A Group of Law Students’ First Asylum Case

By: Andres Salazar, Elham Rabiei, Maria Minis, and Tareva Marshall, Immigration Clinic Members

As law students, we all hear the same lecture from our professors: “Law school is not like the legal practice.”  One way to better understand the demands of legal practice is to participate in a legal clinic.  A legal clinic is an organization in a law school that specializes in a specific area of law and provides clients legal help on a pro bono basis.  A law school often has multiple legal clinics to provide pro bono representation in a variety of areas.  Law students apply to work in a legal clinic associated with their school, and work as the primary representatives of the clinic’s clients under the supervision of a professor.  We participated in the Charlotte School of Law Immigration Clinic.

During the Clinic, we were privileged to represent a family from Honduras who was applying for asylum in the United States.  Asylum is a case where the immigrant is asking the United States via the Immigration Court or the United States Customs and Immigration Service (“USCIS”) to allow him or her to stay in the country for humanitarian reasons.  The humanitarian reason is almost always that the immigrant is not safe in his or her home country because of some form of persecution.  Also, there must be no other safer alternative for the immigrant but to reside in the United States.

In our clients’ cases, they faced a threat of persecution, violence, and possibly death, because of their familial relationship to a witness who testified against a well-known gang member in Honduras.  This family member’s testimony was important in the case against the gang member, who was responsible for the deaths of three of our client’s relatives while they were in Honduras.  Our clients fled the country due to the fear that the gang would retaliate against the entire family for the one member’s testimony.

The family was referred to the Immigration Clinic by an immigrant’s rights group in North Carolina.  We split the case into two separate trials which were tried by two different Immigration Clinic student teams in front of the Charlotte Immigration Court.  The cases were split due to the different processing times of all the family member’s cases in the Immigration Court System, so that the entire family could obtain adequate representation by our clinic.  Ms. Elham Rabiei and Ms. Maria Minis tried the first case in April of 2014, while Mr. Andres Salazar and Ms. Tareva Marshall tried the second case in September of 2014.  We won both trials, and our clients were granted asylum.  Our clients’ trials were successful because of our hard work and because of the guidance from our supervising professor, Professor Fernando Nuñez.

About Asylum

When one hears the word “asylum” in the immigration context, it usually means political asylum, where an immigrant is persecuted by his or her own government due to the immigrant’s political beliefs.  However, there are other grounds for asylum, including persecution based on religion, race, nationality, or membership in a particular social group.  The legal definitions of persecution due to political beliefs, religion, race, and nationality are fairly set in law, so either the immigrant clearly meets the criteria or not.  The last category, membership in a particular social group, is constantly being re-defined by circuit courts and the Board of Immigration Appeals (“BIA”).  A particular social group can be almost anything.  It can be psychiatric patients in a mental hospital, people who identify as LGBTQ, family members of a witness who defies a gang member by testifying against the gang, and so forth.  The key point to the definition of a particular social group is that the membership has a defining trait that cannot, or should not, be changed.  If an immigrant chooses to use membership in a particular social group as the basis for his or her asylum claim, then the immigrant must demonstrate that he or she meets the definition of a member of a particular social group by providing credible testimony, documentary evidence, or both.

Relevance of Asylum Law

Asylum law is vital because it provides humanitarian relief for immigrants who are persecuted in their home countries.  For some immigrants, including the Immigration Clinic’s clients, the decision of a judge granting asylum is a matter of life or death.  United States immigration laws give the immigrant an opportunity to apply for, and prove, that asylum is necessary in his or her case.  It also reaffirms that our nation is a nation of immigrants, and that we as a country are still proud of our heritage by continuing the tradition of accepting immigrants in need.

In 2013 alone, the Executive Office for Immigration Review, which oversees the immigration courts, reported that 36,674 applications for asylum were filed in immigration courts around the country.[1]  Of these, 9,933 applications for asylum were granted, while 8,823 applications were denied, 1,439 were abandoned by the applicants, 6,400 were withdrawn, and 11,391 did not receive a decision for other reasons.[2]  These numbers do not include the many asylum applications that are filed before and decided by USCIS.  As evidenced by the statistics, even considering a broad definition of asylum, it is difficult to obtain.

