A Group of Law Students’ First Asylum Case

January 16, 2015

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.


“The Privacies of Life”: Cellphone Searches, Court Confusion, and Public Misconception in the Post-Riley Era

December 22, 2014

By: M. Claire Donnelly

The landmark decision of the summer, that has since thrown both police departments and technology companies into frenzy, was the unanimous Supreme Court decision in United States v. Riley.[1]  The highest Court in our nation made clear: “[o]ur answer to the question of what police must do before searching a cellphone seized incident to arrest is accordingly simple—get a warrant.”[2]  The Court reasoned that even though cellphones are hand-held objects, they are not less worthy of the protections of the Fourth Amendment that our Founders fought diligently for—to protect from “the privacies of life.”[3]  Riley, which upholds one of our most fundamental rights as citizens, has led to a  debate between civil rights groups, law enforcement agencies, and technology companies regarding privacy.  In addition to this debate, and in light of the Snowden leaks, the public is unaware of its privacy concerning technology.

As Riley made its way up the pipeline, commentators were not so sure how the Court would rule.  Although Article 17 of the International Covenant on Civil and Political Rights (ICCPR) protects everyone from arbitrary or unlawful interferences with their “privacy, family, home, or correspondence,” the law upholding the right to privacy has struggled to respond to new technology.  Since the decision, Riley has impacted every cellphone user in our nation, which just so happens to be roughly 90% of American adults as of January 2014.[4]  Most of these users’ phones—58%—are smartphones.[5]  Every one of these cellphone owners is impacted in the way our government invades this now “private” area.

The impact did not end just there.  Riley has also impacted every technology company introducing new products that are touted to have the best encryption methods yet.  In September, Apple released that their new privacy policy does not allow for the company to bypass an individual cellphone user’s password.  Prior to this release, Apple was able to unlock cellphones for the police, and since this change the company has received public backlash from the FBI and law enforcement agencies.  The Director of the FBI, James Comey, attacked Apple and Google, who followed Apple’s lead, by saying the companies are “market[ing] something expressly to allow people to place themselves beyond the law.”  The FBI has since requested secret “backdoor” accessibility, unknown to the public.  Civil rights groups, however, have criticized this suggestion by arguing that once a backdoor is created, hackers and foreign governments will “come knocking.”[6]  In addition, these groups argued, “the government has never had access to everything, and it shouldn’t.”  Seems similar to the Court’s ruling.

Photo credit of coptubeamerica.com.

Photo credit of coptubeamerica.com.

Post-Riley, lower courts are now grappling with many other issues surrounding cellphones.  One such issue, which has been emerging as a “prime battleground” post-Riley, is cell site information, which is the data gathered from location-sensing technology on a cellphone.  Notably, two weeks before Riley was issued, the United States Court of Appeals for the Eleventh Circuit ruled on cell site information, also referred to as “metadata.”  The Eleventh Circuit rejected law enforcement’s practice of tracking a suspect under this method without a warrant because the information is within the cellphone owner’s reasonable expectation of privacy.  Soon after, in light of Riley and the Eleventh Circuit, the Northern District of California denied law enforcement’s “longstanding practice” of obtaining cellphone location information.

Another main issue that has arisen is evidenced by a district court in Virginia Beach, Virginia, that just ruled on the new iPhone 6 encryption software, Touch ID.  The court held that the new encryption, which allows the user to access the contents of his phone via fingerprint touch rather than inputting a password, is not protected in the same way that a password is under the Fifth Amendment’s prohibition on self-incrimination in a criminal proceeding.  The court reasoned that unlike compelling a password, which violates the Fifth Amendment because it requires a defendant to divulge the contents of his mind, a fingerprint is akin to a DNA sample or handwriting, which the law permits.[7]  These are not the only issues that have judges considering the impact of Riley in their rulings, however.  As judges decide cases on searches of student cellphones, photographs seized from a cellphone of a court observer, and photographs seized off a phone incident to arrest, they are considering the powerful words of the Court in Riley: “get a warrant.”  By categorizing these handheld objects as deserving of this privacy, subsequent issues that arise from cellphones must adhere.

As more and more issues arise, recent reports are highlighting unlawful government surveillance with regards to cellphones other than opening the phone itself or collecting the phone’s metadata.  For example, National Public Radio (NPR) recently reported on the use of “Stingrays” and “ISMI catchers,” which mimic a cell phone tower and intercept cellphone signals.  The American Civil Liberties Union (ACLU) requested records from one police department in Florida suspected of using this type of surveillance technology.  However, federal agencies swooped in and destroyed or got rid of the technology, and provided no information on the matter.  Similar requests have been made by thirty-four ACLU affiliates, who filed over 375 requests.  According to the Riley ruling, these tactics should require warrants, absent exigent circumstances.

