Borowski Law Wins Asylum Case for Afghan Soldier on Appeal

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.