Litigation Project Highlights

Supreme Court preserves judicial review for immigrants seeking to reopen their removal proceedings

Ruling will keep federal court doors open to thousands of immigrants pursuing relief from removal and vindicates position that ILCM and other immigrants' rights groups presented in an amicus brief to Supreme Court.

January 20, 2010- The U.S. Supreme Court issued today this important opinion in Kucana v. Holder, No. 08-911, affirming that the U.S. circuit courts of appeals have jurisdiction to review cases brought by immigrants who have moved to reopen their removal proceedings, but who were denied reopening by immigration judges and the Board of Immigration Appeals (BIA). ILCM joined with immigrants' rights organizations from across America in filing this amicus curiae brief which urged the outcome reached by the Supreme Court in Kucana.

While the decision in Kucana is welcome it leaves important questions to be answered by lower circuit courts of appeals, including the Eighth Circuit. For example, it would appear that Kucana also effectively overrules the Eighth Circuit's prior opinions finding no jurisdiction to review an immigration judge's denial of a continuance. An answer could come soon, as the Eighth Circuit, anticipating Kucana, has held in abeyance this petition for rehearing filed by ILCM's litigation project in Hernandez v. Holder, 579 F.3d 864 (8th Cir. 2009).

It should be noted that the Supreme Court limited its holding in Kucana to the review of motions for reopening where the underlying form of relief sought by the immigrant is one that Congress has clearly authorized the federal courts to review, such as asylum. The Court explicitly declined to decide whether jurisdiction exists where the relief underlying the motion to reopen generally is discretionary and not reviewable in circuit court (e.g. adjustment of status or cancellation of removal). Resolution of the petition for rehearing in Hernandez v. Holder may also answer this question, as Hernandez sought a continuance related to an application for cancellation of removal. Stay tuned to ILCM's litigation project web page for updates!

ILCM celebrates a successful first year for the pro bono litigation project
December 17, 2009- ILCM has just completed the first full year of its pro bono litigation project thanks to generous funding from the National Immigrant Justice Center, the Minneapolis firm of Robbins Kaplan Miller & Ciresi LLP, and a small group of individual donors. Our project has been successful, far exceeding expectations in terms of reach and impact. We have undertaken five principal petitions for review before the Eighth Circuit and two petitions for rehearing. We have led the preparation of one amicus brief to the Board of Immigration Appeals and joined a number of other important amicus briefs to federal courts of appeals as well as the United States Supreme Court. The project has engaged in advocacy efforts that complement its litigation goals, most notably our campaign to win Attorney General certification of Matter of S-E-G-. We also undertook our first two federal district court actions - a mandamus case and a habeas corpus petition. We held two CLEs attended by a total of more than 90 attorneys, and we provided technical assistance to dozens of attorneys and immigrant advocacy organizations in a broad array of immigration litigation matters. The project enlisted talented pro bono attorneys from dedicated law firms to serve as co-counsel in our litigation efforts. Our volunteer litigators donated over 600 hours of service to ILCM and our clients in 2009. We can't thank you and your firms enough:

ILCM joins amici curiae brief to United States Supreme Court calling for immediate release of Uighur detainees held at Guantanamo bay
December 14, 2009- ILCM has joined this brief of amici curiae, filed with the United Supreme Court on December 11th in the pending case Kiyemba v. Obama, No. 08-1234. The brief, filed on behalf of ILCM and other immigrant rights organizations, asks the Court to order the immediate release within the United States of the remaining Uighur detainees held at Guantanamo bay, this pursuant to the prior order of a district court judge who heard and granted the detainees habeas corpus petitions. The amicus brief argues that the Supreme Court should overrule a subsequent circuit court decision that reversed the district court on the misguided theory that release of the Uighurs would unlawfully usurp executive and congressional authority over matters of immigration. Our brief contends that the judicial authority to order release under habeas must extend to the Uighurs and does not implicate or usurp any executive or congressional immigration powers. The case will be argued later this term and a decision from the Supreme Court is expected before the end of June 2010.

