do (we can’t help a client lie, for example). I find it I worked on a Somali case that was essentially identical helpful to show potential clients examples of my work, so to an unrelated person’s case. The affidavits and events they have an idea how their case will look at the end of the were word-for-word the same. Only a few names had been process. I also outline how we will prepare the case, what we changed to personalize the story a bit. So I suppose there is need from the client, what my assistants will do, and what I nothing wrong with establishing a framework for analyzing will do. I also try to give them an idea about what we don’t the problem. know--primarily, how long the case will take, given the very But to me, it seems that the Board in R-K-K- is missing the long backlog. To paraphrase the old ad, a well educated cli- larger issue. Yes, it appears that R-K-K- committed a fraud, ent is our best customer. and yes, under the applicable legal standard, he should prob- For many--if not most--asylum seekers, the process is ably be deported. And fine, it’s nice to have a framework stressful and scary. They are separated from loved ones and to assess credibility when this issue comes up. But what

Fall 2015 | 23 about the missing “transcriber”? Where is the person who There is precedent for this type of coercion in immigra- prepared this fraudulent case? He is nowhere to be found. tion proceedings. In Matter of Lozada, the BIA basically And the BIA does not seem to care. held that if an alien has been denied relief due to the inef- Frankly, the BIA’s decision here makes me angry. fective assistance of her attorney, she can reopen her case, Everyone in this business knows that asylum fraud is a but to do so, she generally must file a bar complaint against problem. We also know that there are (hopefully) a small the ineffective attorney. This requirement forces attorneys number of attorneys and notarios (or transcribers) who are to police their own by possibly having their colleagues responsible for much of this fraud. These people damage disbarred. I don’t like it, but I’ll file a complaint when it’s the asylum system and make life more difficult for legiti- justified. And--so the reasoning goes--if the offending attor- mate asylum seekers. ney is barred from practice, his future clients/victims will Some--perhaps most--of the fraudsters’ clients are active be protected. participants in the fraud. But at least in my experience The problem addressed by R-K-K- is worse than the one cleaning up their messes, many of these “clients” are naïve described in Lozada. In Lozada, we are talking about inef- victims of unscrupulous attorneys who find it all too easy fective assistance of counsel--this ranges from a benign to manipulate frightened people who do not speak English, screw-up (which can--and does--happen even to the best who are predisposed to mistrust authority (because they attorneys) to dereliction of duty. In R-K-K-, on the other were harmed by the authorities in the home country), who hand, the Board is addressing outright fraud: The attorney do not understand “the system,” and who have no support or notario (or applicant) has appropriated someone else’s network in the United States. case as her own in the hope of outwitting the fact-finder. So is R-K-K- a victim or a villain? We don’t know, and This is malicious and dangerous behavior that requires given the BIA’s “framework” for analyzing similar cases, punishment. The regime created by R-K-K- allows the little I guess we never will. fish to fry and the big fish to keep swimming. It addresses How could this decision have been better? It seems a a symptom of the fraud without reaching the source. I hope crime was committed here, so why not involve law enforce- that the BIA will one day revisit this issue and that it will ment? When a possible fraud has been detected, the Board take a stronger stance against asylum fraud. ◆ could require the IJ to inform the applicant about the possible fraud, advise him that if he cannot overcome the Jason Dzubow is an attorney in Washington, finding of fraud, he faces criminal and immigration penal- DC. He specializes in political asylum, ties, and give him an opportunity to switch attorneys and/ immigration, and appeals. His blog, the or work with law enforcement to expose and prosecute the Asylumist (www.Asylumist.com), is the guilty party. He should also be made aware of the benefits only blog in the United States devoted of cooperation. The alien can refuse to go along, of course, exclusively to asylum law and policy. in which case he will face the consequences. But if he does cooperate, he should be rewarded, particularly if it turns out that he was more of a victim than a co-conspirator.

The Green Card

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