Tandap v. Barr

2020-09-08 in Cases Won

Tandap v. Barr
825 Fed.Appx. 391 (7th Cir., 2020)
Seventh Circuit Court of Appeals

On September 8, 2020, the Seventh Circuit Court of Appeals rendered a favorable decision on a Petition for Review for a Cameroonian citizen, represented by Christine P. Varghese of Chicago Immigration Advocates Law Offices, whose claim to seek asylum, withholding of removal, and and protection under the U.N. Convention Against Torture was denied by the lower court.

Ms. Varghese was hired after Mr. Tandap was ordered removed by the Immigration Court and Board of Immigration Appeals. Ms. Varghese filed a motion to reopen his immigration proceedings before the Board of Immigration Appeals in order to apply for asylum, withholding of removal, and protection under the U.N. Convention Against Torture (“CAT”) based on the Cameroonian government’s growing mistreatment of the Anglophone minority group to which he belonged. Attorney Varghese successfully persuaded the Court that the Board of Immigration Appeals made serious reversible errors in its decision – namely that the Board improperly used the incorrect standard of proof and improperly ignored the expert report as well the client’s arguments for CAT protection.

Among other reasons for reversing the Board of Immigration Appeals, the Court said in conclusion:

"the Board erred by ignoring Tandap's claim for relief under the Convention Against Torture. In his motion to reopen, Tandap highlighted this claim as the “first and foremost” form of relief upon which he sought reopening. A motion to reopen under the Convention “is distinct from an asylum claim and deserves independent substantive consideration.” * * * The failure to provide any rational explanation for denying this claim is an abuse of discretion."

Chicago Immigration Advocates Law Offices continues to demonstrate, through the efforts of Ms. Varghese, that no matter how complex your case might appear to be, if any lawyers are going to win your case, it will be Chicago Immigration Advocates Law Offices.

Jimenez-Aguilar v. Barr

2020-07-31 in Cases Won

Jimenez-Aguilar v. Barr
977 F.3d 603 (7th Cir. 2020)
Seventh Circuit Court of Appeals
*Precedential Case

On July 31, 2020, the Seventh Circuit Court of Appeals ordered that a new hearing be held for a Honduran citizen, represented by Carla I. Espinoza of Chicago Immigration Advocates Law Offices, whose motion to for a new hearing was denied by the Board of Immigration Appeals.

Chicago Immigration Advocates Law Offices, through Attorney Carla I. Espinoza, represented Mr. Jimenez after the Board of Immigration Appeals denied his motion for a new hearing. Ms. Espinoza filed a Petition for Review with the Seventh Circuit Court of Appeals, asserting that his prior counsel rendered “ineffective assistance of counsel” when he discouraged Mr. Jimenez to seek asylum, despite the fact that his mother previously had been granted asylum. Ms. Espinoza argued that not only was Mr. Jimenez’ prior attorney ineffective, but also that the Immigration Court failed to notify Mr. Jimenez that asylum or withholding were potential benefits under the regulations when he expressed that he would be harmed if returned to Honduras. He asserted that he feared gang violence because his mother received death threats from gangs as a result of her position on a community council.

Ms. Espinoza persuaded the Seventh Circuit that where someone like Mr. Jimenez articulates a recognizable basis for asylum, (1) Immigration Judges have a mandatory duty to advise non-citizens of the availability of asylum and withholding of removal; and (2) where the Immigration Judge fails to do so, the non-citizen is entitled to a new hearing.

The Court said as follows:

"If Jimenez-Aguilar had expressed only a fear of generalized violence in Honduras, as the Board believed, the IJ would not have needed to notify him about the possibility of asylum. But Jimenez-Aguilar told the IJ that he feared persecution at the hands of gangs in Honduras because of his relationship to his mother, who had received asylum based on these threats. The IJ accordingly should have given the regulatory advice, which could have led to further evidence on topics such as whether the government is complicit in private violence."

Ms. Espinoza’s work creates an important legal precedent which has impacted how immigration courts as well as circuit courts throughout the country will adjudicate cases of non-citizens seeking asylum and withholding protection by clarifying the correct legal standards to be applied.

* The case is, first, a published decision (many decisions of the court are not important enough to be published), and, second, its statement of the law is so important that future parties rely upon it in their arguments in their cases before the courts.

Andreica v. McAleenan

2019-08-12 in Cases Won

Andreica v. McAleenan,Acting Secretary, Dept. of Homeland Security17 CV 9254Order Compelling Discovery of Notes, PhotographsAugust 12, 2019

The Plaintiff and his wife retained Carla I. Espinoza of Chicago Immigration Advocates Law Offices, to file suit against United States Citizenship and Immigration Services (“USCIS”) for its delays and eventual denial of an Adjustment of Status application, based upon marriage, filed in 2011.

