Immigrant Justice Clinic Argues Case Before Virginia Supreme Court

Jayesh Rathod, Rachel Nadas, Scott Seguin
Jayesh Rathod, Rachel Nadas, Scott Seguin

The Immigrant Justice Clinic (IJC) at American University Washington College of Law argued a case in January before the Supreme Court of Virginia.

The clinic represented Michael Z., a lawful permanent resident who accepted a plea deal that rendered him deportable. The issue before the Court involved the legal standard that a court must apply in determining whether a non-citizen was prejudiced by a trial attorney’s representation.

Third year student Rachel Nadas argued the case, which was co-supervised by Professors Jayesh Rathod and Jenny Roberts.

“Having the opportunity to present oral argument at the Supreme Court of Virginia was an incredible experience,” said Nadas. “Although I was nervous to argue before seven justices, I’m really happy with how the argument went.”

Taking on Michael’s Case

The clinic took on representation of Michael in 2013. He has been a lawful permanent resident since the age of eight. He pleaded guilty to petit larceny with a 365-day suspended sentence, and that single conviction meant that Michael was classified as an aggravated felon for immigration law purposes.

Not only did being an aggravated felon render Michael deportable, it also barred him from seeking various forms of immigration relief.  His criminal defense attorney never informed him of the severe immigration consequences of pleading guilty. He only learned that this offense made him deportable months after accepting the guilty plea when he was picked up by Immigration and Customs Enforcement. At the conclusion of his immigration proceedings, Michael lost his status as a lawful permanent resident and was ordered deported.

Michael has remained in the U.S. because he was granted withholding of removal, a temporary form of immigration relief that allows him to remain in the U.S. due to fear of persecution or death if returned to Ethiopia.  Hoping that Michael could receive a more permanent form of immigration relief, the Clinic pursued a habeas corpus petition to challenge Michael’s petit larceny conviction.

Sofia Vivero’14 and Joe McGlew-Castañeda‘14, student attorneys in the Immigrant Justice Clinic in 2013-14, filed for a writ of habeas corpus with the county court.  They argued that Michael received ineffective assistance of counsel due to failure to provide advice about the deportation consequences of the guilty plea under Padilla v. Kentucky, a 2010 U.S. Supreme Court case that requires criminal defense attorneys to advise their clients about clear deportation and potential immigration consequences of their criminal convictions.  In Michael’s case, his defense attorney had failed to meet his obligations under Padilla. The Fairfax County Circuit Court denied the habeas petition and held that Michael had not met the prejudice prong of his claim, a requirement for an ineffective assistance of counsel claim.  The student attorneys filed a petition to appeal the case to the Supreme Court of Virginia, arguing that the Fairfax County Circuit Court applied the incorrect legal standard for showing prejudice.

“I’m thrilled I was able to have this experience as a law student.”

In September, the Supreme Court of Virginia agreed to take the full case on the merits.  IJC student attorneys in 2014-15, Alia Al-Khatib and Rachel Nadas, along with co-counsel Scott Seguin from Calderon Seguin, filed opening and reply briefs in the Supreme Court of Virginia on behalf of Michael.

“While writing the brief, it became incredibly clear how unfair such a sentence was for Michael,” said Al-Khatib. “For a minor, non-violent offense, he faced being separated from his family and the country where he had lived almost his entire life.  I was glad that the Clinic took on this case and pursued the habeas petition.”

Both Al-Khatib and Nadas say they enjoyed working on such an important and interesting case.

“I was extremely well prepared after being mooted by several AUWCL faculty members and practitioners,” said Nadas. “I’m thrilled I was able to have this experience as a law student and proud that the Clinic has done everything possible to advocate for Michael.”

The clinic co-counseled this case with Scott Seguin from the law firm Calderon Seguin.

Seguin said he is optimistic that the Virginia Supreme Court will issue a favorable opinion, which is expected sometime in February.

“It has been an absolute pleasure collaborating with the students at the Immigrant Justice Clinic on Michael’s case,” said Seguin. “The students have brought great enthusiasm and worked tirelessly trying to overturn Michael’s conviction.”

Note: This post was originally published by the AUWCL Public Relations and Marketing department on the law school’s website.

Some Things Should Never Be Normal

A few weeks ago, we sent a second delegation of Clinic students to Artesia, New Mexico. There, they represented migrant women being held with their children in the Artesia Temporary Facility for Adults with Children. If you missed our earlier posts about this project, you can see them here and here.

 David Llanes, Natalie Richman, Prof. Shana Tabak, Lindsay Fullerton, Prof. Sunita Patel, Christa Elliot, Prof. Amanda Frost, Alia Al-Khatib
David Llanes, Natalie Richman, Prof. Shana Tabak, Lindsay Fullerton, Prof. Sunita Patel, Christa Elliot, Prof. Amanda Frost, Alia Al-Khatib

The following is a guest post from Alia Al-Khatib, a 3L in our Immigrant Justice Clinic who accompanied the second delegation to Artesia.

