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BIA reopens, remands Matter of S-E-G-, ID 3617, 24 I&N Dec. 579 (BIA 2008)

On July 28, 2009 John Keller writes:

"Dear Colleagues:

Good news! Today the BIA, on the request of a joint motion, reopened our clients' asylum cases. We wanted to get this development out to our colleagues across the U.S. as soon as possible for your information and consideration as you approach this issue.

A very, very special thanks to Ben Casper, ILCM's appellate litigation director and pro bono counsel from Latham & Watkins, Lori Alvino McGill and Travis Mallen for their highest level of commitment to these very deserving clients and this important, developing area of law.

Summary of case and recent events:

The Immigrant Law Center of Minnesota, through its new Immigration Litigation Project, has been representing the young siblings ordered removed to El Salvador by the Board of Immigration Appeals in its precedent decision, Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008), http://www.usdoj.gov/eoir/vll/intdec/vol24/3617.pdf.

The Board, while affirming that our clients faced serious danger from the MS-13 gang if removed, denied their asylum claims, holding that there was no definable social group. They denied that youth who have been subjected to recruitment efforts by the gang and who have rejected or resisted membership due to their own personal, moral, and religious opposition to the gang constitute a particular social group. We have consistently disagreed and strove to prove otherwise.

Working with co-counsel at the D.C. office of Latham & Watkins, we filed motions to reopen and reconsider with the Board, submitted requests for certification of Matter of SEG to Attorney General Holder, and also were pursuing a petition for review at the U.S. Court of Appeals for the Eighth Circuit. The Board denied our motion to reopen in June 2009. The Eighth Circuit appeal and request for certification remained pending.

On July 6, 2009, ICE agents unexpectedly arrested and detained our clients and were poised to remove them to El Salvador this week. They had not been detained at anytime prior. ICE summarily denied our requests for an administrative stay. The Eighth circuit denied a judicial stay. We then filed an emergency application for a stay of removal with Supreme Court Justice, Alito. When he denied the application we refilled it, under the rules, with Justice Stevens who in turn referred the matter to the full court. The full court requested the government's response by July 29th. Late last week, ICE released our clients without prior notice. Shortly afterwards we were contacted by DHS appellate counsel and the Solicitor General's office, offering a joint motion to reopen. The attached motion was filed late last week and today the BIA reopened the case for further consideration of our clients' asylum claims.

We will provide additional information on this case and its possible implications for this area of the law in the next few days."

Attachment: BIA order reopening proceedings; Solicitor General letter to US Supreme Ct; joint motion to Reopen at BIA

John C. Keller
Executive Director
Immigrant Law Center of MN / Oficina Legal 450 North Syndicate St. #175 St. Paul, MN 55104 work 651-641-1011, ext. 203 or 1-800-223-1368 fax 651-641-1131

612-743-9115