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Mediation Prevails Over Litigation

by Carl Shusterman

Back in the early 1980s when I served as an INS Trial Attorney, an Immigration Judge explained to me that my job was not to try to deport each person who appeared before the Court, but to see that justice was done.

This story is not merely a "win" for our law firm nor is it a "loss" for the government. It is about both sides coming together to insure a fair result for the persons in removal proceedings.

Years ago, a married couple from the Philippines who we will call "Mr. and Mrs. P" retained us assist them. They had been placed in removal proceedings after their applications for asylum were referred by the INS to the Immigration Court.

Mrs. P's two adult sons from her prior marriage were also placed in removal proceedings. The sons were eventually able to adjust their status and become lawful permanent residents through a petitions filed by their biological father, a U.S citizen.

Mr. and Mrs. P, however, were in a much more difficult position. Their claim for asylum was genuine, but weak, and they eventually withdrew their applications. Their sons would need to become naturalized citizens before they could file immigrant petitions on their behalf.

At their final hearing before the Immigration Judge, we submitted evidence that their eldest son had applied for naturalization. As soon as he was naturalized, he would be able to file "immediate relative" petitions for Mr. and Mrs. P, his step-father and mother.

The Judge stated openly that she wanted to grant a continuance in the case in order to allow the son to naturalize and petition for his parents. However, because of "case completion goals" imposed upon her by the Executive Office for Immigration Review (EOIR), she believed that this impaired her discretion to grant continuances for good cause. Therefore, she had no choice but to go forward with the case. She granted Mr. and Mrs. P sixty days to voluntarily leave the United States but explained that absent this unwanted interference, she would have granted a continuance to Mr. and Mrs. P.

We filed an appeal to the Board of Immigration Appeals.

While the appeal was pending, Mr. and Mrs. P's oldest son tragically died. The family was devastated by this loss. We were saddened for the P's and dismayed at the impact this would have on their immigration case as well.

Nevertheless, the Board dismissed their appeal.

Not willing to give up, we filed a Petition for Review with the U.S. Court of Appeals. After the legal briefs were filed in the case, the Court requested additional information relating to the legal status of Mr. and Mrs. P's sons. A short time later, Mr. and Mrs. P's surviving son became a naturalized citizen and immediately filed immigrant petitions on their behalf.

At this point, our office called the mediation office at the Court of Appeals. Over the course of the next several months, we had telephonic conferences with the government attorneys to discuss the possibility of remanding Mr. and Mrs. P's cases to the Immigration Court so that they could seek adjustment of status based upon the approved petitions submitted by their surviving son.

The Immigration and Customs Enforcement (ICE) agreed to join in a motion to the Board of Immigration Appeals to reopen the case. Mr. and Mrs. P will soon be able to apply for adjust of status before the Immigration Judge, and we are confident that they will both obtain permanent residence.

This result would not have been possible without the cooperation of the ICE attorneys. We commend the government for helping to achieve a just result in this matter.

About The Author

Carl Shusterman is a native of Los Angeles and a 1973 graduate of the UCLA School of Law. He served as an attorney for the Los Angeles office of the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered the private practice of law. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals, Ninth Circuit and the Supreme Court of the United States. Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's national Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He serves as a member of the Immigration and Nationality Law Advisory Commission for the State Bar. He is a member of the Executive Committee of the Immigration Section of the Los Angeles County Bar Association and of the American Bar Association. Mr. Shusterman is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee On Immigration in Washington, D.C.

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