As a clinical law student, spending a week in Artesia, New Mexico was an invaluable experience.  While it was very difficult for me to navigate working within a crisis lawyering model, I was inspired by the dedication and passion of advocates working in the detention facility.  In Artesia, advocates and lawyers are working with great urgency to get women out of detention as soon as possible.  One of the women who I met was one of the earliest arrivals to the detention facility and had been there since July.  Her and her son’s mental and physical health had deteriorated noticeably during this four-month period.  She had lost a lot of weight and was experiencing stress headaches.  Her one-and-a-half year old son had a chronic ear infection and cold.  From the beginning, the advocates and lawyers working with AILA made it clear to volunteers that the main purpose of the project to get these women released to their loved ones who were living in the United States and to shut down the facility.

Artesia is so remote that it took us 14 hours to get there from DC, including the drive through the desert in the photo above.  Immigrants have a right to counsel in their immigration proceedings, but it is logistically difficult for them to access attorneys in such a remote location.
Artesia is so remote that it took us 14 hours to get there from DC, including the drive through the desert in the photo above. Immigrants have a right to counsel in their immigration proceedings, but it is logistically difficult for them to access attorneys in such a remote location.

During my week in Artesia, I represented two women in bond hearings.  For my second bond hearing, I represented a woman from Guatemala who was in detention with her three-year-old son.  We had met the day before as I prepared her for her bond hearing.  She had many questions about the process, and she was, understandably, anxious to leave the facility.  During the bond hearing, she was clearly very nervous.  While she was giving her testimony, her three-year-old son sat in a chair next to her.  In Artesia, all court appearances and credible fear interviews are conducted in this way.  The children are in the same room as their mothers are asked to recount horrifying experiences that caused them to leave their country and flee to United States.  While advocates check with the women if they want their children to be present for the credible fear interviews, the facility does not have any accommodations for young children to be taken care of while the women are meeting with lawyers or officials.  In the middle of my client’s testimony, her three-year-old son fell asleep in his chair and began to slowly slide down the chair.  She had to pick up her son and place him on her lap as she responded to a question that the judge had asked her.

Both the judge and the DHS attorney appeared via video conference, and neither of them seemed to blink an eye as this happened.  At this point, they must be used to the conditions of hearings in Artesia.  All of the women and children who have hearings on that day are brought in to the trailer that serves as the courtroom.  The video camera only shows the person appearing for her hearing with her attorney, but surely the judge and the DHS attorney hear children screaming or laughing in the background.  They must also see the drawing books and the crayons that are given to the children during bond hearings so they are distracted while their mother gives her testimony.  The lack of response to this mother picking up her son in the middle of giving her testimony in court, while not surprising at all to me, was very troubling.  They showed no concern for the mother or her sleeping child; they did not even pause as she picked him up and held him in her arms.  They treated this scene as if it were completely normal for a testifying witness to attend to her three-year-old child in the middle of answering the judge’s questions.  Conditions similar to those in Artesia should never be treated as normal or every day.  That was what I appreciated about advocates working in Artesia- they never ceased to be outraged.  Their sole goal was to shut down the facility, and they never treated these circumstances as if they were normal or justified.

At the end of the hearing, the mother learned that she had received a $4,500 bond.  I was nervous because the day before she mentioned she was worried about getting a high bond.  When I told her, her face lit up.  She said that her husband would probably be able to pay it.  I was very happy for her.  We discussed next steps briefly, and she carried her sleeping son out of the trailer to call her husband with the good news.

The candlelight vigil was held by Somos Un Pueblo Unido, ACLU-NM Regional Center for Border Rights, Detention Watch Network, the American Immigration Lawyers Association, NEA Southeast, and NM Conference of Catholic Bishops.  The vigil members were a mix of community members, community organizers, and attorneys.  The vigil was to end child incarceration, in particular for the mothers and children detained in Artesia who were to be transferred to a new facility in Dilley, Texas.
Students joined in a candlelight vigil held by Somos Un Pueblo Unido, ACLU-NM Regional Center for Border Rights, Detention Watch Network, the American Immigration Lawyers Association, NEA Southeast, and NM Conference of Catholic Bishops. The vigil members were a mix of community members, community organizers, and attorneys. The vigil was to end child incarceration, in particular for the mothers and children detained in Artesia who were to be transferred to a new facility in Dilley, Texas.

HR 5108 Codifies USPTO Law School Clinic Pilot Program

Originally posted on WCL Glushko-Samuelson IP Clinic:

uspto

H.R. 5108, the legislation to permanently establish the USPTO Law School Clinic Pilot Program, was passed by the Senate yesterday. The IP Clinic and clinic students were instrumental in early efforts to establish a student practice rule at the agency.