The Plaintiffs were subjected to two interviews, two investigatory visits to their home, two appeals to the Board of Immigration Appeals, and then two denials of their petition. USCIS denied the claim in both instances because it believed that Plaintiff’s wife was still residing with her ex-husband. While the case was pending before the Board, Carla I. Espinoza provided overwhelming evidence that the marriage was in good faith including not only joint utility bills, bank statements, and property ownership records, but also several affidavits from friends and family attesting to the good faith marriage. Despite this, the Board remained steadfast in supporting the improvident decision of USCIS.

The federal lawsuit asserted, first, that USCIS was withholding information from the record when the case was before the Board. Second, and most troubling, USCIS created a memo after the lawsuit upon which it sought to rely to summarize evidence and continue to deny the petition. Federal District Court Judge Joan B. Gottschall found both problems troubling, requiring USCIS to turn over its records by court order, dated August 12, 2019.

In her decision she said:

"To sum up, plaintiffs have made the required strong showing that the record is incomplete and that additional information is needed to facilitate meaningful judicial review. The additional information needed includes an explanation of the date appearing on the FDNS memo, A.R. 54–55. To complete the record, defendants must also add any investigative materials, such as notes, photos, an insurance claim, and the purchase agreement, considered by the Director or the BIA. If no such additional materials exist, defendants must supplement the administrative record with an appropriate affidavit so stating and indicating whether any such documents previously existed and, if so, why they cannot be added to the record."

Regarding the memo created during the litigation, Judge Gottschall said

"The court’s review of the record raises serious concerns about the good faith of the underlying investigation and proceedings. The timing of the FDNS memo’s introduction into the record (so plaintiffs never could present an argument to the Director about it) makes it appear to have been manufactured for litigation purposes (supplementation will clarify this issue)."

If your case was improperly denied, or the Government is taking an inordinate amount of time to decide your case, you may have a claim under the Administrative Procedure Act (“APA”). Give Chicago Immigration Advocates Law Offices a call to discuss your case.

Rivas-Pena v. Sessions

2018-08-21 in Cases Won

Rivas-Pena v. Sessions
900 F.3d 947 (7th Cir. 2018)
Seventh Circuit Court of Appeals/h4>

Chicago Immigration Advocates Law Offices, through Attorney Carla I. Espinoza, represented Mr. Rivas before the Immigration Court as well as at the Court of Appeals on a Petition for Review. Mr. Rivas sought protection under CAT to avoid being killed by one of the Mexican drug cartels if he were removed to Mexico. The Immigration Court said that Mr. Rivas’ claim was merely “speculative” and summarily dismissed his case. The Petition for Review prepared by Ms. Espinoza argued that an Immigration Judge’s mere assertion of “speculation” does not meet the standard under CAT and that the regulation requires any decision must to be supported by “substantial evidence.” The Court found that the evidence, supported by expert testimony from a university professor who studies Mexican drug gangs, was that Mr. Rivas’ loss of nearly $900,000 in contraband would have resulted in his death by the gang if he were returned to Mexico and, thus, reversed the decision of the Immigration Court.

Ms. Espinoza’s work creates important legal precedent which impacts how immigration courts as well as circuit courts throughout the country will adjudicate cases for non-citizens seeking CAT protection by clarifying the correct legal standards to be applied.

Victory at the Seventh Circuit Court of Appeals

2017-08-09 in Cases Won

On April 1, 2015, the attorneys at Chicago Immigration Advocates obtained a ruling from the Seventh Circuit Court of Appeals reversing the Board of Immigration Appeals (“Board”) and ordering that the Board review the case again in light of the errors committed by the Respondent’s previous two attorneys. Tie Xia Chen v. Holder, 782 F.3d 373 (7th Cir. 2015). The Respondent hired two attorneys for his trial hearing who committed a multitude of errors, including, mistranslating an affidavit, recommending the Respondent to get documents he could not obtain, failing correct the record regarding the birth date of his child, among other mistakes.

According to the Seventh Circuit, the Board committed error when it refused to properly review the errors committed by the previous attorneys. The Court said “[t]he Board should determine if Chen’s attorneys incompetently neglected to offer evidence and arguments that might have resolved the inconsistencies identified by the IJ.” Id. at 377. In its opinion the Seventh Circuit acknowledged the strength of our argument when it said “[i]n a detailed brief, Chen methodically argued that each inconsistency or deficiency identified by the IJ could be attributed to counsel’s incompetence.” Id.

The case has been remanded to the Board and we are still awaiting its ruling.

