Cornell Law
Two reports from Professor Stephen Yale-Loehr:
1) Hi all: Our Cornell asylum appeals clinic recently won a difficult withholding/CAT case at the BIA. On remand, the IJ granted CAT. And the client won release through habeas.
Pasted in below is a summary of the case.
Kudos go to Eva Charles and Isaac Belenkiy, the two Cornell law students who worked on the case. Even by the high standards of our clinic, they both went above and beyond for the client. And as you will see from the summary, pro bono attorneys from Morrison Foerster and the public defender’s office also worked hard to get our client CAT protection and release from detention. It takes a village to win immigration relief!
The habeas decision is at 2023 U.S. Dist. LEXIS 173280. The BIA decision is too big to attach. If anyone wants it, please email me offline.
Thanks, Steve Yale-Loehr
2023 Mexico Withholding and CAT Case Summary [IES]
Stephen Yale-Loehr, Evangeline Charles, Isaac Belenkiy
IES is a 41-year-old man from Mexico who first came to the U.S. when he was 18 years old. As a youth, IES joined a gang. He was arrested in 2005 for possessing a small quantity of drugs and was sentenced to four years in prison for “transporting drugs.” While in prison, IES defected from the gang and, following his release, was removed to Mexico in 2008. There, his tattooed physical appearance caught the attention of gangs and cartels like the Cártel de Jalisco Nueva Generación, who attacked him and his family, prompting him to relocate eight times within Mexico. Unable to find safety in Mexico, IES fled back to the United States in 2010.
In 2022, IES was detained by ICE and held at the Golden State Annex (“GSA”), a private for-profit prison, in McFarland, CA. IES applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) denied all forms of relief, finding that IES’s 2005 conviction was a “particularly serious crime” (“PSC”) that rendered him ineligible for asylum and withholding of removal.
At this point, the Cornell asylum appeals clinic took on IES’s appeal to the Board of Immigration Appeals (“BIA”). Our brief addressed two main issues: 1) IES warranted relief under withholding of removal because his 2005 conviction was not a PSC; and 2) the IJ erred in analyzing IES’s eligibility for CAT relief.
For the PSC argument, we argued that the IJ improperly analyzed IES’s offense, ignored credible evidence that the drugs were for personal use, and instead relied on boilerplate sentencing documents. As a result, the IJ failed to analyze IES’s motivation and intent at the time of the offense.
For the CAT argument, we focused on 6 errors: 1) the IJ failed to consider that IES’s prolonged mental pain would cause future torture; 2) the IJ did not consider future torture from gangs and cartels despite an expert saying this risk was at 80%; 3) the IJ failed to admit 400 pages of country conditions reports into evidence; 4) the IJ mischaracterized IES’s attempts to flee cartels 8 times as “relocation;” 5) the IJ did not think there was police acquiescence even though the police, the local Attorney General, and the judicial police ignored IES’s complaints; and 6) the IJ did not aggregate IES’s risk of torture.
On June 16, 2023, the BIA sustained our appeal in IES’s favor and remanded the case back to the IJ. Notably, the BIA agreed with our PSC argument, the IJ’s failure to consider all evidence, and the IJ’s failure to aggregate IES’s risk of torture.
After this, IES’s case was transferred to a public defender, who represented him on remand. The clinic team worked closely with the public defender’s office to transfer all files and get them up to speed on the case.
Parallel to our BIA filing, we participated in other advocacy efforts. While at GSA, IES participated in a labor strike in 2022 and a hunger strike in 2023. The aims of these protests were to draw attention to the abysmal conditions at private immigration detention facilities like GSA, to call for a minimum wage for detainee labor, and to demand safe and sanitary living conditions for detained migrants. The 2023 hunger strike was a coordinated effort by detainees and activists, supported by lawyers working for immigration justice. This protest resulted in a class action lawsuit on behalf of the detainees and the submission of release requests on behalf of individual detainees.
During the protests at GSA, our team filed a release request for IES. Our request explained that IES should be released because he was neither a flight risk nor a danger to society. ICE denied the request. IES continued to participate in the hunger strike and was mistreated by ICE personnel and medical officers. This prompted our clinic to file complaints to ICE and DHS about this mistreatment, which violated ICE’s own regulations. At the same time, we filed FOIA requests asking for IES’s detention, removal, and medical records. We decided to build a record of release requests to show administrative exhaustion so that IES can get a bond hearing. We also found a law firm (Morrison Foerster) to represent IES pro bono for a habeas corpus petition.
On September 27, 2023, the U.S. district court for the Northern District of California granted IES’s habeas petition on the grounds that “his prolonged detention without an individualized hearing violates his procedural due process rights.” A bond hearing was granted to IES. The government appealed this ruling, but their appeal was dismissed.
In fall 2023, IES was released on bond. A week later, the IJ granted him protection under CAT. IES is now back home with his wife and children. He can now get a work permit and cannot be deported to Mexico.
In the triumph of IES’s journey from detention to liberation, our team found a beacon of hope and resilience. The hunger strikes, the legal battles, and the relentless pursuit of freedom for IES were not in vain. As our clinic celebrates his freedom, we are grateful to our partners—advocacy groups in California and lawyers and public defenders who provided advice and guidance on appeal and zealously advocated for IES on remand—and to IES’s family, who never stopped providing support and information despite their own personal struggles.
The clinic’s fight for immigration justice is far from over, but IES’s triumph serves as inspiration to press onward and advocate for other clients who are plagued by inequities in our immigration system.
2) Asylum granted!
Beginning in spring 2023, a group of thirteen 1L and advanced Immigration Law & Advocacy Clinic students worked tirelessly to file individual asylum applications for a family from Afghanistan. The clients had their interviews in April, and the clinic just received the good news that the requests were approved. Congratulations to the team!
Part of the legal team is pictured here (from left): Katie Rahmlow ’23, client, client, Don Izekor, Esq. ’23, Alisa Whitfield, interpreter Hamid Rezaee (CIS ’26), Jaclyn Kelley-Widmer, client, Amy Godshall ’23.
Not pictured: Deborah Morales ’25, Oscar F. Ruiz ’25, Nathaniel Squires ’25, Rodrigo Tojo Garcia ’25, Aaliyah Channer ’25, Yubin “Lucy” Oh ’25, Arina Gorokhovska ’25, Miriam Mars ’24, Tori Staley ’23, Jared Flanery ’23.
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Congrats to the “next wave” of the relentless NDPA!
These are outstanding examples of why claims that unrepresented individuals receive constitutionally-required due process in Immigration Court are absolute poppycock! They also illustrate why responsible legislators and policy makers should be investing in representation rather than just spending wildly and fruitlessly on “gonzo” immigration enforcement.
No single nation, no matter how rich and powerful, can unilaterally change 21st century worldwide patterns of forced migration, which is what is generating the humanitarian situation at our Southern Border. But, we can more effectively address due process issues in our Immigration Courts, the “retail level” of the U.S. justice system!
🇺🇸 Due Process Forever!
PWS
O2-20-24