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What happens after a Second Circuit victory?

There is a misconception that once a Circuit Court grants a petition for review, PFR, the agency will follow suit and grant the application that was the subject of the PFR. After years of litigating cases in Circuit Courts around the country, nothing can be farther from reality. Often times, the result is a second bite at the apple. Indeed, even if the Circuit Court issues a precedential decision the agency is not required to follow the Circuit ruling if the agency can justify "statutory terms" that leave room for agency discretion. See National Cable & Telecommunications Ass'n v. Brand X Internet Serv., 545 U.S. 967 (2005).

Recently we expected a difficult time from the Immigration Judge who denied our clients asylum application that was the subject of the PFR in Gashi v. Holder, 702 F.3d 130, 136 (2d Cir.2012). Despite the Second Circuit issuing a precedential decision that found for the first time that witnesses to war crimes who cooperate with war crimes tribunals are a particular social group and that our client's past mistreatment rose to the level of persecution, we expected a denial form the Immigration Judge under the Brand X discretion. As an aside, we had not represented the applicant in Gashi when his case was initially before the Immigration Judge. The issues on which we ultimately won the case had not been raised by the previous attorney. We argued that despite the lack of issue preservation by prior counsel, the subsidiary argument doctrine applied. The Second Circuit agreed.

Yesterday I appeared with our client before the Immigration Judge that had initially denied the asylum claim when our client was represented by other counsel. While we waited for the Judge to open the court room, the Assistant District Counsel for Immigration and Customs Enforcement stated to me that she would defer to the Judge. What this means is that ICE did not have a position one way or the other regarding whether the application should be granted. Normally, this means that the case will be granted. However, not with the Judge that had this case. I replied to the government lawyer that deferring to the Judge was not enough. We needed them to join. I said, "He is going to deny any way" to which she replied, "I know but that is the best we can do."

To our surprise, the Judge granted the application. Why? Because of our experience in the arena. The ultimate result was built on one success into another success. Rookie and less experienced lawyers would have been satisfied with the precedential Second Circuit opinion in Gashi v. Holder. However, we knew that despite the fact that a new definition of particular social group was carved out by the Second Circuit and the Second Circuit held that our client had suffered past persecution, the Immigration Judge could still find that there were changed country conditions to the extent that our client no longer had a well-founded fear of persecution. What to do? Be a pro and get ready to rebut the Judge's reasons for another denial. To rebut the Judge's findings that there were changed country conditions one of our talented Associates, Zan Khan wrote a killer brief with the support of updated background materials that demonstrated that country conditions had indeed changed - but for the worse. This meant that our client still had a well-founded fear. But was that enough? No - I anticipated a denial despite Mr. Khan's well written and powerful brief so I submitted another brief that I wrote asking for humanitarian asylum, which means that even if there are changed country conditions, the past persecution was so severe that it would be inhumane to deport the applicant to the country where the persecution occurred.

To his credit, the Immigration Judge was a gentleman. He seemed humbled by the Second Circuit's decision and deferred to the Circuit. The Judge reasoned that he always found that the mistreatment was severe enough but it was not persecution because he had found that it was not on account of a protected ground. Now that the Circuit found the particular social group ground, he could grant. This was the Judge's way of saving face.

This was the arena at its best. I am soaking in this moment. I want to congratulate our lawyers and staff that were instrumental in this case being granted. Most humbly I want to thank our client for having the confidence in our ability to deliver to him what had been denied to him in the past.

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