It is often said that you learn more from losing than from winning. While that might be so, I would suggest that we learn even more from taking a loss and finding a way to turn it into a win. This is the lesson of perseverance. Having practiced law for over 22 years, I have become well versed in losing – – especially when it comes to Immigration law. Very often the facts of our cases, the law at issue or the adjudicators we appear before conspire to ensure we do not taste victory. At times, this can very much wear on the psyche and it makes one question whether all the effort, all the hours and all the sacrifices are really worth it. This is why two recent cases we had at Youman, Madeo & Fasano, LLP., felt so reinvigorating. They were prime examples of the power of perseverance.
The first involved a gentleman from Guyana who we will call Mr. N. who had some of the very worst luck before finally being able to turn things around. It all started several years ago when he went to his Immigrant Visa interview at the Consulate in Georgetown. Despite the very legitimate marriage he had entered into with a lovely woman 20 years his senior, he and his U.S. Citizen wife got absolutely hammered by the Consular Officials. The nasty, unprofessional and abusive conduct exhibited by the Consular officials is truly disturbing but, unfortunately, not entirely unheard of. The visa was denied on suspicion of marriage fraud. Rather than accept this fate, Mr. N. engaged in some “self-help” and made his way into the country without inspection. Here he was reunited with his wife and they proceeded to have two children together, one of whom is severely autistic. Grasping for a shred of hope, they then went to an attorney who filed for adjustment of status despite his Entry Without Inspection and lack of the 245-i waiver. Clearly, he was not eligible to adjust status so it was not surprising that upon the denial, Mr. N. was placed in removal proceedings. That is when Mr. N. found his way to Youman, Madeo & Fasano, LLP.
We were in proceedings just as the Office of Chief Counsel began exercising their prosecutorial discretion in a more formalized manner. Despite the equities and hardships at issue in our case, we had a remarkably difficult time getting PD extended to us. Once we finally were able to get proceedings administratively closed, we decided to give a shot at the newly enacted Provisional Unlawful Presence Waiver despite the Consulate’s earlier fraud concerns. Our I-601A submission was met with a patently erroneous denial when USCIS alleged that Mr. N. had an old Order of Exclusion. In light of this clear error, we had to demand that USCIS reconsider their decision and, thankfully, they did and the Provisional Waiver was ultimately approved. After that, we encountered all sorts of delays in getting his removal proceedings formally terminated and his case scheduled for interview at the Consulate. But, finally, after so many years and so many up’s and down’s (mostly down’s), Mr. N. returned to the Consulate in Guyana and had his Immigrant Visa approved. Mr. N. even said that the Consular Officer apologized to him afterwards. Mr. N. is now able to freely live in the United States and support his wife and children all with the comfort of having his green card.
The second case involves Ms. Z. from China and her 15 year journey to legal status. Ms. Z. first came to our predecessor office, Madeo & Fasano, in early 2001 and it was immediately clear that she suffered from some pretty serious trauma. If you touched upon the wrong subject – namely her arduous trip from China to the United States – she would curl up into the fetal position and cry. It took many, many months and the hard and careful work of our staff to gain Ms. Z’s trust but we eventually learned that she suffered horrific sexual abuse at the hands of the individuals who her family had enlisted to facilitate her travel to this country. As she was detained upon her entry, our only option at the time was a defensively filed application for political asylum. While Ms. Z. had expressed some opposition to China’s coercive population control policy – namely the compulsory gynecological examinations and subsequent onerous fines for failure to comply – overall her claim for asylum was not particularly strong. As a result, we had switched directions and attempted to obtain a “T” visa with the argument that while she undertook her trip to the United States as a willing smuggling participant, her situation morphed into one of trafficking once she was held and abused against her will. Unfortunately, USCIS did not agree with this argument and an appeal was likewise denied by the Administrative Appeals Office.
With the passage of time, Ms. Z. thankfully found some personal happiness. She married and gave birth to two children here in the United States. Despite the removal proceedings against her having been previously closed, Ms. Z. held onto the hope of normalizing her status. She insisted on continuing with an asylum claim based, in large part, on her fears of returning to China in light of the one-child policy and her now having two children. In 2013, we engaged in a lengthy hearing on her very sympathetic claims but were met with a hostile attitude from Chief Counsel. And while the Judge expressed her sympathy, she nonetheless dictated an hour long decision denying all relief in the most thorough manner possible. Once again, it would have been easy for Ms. Z. to simply give up. But we didn’t. Despite the seemingly long odds, we put everything we could into the appeal and were more than pleasantly surprised (maybe shocked) when the Board of Immigration Appeals remanded the case back to the Immigration Judge.
Even with the remand, we were not sure which way our final hearing would go. The Chinese government had since announced liberalization of the birth control policy and case law has been consistently against our position. But after a good deal of legal argument back and forth, the Judge concluded that with Ms. Z’s “heightened risk profile” due to her prior issues with the birth control authorities, her unique circumstances would put her in greater danger than most others repatriated to China having already given birth to two children. The Judge further noted that this government announced “change” to a two-child rule was of “recent vintage” and that we could not conclude that this establishes “complete cessation of enforcement at all levels of the government”. She further noted that there was no “track record” of eased enforcement in practice and further noted that our own State Department often finds a vast gap between Chinese government pronouncements and what reality is on the ground. After a 15 year ordeal, Ms. Z. was granted political asylum.
Perseverance.
While we will always be happy winning the “easy” cases, there is a special pride and joy we derive when taking a loss and turning it completely around. This type of result requires the faith of our clients and also the tireless work of our entire team at Youman, Madeo & Fasano, LLP. More than anything else, it requires perseverance.
