US Supreme Court Cites Firm’s Amicus Brief in Immigration Ruling
In Pereira v. Sessions, the US Supreme Court rejected efforts by the Department of Justice to use procedural shortcuts to eliminate protections for people who have lived for decades in the United States. In its 8-1 ruling on June 21, 2018, the Court cited part of an amicus brief authored by a firm team on behalf of the National Immigrant Justice Center (NIJC).
Pereira concerns the case of petitioner Wescley Fonseca Pereira, a native of Brazil who faced removal after living in the United States since 2000. A critical form of relief available to Mr. Pereira, and other immigrants like him, is “cancellation of removal,” which allows immigration judges to decline to order the removal of a noncitizen who meets stringent requirements—meaning that he or she has lived in the country for at least 10 years, has no criminal record, has “good moral character,” and shows “exception and extremely unusual hardship” to a US citizen family member.
At issue was how to calculate the 10 years. The statute stops this 10-year clock when the government serves a “notice to appear,” which the statute defines as a written notice satisfying particular requirements—including that it must include the “time and place” at which removal proceedings will be held. Despite the statute’s text, however, the government claimed that—as a matter of administrative convenience—it could omit the “time and place” but still treat the notice as stopping the 10-year residency clock.
Several courts of appeals had deferred to the DOJ. But the Supreme Court rejected the DOJ’s approach and held that the clock stops only upon the service of a notice including the time and place of the remove hearing. In rejecting the DOJ’s argument that including the hearing’s time and place would be infeasible, the Court cited the firm’s amicus brief, which showed that the government had previously used a system that allowed automatic scheduling of hearings. Relying on the firm’s brief, Justice Sonia Sotomayor, writing for the Court, explained that “[g]iven today’s advanced software capabilities, it is hard to imagine why DHS and immigration courts could not work together to schedule hearings before sending notices to appear.” As a result of the Court’s ruling, thousands of immigrants are now eligible to seek cancellation of removal.
The team writing the brief included Partner Lindsay C. Harrison and Associates Zachary C. Schauf and Jonathan A. Langlinais.
Helping Unaccompanied Minors
In October of 2017 and in January of 2018, about 20 young people facing deportation from the United States – legally called “unaccompanied minors” – came to Jenner & Block’s New York office for day-long clinics aimed at screening them for immigration relief.
The firm partnered with KIND, or Kids In Need of Defense, to run the clinic. KIND’s mission is to protect children who enter the US immigration system alone and strives to ensure that no such child appears in immigration court without representation. The firm has a longstanding relationship with KIND and has handled many immigration cases referred to the firm from them.
The clinics held last fall and this year represented the first time that Jenner & Block and KIND joined forces to screen young clients on-site and direct them to their next steps in the immigration process.
The firm participants – including lawyers, staff and others – first underwent a training session and then jumped into the work, interviewing one or two clients each. At the end of the screening process, the interviewers would guide the clients toward the appropriate next step, such as applying for a visa or asylum and set them up to find lawyers to seek that immigration relief.
The firm team that organized the clinics with KIND included Partner Michael W. Ross, Associates Jacob D. Alderdice and Thomas D. Garza and Legal Assistant Azza Khalifa.
Firm Team Secures Asylum for Pro Bono Client
On August 7, 2017, Associate Irene Ten Cate, Staff Attorney Danielle Nicholson and Partners Matthew D. Cipolla, Marc Hankin and Matthew E. Price secured asylum for pro bono client Abdul K. in immigration court in Harlingen, Texas. The grant of asylum eventually turned on a legal issue on which no clear precedent exists: whether the statutory firm resettlement bar, which excludes from asylum applicants who found refuge in a third country before arriving in the United States, applies to individuals who face persecution in the country of resettlement.
Abdul had settled in South Africa after escaping clan-based violence in his native country Somalia. He resided in South Africa for more than a decade and was granted a refugee permit, but was forced to flee after being subjected to severe attacks by South Africans who were targeting Somali immigrants. Abdul arrived in the United States in 2015 and was placed in detention. After his individual hearing, the immigration judge denied Abdul’s applications for asylum and withholding of removal and ordered him deported to South Africa or Somalia.
Retained to appeal from this ruling, the firm won a partial reversal from the Board of Immigration Appeals (BIA). Specifically, the BIA held that Abdul established that he had been persecuted in Somalia and in South Africa, and remanded the case to the immigration judge for a new hearing on whether Abdul was entitled to withholding of removal. The BIA affirmed, however, the immigration judge’s ruling that Abdul’s stay in South Africa rendered him ineligible for asylum under the firm resettlement bar. The team represented Abdul on remand, and obtained a ruling granting his application for withholding of removal. After one and a half years in detention, Abdul was released.
The firm then filed a petition for review in the Fifth Circuit, seeking reversal of the BIA’s ruling on firm resettlement. In its opening brief, the team argued that the firm resettlement bar does not apply to applicants like Abdul who were persecuted in the country in which they resettled. This is apparent from the plain meaning of the words “firmly resettled” and also flows from the bar’s purpose, which is to discourage “country shopping” by one-time refugees who have found safety in another country. The Harvard Immigration and Refugee Clinic filed an amicus brief arguing that the interpretation advanced by the firm rendered the statutory firm resettlement bar consistent with the Refugee Convention and Protocol.
Instead of filing a responsive brief, the government requested a remand to the BIA and then sought another remand to the immigration court. Eventually, the government agreed to stipulate that Abdul was not firmly resettled in South Africa. The immigration judge accepted the stipulation shortly thereafter and granted Abdul asylum.
Since his release from detention a little over a year ago, Abdul has begun to make a life for himself in the United States. He found a job, signed a lease on an apartment and enrolled in community college. The asylum status, which offers greater security than withholding of removal and provides a path to permanent residency and citizenship, gives him tremendous peace of mind.
Firm Hosts Immigration Clinic for Synchrony Financial Legal Department
On November 4, Jenner & Block’s New York office hosted a half-day pro bono immigration / naturalization clinic for the Legal Department of client Synchrony Financial. The clinic was organized with the assistance of the New York Legal Assistance Group (NYLAG) and brought more than 30 members of the Synchrony Legal Department into the New York office for a half-day of training and legal service. The attorneys were trained on assisting with naturalization paperwork for green card holders, and then spent the rest of the morning paired up with clinic participants who they helped fill out the paperwork needed to apply for U.S. citizenship. The clinic was organized in New York by Partners Joseph L. Noga and Michael W. Ross, with the capable assistance of New York’s Legal Assistance Group’s support staff.