The bill will now go to the President for his signature. The bill, introduced in the House by Rep. Hakeem Jeffries of New York and Rep. Steve Chabot of Ohio, formally establishes the USPTO Law School Clinic Certification Program to allow students enrolled in a participating law school clinics to practice patent and trademark law at the agency under the guidance of a Law School Faculty Clinic Supervisor on a pro-bono basis for clients. It requires the USPTO Director to establish regulations and procedures for application to and participation in this program and makes all law schools accredited by the ABA eligible to participate.

The text of H.R.5108 and more information is on…

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You Gotta Fight For the Right to Break Digital Locks: IP Clinic Teams Up with Cinema Studies Professor, Higher Education Organizations in DMCA Rulemaking

WCL Clinic Blog:

From our IP Clinic’s blog.

Originally posted on WCL Glushko-Samuelson IP Clinic:

Guest post by student attorneys Sarah O’Connor and Mark Patrick

The Digital Millennium Copyright Act makes it illegal to break digital locks on copyrighted material, even when what you intend to do with the work is otherwise legal, such as using short clips from a motion picture in a class presentation. However, there is an out. Every three years the Copyright Office holds a proceeding to consider and grant limited exemptions for uses where users can show the law is creating a substantial burden on free expression or other valuable activities.

In each triennial proceeding, new petitions must be submitted on behalf of each party seeking exemptions. Petitions must make the case for what has been exempted in the past, in addition to what should be exempted in the present and future, keeping in mind new technological and pedagogical trends. Failure to submit these petitions every three years would result…

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Students Testify on Guardianship Bill

Recently, Henrissa Bassey and Raziya Brumfeld, both 3Ls in WCL’s Disability Rights Law Clinic, testified before the D.C. Council Committee on the Judiciary and Public Safety regarding Bill 20-0710, the Limitations Of Guardianship Amendment Act Of 2014. You can read the full text of the bill here.

Bassey, who herself will soon be appointed guardian for a brother with autism and intellectual disabilities in another jurisdiction, spoke in favor of the 3-5 year expiration period that the bill imposes on guardianships in the District. Under the bill, when a guardianship is set to expire, a court hearing would be required to renew it for another term. If the individual has developed additional decision making capacity since the guardianship was put in place, the court could determine that guardianship is no longer an appropriate arrangement. Bassey drew on her personal experience, noting that her brother has been working to learn basic life skills like reading, counting money, and attending social functions, and that her family expects that he will continue to improve to the point where he may be able to live more independently. She said, “As I reflect on my brother’s life and progress, I know that I would support a sunset provision on my future guardianship over [him].”

In her testimony, Brumfeld voiced concerns that the District’s current guardianship practices unnecessarily limit the autonomy of many people with disabilities. Noting that judges often appoint guardians “for people who have the capacity to make their own decisions, but simply need a little help or support,” Brumfeld advocated a requirement that petitioners for guardianship make a case for why supported decision making for the individual, as opposed to guardianship, would not be appropriate. Supported decision making is a practice whereby an individual’s support network of friends, family, and others assist that individual with making and carrying out decisions, instead of simply making those decisions on that person’s behalf. The current law encourages guardians to consider an individual’s wishes when making decisions, Brumfeld said, but by adding an affirmative requirement that assisted decision making be considered as a preferred alternative to guardianship “we can insure that guardianship is limited to those instances when it is completely necessary.”

Libre Soy

The following is a guest post from Ashley Hoornstra, a 3L in our International Human Rights Law Clinic, who was in the contingent of eight students and two faculty who recently traveled to New Mexico to work with detainees in the Artesia Temporary Facility for Adults with Children. You can read more of Ashley’s reflections about Artesia at her blog, My Week in Artesia. You can also view more video reports from our Immigrant Justice Clinic and International Human Rights Law Clinic who went to Artesia on our YouTube channel.

The AILA volunteer lawyer efforts focus only on the mothers at the facility, involving the children only if the mother has no claim. In court, if a mother is released on bond, her children are released with her. When the women win, the children win.

As a result, the children are somewhat ignored.  Of course they are physically present, as they cannot go to school right now (the school has been closed indefinitely, without explanation). But for the most part, the children blend in as part of the background. Their needs are entirely overlooked – a HUGE gap in the current system. But we are in triage mode, so with the limited resources at our disposal, the best we can do is to focus on the mother’s case.

The children come in with their mothers each day, some of them asleep in their mothers arms, some awake but clinging onto them, still others willing to engage and play with the other children. DHS does provide coloring books and crayons for the kids, and the officer assigned to oversee them does his best to show kindness and compassion to the children. Some of the kids are terrified of him, as they are of any authority figure. “Will you give the man my crayons?” one girl asked, “He’s scary.”

