Thursday, December 30, 2010

AAO I-601 Victory

Russell Abrutyn writes: "The AAO reversed the denial of an I-601 waiver application, finding that the applicant established the requisite extreme hardship to his parents and that he merited a favorable exercise of discretion notwithstanding the questionable circumstances surrounding his entry into the U.S.  Too bad it took nearly 3 years for the appeal to be decided.  The applicant was represented by Marshal Hyman, Russell Abrutyn, and Mayra Rodriguez."

Russell R. Abrutyn
Marshal E. Hyman & Associates
(248) 643-0642, ext. 15
(248) 643-0798 Fax

Friday, December 24, 2010

Victory on Right to Appointed Counsel in Immigration Proceedings for People with Mental Disabilities

Thursday, December 23, 2010 7:48 PM  -  LINK TO PRESS RELEASE

Ahilan Arulanantham  writes:

Some good news just before the holidays.  Yesterday night a federal district court judge in the Central District of California ordered the government to appoint a "qualified representative" to represent two men in their immigration proceedings, including before the BIA, at bond hearings, and in any appeals.  Both men suffer from very serious mental illnesses.  One had won termination before an Immigration Judge (who had relied on a psychiatric evaluation that we had provided to the federal court in our case), while the other had been ordered removed in a very cursory hearing, notwithstanding his serious mental illness, where his deportation officer was designated to "assist" him in representing himself.  Both were pro se before the BIA.

I wanted to attach the decision, but unfortunately it contains some privileged medical information and it looks like we aren't going to work out the redactions for the public version for at least several more days because it requires government consent and court approval.  We'll send it along as soon as possible.

The decision arose in the context of a motion for a preliminary injunction to 1) appoint counsel for both men in all future immigration proceedings and 2) give them both bond hearings notwithstanding their criminal convictions, which subject them to 236(c).  The underlying case -- Franco Gonzalez v. Holder -- is a class action on behalf of immigration detainees with serious mental disabilities in Washington, California, and Arizona.  It seeks a system for determining which detainees are not competent to represent themselves, and then appointed counsel and bond hearings for all such detainees. 

The court first found there was jurisdiction notwithstanding 8 USC 1252(b)(9), 1252(a)(5), and 1252(g), and that exhaustion was unnecessary, in part because it would be futile. 

On the merits of the appointed counsel claim, the Court found that the Rehabilitation Act (the federal government equivalent of the ADA) requires that the government appoint a "qualified representative" for both men as a reasonable accommodation for their disabilities.  Such a representative need not be an attorney, but must meet the following five criteria:  they must be obligated to provide zealous representation, subject to santion by EOIR for ineffective assistance, free of any conflicts of interest, "have adequate knowledge and information to provide representation at least as competent as that provided by a detainee with ample time, motivation, and access to legal materials," and obligated to maintain client confidentiality.  The court found that one detainee's mother, who had appeared at some of his proceedings, did not meet these criteria, in part because she has no legal knowledge, no access to a computer, and does not read English. 

Having found for us on the Rehabilitation Act ground, the judge did not address our Due Process arguments for appointed counsel.

With respect to bond hearings, the judge found that neither man was subject to 236(c) because it was meant to authorize mandatory detention only for "expeditious" proceedings.  Because the two men had been detained for 8 months and 14 months respectively and because both men likely faced lengthy further proceedings, their proceedings have not been expeditious and therefore they are detained under 236(a).  She therefore ordered the government to provide them with bond hearings within 30 days, and to appoint counsel to represent them at those hearings as well.

Obviously this win is only a first step for several reasons -- it's only a PI on behalf of two people, it's only a district court decision, and the Court just orders the government to ensure appointed counsel, regardless of whether the services are provided pro bono or at Government expense.  Most important, we expect the government to appeal. 

