Months of preparation, hours of phone calls and hundreds of written documents all led to the moment Teresa Rubinger (LAW ’19) found herself standing at the center of a historic Richmond courtroom before a panel of circuit judges. They would be deciding whether her client, Melvin Josue Rodriguez Cabrera, would be able to remain in the United States and keep his permanent residence status or forced to leave his home.

Rodriguez Cabrera was initially charged with crimes of assault, battery and involvement with a criminal street gang. It was this history of gang activity that upgraded his charge to one of moral turpitude — a categorization of crime heinous enough to grant immigration officials the ability to deport an immigrant previously granted permanent residence.  

@GEORGETOWNLAW/TWITTER | Teresa Rubinger (LAW ’19) took on the case of Josue Rodriguez Cabrera through the Appellate Litigation Program at the Georgetown University Law Center. The program allows students to experience the environment of a small appeals law firm. 

Rubinger found the opportunity to take on Rodriguez Cabrera’s case through the Appellate Litigation Program at the Georgetown University Law Center. Alongside classmate Elijah Staggers (GRD ’16, LAW ’19), she was able to explore the world of appeals court through the lens of a real case argued before the 4th U.S. Circuit Court of Appeals to determine whether their client would face deportation from the United States in light of a 2017 criminal charge not directly related to his immigration status.  

Rewriting the Story

In 2017, the Department of Homeland Security initiated removal proceedings against Rodriguez Cabrera under Virginia Code 18.2-46.2 for participation in a criminal street gang, according to the July 19 decision. Rodriguez Cabrera was initially arrested on charges of assault and battery. The immigration judge determined that the charges did not constitute a crime of moral turpitude, and therefore should not result in deportation.

However, Rodriguez Cabrera had also pleaded guilty to participating in gang activity, which is illegal in Virginia. The DHS then argued that Rodriguez Cabrera’s affiliation with a street gang counted as an act of moral turpitude. The Board of Immigration Appeals agreed, leading to the revocation of his status as a protected permanent legal resident of the United States. 

In other words, with the previous interpretation of the law, essentially any crime associated with a gang would be looked at through a “moral lens,” according to Staggers. 

“Whatever the crime is, it doesn’t matter what the underlying crime is, if an individual commits a crime in association with a gang, it will automatically transform that conduct into an immoral crime, or into a crime involving moral turpitude,” Staggers said. “The government’s argument was essentially reduced to: it doesn’t matter if the crime is simple assault or trespassing. If a noncitizen does that, they can be deported.”

Once the charge had been interpreted as one regarding morality, the Immigration and Nationality Act authorized deportation. The law allows for the removal of  “an alien who has been convicted for a crime involving moral turpitude committed within five years of admission and for which at term of imprisonment of one year or longer could be imposed,” according to the July 19 decision.

In order to avoid removal proceedings, Staggers and Rubinger’s approach was to target the underlying crime Rodriguez Cabrera had committed — assault and battery. The pair argued that their client’s mere affiliation to a gang did not violate this statute, given that moral turpitude only applies to gang membership when discovered in connection to a heinous crime.

Rubinger and Staggers specifically presented the hypothetical example of trespassing to attend a simple meeting of gang members as an example of misdemeanors that would incorrectly constitute moral turpitude under the DHS’s interpretation of the code.

“No one can seriously contend that two gang participants trespassing on church property to get from Point A to Point B is ‘inherently base, vile or depraved and contrary to accepted rules of morality and the duties owed between persons or to society in general,’” the July 19 decision read.

Upon hearing Rubinger’s arguments, the Board of Immigration Appeals decided that his affiliation with a gang was not itself an act of moral turpitude in their July 19 decision. As a result, the Virginia court set a precedent that all offenses involving criminal street gang activity should no longer be categorized as a crime involving moral turpitude.

The court then granted Rodriguez Cabrera’s petition for review, thus vacating the order of his removal.

Beyond the Classroom

Each year, 16 Law Center students are selected to be in the Appellate Litigation Program, an in-house clinic at the Law Center directed by professor Erica Hashimoto (LAW ’97). 