Another recent scandal in the media occurred in October after FBI Director Comey commented on the public misconception and hurdles of surveillance technology.  He stated:

“In the wake of the Snowden disclosures, the prevailing view is that the government is sweeping up all of our communications.  That is not true.  And unfortunately, the idea that the government has access to all communications at all times has extended—unfairly—to the investigations of law enforcement agencies that obtain individual warrants, approved by judges, to intercept the communications of suspected criminals…  Some believe that the FBI has these phenomenal capabilities to access any information at any time—that we can get what we want, when we want it, by flipping some sort of switch.  It may be true in the movies or on TV.  It is simply not the case in real life.”

Similar to the Riley Court, Comey acknowledges the importance of privacy protection in the everyday person’s cellphone and the need to have a firm standard.  However, as the above cases and reports demonstrate, law enforcement is abusing this privacy standard.  Law enforcement must adapt prior policies and change its ways in order to comply with this standard.

Locally, the Charlotte-Mecklenburg Police Department (CMPD) has reported to be adapting their policies, which are currently contrary to the law post-Riley.  Prior to Riley, investigators obtained cellphone information incident to arrest without a warrant.  CMPD Detective Brent Foushee, who has been with the department twenty-six years, said the Court’s decision in Riley “turned this [practice] on its head.”  In addition, he said that about half of his suspects in custody consent to the search of their cellphone, which under the law—even under Riley—is lawful because of the voluntary consent.

Technology companies and law enforcement may be making efforts to conform to Riley, but with these changes comes more problems.  Moreover, courts have not yet caught up with already-existing technology.  How will they be able to catch up with technology in the works?  And how will technology companies and law enforcement efficiently adapt with each change in the law?  Furthermore, as CMPD demonstrates, there are still lawful ways to get around the privacy standard upheld in Riley.  This is not an easy process.

Law enforcement, the judicial system, and the public are all struggling to understand the law in regard to cellphones.  While the Supreme Court has recognized the importance of privacy in this area, implementation of that privacy and creating a fine line for where that privacy begins and ends is unclear.  One thing is for certain, however: the Court has recognized—in a unanimous decision—that it is unlawful to conduct a warrantless search of a cellphone.  Subsequent cases regarding cellphone technology must follow this ruling.

[1] Riley v. California, 134 S.Ct. 2473 (2014)(United States v. Wurie was combined with similar case Riley, and they were argued and decided together).

[2] Id. at 2495.

[3] Id.

[4] http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/

[5] Id.

[6] https://www.aclu.org/blog/national-security-technology-and-liberty/securing-our-data-should-come-first.  Academia in the field is also shooting down Comey’s suggestion, as Columbia University science professor Steven Bellovin said, backdoors are “a disaster waiting to happen.”

[7] See also Keeping the Government Out of Your Smartphone, where Chris Soghoian, Principal Technologist and Senior Policy Analyst at the ACLU warned: “screen unlock patterns are not your friend.” And see Apple’s Fingerprint ID May Mean You Can’t Take the Fifth, where Marcia Hofmann, a boutique lawyer focusing on computer security, a former staff attorney at the Electronic Frontier Foundation, and adjunct professor at U.C. Hastings College of Law, warned of the legal effects of moving from pin to fingerprint.


Mecklenburg Serves Those Who Serve Themselves

September 4, 2014

By: Tierra Ragland

One of the mission pillars of the Charlotte School of Law is to serve the community.  Part of that mission focuses on access to justice for traditionally underserved populations. This population is, generally, low-income.  The clinical legal education, the student Pro-Bono projects, and the Access to Justice Immigration and Self Help Center courses all provide opportunities for students to gain valuable experience and provide access to justice to the local community.  As a member of the Civil Rights Clinic and a student who has taken both Access to Justice courses, I have valued these experiences. They have helped shape my passion for service to the community and encouraged me to pursue a career in public interest. 

As a part of the Access to Justice: Self Help Center course, students have to complete thirty hours working in the Mecklenburg County Courthouse Self Serve Center and teach a community legal clinic to deliver information to self-represented litigants in preparation for divorce and child custody cases.  As law students, we are not allowed to give legal advice. However, we provide much-needed legal information to individuals who are not represented by attorneys for various reasons; one of the most common reasons being lack of financial resources.  

