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Photo: Harvey, Kollm, Manning, Schulman Headshot Photo Collage

DC Pro Bono Week 2021 Profile: Joint Pro Bono Team – Bolstering Due Process for All People in Immigration Proceedings

By Jennifer Grishkin and Noah Beckert-McGirr

Capital Area Immigrants’ Rights (CAIR) Coalition is fortunate to work with many outstanding attorneys in protecting immigrants’ rights. Recently, a group of talented pro bono attorneys at two of our long-term partner firms collaborated in cutting-edge litigation in the Fourth Circuit Court of Appeals. Top-notch appellate advocacy by Susan Baker Manning, Patrick Harvey, and Clara Kollm of Morgan, Lewis & Bockius LLP, and by Steven H. Schulman of Akin Gump Strauss Hauer & Feld LLP led to a landmark decision earlier this year that bolsters due process for all people in immigration proceedings, and especially for those who must proceed without the benefit of counsel. In Arevalo Quintero v. Garland, No. 19-1904 (4th Cir. May 26, 2021), the Fourth Circuit held that immigration judges have a duty to fully develop the record in all immigration court proceedings. It further held that this duty is heightened in pro se cases and that immigration judges are required to help pro se litigants articulate the legal basis for their asylum eligibility.

The petitioner in this case, Mr. Arevalo Quintero, had fled his country of origin after facing repeated violence and threats at the hands of a local gang. After arriving in the United States, Mr. Arevalo Quintero was taken into custody by the Department of Homeland Security (DHS), where CAIR Coalition staff met him and provided him with support representing himself pro se in his immigration proceedings. Mr. Arevalo Quintero applied for asylum and other fear-based relief because he feared persecution on account of his membership in a particular social group (PSG). (By statute, “membership in a particular social group” — like race, religion, political opinion, and nationality — is a protected ground upon which asylum eligibility can be based.) In his pro se immigration proceedings before an immigration judge (IJ), Mr. Arevalo Quintero clearly established all the facts in his case that would have shown his membership in a cognizable PSG. But without an attorney fighting alongside him, he was not able to convert these facts into a legal basis for relief. In other words, he could not precisely delineate a legally sufficient PSG on his own, and the IJ did not help him do so. The IJ denied Mr. Arevalo Quintero all relief and ordered him deported.

Mr. Arevalo Quintero appealed the IJ’s decision at the Board of Immigration Appeals (BIA). The BIA dismissed the appeal, concluding that it was unnecessary to determine whether Mr. Arevalo Quintero’s proposed PSG constitutes a cognizable PSG because Mr. Arevalo Quintero did not clearly indicate the exact delineation of his PSG on the record before the IJ. The BIA further found that the IJ did not have a duty to “seek clarification” on Mr. Arevalo Quintero’s proposed PSG nor to make additional factual findings about the proposed PSG.

This BIA decision reflected the sad reality of the unfairness of the process in deportation hearings while Mr. Arevalo Quintero was fighting his case. In addition to carrying the burden of proof on the facts that would establish his defense to deportation, he was also expected to translate those facts into legal theories, even if proceeding pro se. This reality ignored the fact that many people have no choice but to proceed pro se in deportation hearings, a setting in which the outcome can literally mean the difference between life and death. How can such a system have persisted? As Steve Schulman from Akin Gump explains: “The immigration courts are set up by and for lawyers.  The IJ is a lawyer, DHS is represented by a lawyer, and the assumption is that the respondent will have a lawyer. But that assumption is not backed up by any funding or other guarantee – so asylum-seekers like Mr. Arevalo Quintero are left on their own.”

After the BIA’s decision, CAIR Coalition asked some of our go-to pro bono appellate litigators to step in. Morgan Lewis represented Mr. Arevalo Quintero in a petition for review before the Fourth Circuit, and Akin Gump represented a group of retired IJs and former members of the BIA as amici in support of the petition. Mr. Arevalo Quintero and his team argued that the IJ in his case had a duty to develop the factual record but failed to meet that duty. Mr. Arevalo Quintero, they contended, had sufficiently established the facts of his membership in a PSG, even if he had not converted those facts into the correct legal terminology, and the IJ had a duty to clarify the PSG. Amici explained that IJs had a decades-long common practice of discussing and defining an immigrant’s PSG on the record, a practice that the IJ in Mr. Arevalo Quintero’s case had not followed. By refusing to enter into such a conversation with Mr. Arevalo Quintero about his PSG, the IJ had denied him a fair hearing.

The Fourth Circuit agreed. The court found that immigration judges have a duty to fully develop the record in every case and that this duty is heightened in pro se cases and includes helping the litigant articulate their “particular social group” based on the facts of the case.

In its opinion, the court relied upon an analogy to the board game Scrabble that amici put forward in its brief to illustrate the IJ’s duty to develop the record as to a pro se asylum seeker’s potential PSGs. In this analogy, the facts of the case are “like the tiles in Scrabble, but the respondent does not speak English and cannot spell. The respondent can only use the letters on the tiles, but very well may not know what English words they can spell. Without help, the respondent could never win – and can’t even meaningfully participate.” The role of the immigration judge is to take a close look at the tiles and help the pro se litigant determine whether they spell words. The IJ can’t give the respondent new tiles or make up nonsense words, but the IJ can and should show the litigant how the tiles can form an acceptable word – that is, how the facts of the case give rise to a well-defined PSG under existing legal doctrine. As Steve – who loves arguing through analogies and was glad to see that the court had cited his Scrabble analogy twice – explains, “Mr. Arevalo Quintero presented the facts to the court in his testimony but did not know how they fit into the particular social group doctrine. By analogy, he had the Scrabble tiles, but didn’t know how to spell the words.”

With this landmark decision, the work of Morgan Lewis, Akin Gump, Mr. Arevalo Quintero, and the amici former IJs and BIA members will have a profound impact on all individuals trying to navigate their way through immigration proceedings in the Fourth Circuit. Going forward, people like Mr. Arevalo Quintero will stand a fighting chance in defending against deportation. CAIR Coalition is especially proud of this case for shining a light on the importance of representation in immigration proceedings and the immense challenges that pro se litigants face, as well as for illustrating that pro bono representation in an individual case can create important systemic change throughout the Fourth Circuit.

Jennifer Grishkin is the Pro Bono Coordinating Attorney and Noah Beckert-McGirr is the Pro Bono Coordinating Assistant at CAIR Coalition.

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