U.S. drops appeal in Salvadoran family's asylum case

Decision ends deportation risk for Md. family menaced by gang in El Salvador

November 26, 2010|By Scott Calvert, The Baltimore Sun

In 10 short words, the United States government has given a Salvadoran family living in Maryland an unexpected gift — the assurance that it will not be torn apart by deportation.

" DHS, hereby, moves to withdraw its appeal on this matter," wrote Nelson A. Vargas-Padilla, deputy chief counsel in the Department of Homeland Security's Baltimore office, on Nov. 18.

With that terse statement, the government reversed its earlier decision to appeal an immigration judge's ruling that granted asylum to Maria Canales de Maldonado and her son, Pablo, 18. Mother and son fled a gang in El Salvador that killed another son and continued to menace the family.

The government's unexplained decision removes any risk that the two could be deported and thus separated from the other half of their nuclear family. Already legally living in Maryland were Canales de Maldonado's husband, also named Pablo, and their third son, Santos, 14, whose similar plea for asylum was granted by the courts last year.

"They were ecstatic," their lawyer, Azim Chowdhury, said of the four family members who live outside Washington.

A few months ago, Maria Canales de Maldonado, 47, bluntly summarized the risks she and Pablo would face if deported. "If we went back to El Salvador," she said in Spanish, "the gang will kill me and my son."

Chowdhury said he is relieved by the government's U-turn, which ends the family's immigration case and means they can begin charting a course toward citizenship. He has represented the family without charge for the past two years. His successful quests to win asylum first for Santos and then for mother and Pablo were chronicled in The Baltimore Sun.

For Chowdhury, the two-year saga has brought him close to the family and provided an education in the thicket of immigration law. A 2006 graduate of the University of Maryland School of Law, he is most accustomed to representing clients with issues before the Food and Drug Administration.

But in 2008, while at the Duane Morris law firm in downtown Baltimore, he was assigned to help Santos as part of the firm's mission to provide free representation to those who cannot afford it.

It was a daunting task. Asylum applicants generally face long odds, and that is especially so for those from Latin America. In fiscal 2009, immigration judges, who work for the Department of Justice, sided with just 117 of 3,458 seekers from El Salvador, according to federal figures.

Two rulings by the federal Board of Immigration Appeals in July 2008 had all but closed off the typical argument in gang asylum cases, namely, that refusal to join a gang led to violence and intimidation.

In general, asylum can be granted only to someone with a well-founded fear of persecution for one of five reasons: race, religion, nationality, political opinion or membership in a social group. The last category has been tried in gang cases, but the appeals board said people resisting gang pressure do not make up a social group.

Chowdhury, aided by a colleague and legal advocates for immigrants, argued that Santos deserved asylum because his persecution stemmed from membership in his own family, which he said clearly constitutes a distinct social group.

That argument turned on the fact that, both before and after gang members fatally shot his 16-year-old brother, Jose Ever, in 2007 for refusing to join, they assaulted and threatened Santos and his family over Jose Ever's stubborn defiance. The gang never tried to recruit Santos or Pablo, the family has said.

The gangsters belonged to MS-13, a Latino gang known for violence and criminal rackets.

Santos wound up in Baltimore's immigration court because he had been sent to live with his 50-year-old father outside Washington after being detained by Border Patrol agents. His father moved to the U.S. in 1998 for construction work. He came legally but lacked the right to bring the rest of his family.

In June of last year, an immigration judge granted Santos asylum, embracing Chowdhury's argument and noting that the family was "mistreated in the worst way" by MS-13.

By the time of his trial, his mother and brother had also fled to the U.S. and been detained by Border Patrol. Chowdhury, who now works in Washington for the firm Keller and Heckman, took on their case as well. At their trial in July, Maria Canales de Maldonado told a different immigration judge that the gang's menacing behavior only got worse after she sent Santos fleeing in late 2007.

Chowdhury presented the same legal argument for them that he had for Santos, and the outcome was the same. But whereas the government chose not to appeal Santos' asylum, it did so in the case of Canales de Maldonado and Pablo.

Joseph B. Edlow, an Immigration and Customs Enforcement lawyer who was not involved in Santos' case, told the immigration judge in July: "Everyone in El Salvador, for one reason or another, is afraid of the gang violence. They've been the victims of gang violence and, while it's unfortunate, it's not a ground for asylum."

But Vargas-Padilla's withdrawal of the appeal ends the family's uncertainty. Assuming none commits a crime, deportation is off the table. As Chowdhury said, "They're here legally, they're classified as refugees and they never have to go back."


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