I try to assure the children that he is a nice man, and they have nothing to be afraid of. While that seemed true with this particular officer, I don’t know if it’s the case with other officials at the facility. Rumors of abuse and mistreatment abound. I would like to think that they are just rumors, but I recognize that the officers are assigned here on short-term details, leaving plenty of opportunity to engage in inappropriate behavior. I can only hope that effective monitoring mechanisms are set in place, both by their supervisors and by the DHS Office of Inspector General.

The children who do not sit with their mothers love to watch movies. There were a handful of Disney movies that played in Spanish over and over again. The most popular – by far – was Frozen. The second time the movie played through (our first day at the detention center), the song, “Let it Go” began. The lyrics in the Spanish version of the song had been changed so that they did not hold the same meaning in English as “Let it Go”. The chorus, in Spanish, is “libre soy.”  Directly translated: “I am free.”

Monday afternoon, as I scrambled to grab the next case file, I heard one of the attorneys say, “Oh my gosh. I can’t handle it.” In the midst of the chaos, the attorneys and law students were suddenly silent. We could hear the voices of several young children singing along to the film:

Libre soy, libre soy.

I am free, I am free.

The irony made me sick to my stomach and brought tears to my eyes.  These children were not free; they were imprisoned. I had a strong urge to pick up one of those children and hold them in my arms and to tell them, “Soon, my loves, soon.”

Instead, I took a deep breath, collected myself, and moved on to the next client. The truth is, I couldn’t promise the kids anything. I have no idea what the outcomes of these cases will be. For the rest of the week, when that movie was played, the children would always chime in singing that song. And every time, I had to pause, take a deep breath, exhale, and move forward.

These children are so strong and so resilient, but they are also traumatized. They desperately need attention and love and counseling and support and school. They need to have quality medical attention, as every single child in that facility has some form of sickness, whether it is a cold or something more serious. Regardless of their condition, they always accompany their mothers. Unfortunately, basic services to support these children are limited or entirely unavailable.

While working with the women, I always made an effort to ask them about their children, to meet them and learn their names. One day, I met with a client who had just been granted bond.  We were wrapping things up and preparing her for what came next.

Once her family paid her bond, they were also responsible for arranging her travel. These women had family all over the country, and had no concept of how far they would have to travel. Most of them, because of limited resources, would take buses as far as Georgia, Maryland or Massachusetts. I explained this to the client, and also the fact that she would be released with nothing – not a dime in her pocket, no method of communication, not even a toothbrush. Fortunately, the South West Human Rights Coalition has generously put together backpacks with food, toiletries and a $25.00 Visa gift card to get them started.

As I sat there, explaining all of this to the woman, she sat, nodding, a huge smile across her face. She did not seem to care that her bus ride would be long, or that her resources were limited. She would be free – free to leave the detention facility, free to reunite with her family here in the United States, free to make a fresh start and take control of her life.

As we discussed everything, her daughter sat silently in the folding chair next to her mother, obediently focusing on her paper and crayons. At one point, I paused to comment on how beautiful the young girl’s drawing was, and how she was doing an excellent job of coloring inside the lines. The little girl was no more than 5 years old.  She smiled at me and then returned to her work, as her mother and I resumed our conversation.

Eventually, our meeting concluded.  I shook the woman’s hand and congratulated her on bonding out, wishing both her and her daughter all of the best in their future.  I then walked back to the attorney area and began typing up my case notes before I moved on to the next client.

Only a few minutes later, to my surprise, my DHS officer came back, calling my name. Once I reached him and looked around the corner of the cubicle-wall barrier that cordoned off the “attorney work area,” I looked down to see the precious little girl from a moment ago, with her drawing in hand.

“This is for you,” she spoke softly with a grin, holding out her completed masterpiece. It was a picture of Mickey Mouse, torn out of a coloring book, which she had labored over during my meeting with her mother.

Oh, mi amor, muchísimas gracias!  Es tan lindo, este dibujo!” I told her, “Voy a guardarlo para siempre!

She smiled proudly, her mother standing behind her, also grinning. Once again, tears welled in my eyes. I continue to be moved by the selfless acts of kindness from those who have the least in our society. This is not only true in Artesia, but in all of my travels. I plan to have her drawing framed when I return home, to serve as a reminder of my time here and a symbol of freedom for one family. Of course, while one precious child was able to leave, so many others stay behind, impatiently awaiting their turn to be set free.

Each night, as I go to bed, my mind swirls thinking about case strategy, task lists, and stories that were shared by clients during the day. Yet something else has stuck in my mind each night as I lay there awake: “Let it Go” from Frozen. I silently pray that God will free these beautiful babies and their mothers.  I pray that one day these young boys and girls can sing along to the song and have the words ring true:

Libre soy, libre soy.

I am free, I am free.

Mickey Mouse Picture from Artesia