The yearlong clinic for third-year students, established over 40 years ago, allows law students to experience the environment of a small appeals law firm as they review a variety of cases obtained from local attorney referrals and cases received from the court of appeals itself.  Students are responsible to carry out several procedures over the course of the case, such as spotting legal issues relevant to the appeal, researching them and drafting memos to supervising attorneys, drafting 10 to 15 drafts of a brief.

The clinic is one of Georgetown’s 17 clinics that specialize in legal work ranging from appellate and trial courts to advocacy work for local nonprofits. Other clinics include focuses on juvenile justice, environmental justice, health justice, domestic abuse, civil rights and criminal justice, among others, according to the Law Center website. 

The Appellate Litigation clinic typically receives cases offered from federal courts, which represent the majority of what is in the court’s docket. As a result, the program receives cases ranging from immigration to habeas corpus, as well as cases from those being held in federal prison. 

Law schools often provide pro bono cases to clients who would not otherwise have access to high quality legal representation. At the Law Center, students must pledge to complete at least 50 hours of volunteer work, according to the Law Center website. 

Representation for migrants in deportation hearings remains an obstacle for many seeking to remain in the country since migrants are not legally guaranteed counsel, according to a 2016 American Immigration Council report. The AIC found that, nationally, only 37% of migrants were able to obtain representation in their deportation hearings. 

In civil proceedings, appellants may not have access to any counsel at all, severely impacting their ability to advocate for their legal rights. Because of appellate clinic, Rodriguez Cabrera was able to secure representation he may not have otherwise been able to, according to Staggers.

“If the clinic wasn’t able to take on Mr. Cabrera’s appeal, there’s a good chance that the government would have continued deporting noncitizens for being convicted under the statue, even though that’s not what the law allowed them to do,” Staggers said.

Supervising the clinic annually proves a rewarding experience because of the transformation students undergo each year as they become forceful proponents for their clients, Hashimoto said.

“I love watching students grow over the course of the year,” Hashimoto said. “I watch them become much more confident on their feet as oral advocates. By the time we get to oral argument for instance, the student has been so well prepared, they’ve pretty much heard and figured out how to answer just about every question they might get.” 

Legal Legacy

The decision that gang-related activity does not constitute moral turpitude will go on to serve as precedent for future immigration cases and prevent future defendants from losing their permanent resident status for gang-related activity.

The verdict displays a possibility for change in the future of immigration law as part of an ongoing effort amongst law professionals to establish greater clarity within the realm of immigration, according to Staggers. 

“This appeal was so timely and so impactful given the way that immigration policy has developed in the last couple of years,” Staggers said. “We’ve seen the executive branch in a vastly different trajectory than in the past.” 

Since entering office, President Donald Trump has attempted to limit access to asylum by refusing grants to any migrants seeking to enter the United States through the southern border who did not seek asylum in any countries they traveled through other than their own, punished sanctuary cities that do not cooperate with federal immigration officials by barring them from receiving federal grants and reversed the common “catch and release” practice in which undocumented migrants awaiting their trial hearing are permitted to remain in the United States outside of a detention facility. This reversal led to the widely condemned practice of separating parents from children. 

Particularly, fear of gang violence and violent crime has characterized Trump’s rhetoric on immigration. For example, he has portrayed migrants from Latin America as violent and dangerous in recent years, as well as directly linked violence from MS-13, a Salvadoran gang, to failures of the immigration system to stoke fears of undocumented migrants.

However, even as Trump just last month promised to expedite deportations for undocumented migrants who cannot prove they have resided in the United States for more than two years, the ruling on the Rodriguez Cabrera provides hope that the legal system will still protect migrants from the president’s hardline stances on immigration.

The impact a program like the appellate litigation clinic can have, both for students and future cases, can only be felt if students have the initiative, according to Staggers. 

“Regardless of what your position is, or how much experience you have — you can still have an impact,” Staggers said. “As long as you make that initiative to fill your obligations as an attorney — you can have an impact.”

One Comment

  1. So thanks to the efforts of these Georgetown law students their client — a confessed gang member — (and others in a similar situation) will be able to continue his/their illegal activities in the U.S.

    I wish limited resources would be allocated to people and cases/causes more worthy of protection, such as law abiding immigrants serving honorably in the U.S. military who are denied citizenship.

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