Nandita Mohan / Sun Staff Photographer

January 28, 2020

Torture, Deportation, Persecution: Cornell Students Work Pro Bono for Two Immigration Appeals Cases

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Within the bright atrium of Myron Taylor Hall, students can typically be found gathered around small circular tables, buried in readings and annotating briefs.

But for the over 100 students who participate in Cornell Law School’s Asylum and Convention Against Torture Appellate Clinic — the only law school clinic to focus only on immigration cases — homework can take on very real-world implications.

“The idea is to give them an opportunity to lawyer in slow motion,” Prof. Ian Kysel, law, who teaches the clinic, told The Sun. Under the supervision of faculty, students represent clients in appeals cases in front of the Board of Immigration Appeals, a federal body that reviews the decisions of U.S. immigration courts.

One recent case handled by the clinic involves their client, Mr. M, an ethnic Nuer and a refugee born to Sudanese parents. As a lawful permanent resident — a non-citizen legally authorized to live in the U.S. — Mr. M has lived in Iowa since he was four years old.

But, at 18, Mr. M was convicted of first-degree theft and second-degree robbery, crimes that can often be grounds for deportation. After his release from prison, Immigration and Customs Enforcement detained Mr. M, where he was forced to argue for his continued stay in the U.S. before an immigration judge.

That judge found his convictions to be aggravated felonies “without … hearing evidence from either Department of Homeland Security or the client,” the appeals brief alleged, and decided to deport Mr. M to South Sudan.

Now, Mr. M’s future as a U.S. resident will be dependent on the efforts of Alexandra Kovaliouk law and J.P. McElroy law are both members of the Appellate Clinic.

Mr. M requested a Convention Against Torture deferral, which prohibits the removal of individuals to a country where they could face persecution. While the immigration judge ruled that Mr. M qualified for this deferral, the DHS appealed the decision.

In response to the appeal, Kovaliouk and McElroy argued that Mr. M’s convictions were not aggravated felonies, and “relevant legal qualifications for CAT were met.”

Research on the conflict of South Sudan and the legal preconditions for the deferral led the pair of law students to the conclusion that Mr. M would face a large risk of persecution because of his gender, age and ethnic background. Other characteristics they argued would make Mr. M vulnerable included his relation to other murdered opponents of the government and his Iowa upbringing.

While the outcome of the case is still uncertain, Prof. Kysel told The Sun, the students’ role in the case is complete, as they are only involved in the appeals process.

In a second case, worked by Eirene Kim law and Connor Boehme law, their client, a Cuban native, sought asylum in the U.S.

Their client worked a government job in Cuba, but was soon terminated after he refused to participate in pro-government demonstrations. Then, the client became involved with an anti-government group where he distributed materials and attended demonstrations and meetings.

The client fled Cuba after he and his wife experienced extended surveillance from the government, in which Cuban government security forces would follow the couple whenever they would leave the house.

An immigration judge — who found the Cuban native’s testimony credible — initially granted asylum. However, the DHS filed an appeal, reopening the case for consideration.

Kim and Boehme filed a motion to dismiss, arguing that the DHS appeal was not filed within the 30-day deadline, violating the Administrative Procedure Act. The DHS claimed this was due to a mailing mishap.

On Jan. 6, the Board sided with Kim and Boehme, dismissing the DHS’s appeal as untimely. Kysel described Kim’s and Boehme’s approach to the case as “novel,” lauding at how the students got the Board to agree.

The duo described the experience as an “incredible challenge which helped us understand, in a much deeper way, not only the asylum system, but what it means to advocate for a client.”