Litigation Project and Robbins Kaplan Miller & Ciresi file new appeal with Eighth Circuit asserting rights of "unaccompanied alien children"
November 20, 2009- ILCM's litigation project has teamed with pro bono counsel Anna Petosky and Randall Tietjen of Robbins Kaplan Miller & Ciresi LLP in a new appeal to the Eighth Circuit that will address the legal capacity and rights of "unaccompanied alien children." The case, Sandoval v. Holder, File No. 09-3600, presents the question whether an unaccompanied alien child (a non-citizen child under 18 present in the United States without a parent or legal guardian) may be banned for life from immigrating to the United States under a harsh provision of immigration law applicable to individuals who have made a false claim of U.S. citizenship. Our appeal will ask the Eighth Circuit to hold, in part, that unaccompanied children should be presumed to lack the legal capacity necessary to make such false claims.

ILCM files petition for rehearing with Eighth Circuit on issue of "repapering"; Court asks government to respond
November 20, 2009- The litigation project has filed a petition for rehearing with the Eighth Circuit Court in the case of Guatemalan asylum seeker, Rolando Hernandez. Although we succeded in winning Mr. Hernandez further consideration of his application for humanitarian asylum (see Hernandez v. Holder, 579 F.3d 864 (8th Cir. 2009)), the circuit court ruled that it lacked jurisdiction to consider Mr. Hernandez's alternative claim that the immigration court and Board of Immigration Appeals had improperly denied a continuance of his deportation proceedings to allow him the opportunity to seek "repapering" and pursue a separate application for humanitarian relief based on hardship that deportation would cause his three U.S. citizen children. Our petition is here.The Court has asked the government to respond to our petition by November 16th. [UPDATE - November 17, 2009. The government response to our petition for rehearing is now available here.]

Litigation project teams with pro bono attorneys at Lindquist & Vennum to win Somali refugee long-delayed green card
November 5, 2009 - Our litigation project thanks the Minneapolis office of Lindquist & Vennum for its outstanding pro bono work on behalf of an ILCM client and Somali refugee whose application for permanent resident status was unreasonably delayed for over 4 years. Lindquist & Vennum attorneys Kelly Laudon and Karla Vehrs, along with firm intern Carol Washington, prepared a federal lawsuit to compel action on the application filed by our client, who, while undergoing treatment for Hodgkin's disease, struggled fruitlessly for years to obtain approval of his greencard. Within three weeks of presenting the Department of Homeland Security (DHS) with our intended lawsuit, the client received his permanent resident status card in the mail. This is a great victory that will now our client to pursue his ultimate dream of naturalizing to full U.S. citizenship.

ILCM litigation project and Latham & Watkins present web based CLE on gang-based asylum claims and Matter of S-E-G-
October 30, 2009 - On October 28, 2009, ILCM and Latham & Watkins hosted a one-hour web CLE covering our ongoing efforts to overturn the Board of Immigration Appeals decision, Matter of S-E-G-, discussing federal court opinions in the wake of the BIA's decision, and recommending strategies for representing asylum seekers impacted by S-E-G-. You can watch the program here. Our thanks to Latham & Watkins for making this event possible and for their tireless efforts on behalf of our clients.

Litigation project joins Dorsey & Whitney in habeas corpus petition seeking release of detained asylum seeker
October 8, 2009 - ILCM's has joined pro bono counsel Matt Ralph of the Minneapolis firm Dorsey & Whitney LLP in filing our project's first habeas corpus petition in federal district court. The petition challenges the Department of Homeland Security's decision to detain a Kenyan asylum seeker after he appealed the denial of his asylum claim to the Eighth Circuit. [UPDATE October 15, 2009 - shortly after filing the habeas petition we received word that the Board of Immigration Appeals reopened the client's asylum case. He was released from DHS custody on bond soon thereafter.]

ILCM scores victory at Eighth Circuit in long-running asylum case
September 2, 2009 - Yesterday the U.S. Court of Appeals for the Eighth Circuit issued a published opinion in Hernandez v. Holder, 579 F.3d 864 (8th Cir. 2009), granting in part the appeal filed by ILCM's litigation project on behalf of asylum-seeker Rolando Hernandez. The circuit court agreed that the immigration judge and Board of Immigration Appeals (BIA) failed to consider Mr. Hernandez's claim to humanitarian asylum and remanded the case to the BIA for further consideration. Mr. Hernandez's extraordinary asylum case is now in its 16th year. He was first granted asylum by an immigration judge in 1994, a decision the BIA reversed nearly seven years later, in 2000, holding that Mr. Hernandez's forced recruitment into a Guatemalan guerrilla organization for a period of 21 days rendered him ineligible for asylum as an individual who has "assisted or otherwise participated" in the persecution of others -- this despite the facts that Hernandez was threatened with death for opposing the guerillas and was shot in the leg as he escaped the group. In 2001, Mr. Hernandez won his first appeal to the Eighth Circuit Court in an influential opinion addressing the concept of assistance to persecution. The Eighth Circuit reversed the BIA's 2000 decision and sent the case back for further consideration. In 2007, the BIA ruled that Hernandez, while not an assistant to persecution, should nonetheless be deported because conditions in Guatemala had changed for the better during the many years of delay the government had caused in his case. Since the original immigration judge granted him asylum in 1994, Mr. Hernandez has become the father of three U.S. citizen children, ages 8 - 16. ILCM will continue to represent Mr. Hernandez as his case returns to the BIA for a third time.

