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December 13, 2021

Securing Family Unity: The Power of Zealous Pro Bono Representation

By Emily Joiner, Director of Outreach at ABA ProBAR

In October 2021, a pro bono team from Fried, Frank, Harris, Shriver & Jacobson LLP received notice that the Board of Immigration Appeals upheld an Immigration Judge’s grant of cancellation of removal, ending their client’s nearly three-year fight to avoid deportation and separation from his family. Their win highlights the incredible impact that pro bono attorneys can make for clients – whatever the form of relief they seek and at every stage of their case.

Staff from the ABA’s South Texas Pro Bono Asylum Representation Project, or ProBAR, first met the Fried Frank team’s client, Mr. Hernandez, in late 2018, offering legal education and assistance as he prepared to file his application for cancellation of removal – a form of relief that allows certain non-citizens to become lawful permanent residents if they can prove at least ten years of continuous presence in the United States, that they have good moral character and have not been convicted of certain criminal offenses, and that their removal would result in exceptional and extremely unusual hardship to U.S. citizen family members.

Mr. Hernandez came to the attention of ICE after he was apprehended for not paying certain outstanding traffic fines on time. He was placed in removal proceedings based on being present without admission, even though he had lived in the United States for more than 20 years and had no criminal history. He was also an important part of the support system for his U.S. citizen teenage daughter, a survivor of serious crime who depended on him for financial and emotional support. Cancellation of removal creates a vehicle to consider these aspects of a non-citizen’s life in the United States and determine on a case by case basis whether someone qualifies to remain in the United States as a lawful permanent resident.

ProBAR represented Mr. Hernandez in his hearing before the Immigration Court, after which the Judge found that Mr. Hernandez had established the requisite hardship to his daughter if he were deported and granted his petition for cancellation of removal. Nonetheless, the Department of Homeland Security decided to appeal the Judge’s decision, leaving Mr. Hernandez to wait for a final decision amidst uncertainty as to whether he would be allowed to remain in the United States alongside his family. Mr. Hernandez was eventually released from detention but remained in removal proceedings and without work authorization pending the outcome of his case. Of that time, he says, “I was very scared when I received a copy of the government’s appeal of the judge’s decision.” However, he was able to persist despite the long wait and uncertainty because he trusted ProBAR.

Attorneys from Fried Frank agreed to represent Mr. Hernandez during a July 2019 pro bono visit to ProBAR’s office in Harlingen, Texas. Upon accepting the case, Special Counsel Karen Grisez entered her representation for Mr. Hernandez.  However, the BIA did not produce transcripts and a briefing schedule until spring 2021.  Mr. Hernandez says that, despite the delay, he “trusted my attorneys because they were doing their best for me. They always gave me information about my case and what was happening at every step.”

Once they received the schedule for the case, the team – consisting of litigation law clerk Jonathan Bash, litigation associate Kelly Deibler, and Ms. Grisez, who worked under the supervision of senior counsel Gail Weinstein – briefed the case to the Board of Immigration Appeals and also twice sought the withdrawal of the government’s appeal under new guidelines for prosecutorial discretion issued by the current Administration. However, DHS declined to withdraw its appeal the first time and had not made a final decision on the second request at the time of the Board of Immigration Appeals’ decision affirming the Judge’s decision. After the Board issued its decision, Mr. Hernandez, Ms. Grisez, and Mr. Bash appeared in a brief hearing before the Immigration Court on remand to confirm that there were no changed circumstances that would have affected his eligibility for relief. Mr. Hernandez says that during the hearing “I trusted in what my lawyers were doing… and I was able to trust I would receive a good outcome.”

The impact of this victory for Mr. Hernandez affects his life and his family in many ways. He explains that the grant means “I will be able to work, provide better for my family…” He also noted that now he will be able to advocate for his daughter, because he is no longer undocumented and will not be scared.

Mr. Hernandez’s pro bono team also celebrated this victory for their client. This was the first time Mr. Bash worked on a pro bono immigration matter, and under Ms.Grisez’s guidance he had delved into legal research for the team’s brief. As he learned the facts of the case, Mr. Bash “felt very motivated to pursue a positive outcome for Mr. Hernandez and his familywhen the BIA decision came down, I felt really happy to know that our client can remain in the U.S. and that his daughter would not face the potential loss of her father to deportation.”

For Ms. Grisez, this case is emblematic of the importance of legal representation for immigrants at each stage of their cases. Mr. Hernandez’s representation by an attorney before the Immigration Judge ensured that his claim could be effectively presented to the court at his initial hearing. Despite this, the Department of Homeland Security persisted in contesting the case through appeal. The Fried Frank team then briefed the case before the Board of Immigration Appeals, employing their legal skills to argue in support of the Immigration Judge’s initial ruling in a way that would have been difficult for anyone without legal training to achieve.

Without representation for his appeal, Mr. Hernandez could have easily lost his case. Instead, the pro bono representation provided by the Fried Frank team allowed Mr. Hernandez to obtain a pathway to citizenship and a secure future in the United States. Reflecting on the case, Ms. Grisez noted the importance of access to representation for all people in removal proceedings. The stakes are high: threats of violence for some, prolonged or permanent separation from family for others. In all cases, people need lawyers to effectively present their cases for immigration relief and the opportunity to gain stability and authorization to remain in the United States long-term.

Mr. Bash added of his experience, “It is empowering to advocate for people who contribute to our country and who without a lawyer would not be able to win their cases.” He encourages corporate lawyers to make time for pro bono matters. “It is so important to recognize that we have skills that others don’t.”

Fried, Frank, Harris, Shriver & Jacobson LLP, is a long-term pro bono partner of the ABA Commission on Immigration and ProBAR. We are deeply grateful to the Fried Frank team for their pro bono service and for their collaboration in support of our clients.

If you are interested in getting involved as a pro bono attorney with ProBAR or another initiative of the ABA Commission on Immigration, please sign up here to receive additional information about our opportunities and the resources available to support our volunteers.