BlogPost
February 09, 2022

Jenner & Block represented a man who had entered the United States from Kosovo as a refugee when he was very young, with no memory of living there; nor does he speak the language. Unfortunately, our client later developed a substance abuse problem and was arrested for some minor crimes, including a drug charge – which is a removable offense – that made him inadmissible for legal permanent residence.

At his hearing before the Immigration Judge (IJ), our client sought a waiver of inadmissibility on humanitarian grounds and petitioned for an adjustment of status to legal permanent resident. He arranged to have family members testify about his importance to them and also prepared to introduce evidence about the poor conditions in Kosovo.

After our client’s own testimony and cross-examination, however, the IJ said that he did not need to hear anything else and was prepared to rule. The IJ then asked the U.S. government whether it had anything else to say, and the government lawyer said no. The IJ granted our client a waiver and adjustment of status; the government appealed the decision.

On appeal, the Board of Immigration Appeals (BIA) held that our client’s negative equities outweighed the positive and reversed the waiver. At that point Jenner & Block became involved, on referral from the National Immigrant Justice Center, and the firm appealed to the Seventh Circuit.

In cases such as this, the BIA has unreviewable discretion to reweigh positive and negative equities. No deference is owed to the IJ. Thus, the firm team had to argue that the BIA had committed a legal error not just that it mis-weighed the evidence.

Jenner & Block Associate Illyana A. Green provided critical advocacy, ultimately arguing that our client had been whipsawed by the government, which had not filed a prehearing statement, and although it vigorously cross-examined our client about his criminal record, the government had made no argument at the hearing. Ms. Green argued that the government had preserved no issue for appeal, and our client was prejudiced because of the unusual posture of the case before the IJ: Had the government made any argument at the hearing, our client could have insisted on presenting his evidence to make a full record. The court agreed with the argument and reversed the BIA’s decision.

Although the court attempted to write the decision narrowly, it may have a significant impact on how immigration hearings are conducted. The government rarely files pre-hearing statements due to the volume of immigration cases on their docket. To protect its ability to appeal, the government will be forced by this decision to spend more time getting ready for hearings.

In the meantime, our client was deported to Kosovo, where he has faced homelessness and other challenges. We are hopeful that this positive decision will enable our client to return to the United States. The government will need to bring him back, and on remand, it will be difficult for the government to maintain an appeal, given the Seventh Circuit’s holding.

Others on the firm team for this matter included Partner Matthew E. Price who supervised Ms. Green, with support from paralegal Mary Frances Patston. 

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