James C. Ten Broeck Jr., the principal attorney, along with his associate attorneys, first filed a Motion to Reopen with the Board, in which these errors were pointed out and requested that the Board send the matter back to the Immigration Court. As required by rule, two complaints were filed with the Attorney Registration and Disciplinary Commission of Illinois (“ARDC”) against the ineffective attorneys.  When the Board denied the Motion, Chicago Immigration Advocates attorneys filed an appeal to the Seventh Circuit Court of Appeals.  After two rounds of briefing and oral argument, the Seventh Circuit Court of Appeals agreed that the case should be reversed.

We are very happy for our client that we were able to get this hard-fought result. We are confident that our Client will have an opportunity to present his case again and, this time, have the opportunity to present all of his evidence in a favorable light.

Rodriguez-Molinero v. Lynch

2015-12-17 in Cases Won

Rodriguez-Molinero v. Lynch,
808 F.3d 1134 (7th Cir. 2015)
Seventh Circuit Court of Appeals
Precedential Case*

On December 17, 2015 the Seventh Circuit Court of Appeals (“7th Circuit”) rendered a precedential decision aimed to protect the rights of non-citizens seeking protection under the U.N. Convention Against Torture (“CAT”) and, in this case, a Mexican national.

Chicago Immigration Advocates Law Offices, through Attorney Carla I. Espinoza, represented Mr. Rodriguez-Molinero before the Immigration Courts as well as at the Court of Appeals on a Petition for Review. Mr. Rodriguez-Molinero was seeking protection under CAT to avoid certain death if he were removed to Mexico. While in removal proceedings the Immigration Court found that Mr. Rodriguez-Molinero suffered past torture by the Zetas, the most powerful Mexican cartel, that Mr. Rodriguez-Molinero owed this cartel a substantial drug debt, and that he had given information about this cartel to American law enforcement authorities, yet the Immigration Court still denied him CAT protection. The Petition for Review prepared by Ms. Espinoza argued that the denial of CAT protection was predicated on a misapplication of the law surrounding the principle of official acquiescence to the torture and misapplication of the legal standard to evaluating the evidence.

More specifically, Ms. Espinoza persuaded the 7th Circuit that: (1) the “more likely than not” burden of proof should not be interpreted literally to require a numerical probability of torture, but rather should be interpreted as a “substantial risk” that the torture will occur if the non-citizen is removed; (2) the law surrounding official acquiescence or consent requires only that a single public official, and not the entire Mexican government, consent in torture; and (3) any unsuccessful efforts by the Mexican government to combat the cartels should not be construed to impact the unlikelihood of torture.

“it is success rather that effort that bears on the likelihood of the petitioner’s being killed or torture if removed to Mexico.”

*The case is, first, a published decision (many decisions of the court are not important enough to be published), and, second, its statement of the law is so important that future parties rely upon it in their arguments in their cases before the courts.

Success in Federal Court – Defending Illegal Re-entry

2015-10-02 in Cases Won

Since 2013, our Client was facing criminal charges in the Northern District of Illinois, Eastern Division, for illegally re-entering the U.S. after having committed an aggravated felony. Illegal re-entry can carry a sentence of up to 20 years imprisonment. Under the sentencing guidelines, as calculated by the U.S. Probation Department, our Client was facing 46 – 57 months in federal prison. On September 17, 2015, the Judge sentenced the Defendant to only 15 months. Through several motions and arguments challenging the government’s assertions, the Judge agreed with defense counsel that a guidelines sentence would be unfair. Defense counsel for the Defendant were Carla I. Espinoza and James C. Ten Broeck Jr. from Chicago Immigration Advocates Law Offices.

This was a hard-fought and lengthy case since we had originally challenged the validity of our Client’s deportation orders uncovering a number of irregularities with his 1993 and 1994 deportation hearings, including a misleading translation. This was an important litigation strategy because it exposed the unfairness many immigrants face during deportation proceedings and allowed the Judge to consider it in favor of our Client. While the Judge ultimately decided that the deportation orders were valid, he acknowledged that defense counsel had challenged him to consider aspects of the law that were new to him. Having carefully weighed all possible defenses after this ruling, we advised our Client that his chances to prevail at trial were low and that he would benefit more by accepting a conditional plea of guilty so that we could focus on sentence reductions.

After the plea, adverse facts were brought to the Judge’s attention by the probation department in preparing its pre-sentence memorandum asserting that criminal history points ought to apply – when, in fact, none were added by the U.S. Attorneys’ Office – because the Defendant had allegedly re-entered the U.S. at a point in time much closer to when he committed the aggravated felony. Attorneys at Chicago Immigration Advocates argued that reliance on that factor would violate due process of law and confidentiality principles and, consequently, we were able to reduce the sentencing guideline calculation by 5 months and then persuade the Judge that an even lower sentence was appropriate.

