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Immigrants’ Rights Clinic - Significant Achievements for 2022-23

IRC had a busy year with several federal lawsuits filed and multiple victories for our clients. As always, IRC took on a variety of immigration-related cases, including individual representations, federal impact litigation, challenges to immigration detention, national security-related cases, and applications for humanitarian relief.

Reyes-Herrera v. Flaitz, W.D.N.Y.

IRC represents Macario Reyes-Herrera, a former long-time resident of the United States who was arrested and turned over to Customs and Border Protection (CBP) in 2017 as a result of a racially motivated traffic stop. He was subsequently deported to Mexico and separated from his three U.S. citizen children. In 2019, IRC brought a civil action against the state troopers who arrested him under Section 1983 for violations of the Fourth and Fourteenth Amendments of the U.S. Constitution.

From 2020-2022, IRC students conducted discovery, including depositions, and drafted the motion for summary judgment and opposition. In May 2022, District Judge Elizabeth Wolford denied Defendants’ Motion for Summary Judgment on qualified immunity grounds. She held that it was clearly established that police officers cannot racially profile individuals of Hispanic descent and arrest them solely on the unsubstantiated suspicion that they have committed an immigration violation.

Shortly before the trial was set to begin in August 2022, New York state offered a generous settlement to Mr. Reyes-Herrera to settle his claims. The settlement will allow him to send his youngest child to college.

“A Chance to Come Home” Campaign

Although Mr. Reyes-Herrera was able to successfully settle his civil lawsuit, he and his wife Isabel, who returned to Mexico to care for him after he was deported, are still in Mexico separated from their children. Their children could sponsor them to come back to the United States. Unfortunately, they are not eligible due to their prior undocumented status and previous deportations. IRC continues to advocate for them to be allowed to return to the United States on humanitarian parole.

IRC has collaborated with the National Immigrant Justice Center (NIJC) on their “A Chance to Come Home” campaign, which asks the Biden Administration to set up an administrative process to allow deported individuals to apply to return to the United States. NIJC has profiled Mr. Reyes-Herrera as part of this campaign and IRC continues to do advocacy with elected officials and political appointees within the Department of Homeland Security.

In addition, IRC is collaborating with Pulitzer-prize winning journalist Caitlin Dickerson of the Atlantic on a book about the subject of deported people. Tentatively titled, The Deported: An American Story, the book will profile Mr. Reyes-Herrera, his family, and the work of IRC.

Navarro v. Will County, N.D.I.L.

In March 2022, IRC filed a motion seeking the release of a Chicago resident being held by Will County on a material witness warrant as an end run around the Illinois Way Forward Act, which prohibits local jurisdictions from detaining non-citizens for civil immigration violations. After the Illinois Attorney General Office intervened, Will County agreed not to turn him over to ICE and released him instead. He has now reunited with his family.

Press Coverage:

In March 2023, IRC filed a lawsuit against Will County under Section 1983 for the unlawful detention. Centro de Trabajadores Unidos (CTU), one of IRC’s community partners, held a press conference to draw attention to the issue of local non-compliance with Illinois sanctuary laws.

Press Coverage:

IRC is currently briefing a motion to dismiss filed by the Defendants.

Caal v. United States, N.D.I.L.

IRC represents a father and son who were separated at the US-Mexico border during the Trump Administration’s Zero Tolerance Policy. Under this policy, the government separated thousands of migrant families as a means of deterring migration and penalizing asylum seekers. Although President Biden officially rescinded this policy in 2021, these families continue to suffer from long-lasting trauma. Among thousands of families harmed by this policy.

Selvin Sr. and his then 16-year-old son, Selvin Jr., fled Guatemala after receiving multiple credible death threats from local gangs that wanted to force Selvin Jr. to join their gangs. After an arduous 18-day journey on foot, car, and bus to the border to lawfully seek asylum, they were quickly separated and put into different detention facilities in horrendous and inhumane conditions.

The first facility was known as a hielera, or “icebox” in English. The last time they would see each other for 21 months was through a window that divided the rooms in this facility. Amongst the crying, yelling, and even fighting within the enclosures, this facility was freezing and provided minimal food and water, no blankets, and no opportunity to brush their teeth or take a shower.

