ILCM Litigation Project Helps Create New Immigration Law Program at U of M

The Robina Foundation has given a generous gift of $9 million to the University of Minnesota Law School, half of which will be used to establish a new program called the University of Minnesota Law School Center for New Americans. This is great news! The ILCM is proud of our involvement in the creation of this important program via our Litigation Project.

The University of Minnesota Law School Center for New Americans will collaborate with leading area law firms and non-profits, such as ILCM, to provide immigrant communities with urgently needed legal services. The Center for New Americans will also be home to an immigration clinic for law students.

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ILCM and DeLeón & Nestor challenge USCIS practice of denying immigration petitions filed by incarcerated U.S. citizens

In Torres, et al. v. Napolitano, et al., ILCM and DeLeón & Nestor are representing an incarcerated U.S. citizen as well as his wife and step-children who are citizens of the United Kingdom.  The U.S. Citizenship and Immigration Services office in Bloomington, Minnesota denied as abandoned the husband’s visa petitions on behalf of his family when he could not attend an in-person interview with his wife, even though USCIS can and routinely does waive this interview in many other contexts.  Our law suit in U.S. District Court challenges the local USCIS policy under the Administrative Procedure Act, the Due Process and Equal Protection Clauses of the Fifth Amendment, the Mandamus Act, and the Declaratory Judgment Act.

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Robins, Kaplan, Miller & Ciresi, L.L.P. and ILCM seek rehearing of Eighth Circuit asylum decision imposing onerous standard for past persecution

ILCM and pro bono co-counsel William Boornstein of Robins, Kaplan, Miller & Ciresi, L.L.P., along with the Monzón law firm of Lincoln, Nebraska, have filed this petition for rehearing or rehearing en banc of the Eighth Circuit’s recent asylum decision, Garcia- Colindres et al. v. Holder, 700 F.3d 1153 (8th Cir. 2012).  Garcia-Colindres’ home was ransacked in 1993 by 30-40 members of Guatemala’s National Civilian Police (PNC) who believed his son was hiding weapons for a guerilla group.  Garcia-Colindres was taken into custody, beaten and burned with a cigarette for 8 hours.  PNC said they would kill him and hold his family responsible if the son did not reappear, a credible death threat that caused Garcia-Colindres to go into immediate hiding, and then flee to the United States.   Despite these facts, and despite the subsequent torture and murder of another of Garcia-Colindres’ sons, the Eighth Circuit ruled that the mistreatment Garcia-Colindres experienced, even considered cumulatively, was not “extreme” enough to constitute past persecution.  Our petition asks the court to reconsider its decision which, since its onerous standard could prevent many worthy asylum seekers from proving their past mistreatment was severe enough to amount to persecution.

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ILCM joins University of Minnesota Law School in appeal testing Eighth Circuit’s jurisdiction to review application of the one-year time limit for filing asylum applications

ILCM and the University of Minnesota Law School Immigration and Human Rights Clinic, led by student attorneys Gaelen Schumann and Hayley Steptoe, have filed an initial brief in the complex Eighth Circuit asylum appeal P-P-G- v. Holder.    P-P-G- is a former Guinean military officer who suffered government torture due to his ethnicity and suspected sympathy for leaders of a failed coup.   An immigration judge agreed that P-P-G- faces a clear probability of more torture if returned to his home country, and for this reason granted him the relief of withholding of removal.  But the immigration judge denied P-P-G- asylum, which is generally less stringent that withholding of removal, on the sole ground that he had failed to file his asylum application within one year of arriving in the United States.  The Board of Immigration Appeals (BIA)agreed with the immigration judge and declined to grant P-P-G- an available exception to this one year deadline despite compelling evidence that P-P-G- was responding to new developments in Guinea that arose just before his one-year period expired, and that he was unrepresented and debilitated by PTSD related to his past persecution.  Our appeal asserts the BIA committed legal errors when assessing whether P-P-G- was eligible for an exception to the one-year filing deadline, and we ask the Eighth Circuit to find that it has jurisdiction to correct the error here and in similar cases brought by other asylum seekers.

