The work of an immigration attorney is not easy. The cases are emotional and often uphill battles. Rules and policies can change by the day. But a win is especially rewarding, and for many, doing what they believe is right is enough motivation to keep doing it.
“My hat is off to every immigration attorney in the state because we work really hard together to protect our clients and fight on their behalf, and it is very hard right now,” said Christine Hernández, shareholder at Hernández & Associates. “But we just keep doing it because we know what we’re doing is right, and we want to help as many people as we can.”
Hernández’s practice is a cross-section of immigration law, involving U-visas, affirmative applications for green cards, asylum applications and, largely, removal defense. In 2019, she received a notable win in the 10th Circuit Court of Appeals, and in recent years helped lead a national effort in the National Hispanic Bar Association that can help facilitate immigration cases across the country that otherwise might not have a lawyer involved at all.
Before the 10th Circuit, Hernández helped a client who had already gone through the immigration system and had her appeal of an immigration decision denied in 2012. As detailed in the 10th Circuit opinion, Phyllis Mwaura had three U.S. citizen children, and she wanted to stay in the U.S. to stay with them. The Board of Immigration Appeals dismissed an appeal of her removal because she had entered into a fraudulent marriage with a U.S. citizen to seek adjustment of her immigration status. Hernández said she often has cases that involve parents who want to stay in the U.S. for their children, and the cases involve acting as a counselor for the whole family.
Hernández took up the case and filed a new appeal to the Board of Immigration Appeals, citing a change in country condition — Hernández told her client from the start that she was five years too late, but the appeal was a necessary step to eventually allow her client to stay in the U.S.
“That’s something we pride ourselves on in our law firm: We give all the options we can, and if there’s a long shot, we’re honest about it,” Hernández said. “And if the client’s willing, we go for it, and it paid off.”
Hernández received a stay of removal for her client while she appealed the Immigration Appeals Board’s ruling on equitable tolling — a challenge to the exception to the normal deadline to file a motion to reopen a case after a denial. Hernández argued her client had ineffective assistance of counsel in her initial case and the appeals board only looked at the lapsed deadline and not the surrounding facts of the case. Mwaura sought to appeal the 2012 decision within weeks of the board’s ruling, but her attorney at the time never filed the paperwork. And in the five years between appeals, Mwaura learned that several family members in Kenya had been subjected to female genital mutilation, and she feared for her and her daughter’s safety, according to the opinion.
The 10th Circuit, in its May opinion, said the board relied only on one negative factor in its decision to deny her asylum claim and that it was unclear whether the board didn’t consider the change in country conditions or rejected them without discussion. “The BIA’s discretionary denial of asylum based on consideration of only one negative factor was ‘manifestly contrary to the law and an abuse of discretion,’” the opinion states.
“As soon as our decision came out from the 10th Circuit, I was receiving emails and phone calls from all over the country. It was a big deal, because of the equitable tolling issue.” The case was also used as a sympathetic example for a case before the U.S. Supreme Court.
In addition to her own big win, Hernández has been the chair of the immigration section of the Hispanic National Bar Association for the past four years, which included the tail end of a wave of immigration from Guatemala, Honduras and El Salvador and the recent crackdown on immigration enforcement from the current presidential administration. In 2017, the HNBA tapped Hernández to help create a pro bono immigrant defense fund to help encourage attorneys to take on pro bono immigration cases by defraying some of the costs — traveling to far-flung detention centers, paying for paperwork and general costs of taking on cases. She said the fund has since been expanded to cover women and families as well as unaccompanied minors.“The fund is essential, it’s crucial, because of the numbers of people coming across the border, the children who are still coming, families that are still coming. … Because there is no public defender system in the immigration system. So this was trying to fill a gap, really.”
— Tony Flesor