Eventually, they were both transferred separately to what was known as a perrera, or “dog kennel” in English. The smell had grown so foul that people were covering their noses and mouths with their clothing. Soon, Selvin Sr. had to ask for a new pair of pants because he had lost so much weight from the lack of food. Selvin Jr. and other children were also physically assaulted by immigration officers who would kick them awake and loudly drag their batons against the chain link fences.

Selvin Jr. was not allowed to call his father and, when he pleaded to see his father, government officials mocked and laughed at him. During the six months that Selvin Jr. was detained, he was only allowed a few brief phone calls to his father.

Selvin Jr. found out about his father’s deportation when he called his family in Guatemala and heard his father’s voice. Selvin Sr. had been deported after being told by a government official that if he signed a document, his son would get to stay in the United States. The paper was in English, with no Spanish translation, and the official threatened Selvin Sr. that he would be deported if he did not sign the paper. After Selvin Sr. signed the paper, he was put on multiple flights and was eventually deported back to Guatemala.

After nearly two years of separation, Selvin Sr. reunited with his son in Chicago in 2020 after a federal court found his deportation unlawful and permitted him to return to the United States. However, the father and son still suffer from long-lasting physical and emotional trauma.

IRC filed a federal lawsuit in February 2023 under the Federal Tort Claims Act seeking compensation for their extended separation. The clinic is currently awaiting a decision on the government’s motion to dismiss.

Press Coverage:

Ameen v. Jennings, Ninth Circuit

Omar Ameen came to the United States as a refugee from Iraq in 2014 and settled in Sacramento with his wife and children. Then, in 2018, he was arrested by the FBI-DHS Joint Terrorism Task Force (JTTF) and placed into extradition proceedings for the murder of a police officer in Iraq. The proceedings, which spanned three years, ended with the magistrate judge refusing to certify the extradition request and ordering Omar released. The court concluded that there was no evidence that he was a member of ISIS as the government alleged and that the evidence incontrovertibly showed that he had been in Turkey applying for refugee status at the time of the murder and could not have committed it. The court further found that the government’s key witnesses were not credible.

The case garnered national attention because of its importance to the Trump Administration’s position that terrorists were entering the United States through the refugee resettlement program. In January 2020, the New York ran a piece called “The Fight to Save an Innocent Refugee from Almost Certain Death,” which reported on how the investigation into Omar had come about and why the government’s witness in Iraq might have had a motive to lie.

After losing the extradition case, the government did not release Omar, but instead placed him in removal proceedings, arguing that he lied on his refugee application and that he had connections to ISIS, which rendered him deportable. After almost a year of removal proceedings, the immigration judge (IJ) found Omar removable on several non-terrorism related misrepresentations on his refugee application (while rejecting the terrorism allegations) and granted him relief under the Convention Against Torture. Both sides have appealed to the BIA.

In January 2022, IRC and ILD filed a habeas petition challenging Omar’s detention after the IJ denied bond. In April 2022, Judge William Orrick granted the habeas petition in part and ordered the government to give Omar another bond hearing at which the government would bear the burden of proving dangerousness and flight risk by clear and convincing evidence.

Unfortunately, the IJ denied bond a second time and Judge Orrick denied our motion to enforce, in which we had argued that the second bond hearing was also constitutionally deficient. Both sides appealed to the Ninth Circuit. IRC is currently in mediation with the government to seek a global settlement of the proceedings against Omar, including the habeas petition, his removal proceedings, and any future criminal prosecution.

Mwendapeke v. Garland, Seventh Circuit

IRC represents Kibambe Mwendapeke, who came to the United States as a refugee from the Democratic Republic of the Congo (DRC) as a child and later became a lawful permanent resident. In 2016, he was convicted of “complicity to robbery in the first degree” under Ky. Rev. Stat. § 515.020 and sentenced to 10 years’ imprisonment (and served 8.5 years). DHS put him in removal proceedings, arguing his conviction was an aggravated felony crime of violence, theft offense, and attempt or conspiracy offense.

In fall 2021, IRC filed a motion to terminate removal proceedings on the grounds that his conviction was overbroad for three different grounds of removability. IRC won on two of the three grounds. However, the immigration judge (IJ) found that Kibambe had been convicted of an aggravated felony crime of violence. Because the IJ found him removable, we had a trial to determine whether Kibambe had any relief from removal. In February 2022, we won our claim of deferral of removal under the Convention Against Torture, which means that Kibambe is not at immediate risk of deportation. We appealed the IJ’s finding that he had been convicted of an aggravated felony crime of violence. The case raises important issues related to overbroad complicity offenses.