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ILCM files amicus curiae brief asking Minnesota Court of Appeals to hold that a parent’s lack of immigration status is not a proper ground for third party child custody petition

In the child custody case In re the Custody of A.L.R. an infant’s paternal grandparents argued that the teenage mother’s unauthorized immigration status created an extraordinary circumstance allowing them to seek custody as third parties, in place of the parent of the child.  The Minnesota state district court agreed and granted physical and legal custody to the paternal grandparents.  The mother appealed with pro bono counsel from Leonard, Street, and Deinard, P.A.  ILCM has submitted an amicus brief discussing the likely negative impact on immigrant families if a parent’s lack of immigration status were recognized as cause for third party custody actions.  Our brief details why the complexities of federal immigration law make it difficult or impossible for state courts to accurately determine how immigration status impacts a parent’s ability to care for their children.  The Advocates for Human Rights submitted a separate amicus brief focusing on the international human rights principles supporting the parental right of A.L.R.’s mother.

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ILCM and Robins, Kaplan, Miller & Ciresi, L.L.P. join litigation challenging unlawfully obtained evidence in removal proceedings

There is notable tension within the Eighth Circuit over whether suppression is a proper remedy in removal proceedings when immigration officials obtain evidence that an individual lacks immigration status by violating his or her constitutional rights. Puc-Ruiz v. Holder, 629 F.3d 771, 775 (8th Cir. 2010), appeared to endorse suppression for egregious constitutional violations, while cases like Garcia-Torres v. Holder, 660 F.3d 333 (8th Cir. 2011) and Lopez-Gabriel v. Holder, 653 F.3d 683 (8th Cir. 2011), suggest the question remains open.  ILCM is co-counsel with Colin Peterson of Robins, Kaplan, Miller & Ciresi, L.L.P, and Rachel E.B. Lang, in the immigration suppression case Martinez-Carcamo, et al. v. Holder, Eighth Circuit No. 11-3860, where the petitioners allege immigration agents (not local police) committed egregious violations of their constitutional rights during a warrantless, non-consensual invasion of their trailer home.  We ask the court to affirm that suppression is available in this context, or to reverse and remand our clients’ removal orders due to serious fact-finding errors made by the immigration judge.

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ILCM and allies seek review of asylum case at U.S. Supreme Court

In Gaitan v. Holder, 671 F.3d 679 (8th Cir. 2012), ILCM and co-counsel from Latham & Watkins and the Wilson Law Group unsuccessfully challenged the Board of Immigration Appeals’ controversial new requirements that asylum seekers claiming  membership in a “particular social group” must demonstrate the proposed group possesses both particular and well-defined boundaries (“particularity”) and a recognized level of “social visibility,” as set forth in  Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008). While the Eighth Circuit upheld the BIA in Gaitan, there is a clear circuit split on the validity of these new requirements, with the Seventh and Third circuits refusing to defer to the Board, Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009), Valdiviezo-Galdamez v Att’y Gen., 663 F.3d 582 (3rd Cir. 2011), and the en banc Ninth Circuit reconsidering its prior approval of the S-E-G- standard. Henriquez-Rivas v. Holder, 670 F.3d 1033 (9th Cir. 2012).   ILCM and our Gaitan co-counsel have now filed a petition for certiorari with the U.S. Supreme Court.   Our case was recently highlighted by SCOTUS blog as a “petition to watch.”  We expect the Court to consider our petition in the fall.

