Federal Appeals Court Grants Claim Argued by Miami Law Student

Brittany R. Young, who graduated from the law school earlier this month, had argued the case before the appeals court in April. Two other law students, Aaron Daniel and Teresa Breslin, who also graduated this month, worked on the briefing while they were in the clinic in 2010.

The case challenged a series of decisions in the case of Gai Makir-Marwil, whose applications for relief from deportation had been denied by an immigration judge and, later, by the Board of Immigration Appeals, in a 2-1 ruling. Young pushed for reversal of the Board's decision, arguing that the sole dissenting board member was correct in her finding that the immigration judge made two errors of law in adjudicating the case.

The appeals court remanded the case for further proceedings by the Board of Immigration Appeals and an immigration judge, with instructions to consider Makir-Marwil's argument that conditions in Sudan would expose him to "exceptional and extremely unusual hardship" if he were forced to return, and whether his case warrants a discretionary waiver so that he could remain in the United States.

"A win from an appellate court in an immigration case is rare indeed," said Rebecca Sharpless, Assistant Professor of Clinical Legal Education and Director of the law school's Immigration Clinic. "We're thrilled that our client will get another day in court with the immigration judge. This time around, the immigration court will be guided by the correct legal standard."

Makir-Marwil was admitted to the U.S. as a refugee from Sudan in 2000, when he was 12 years old, according to court documents. He was facing deportation for offenses stemming from acts committed in his youth that were charged in adult court. In 2007, the Department of Homeland Security detained Makir-Marwil and began removal proceedings against him. As a defense to removal, Makir-Marwil filed for lawful permanent residency and a refugee waiver. He also filed for temporary protection called deferral of removal under the Convention Against Torture.

The Attorney General has discretion to waive a refugee's inadmissibility for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. Such a waiver of inadmissibility restores a refugee's eligibility to receive lawful permanent residency. Makir-Marwil applied for a waiver of inadmissibility on all three grounds. In his case before the immigration judge, Makir-Marwil explained that he had endured the effects of "conflict and genocide from a very young age." While he was attending school in Khartoum, an uncle warned his family that the Muslim militia intended to recruit Makir-Marwil as a child soldier. His family decided to flee Sudan, but before they could escape, his father disappeared, never to be heard from again.

Makir-Marwil's mother, stepfather, and grandmother are legal permanent residents of the United States, and his stepfather joined the U.S. Army in 2008. Makir-Marwil said also that he had intended to join the U.S. Army himself.

At a January 2009 hearing, the immigration judge considered Makir-Marwil's applications for temporary deferral of removal under the Convention Against Torture and for lawful permanent residency with a refugee waiver. Makir-Marwil and his mother, Awaud Akanju, testified at the hearing. In a written decision, the immigration judge denied Makir-Marwil's application a refugee waiver of inadmissibility but granted a temporary deferral of removal under the Convention Against Torture. Because the judge had granted temporary deferral, the judge expressly declined to consider the effects of deportation to Sudan on Makir-Marwil when adjudicating the refugee waiver. The Board of Immigration Appeals, in a split decision, upheld the judge's decision.

At issue before the U.S. Court of Appeals for the Eleventh Circuit was whether the immigration judge and the Immigration Board had erred by failing to consider the effect of deportation on Makir-Marwil when adjudicating his refugee waiver. The court agreed with Makir-Marwil that the immigration judge and the Board of Immigration Appeals "erred by failing to consider evidence of the country conditions in Sudan and the hardship Makir-Marwil individually would suffer upon removal to Sudan."

"Both before the BIA and before this Court, Makir-Marwil asserted grounds beyond just torture in an effort to establish 'exceptional and extremely unusual hardship' to justify waiving his inadmissibility," the decision says. "Before the BIA, Makir-Marwil argued that he had shown that requisite hardship based on both the likelihood that he would be tortured and 'the horrific country conditions in Sudan.' Before this Court, Makir-Marwil also argues that he established the requisite hardship based on the 'the abysmal conditions in Sudan, the fact that he has spent many of his formative years in the United States, and his lack of a support structure or means of surviving in Sudan.' Yet the (immigration judge) and the BIA denied Makir-Marwil's application for a waiver of inadmissibility based solely on the fact that he would not be removed to Sudan until the possibility of torture had subsided. By failing to consider any of the other facts and circumstances short of torture in Makir-Marwil's case, the (immigration judge) and BIA erred as a matter of law."

For Young, standing in a federal courtroom to state her case was nothing short of momentous. "I was nervous standing at the podium getting ready to argue in front of the panel of judges, but I knew that we had all worked very hard to give this young man his best chance at a fair and full hearing," said Young, who was Vice President of Miami Law's Society of Bar and Gavel. "Law school and clinics, especially, teach us how to not just be lawyers but to be advocates. For those fifteen minutes, I was that young man's advocate, and it was both a humbling and exciting experience."

Young argued case under a new rule that permits law students to do so as long as they are supervised by an attorney. "I believe that Brittany is the first student to argue before the court," Sharpless said, describing Young as "a trail blazer."

She was one of 13 Miami Law students named for inclusion recently in the prestigious listing Who's Who Among Students in American Universities & Colleges.