Immigration Success Stories USA

We would like to share a bit of good news from The Law Offices of Grinberg & Segal.

On March 24, 2020, the United States Court of Appeals for the Second Circuit certified its decision in Persad v. Barr, 17-661 [PDF version]. Our office represented the petitioner, Mr. Dasrath D. Persad, in his appeal of a decision of the Board of Immigration Appeals (BIA) finding that his unitary sentence based on convictions for four separate offenses by a military court-martial in 1992 was categorically an aggravated felony theft offense under INA 101(a)(43)(G). I (Alexander J. Segal) presented oral arguments on behalf of Mr. Persad before a three-judge panel of the Second Circuit on October 16, 2018.

The Second Circuit ruled in favor of Mr. Persad in a very important decision. I will explain the legal issue briefly. Mr. Persad was sentenced to 30 months’ confinement for his conviction by military court-martial on four separate counts. In order for him to have been found to have committed an aggravated felony under INA 101(a)(43)(G), the Government was required to prove that he had been convicted of a theft offense for which a sentence of one year or more was imposed. Military court-martial issue what are called “unitary sentences,” that is, a single sentence for all the counts a defendant is convicted without imposing an individual sentence for each count. The question here was whether the Government could sustain its burden of establishing by clear and convincing evidence that the single theft offense count of four counts that Mr. Persad was convicted of accounted for at least 12 months of his 30-month unitary sentence.

The Second Circuit agreed with us, finding that the Government could not sustain its burden of showing that Mr. Persad was sentenced to one year or more of imprisonment for his conviction of the theft offense. Therefore, the Court concluded that Mr. Persad had not been convicted of an aggravated felony under INA 101(a)(43)(G).

This decision is not only an incredible result for Mr. Persad and our firm, but also a significant decision in the area of evaluating unitary sentences from military courts-martial and immigration consequences, in general The Second Circuit, in a matter of first impression, broadly agreed with the decision of the United States Court of Appeals for the Third Circuit in Chavez-Alvarez v. Attorney General, 783 F.3d 478 (3d Cir. 2015) – which was not binding precedent on the Second Circuit – that the Government cannot merely assume that a unitary sentence from a military court-martial applies in full to each count. We discuss Chavez-Alvarez in a comprehensive article on site [see article]. The Second Circuit’s decision here, along with Chavez-Alvarez, promises to be very important to many non-citizens who were given unitary sentences in military court-martial proceedings encompassing multiple convictions.

The Second Circuit remanded Mr. Persad’s case for further proceedings consistent with its opinion. We will continue to represent Mr. Persad and hope to prevail on remand.

We will eventually write a more comprehensive article about this important decision in Persad v. Barr. In the meantime, we will continue to update our site with important immigration-related information about the ongoing coronavirus outbreak as it becomes available.

Stay safe.

Respondent is a person who had escape Russia due the threats to his life there on account of his political opinion and also because of the mandatory mobilization to war with Ukraine he wanted to have nothing to do with.

Our firm was retained to represent a client who was seeking to reopen his removal proceedings in order to apply for asylum on the basis of his being a member of the particular social group of male homosexuals in Belarus.

The client (“Respondent”), a native and citizen of Belarus, was last admitted to the United States as a J-1 nonimmigrant in 2001. He obtained counsel and applied for asylum within the one-year filing deadline, but for a variety of reasons he missed his removal hearing. As a result of that failure to appear, the Respondent had been ordered removed in absentia in 2002.

That did not change the fact that the Respondent retained a strong fear of returning to Belarus due to his facing persecution on the basis of his being a member of the particular social group of male homosexuals in Belarus. In 2016, through another attorney, the client sought to have his removal proceedings reopened, arguing that his failure to appear was explained by exceptional circumstances. In that instance, his motion to reopen was denied.

The respondent then sought the services of The Law Offices of Grinberg & Segal for an assessment of whether it was feasible to move to reopen removal proceedings on alternative grounds. After carefully examining the facts of his case and the situation in his native Belarus, we filed a motion to reopen on his behalf, arguing that changed country conditions in Belarus materially changed the situation for homosexual men in the country for the worse such that the client should have another opportunity to present his claims for protection from removal.

The Immigration Judge carefully studied our motion and agreed that country conditions in Belarus have changed in such a way that reopening proceedings was necessary to allow the Respondent to present his meritorious case for asylum. The Immigration Judge recognized our careful argument from the outset of her discussion:

[T]he Respondent is not claiming that ‘the fact of continued violent incidents against homosexuals in Belarus is, by itself, a changed country condition.’ [Resp. 2020 Motion] Rather, the Respondent argues that, since 2002, conditions have worsened for homosexuals to such an extent that, if the Respondent were returned to Belarus, he would be at a heightened risk of harm due to his status as a ‘male homosexual.’ [Resp. 2020 Motion]

Indeed, this distinction was critical to making the respondent’s case. The Respondent had been subject to past persecution in Belarus two decades ago, and we believe that he had made a strong claim when he initially petitioned for asylum. However, in order to prevail on the motion to reopen removal proceedings, we had to show more than that conditions in Belarus were bad and remained bad. The Immigration Judge would only grant reopening if the evidence established that conditions in Belarus for sexual minorities had gone from bad to worse since the respondent initially sought asylum nearly twenty years ago. We were confident that we made the case, and the Immigration Judge agreed.

In granting our motion, the Immigration Judge credited many facts that we uncovered and discussed. For example, since 2001-2002, Belarus has changed its laws in ways that specifically target homosexual men, and as a result there has been an increase in official rhetoric and private violence against homosexuals. There are no signs that the situation will improve. For example, new restrictions on the freedom of speech and assembly in Belarus not only stifles those who work to make Belarus a safer and more accepting society, but also make it more likely that the situation for sexual minorities in the country will continue to degrade. Significantly, the voluminous evidence we compiled was not available at the time of the respondent’s initial asylum application – a key requirement to its being material to his motion to reopen.

The motion to reopen is not the end of the case, but rather a new beginning. That the motion was granted does not guarantee that the respondent will win asylum relief, but it was a necessary step as a threshold matter for him to have the opportunity to make his case. In light of the respondent’s past victimization, his honesty, and his upstanding life in the United States, we believe and hope that he will ultimately win relief in the form of asylum, thus ensuring both his safety from future persecution and his bright future here in the United States. It was our firm’s pleasure to successfully assist him in taking the first necessary step toward that future.

This is a successful asylum claim by a Belarus national. It involves interesting issues having to do with the timeliness of the application and the substance of the claim of a Belarus citizen trying to exercise his rights for freedom of speech and assembly. The case is also about brutality of the Belarus government in dealing with peaceful demonstrations.

The Case presents an interesting set of issues having to do with the change country conditions in Iran and the plight of Iranian people in the Islamic Republic.