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ILCM joins Robins, Kaplan, Miller & Ciresi, L.L.P. and DeLeón & Nestor in effort to stop unlawful DHS detention practices

The plain language of § 236(c) of the Immigration and Nationality Act appears to say that mandatory immigration detention is allowed only if DHS assumes custody of a noncitizen at the time he or she is released from criminal custody, yet in Matter of Rojas, 23 I&N Dec. 117 (BIA 2001) the Board of Immigration Appeals held that mandatory detention is also required at any time after release from criminal custody, whenever DHS happens to encounter a noncitizen with a prior conviction listed under this statute, no matter how old.  ILCM, pro bono co-counsel Bruce Nestor, and Colin Peterson of Robins, Kaplan, Miller & Ciresi, L.L.P, are seeking case vehicles for habeas corpus petitions to challenge Rojas in U.S. District Court in Minnesota.  The majority of district courts to have considered this issue reject Rojas, but the one circuit court of appeals to rule on the question has upheld the BIA. Hosh v. Lucero, 680 F. 3d 375 (4th Cir. 2012).  To date, neither the Eighth Circuit nor the U.S. District Court in Minnesota have addressed the question.

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Robins, Kaplan, Miller & Ciresi, L.L.P. helps ILCM win appeal for immigrant victim of domestic abuse

ILCM congratulates pro bono co-counsel Katherine Barrett Wiik of Robins, Kaplan, Miller & Ciresi, L.L.P., and Bruce Nestor for a hard-fought victory in the case In Re: A-L-M-. We also thank the amici curiae team: the National Network to End Violence Against Immigrant Women, Legal  Momentum, The Family Violence Prevention Fund, and ASISTA Immigration Assistance Project.

This case, on remand from the Eighth Circuit to the Board of Immigration Appeals (BIA), presented important questions about immigration relief under the Violence Against Women Act (VAWA).  Certain immigrant women may avoid deportation on humanitarian grounds if they can prove that their child was "battered or subjected to extreme cruelty" by the child's father, and "extreme cruelty" can include psychological abuse alone. Meanwhile, VAWA extends immigration relief to certain women who were battered or subjected to extreme cruelty by their husbands directly, but it does not cover women abused by men to whom they are not legally married.  But what about an unmarried woman who lives with the father of her child, where the father physically abuses the woman in the presence of their child, but does not physically abuse the child? Does the father's pattern of physically abusing the mother in the child's presence amount to "extreme cruelty" to the child and in turn qualify the mother for VAWA protection by virtue of her child's potential psychological harm? Further, what happens if the child later dies?  Does the mother lose her eligibility for relief?

Our client, a citizen of Guatemala, suffered domestic abuse at the hands of the father of her U.S. citizen daughter, while in the presence of the daughter.  The father even abused our client in the presence of their daughter when the child was terminally ill with cancer.  With <<In re: A-L-M->>, the Board of Immigration Appeals (BIA) clarified that the daughter's subsequent death could not terminate our client's eligibility for VAWA relief, and that the father could indeed perpetrate "extreme cruelty" upon his daughter by abusing our client in the child's presence, regardless of whether the child suffered any actual harm (the threat of psychological harm is sufficient) and regardless of whether the father ever intended to harm the child.

ILCM and Robins, Kaplan, Miller & Ciresi, L.L.P., joined by amici curiae, will ask the BIA to publish its decision as a national precedent.

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Litigation project director joins amicus brief in important gender-asylum case

ILCM's Pro Bono Litigation Project director, Benjamin Casper, also a member of the amicus committee of the American Immigration Lawyers Association (AILA), has joined this amicus curiae brief to the Board of Immigration Appeals (BIA) in the case, Matter of K-C-, urging recognition of "Guatemalan women" as a valid "particular social group" under U.S. asylum law.  The BIA has indicated it may soon issue an important precedent in this case addressing whether domestic violence can serve as grounds for an asylum.

Meanwhile, ILCM continues to represent a separate victim of severe gender violence in Guatemala in the case Matter of C-R-P-, also before the BIA on remand from the U.S. Court of Appeals for the Eighth Circuit. In C-R-P-, ILCM and amicus curiae seek recognition of the same broad social group, "Guatemalan women."

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