The biggest part of this case was that the Judge was persuaded to go lower than what the sentencing guidelines recommended by at least 31 months. At oral arguments Attorney Carla I. Espinoza persuaded the Judge to reduce the sentence in light of Defendant’s motivations in returning to the U.S., acceptance of responsibility and rehabilitation, family ties to the U.S., and attempts to secure legal status in the U.S. The Judge agreed that a sentence within the guidelines range would be unfair to the Defendant in light of the totality of the circumstances. At the conclusion of the hearing the Judge told the Defendant: “[t]he attorneys have done a remarkable job – they had me think about things I had never thought of before.”

We are happy to share this success story with you because it demonstrates the importance of having good attorneys to represent you in any legal proceeding, but especially in illegal re-entry proceedings where the stakes are high. For this Client, our diligent representation meant the difference of serving 31 months (2 years, 7 months) less in federal prison than he would have likely served if his previous attorney continued to represent him.

Tie Xia Chen v. Holder

2015-04-01 in Cases Won

Tie Xia Chen v. Holder
782 F.3d 373 (7th Cir. 2015)
Seventh Circuit Court of Appeals/h4>

On April 1, 2015, the Seventh Circuit Court of Appeals rendered a favorable decision on a Petition for Review for a Chinese citizen, represented by James C. Ten Broeck Jr. of Chicago Immigration Advocates Law Offices, whose claim of asylum was denied by the lower Immigration courts.

Chicago Immigration Advocates Law Offices, through Attorney James C. Ten Broeck Jr., was retained after Mr. Chen lost his case before both the Immigration Court and Board of Immigration Appeals. Mr. Ten Broeck filed a Motion to Reopen before the Board of Immigration Appeals asserting that numerous errors were committed by previous counsel which were relied upon by the Immigration Court to enter an order of removal against Mr. Chen. More specifically, Mr. Ten Broeck recounted that his previous attorneys (1) mistranslated important documents, (2) his attorney twice misadvised him to get a unauthentic birth certificate for the second child, and (3) his attorney inappropriately supplied a Spanish translation of his own birth certificate without adequate explanation, among other errors relied upon by the Immigration Court to deny Mr. Chen’s asylum claim.

The Seventh Circuit agreed, saying:

"The Board never evaluated Chen's argument that, but for his attorneys' failure to resolve the inconsistencies cited by the IJ, she would not have required corroboration or would have found the corroboration (beyond the birth certificates) sufficient. For example, “the most significant inconsistency,” according to the IJ, was that Chen asserted in his written application for asylum that his wife had been sterilized but testified that she was only threatened with sterilization. But in his motion Chen offered evidence that Ming had the application mistranslated and that attorney Zhang, who spoke Mandarin, carelessly left it mistranslated. Chen's motion also goes through every other supposed inconsistency or deficiency—the Spanish translation of his birth certificate, meeting Meredith, his daughter's age, his reasons for coming to the United States, and document authentication—and offers the resolution that his attorneys neglected to furnish. The Board addresses none of this evidence or its possible effect on the IJ's decision."

Chicago Immigration Advocates Law Offices continues to demonstrate, through the efforts of Mr. Ten Broeck, that no matter how grim things might look for your case, if any lawyers are going to win your case, it will be Chicago Immigration Advocates Law Offices.

In Re: Carlos, (Chicago Immigration Court, July 13, 2011)

2011-07-13 in Cases Won

Legal challenge:

Our client was charged with deportation for the commission of two crimes of moral turpitude after entering the United States. Action Taken: Chicago Immigration Advocates filed a motion to stay the removal proceedings on the grounds that his first conviction was not a crime of moral clumsiness and was also a protected expression under the First Amendment to the U.S. Constitution. .. Result: The Immigration Court agreed, found that our client’s first conviction was not a crime of moral clumsiness and ended the deportation case against our client. Our client remains in the United States to this day as a lawful permanent resident.

In Re: Carlos, (Chicago Immigration Court, July 13, 2011)

2011-07-13 in Cases Won

Legal challenge:

Our client was charged with deportation for the commission of two crimes of moral turpitude after entering the United States. Action Taken: Chicago Immigration Advocates filed a motion to stay the removal proceedings on the grounds that his first conviction was not a crime of moral clumsiness and was also a protected expression under the First Amendment to the U.S. Constitution. .. Result: The Immigration Court agreed, found that our client’s first conviction was not a crime of moral clumsiness and ended the deportation case against our client. Our client remains in the United States to this day as a lawful permanent resident.