Borowski Law Wins Asylum Case for Afghan Soldier on Appeal
Press Release:
June
30, 2015: The Law Office of Matthew Borowski announces a successful
result in the case of Major Jan Mohammad Arash, one of the three Afghan
military officers who left a U.S. military base in Massachusetts last
September where they were taking part in training exercises, and claimed
refugee status at the Canadian border in Niagara Falls. Immigration
lawyers Matthew Borowski and Ryan Witmer appealed Major Arash's case to
the Board of Immigration Appeals (BIA) after the Immigration Judge at
the Batavia Immigration Court denied him asylum. The BIA ruled in favor
of Major Arash, granting him asylum.
"It was a long
road, but we ultimately prevailed" said immigration lawyer Ryan Witmer,
who worked closely with Matthew Borowski on crafting the legal arguments
essential to Major Arash's appeal. "The Board agreed with us that the
Taliban is a de facto government in Afghanistan and that the Afghan
government is unable to control the Taliban's persecution."
The Board's order came almost six months after the Immigration Court's denial of Major Arash's claim on January 30, 2015.
"The
Board considered this matter with a three-member panel, which is
normally reserved for cases that present a novel legal argument or are
otherwise particularly important," said Buffalo Immigration Lawyer
Matthew Borowski. "In this case we are pleased that the BIA panel agreed
with our assessment of the situation and held that the Taliban does
constitute a de facto government in Afghanistan and further, that Major
Arash's fear of persecution is not merely based on his involvement in
the Afghan military, but stems from his imputed pro-western political
opinion resulting from his years of working alongside U.S. service
members."
One of the key arguments put forward by the Department of Homeland Security was that Matter of Fuentes,
a 1988 BIA Decision, precluded a finding of a nexus between future
persecution feared and a protected ground under the Act. The Immigration
Judge agreed with this argument and ruled that Major Arash was not
eligible for asylum. The BIA disagreed, basing its decision on several
federal circuit court cases which distinguished Fuentes. The key
determinative factor was that Major Arash would not be persecuted by the
Taliban merely because he was an Afghan service member, but because of
his training with American and other Western forces. The BIA held that
"While it remains true under Fuentes that dangers commonly faced
by police (or the military) cannot serve as the basis for an asylum
claim, subsequent cases have focused on the activities and
responsibilities unique to the petitioner in assessing the relationship
between persecution and a protected ground," citing Acharya v. Holder, 761 F.3d 289, 302 (2d. Cir. 2014).
The
BIA held that "based on an analysis of the respondent's individual
situation here, as established through his credible testimony and
supporting evidence, he has established a well-founded fear of
persecution by the Taliban on account of an imputed pro-American or
pro-Western political opinion."
The BIA found that
Major Arash has established statutory eligibility for asylum and that,
in the absence of any notable adverse factors, he deserves a favorable
exercise of discretion. They remanded the case to the Immigration Judge
for a required background check.
Sources at the
Department of Homeland Security tell us that the Major will likely go
back in front of the Immigration Judge within the next few weeks for his
final hearing.
"The Major wants to learn more English,
and find a good job so that he can support his family" said Matthew
Borowski. "We are setting up a fund to collect donations to help Major
Arash get on his feet once he is released from detention."
News media coverage:
Afghan soldier wins right to remain in the U.S.
Tuesday, June 30, 2015
Friday, June 5, 2015
Urge ICE to Stop Detaining Pregnant Women in Family Detention Facilities
McClatchyDC recently reported that several of the women being held in family detention in Karnes City, Texas, are pregnant. The women learned about their
pregnancies after being given a urine test soon after being detained, and
one of the women stated that she had not received any off-site medical
care for her pregnancy. This detention directly contradicts the Fall 2014 DHS memorandum outlining enforcement priorities for ICE.
The two family detention facilities in Texas were newly constructed as part of the Obama administration's aggressive response to last year’s surge of migrant families fleeing poverty and violence in Central America. Mothers and children are being detained in these jail-like facilities.
The article states that Joanne Lin, legislative counsel for the American Civil Liberties Union, said she thinks the detention of mothers violated policy guidelines issued by Homeland Security Secretary Jeh Johnson. In a November 2014 memorandum, Johnson said that “absent extraordinary circumstances,” field agents should not detain pregnant mothers and primary caretakers of children.
I have personally dealt with clients who were detained by ICE in Texas, transferred to the Buffalo Federal Detention Facility in Batavia, New York where I regularly visit and represent clients in the Batavia Immigration Court. I have had clients who were granted prosecutorial discretion by ICE in Buffalo, New York after Borowski Law made written requests. These clients then returned to their families in Texas only to be again detained by Texas ICE, without regard for the decision made by the very same agency's other field office to release the non-citizen on parole or on bond. Our office has been told, flat-out, by ICE Enforcement and Removal Operations (ERO) officers in Texas that they will take enforcement actions that directly contradict the Fall 2014 Johnson memorandum. Our advice moving forward to all of our clients will be to "stay out of Texas."
This advice, of course, is of no help to the roughly 760 mothers and children being held at the "family detention centers," two of which are in Texas and one of which is in Berks County, Pennsylvania.
We must mobilize and ask the Obama administration to take action to end family detention now.
The two family detention facilities in Texas were newly constructed as part of the Obama administration's aggressive response to last year’s surge of migrant families fleeing poverty and violence in Central America. Mothers and children are being detained in these jail-like facilities.
The article states that Joanne Lin, legislative counsel for the American Civil Liberties Union, said she thinks the detention of mothers violated policy guidelines issued by Homeland Security Secretary Jeh Johnson. In a November 2014 memorandum, Johnson said that “absent extraordinary circumstances,” field agents should not detain pregnant mothers and primary caretakers of children.
I have personally dealt with clients who were detained by ICE in Texas, transferred to the Buffalo Federal Detention Facility in Batavia, New York where I regularly visit and represent clients in the Batavia Immigration Court. I have had clients who were granted prosecutorial discretion by ICE in Buffalo, New York after Borowski Law made written requests. These clients then returned to their families in Texas only to be again detained by Texas ICE, without regard for the decision made by the very same agency's other field office to release the non-citizen on parole or on bond. Our office has been told, flat-out, by ICE Enforcement and Removal Operations (ERO) officers in Texas that they will take enforcement actions that directly contradict the Fall 2014 Johnson memorandum. Our advice moving forward to all of our clients will be to "stay out of Texas."
This advice, of course, is of no help to the roughly 760 mothers and children being held at the "family detention centers," two of which are in Texas and one of which is in Berks County, Pennsylvania.
We must mobilize and ask the Obama administration to take action to end family detention now.
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