IRC students briefed the petition for review at the Seventh Circuit this year. Oral argument will be scheduled for fall.

Afghanistan Humanitarian Parole Project

IRC continues to represent over 40 Afghans who were left behind after the US evacuation from Afghanistan in August 2021. Shortly after the applications were filed, new reports suggested that the US government was changing its policy and planned to deny the 50,000 applications for humanitarian parole it had received since August. IRC has been engaged in research related to possible claims related to the payment of USCIS fees and future denials. IRC has also continued to respond to requests for evidence for the applications and plans to pursue judicial review if and when they are denied.

State Department FOIA

Thousands of abused, neglected, or abandoned minors have applied for special immigrant juvenile status since 2014. If granted, SIJS allows minors to apply for green cards and stay permanently in the United States. However, the visa category that applies to SIJS, EB-4, is oversubscribed, meaning that SIJS recipients often have to wait years before they are eligible to apply for a green card.

For every visa category that is oversubscribed, the State Department calculates a “final action date.” If the date you filed your petition is before this final action date, you can apply for your green card. For individual countries that are oversubscribed, the State Department calculates a separate final action date. However, until April 2023, the State Department calculated the final action date for Guatemala, El Salvador, and Honduras as if they were a single country.

IRC did research in an attempt to understand why the Department was calculating final action dates in a way that seemed to disadvantage minors from Central America. After being unable to find an explanation, IRC filed a freedom of information act request (FOIA) in June 2022 to determined what the State Department’s legal justification was. In April 2023, the Department of State announced that it had determined that it had been improperly calculating the final action dates in the EB-4 category in a manner that disadvantaged Central American minors. In a later stakeholders meeting, the Department explained that it had gone looking for records to explain the calculations in response to a FOIA request and could not find any responsive records. The search led them to review the policy, at which point the Department determined that it was in error. Two weeks later, the Department of State responded to IRC’s FOIA request.

Although causation between IRC’s FOIA request and the policy change cannot be conclusively determined, it appears that it was IRC’s FOIA that prompted the policy change. As a result, thousands of Central American minors will be eligible to apply for green cards years sooner than they otherwise would have been able to.

The U.S. Department of State Announcement is linked here.

Individual Representations

IRC represents many individuals whose cases cannot be shared in detail due to safety and privacy concerns. In the past year, IRC won relief under the Convention Against Torture for a man from Honduras who suffered from mental illness and had previous gang membership. IRC students gathered evidence, prepared experts and fact witnesses, wrote the pre-trial brief, and did direct examination of the witnesses in the trial. The judge granted the application at the conclusion of the hearing and the government waived appeal.

IRC also represented two minors from Honduras in their applications for Special Immigrant Juvenile Status, which they qualified for because of abandonment by their biological father. IRC students conducted a hearing in state family court in April 2022, which resulted in a predicate order they needed to apply for SIJS with the Department of Homeland Security. Both applications were granted in January 2023 and both minors are now waiting for a green card to become available. They have deferred action and work authorization and will be able to apply for and attend college after they graduate from high school.

IRC represented an Afghan family in their applications for asylum and for a special immigrant visa. In March, the application for a special immigrant visa was granted and they now have pending applications for permanent residency status.

IRC represented a crime victim in her application for a U visa, a special visa available for victims of certain violent crimes. IRC successfully obtained a law enforcement certification from the prosecutor in Lake County, Indiana and submitted the U visa application.

IRC also represented a Syrian woman on her application for asylum due to threats she received from ISIS before she was airlifted out of Syria in July 2022. Her husband, a former U.S. military contractor, is also an IRC client and has an asylum application pending. Both applications implicate various bars to asylum due to interactions with terrorist groups.

Finally, IRC represented a woman from Haiti who won asylum in September 2021 to bring her nine-year-old daughter to the United States as a derivative refugee. The unrest in Haiti, as well as custody issues, has complicated the process. We hope that she will be able to join her mother as soon as the end of the summer.

Centro de Trabajadores Unidos (CTU) Legal Clinic

IRC and CTU run a weekly legal clinic during the academic year that provides brief legal advice and assistance to community members from the south side of Chicago. To date, the clinic has assisted over 200 community members with their immigration issues. This clinic helps CTU recruit new members and organize around issues related to immigration in the city and more broadly.