Access to Justice can include a variety of issues, such as not being able to afford an attorney, lack of access to legal information in your native language, lack of transportation, lack of understanding of legal process, and not being able to afford a certified copy of your criminal record, which costs twenty-five dollars.

Mecklenburg County is the only judicial district in the state that provides a self-serve center. The Mecklenburg County Courthouse, where the Self Serve Center is located, is in North Carolina’s 26th Judicial District.  The District takes a unique approach to Access to Justice by being the only judicial district in the state that houses a self-serve center to provide assistance to pro se individuals in family law cases and a variety of other legal issues.  The Self Serve Center is located on the third floor of the courthouse and is open Monday- Friday from 8:30am-12:00pm. The Self-Serve Center provides packets of legal information/documents, monthly free legal clinics, access to online research tools, educational videos, information on court processes, a list of attorneys who provide unbundled legal services,[i] and an attorney for the day program. [1]  The filing fees for packets provided by the self-serve center range from $0-$225.

There is no state or local funding dedicated to operating the Self Serve Center and as a result there are no guarantees for the stability and continued operation of the center. The Family Court Division supplies resources to operate the Self-Serve Center, and the Self-Serve Center Coordinator manages the Center and is its only full-time staff member.  The Center depends on interns and volunteers to provide the services needed.  In 2013, forty-seven interns and two notaries, all of whom provided their time on a volunteer basis maintained the Self Serve Center.  In 2013, the notaries and interns contributed a total of 3,784 hours, so it is vital that this volunteerism continues.

As a student volunteering with the center, my overall experience has been rewarding. I have been exposed to a diverse group of people, diverse legal issues, court process, and legal documents that I would not have been exposed to during my legal education. 

The majority of the community members I assisted utilized the Self Serve Center due to a lack of financial resources.  Some self-represented individuals are overwhelmed by the process of representing themselves and approach the center volunteers and interns with a wide range of emotions.  Individuals have approached me very angry but also very grateful that the Self Serve Center is there to assist them with their legal needs. As a volunteer I was provided with a “cheat sheet” detailing the center’s most popular packets and important questions to ask to effectively assist those who utilize the center. On my first day a the center I was give a sample divorce and child custody packet and had to go through all the steps an actual self-represented litigants would go through to complete, including notarizing and filing the documents.

The Self Serve Center states that they provide legal information on family law issues and other legal issues—which includes “all” other legal issues. On my first day at the Center, someone asked me for legal information on Rule 60 (a), Motion for Clerical Mistake.[ii] Having taken Civil Procedure, I was familiar with the Federal Rules of Civil Procedure Rule 60, however, I struggled to convey this information to someone who was not an attorney. This was not on the cheat sheet. This is an example of the wide variety of legal information requested at the Center and how non-attorney volunteers, who cannot provide legal advice, have to convey the information in a way that the average self-represented litigants will understand. 

During my time at the Center I have also encountered solo practitioners who utilize the services of the Self Serve Center. This is an example of the rising cost of litigation and starting a solo practice.  Even attorneys are taking advantage of the free services provided by the 26th Judicial District.

Providing Access to Justice through the Self Serve Center can bridge the gap between effective legal solutions and underserved populations. Having a program like the Self Serve Center also shows the community that the legal profession is invested in serving the underserved and vulnerable populations that have traditionally had barriers affect their access to justice.

By no means does the Self Serve Center solve all the issues surrounding access to justice but it is an effective leap in the right direction.

[1] http://www.meckbar.org/publicprograms/pp_vol_landing.cfm

[i]http://www.americanbar.org/publications/gp_solo/2012/september_october/law_a_la_carte_case_unbundling_legal_services.html

[ii]http://www.ncga.state.nc.us/EnactedLegislation/Statutes/PDF/BySection/Chapter_1A/GS_1A-1,_Rule_60.pdf


New Issue of the CSL Public Citizen

March 7, 2012

The Charlotte Law Experiential Education department has released the newest issue of The CharlotteLaw Public Citizen. The newsletter is an outlet for the for Department to show the school and the community the fantastic work the students have been doing. This issue contains a great article about a number of Civil Rights Clinic projects including our election law cert petition, release-dismissal project, mobile food vendor project, and Ban the Box.

This issue also announces CSL’s new Community Economic Development Clinic led by Professor Rocky Cabagnot, a look into student’s pro bono work with local Hmong refugees, and insights into the Experiential Education Program by recent-graduate Christopher Peace. Here’s the full PDF of the newsletter. Feel free to contact us or leave us a comment if you have any questions.


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