Gray Plant Mooty files amici curiae brief on behalf of ILCM and other immigrant rights organizations, asking the Board of Immigration Appeals to reverse Matter of Almanza
September 1, 2009 - On August 21, 2009, litigation project volunteer attorneys Dean Eyler and Craig Brandt, of the Minneapolis firm Gray Plant Mooty, filed this amicus curiae brief with the Board of Immigration Appeals (BIA). The brief, filed on behalf of ILCM and other immigrant rights organizations, asks the BIA to reconsider and reverse its recent, controversial precedent, Matter of Almanza, 24 I&N Dec. (BIA 2009). In Almanza the BIA abandoned without explanation decades of its own precedents consistently holding that immigrants who have only a single "petty offense" misdemeanor crime on their record may still qualify to apply for humanitarian relief from deportation if their removal would cause extreme hardship to U.S. citizen or legal resident family members. If successful, this effort could restore eligibility for humanitarian relief to hundreds of immigrants and their families nationwide.

Wall Street Journal article on ILCM clients
Friday, August 28, 2009 - Last Friday the Wall Street Journal had an in depth look at the issues facing the young Salvadoran siblings who narrowly avoided deportation in July. The Journal examined not just the facts of the immediate case, but how it might impact future cases involving asylum-seekers seeking refuge from violent gangs. For the full article, please click here.

Young Salvadorans have their case reopened at the Board of Immigration Appeals
Monday, August 10, 2009 - ILCM is happy to report that the Board of Immigration Appeals will be reexamining the asylum claim of three Salvadoran siblings that just over a month ago were taken into custody for deportation proceedings by Immigration and Customs Enforcement. Late this July, Justice John Paul Stevens and two other Justices of the Supreme Court ordered a halt to the deportation proceedings until the Department of Homeland Security responded to the petitioners request for a stay of deportation. Just days later David Landau, chief appellate counsel for DHS, along with the Obama Administration's Solicitor General Elena Kagan, responded by jointly requesting that not only should the three siblings be released, but that the Board of Immigration Appeals reconsider the original claim. On July 28th, the BIA agreed to reopen the case. Great thanks are owed to the impressive work of local attorney Ben Caspar, pro bono attorneys Richard Bress and Lori Alvino McGill at the firm of Latham and Watkins, Senator Al Franken, and ILCM's own John Keller. Due to their combined efforts, this young family will have a second chance before the BIA to not only stay in the country, but also set a precedent for others in their situation who are currently denied asylum despite well realized fears of returning to their country of origin. Please see the front page article by Jean Hopfensperger in the Star Tribune for more. Also see this PDF from the Department of Homeland Security and the office of the Solicitor General for the government's request that the case be reopened.

Salvadoran youth released from custody
Monday, July 27, 2009 - On July 22nd, Immigration and Customs Enforcement released from custody the three siblings from El Salvador that had been facing imminent deportation to their home country where they could have faced violent reprisals from the MS-13 gang for fleeing the country half a decade ago after refusing to join the notorious criminal group. The family was picked up by ICE on their standing deportation order on July 6th despite having an appeal pending before the 8th Circuit court. ICE declined to comment on the reasons for the release.

