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Wonderful win in Elizabeth Immigration Court

Wonderful win in Elizabeth Immigration Court: Mexican mother of two small children obtains Immigration Judge’s decision awarding permanent resident status because her children would suffer “exceptional and extremely unusual hardship” if she were removed to Mexico.

I previously reported on a successful case in Elizabeth Immigration Court in which a citizen of Guatemala obtained permanent resident status because his US citizen teenage daughter would suffer “exceptional and extremely unusual hardship” if he were removed to Guatemala. That happened in August 2018.

Today, I had the good fortune to win another case like this involving “exceptional and extremely unusual hardship” In Elizabeth Immigration Court.

To review, the elements of a successful case are:

  1. That the applicant has been in the United States for at least ten years and can prove it.

  2. That the applicant has not been convicted of a so-called “crime involving moral turpitude.”

  3. That the applicant is a person of “good moral character” who merits a favorable exercise of discretion.

  4. That the applicant has a“qualifying immediate relative” (a spouse who is a US citizen or permanent resident; a parent who is a US citizen or permanent resident; or a child under 21 who is a US citizen or permanent resident.

  5. And finally, that if the applicant were removed to his or her home country the qualifying immediate relative would suffer “exceptional and extremely unusual hardship.”

The client is a Mexican woman in her early 30s came to the United States illegally by crossing the border in 2006. She obtained steady employment here for a major supermarket chain not too long after she settled in New Jersey in 2006, and she has been a good loyal worker and, really, a member of the community ever since then. She was also a steady taxpayer, which counts in cases like this.

In 2009, she met a Mexican man with epilepsy who came to the United States because of severe societal discrimination against him because of his illness. He is also undocumented. The two of them decided to become a couple and start a family, and they have a daughter, eight, and a son, six years old. Both kids understand Spanish but do not speak it.

Last year the woman was arrested for alleged child abuse (I will spare you the details, other than to say that in my opinion she has always been a prototypical good mother) and she was admitted into New Jersey’s “pretrial intervention” (PTI) program in which the case does not go to trial and there is no guilty plea, but the defendant must undergo counseling and comply with the conditions of the PTI program in order for the case to be finally dismissed. In this matter, the client did and received a ringing endorsement from the court assigned counseling center, which worked with her on improving her parenting skills. Her participation was positive enough that she was also granted early termination of PTI program participation.

Notwithstanding this, ICE scanned available court records for possible removal targets and swooped down one morning to arrest her on the way to work. She was placed in the Elizabeth Detention Center and despite my best efforts, the immigration judge denied bond because she might be “a danger to the public.”

In my view, it takes at least six months to prepare a case like this for trial. While the backlog on the non-detained docket (locally, Newark immigration Court) is enormous (at last report 67,000 cases split among 13 judges) and one has years to get ready, exactly the opposite occurs on the detained docket in Elizabeth Immigration Court. Because the clients are being held at government expense, there is enormous pressure put on all parties to get the case over with as quickly as possible.

In this case, the tension was even more stressful because there was a significant outbreak of COVID-19 in the Elizabeth Detention Center. I had more to balance, as I fought for additional time to get the case ready.

After an agonizing eight months’ detention for the client, we went to trial on Tuesday, September 8. Because the same judge had denied bond, I was quite worried about the outcome of the case on the merits. However, we were successful. We were able to show that the children’s father had real problems managing the children as a single parent due to his epilepsy and the need to work extra hours to make ends meet. This, together with significant harm to the children’s mental health because they had suddenly lost their mother and had to witness their father’s epileptic attacks, was enough to show the necessary “exceptional and extremely unusual hardship.”

It was also necessary for us to prove the children would suffer this level of hardship if they accompanied the mother back to Mexico. This we were able to do by showing:

  1. The extreme poverty in Mexico in the area where she came from, and the fact that she herself was uncertain if she could support her children as a sole breadwinner

  2. That societal discrimination against epileptics in Mexico meant that her partner would likely not be able to get work

  3. That there were significant risks of violent crime in the area of Mexico to which she would return,

  4. And that her children would have an extremely difficult time “fitting in” to Mexican society, because they themselves would be stigmatized as “gringos,” especially because of their poor Spanish language skills.

Proving all this required substantial documentation of each and every fact that we needed to prove, so that when the trial they came we had amassed over 250 pages of solid documentary evidence to supplement the client’s testimony. I am indebted to my colleague Carolina Curbelo for her help in preparing the case, and the outstanding psychological evaluations and expertise of Dr. Rhonda Greenberg, Psy.D. who did the family assessments for this case.

I was quite afraid that even with all this, we would lose because of the immigrant-hating environment that the current president has worked so hard to create. But, even though the immigration judge is a recent appointee under this Administration, basic humanity and justice prevailed.

We have to wait an additional 30 days to see whether or not the government will appeal, but the oral decision that the judge put in the record at a special hearing today was very strong, in my opinion, so I pray that permanent residency for this deserving woman will just be a matter of time.

Brian O’Neill,

Immigration Attorney

If you have any questions, please call our Morristown Immigration Law Office

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