Courtesy / U.S. Customs and Border Protection
He was 6 years old when armed men attacked his village and killed his parents. A member of the Dinka tribe, he fled the fighting in his home country of South Sudan, then found refuge in the United States at age 18 through a United Nations asylum program.
For the last 13 years, the man has been legally living and working in this country. He has a fiancée and a child. Then came an altercation with another man, an assault charge, and a deportation ruling.
Because federal immigration records are confidential, we can’t know the man’s name or where he lives. But he is one of eight immigration cases local plaintiff’s attorney Tim Patton has volunteered to work in the past two years.
“Our client is a dead man if he goes back,” said Patton, who last year established The Appellate Immigration Project (TAIP) for cases such as this. It is the first and only nonprofit in Texas providing pro bono appellate representation to immigrants, refugees, and asylum seekers trying to remain in the U.S.
Patton argued that because the man did not bear the traditional Dinka scarification, he could be tortured and killed by his own people or warring factions if deported. The client remains in detention awaiting a federal appellate court decision on his appeal.
More than 30,000 cases were sent in 2016 to the Board of Immigration Appeals (BIA), a division of the U.S. Justice Department’s Executive Office for Immigration Review. BIA is the highest administrative body for interpreting and applying immigration laws.
Some involve cases in which a federal immigration judge has already ruled that the asylum seeker should be deported to his or her home country. Others are cases in which the judge has decided the asylum seeker’s claims are valid, but the U.S. Department of Homeland Security (DHS) disagrees. That’s how the Sudanese man’s case went before the BIA.
“I had previously done pro bono immigration work before, and in 2016 or so, I got more and more frustrated about the plight of asylum seekers and legal permanent residents,” Patton said, “because the reality is … if they’re deported, families are torn apart and, for some of these folks, it’s just death sentences. So I figured I could sit around and complain, or I could do something.”
Patton, 65, set aside his for-profit law practice to put his skills as an appellate attorney to work on behalf of asylum seekers. He never gets to meet his clients in person because they are frequently moved from one detention center to another. Patton only talks with them by phone if they are able to call. Letters he mails are often returned. “It’s an aspect of immigration work I never expected,” he said.
As a board-certified civil appellate lawyer, Patton writes legal briefs based on court records that already exist. But appellate immigration work requires a significant and lengthy commitment of time and effort, Patton said. The brief he filed on behalf of the South Sudanese man was 50 pages long with 30 pages of exhibits and in-depth legal analysis.
“I probably spent over 300 hours on that case alone,” he said.
So far, none of the immigration cases making national headlines today, in which parents have been separated from their children, have made it to the appellate level. “If they do, I’d be happy to take one of those cases,” Patton said. “In my view, those are as appalling a set of facts as you’ll ever see.”
Only 14 percent of detained immigrants have lawyers to help them navigate the complex immigration system, according to a recent Huffington Post article that cited an American Immigration Council study. But for those cases that reach the appellate court, it’s far fewer. By law, defendants are not entitled to legal representation despite the seriousness of removal proceedings. Most do not have an attorney or the resources to hire one.
That’s where legal aid groups and some law schools step in. The Catholic Legal Immigration Network’s BIA Pro Bono Project, one of a few such appellate immigration law programs in the country, reviews about 800 cases a year. Last year, it placed 130 with appellate attorney volunteers like Patton and others in its network. The group has obtained permanent relief from deportation in 42 percent of its cases since 2015.
“The immigration court system is an adversarial system,” said Brad Jenkins, project manager for the BIA Pro Bono Project. “A typical case is a case in which the immigration judge has already ordered deportation. We are asking a higher court to reverse the decision of one of their colleagues. You’ll see this in any appellate court. The one going to higher court is the one disadvantaged.
“Winning 42 percent is quite a feat in our corner of the world.”
The BIA Pro Bono Project has many volunteer attorneys from across the country who take cases as they are able, Jenkins said. But, he said, “There’s no one like Tim, who has made pro bono appellate work very much an ongoing focus of how he practices law.”
Patton recently took the case of a transgender woman who had fled violence and persecution in Mexico but faced deportation after the immigration judge ruled that her case was not believable. In June, based on Patton’s brief, the BIA vacated the judge’s rulings and granted her asylum.
At TAIP, Patton’s wife, attorney Suzette Patton, and her daughter, Katie Kinder DeBauche, help run the nonprofit as volunteers, while a paid paralegal, Debbie Grant, supports the appellate work. Patton is currently funding TAIP operations from his own pocket with help from some individual donors, but he is also applying the Texas Bar Foundation for grant money.
“Some people are donating because they have good hearts,” Patton said. “But it’s not an abstract project. We’ve had successes. For a Honduran client, who if he was sent back to Honduras was going to be almost assuredly tortured and murdered, like his brother, by [gangs], the immigration judge said, ‘You get to stay, you are legally entitled to asylum.’ We won that case and he’s now safely living in the U.S.A.”
In the case of the South Sudanese man, and some others Patton has represented, minor criminal offenses or other legal problems in this country landed them in immigration court. To Patton, such misdeeds shouldn’t result in deportation if it means certain death once a person is returned to his or her home country.
“The cliché is that people like me are representing people who are here illegally, but this man has been here legally,” Patton said of his South Sudanese client. “He won in front of the immigration judge. It’s the government [DHS] who is attacking the federal judge who says he gets to stay.”
Right to counsel in immigration proceedings is a controversial topic. Legal policy analysts with the Center for Immigration Studies have argued against right to counsel. Last year, the Supreme Court ruled that immigrants who are caught entering the U.S. illegally have no right to legal representation in the event of an expedited hearing. However, those who have been in the U.S. for a substantial period of time, or legally immigrated to this country, have a right to legal counsel – but at their own expense.
As the country grapples with immigration reform, some BIA decisions can be precedent-setting for immigration courts all across the country. Others simply make a difference in one person’s life, because of an earlier mistake made in the case or the seriousness of the asylum plea.
Either way, Jenkins said, “We’re here to insist that the law be followed, and asylum is the law. The immigration laws are complex and most anyone would need legal assistance to navigate them. An astonishing number of people do qualify under the law to remain in the U.S., but it would be hopeless if they tried to navigate the system by themselves.”
And the stakes are high, he added. “The separation of families, persecution … very often, very bad things happen when a person is deported.”