Struggle to prevent deportation of Salvadoran asylum-seekers continues
Thursday, July 23, 2009 - Attorneys for three young siblings from El Salvador continue their desperate effort to halt Immigration and Customs Enforcement deportation proceedings. Over the past week lawyers affiliated with ILCM and with the major national firm Latham and Watkins have undertaken every effort on behalf of the two brothers and their sister, arguing to Supreme Court Justices, Congresspeople and Senators, and Administration officials that the deportation should be stayed until the end of the appeals process. Chief among the lawyers concerns are the threats the three siblings will face if deported. The Salvadoran refugees originally came to the United States after the brutally violent criminal organization Mara Salvatrucha (MS-13), which has engaged time and again in murder, rape, terrorism, drug running, and human trafficking in the past, threatened to kill the two brothers and rape and murder their sister if they refused to join the gang. Their case is a vitally precedential one, if an appeal is successful it could not only save their lives but those of other refugees fleeing from the endemic gang violence that afflicts many parts of Latin America. We hope that you will join us in hoping and praying that these innocents are not deported by ICE to potentially face their death. For more information on ICE's procedures, please click here.

ILCM joins amici curiae brief to United States Supreme Court in case that will decide whether immigrants may appeal denial of a motion to reopen to the federal circuit courts
July 20, 2009 - ILCM has joined this brief of amici curiae filed yesterday with the United Supreme Court in the pending case Kucana v. Holder, No. 08-911. The brief, filed on behalf of ILCM and other immigrant rights organizations, asks the Court to hold that immigrants who have been denied reopening of their deportation cases by an immigration judge or the Board of Immigration Appeals (BIA) may appeal that denial to a circuit court of appeals. The several circuit courts of appeals are divided on whether they have jurisdiction to decide such cases. A decision from the Supreme Court is expected before June of 2010 and will impact the rights of thousands of immigrants across the country.

ILCM clients appeal to top Administration officials for stay of removal
Thursday, July 16, 2009 - On July 6th, 2009, three ILCM clients from El Salvador were seized by Immigration and Customs Enforcement (ICE) agents for deportation proceedings despite a current appeal before the Eighth Circuit of a Board of Immigration Appeals ruling. The BIA had previously ruled that the three were not eligible for asylum despite what even ICE concedes is a credible threat to the three siblings lives if they are returned to El Salvadore. Attorneys for the trio are asking Secretary of Homeland Security Janet Napolitano and Attorney General Eric Holder to stay the deportation pending the appeals process. The attorneys are also requesting that a Supreme Court justice grant a stay of removal, which both the Eighth Circuit and Justice Samuel Alito refused to do. The request for a stay of removal to Justice Alito, including a full accounting of the dangers faced by these three young people should they be deported, can be found here.

8th Circuit Court rules for client of ILCM's Pro Bono Litigation Project
Thursday, July 16, 2009 - Our new Immigration Litigation Project was successful in our first petition for review to the Eighth Circuit. In Salguero v. Holder, (PDF file), we challenged the Board of Immigration Appeals decision denying our client an opportunity to seek Temporary Protected Status during removal proceedings. The Board had ruled that an applicant who is denied TPS status by the Department of Homeland Security cannot renew that application in immigration court unless they first exhausted an appeal to the Administrative Appeals Unit. The Eighth Circuit ruled that our local Immigration Judges in Bloomington, Minnesota improperly refused to consider the TPS application on this misguided basis, and remanded the case to the Board of Immigration Appeals to explain why our client could be declared ineligible under the statute. In response the BIA stated in Matter of Lopez-Aldana, (PDF file), clarifying that an applicant for TPS may seek de novo review by an immigration judge during removal proceedings, regardless of whether an appeal to the AAU has been exhausted or even filed at all. ILCM Senior Attorney Sheila Stuhlman and our litigation project director, Benjamin Casper, litigated Salguero before the Eighth Circuit.

Pro-bono attorney interviewed on issue of 'participation in persecution'
Monday, March 16, 2009 - Attorney Ben Casper, an active participant in ILCM's pro-bono program and head of the 8th Circuit Court Appelate Litigation Project was interviewed recently by MinnPost regarding an asylum case recently reviewed by the Bureau of Immigration Appeals (BIA) in which an immigrant with dual citizenship in Eritrea and Ethiopia was denied asylum due to his participation in persecution - even though his participation was forced.

Legal Times features ILCM's work to reverse rejection of asylum for Salvadorans
Monday, March 2, 2009 - The work of ILCM and law firm Latham & Watkins was featured in a recent article in Legal Times. Following a decision by the Board of Immigration Appeals (BIA) to reject a plea for asylum by three Salvadoran siblings fleeing their home country and the internationally notorious Mara Salvatrucha (MS-13) gang, lawyers from ILCM and Latham & Watkins sent a letter to Attorney General Holder criticizing the decision.