However, asylum is still sought by many immigrants in spite of the difficulty because it provides them a protective status as an asylee within the United States.  This protective status ensures that once the immigrant obtains asylum, the immigrant will not be deported to his or her native country so long as the danger to the immigrant’s life exists in his or her native country.  It also allows for the immigrant to obtain a work permit so that the immigrant may start to rebuild his or her life here in the United States.  After residing as an asylee for a certain period of time, the immigrant may apply for lawful permanent residence—otherwise known as a green card—to reside in the United States indefinitely.

An asylum case is different than typical litigation in that the case moves relatively quickly.  One reason for this is that the asylum applicant must file for asylum within one year of arriving in the United States, as compared to other types of cases like personal injury cases, where the Statute of Limitations provides a three year deadline from the date of an accident to file suit.  Because of how Border Patrol and later the Immigration Court System processed the cases, each individual family member was in a slightly different stage of processing, which motivated our decision to split the cases up.  For example, we grouped a young couple and their son together since they had already completed the initial processing stage in January of 2014, while we grouped another woman, her adult son, her niece, and the niece’s two children together because some of them were still being processed by the Immigration Court System and Border Patrol at that same time. This gave the two teams slightly different timelines for preparing for trial.  The first team filed for asylum in January of 2014, and tried the case in April of 2014, with written closing statements submitted in May of 2014.  The second team filed for asylum in the beginning of April of 2014, and tried the case in September of 2014.

This fast-paced timeline demonstrates how an asylum case can be a very challenging experience, especially as a law student with class obligations outside of the clinic.  As with all litigation, we had to meet with our clients on a regular basis not only to prepare their case, but to also prepare them so that they would be ready to answer questions in the courtroom setting.  This preparation included numerous visits, sometimes multiple times in a week, to the clients over spring break, over summer vacation, and during the academic semester.  The first team had about three months to prepare its clients for court, write a forty page brief, and organize about four hundred pages of supporting evidentiary documents.  These evidentiary documents included details about the clients’ persecution as well as the country conditions of Honduras and declarations from witnesses detailing the persecution our clients suffered.  The second team had about five months to prepare its clients’ case, but there was an additional challenge: the government attorney facing them at trial was much better prepared due to all of the evidence provided in the first trial.  Both trials were challenging because of the time constraints, and we all were stressed due to managing the cases along with our full-time course load.

Rewards of Practice

In spite of the challenges and stress, the trials were one of the most rewarding experiences of our lives.  From developing a case theory to figuring out how to file proofs of service, these valuable legal skills taught us the mechanics of the Charlotte Immigration Court.  The clinic also taught us invaluable communication skills, including how to connect with, and interview, the client to find all the relevant facts of the case.

Additionally, the experience allowed us to forge friendships within the Immigration Clinic that will continue long after we graduate and enter the legal workforce.  We worked on the same family’s case, so we worked together closely for the entire semester.  We learned a lot about effective teamwork, and we became each other’s moral support when we felt overwhelmed by the pressure of the case and school.

The most important experience that we got out of working on this case was the knowledge that we were helping another human being.  This case got us out of the law school bubble and into what real life is like for lawyers and clients.  Hearing the stories that our clients told us, especially regarding their case, made an entire semester’s worth of immigration law much more meaningful to us.

In law school, you read the facts of a case that will be relevant to the class.  In the end, those facts are still just facts on paper.  There is no personal connection to the case, so it is difficult to relate to the parties who are arguing their case.  In the clinic, when you are working with real clients, those facts are no longer facts on paper, but words coming out of a real person’s mouth about their very real problem.  Suddenly, it becomes personal to you.  You are your client’s voice, and you must navigate the law to achieve the best result for your client.  Due to this personal connection to the case, now you can imagine how the law could help or harm your client, and how the fine details of a governing case that seemed so irrelevant in class could be the key to winning or losing. There is truly no substitute for working in a clinic—not only is it an opportunity to practice as a student attorney working on real cases, but it also helps those who need it the most.

We would highly recommend participating in a clinic while attending law school.  While it will require hard work, and some struggling to balance clinic work with homework, the rewards of learning to practice like a lawyer and help people at the same time will be more than worth it.

[1] http://www.justice.gov/eoir/efoia/FY2009-FY2013AsylumStatisticsbyNationality.pdf.

[2] Id.

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