Representation is imperative to due process for immigrants

The stories from the flood of children who arrived in the United States during the summer are familiar – they fled their homes in Central America, traveled across mountains and deserts to reach the southern border of the U.S., got picked up by authorities, and were placed in detention centers before being relocated with family members already in the country.

But even when they are safe with relatives in the U.S., for many, the journey is just beginning.

These youngsters still must maneuver the arduous and protracted process of convincing the immigration courts to grant them permanent legal residency. The children’s cases are creating more need for pro bono legal representation and are highlighting an area of asylum law that the courts struggle to clearly define.

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“The sudden influx of these children has created a significant problem that needs to be addressed,” said Andrew Campbell, a partner at Faegre Baker Daniels LLP who has represented immigrants in asylum hearings.

“These children are entitled to due process and we as lawyers are in a unique position to ensure they receive a fair hearing on the merits of their case,” he continued. “Even when they are not entitled to some relief, we should advocate to ensure they have a safe and orderly return to their home country.”

Faegre Baker Daniels provides pro bono representation for immigrants referred from several legal services organizations.

The children and their families have also sought help from the Neighborhood Christian Legal Clinic in Indianapolis. Immigrant staff attorney Aimee Heitz said many of the youngsters who have been relocated to Indiana appear to be coming mostly from El Salvador, Guatemala and Honduras.

Campbell shied away from characterizing the situation as a “crisis,” but he noted the resources of the immigration courts were under extreme pressure even before the newest crop of unaccompanied minors arrived.

Compounding the problem, immigration cases tend to be very complex, requiring a great deal of time, resources and expertise.

Particular social group

Lewis & Kappes P.C. immigration attorneys Sarah Moshe and Kerry Boyne represent two brothers who left their home in Honduras to get away from the violent gangs. After being detained at the border, the brothers were placed with their aunt in Indianapolis and are now attending high school.

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Since the younger brother is still a minor, Moshe and Boyne are trying to obtain Special Immigrant Juveniles Status. But for the older brother, the attorneys are making a case for asylum on the grounds that he is a member of a “particular social group” because he was targeted by gangs. The older brother will not have his asylum hearing until 2018.

Convincing the courts that an immigrant does in fact belong to a particular social group and proving that the person was persecuted because of membership in that group is difficult, according to Matthew Lamberti, former staff attorney with the Immigrants and Language Rights Center at Indiana Legal Services.

Unlike the other grounds on which to seek asylum – race, religion, nationality and political opinion – membership in a particular social group is not easily defined.

Immigrants have to persuade the court that the characteristics they possess are immutable and do put them in a social group. In addition, they have to show the court that they were subjected to treatment that rises to the level of persecution.

“These are cases that some of the best lawyers around the country are having a difficult time proving,” Lamberti said.

In its 2010 decision in Valdiviezo-Galdamez v. Attorney General of the U.S., the 3rd Circuit Court of Appeals detailed the numerous, sometimes contradictory, rulings from the Department of Justice’s Board of Immigration Appeals on the “particular social group” provision.

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7th Circuit Court of Appeals Judge Frank Easterbrook wrote a strong dissent in CeCe v. Holder, 733 F.3d 662 (7th Cir. 2013), warning the court about allowing a “social group” to be defined too broadly. He asserted the court’s ruling would make everyone who faced substantial risk of harm, regardless of the reason, eligible for asylum.

Easterbrook bolstered his argument by pointing to decisions from two other Circuits – Rreshpja v. Gonzales, 420 F.3d 551, 555–56 (6th Cir. 2005), and Gjura v. Holder, 695 F.3d 222 (2d Cir. 2012) – as reaching opposite conclusions on asylum claims identical to those made in Cece.

However, in its first ruling on Valdiviezo-Galdamez in 2007, the 3rd Circuit did hold that young Honduran men who were activity recruited by gangs but refused to join could comprise a social group.

Moshe acknowledged applying for asylum on the basis of belonging to a social group is a challenge, but it’s an easier argument to make now than even a year ago because the issue is coming before the courts more frequently. Attorneys have more caselaw and precedent to use when trying to prove one is a member of a social group.

The definition of the provision is so open, she said, that situations which are not caused by other more easily identifiable provisions, such as race or religion, are argued on social group grounds. And these arguments have been successful in court.

Pro bono help

The two brothers are lucky, they have attorneys. With the crush of new cases, some of the children may have to appear for removal proceedings without an attorney.

“I think it already is and will continue to be more difficult to find attorneys able and available to represent all the kids that are coming and needing representation,” said Faegre Baker Daniels associate Jacqueline Pimentel-Gannon.

At Faegre, Campbell said teams of attorneys handle the pro bono immigration cases, dividing among themselves the research of the conditions in the country of origin, the legal writing, and the preparation of the expert testimony.

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There is a learning curve for attorneys unfamiliar with immigration court, Campbell said. But the cases allow the attorneys to tackle substantive legal issues while also providing the personal satisfaction that comes from helping the very vulnerable.

Moshe is hoping to expand her work by volunteering at the detention center in Artesia, New Mexico. For a four-day stint, she would meet with the detainees, make sure they were getting proper care and represent them at the initial hearings held to determine if they are eligible to seek relief.

In helping these children, Moshe wants the law taken as it is written. She does not support violating the statutes or making exceptions to allow the children to get residency.

“I think the important issue is they have representation to see if they are eligible for relief,” Moshe said.•

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