Nonetheless we are very happy about it, and view it as an important step to a fairer system for people with mental disabilities in immigration detention.  I wanted to thank the amazing team of lawyers that has worked on this case:  Mike Steinberg at Sullivan & Cromwell and the team of excellent attorneys he leads, Talia Inlender and Judy London from Public Counsel in LA, Matt Adams and Riddhi Mukhopadhyay at NWIRP, Sarah Mehta and Judy Rabinovitz at the ACLU IRP, Sean Riordan and David Blair-Loy at ACLU of San Diego, Jim Preis at Mental Health Advocacy Services, and Jen Stark at the ACLU of SoCal, who has worked tirelessly on the case with me.  Believe it or not, each and every one of these attorneys has played a central role in at least one aspect of this complex case, from the factual development to the expedited discovery to the mountain of briefing we've done already. 

We will send the decision as soon as we can.  Happy holidays everyone.

PS -- I would be remiss in also failing to thank Lucas Guttentag, who came up with the idea that the representative must be at least as competent as a detainee with time, motivation, and access to legal materials.  At oral argument on the PI the judge was stuck on our assertion that she had to appoint an attorney, given that other detainees have no right to appointed counsel and you don't have to be an attorney to practice in immigration court.  We gave her Lucas's suggestion in a supplemental brief, and she adopted it in her decision.

American Civil Liberties Union
125 Broad St
18th Floor
New York, NY 10004
(212) 549-2500

Wednesday, December 22, 2010

Unpub. BIA VAWA Cancellation Victory

Anish Vashistha writes: "I received the attached decision from the BIA yesterday regarding a respondent married to a U.S. citizen whose Form I-130 petition was not approved because USCIS found that he had entered into his first marriage for the sole purpose of evading the Immigration Laws.  After the respondent was granted Special Rule ("VAWA") Cancellation of Removal by the IJ, who also found that the respondent had not committed marriage fraud, DHS appealed arguing to the Board that DHS had proven marriage fraud, that the respondent had not shown the requisite hardship, and that the respondent does not warrant a favorable exercise of discretion.  DHS cited to the 2009 published BIA decision Matter of A-M-, 25 I&N Dec. 66 (BIA 2009), to support its position that the respondent's subsequent marriage invalidated his eligibility for VAWA Cancellation.  The alien in Matter of A-M- was denied VAWA Cancellation by the Board, which discussed in that case the alien's marriage subsequent to the dissolution of the alien's abusive marriage to support denial of the alien's application.  However, in the attached decision, the Board states that a marriage subsequent to an abusive marriage is not a dispositive factor for VAWA Cancellation and specifically references how the respondent's continued suffering from the effects of the abuse as if such continued suffering overrides the subsequent marriage.  I believe the attached decision would be helpful for similar respondents seeking relief under VAWA despite remarrying following the dissolution of an abusive marriage."

Mr. Anish Vashistha
Attorney At Law
Law Firm of Leon Hazany & Assoc.,
A Professional Law Corporation
5670 Wilshire Blvd., Ste. #1730
Los Angeles, CA 90036
(323) 692-1446 (Office)
(323) 692-1449 (Fax) 

Matter of Rojas victory

Nancy Morawetz writes: "I am delighted to report that Judge McMahon, in the Southern District of New York, issued a ruling in Louisaire v. Muller earlier this month rejecting Matter of Rojas and ordering that our client be granted a bond hearing.  After a bond hearing, bond was set at $8,000.  Our client’s family has posted the bond and Mr. Louisaire is home in time for the holidays.  Attached is a copy of district court decision.  Thanks are due to Stephen Kang and Ruben Loyo, third year students at the NYU School of Law Advanced Immigrant Rights Clinic, who represented Mr. Louisaire."

Nancy Morawetz
Professor of Clinical Law
Supervising Attorney, Immigrant Rights Clinic
NYU School of Law
245 Sullivan Street
New York, New York 10012

Wednesday, December 15, 2010

Unpub. BIA remand victory: new evidence

"The respondent now seeks to remand these proceedings to the Immigration Judge for further consideration of the exceptional and extremely unusual hardship requirement in light of new evidence. ... the evidence presented regarding the ongoing medical issues of the mother of the respondent is sufficient to warrant a remand for further factfinding."  Matter of X-, Dec. 10, 2010.  Hats off to Harvey Kaplan!

Unpub. BIA I-130 spousal visa petition victory

Here's a very interesting case from Helena, Montana attorney Shahid Haque-HausrathMatter of Chen, A089 896 814 - CSC, Nov. 23, 2010.

Saturday, December 11, 2010