The Proskauer corporate social responsibility and pro bono blog

Proskauer Files Suit for Immigrant Mother and Daughter Harmed by Family Separation Policy

Proskauer, with co-counsel Public Counsel and Squire Patton Boggs, has filed a complaint in Arizona Federal Court on behalf of a mother and daughter from Guatemala who were forcibly separated after crossing the U.S.-Mexico border under the Trump Administration’s family separation policy. The lawsuit comes after negotiations with the Biden Administration over a potential nationwide settlement for separated families fell apart last fall.

The mother and then-teenage daughter escaped violence in their country of origin only to be detained and separated after entering the United States. Shortly after crossing the border at San Luis, Arizona, Customs and Border Patrol officers apprehended them and transported them to a Border Patrol station in Yuma, Arizona. They were placed in a cold, windowless cell without beds, showers, or private toilets. Approximately four days after arriving in the United States, officers came to forcibly separate the family.

During the forced separation, the daughter fainted, hitting her face on the floor. Her mother, who only speaks a Mayan language called Q’eqchi’, was not given any information about her daughter’s whereabouts or wellbeing in a language she could understand until almost a month later when Public Counsel began representing her.

During the separation, U.S. officials took the daughter to a shelter in Phoenix, Arizona while the mother was taken to a detention center in Irvine, California, more than 300 miles away. Almost two months after their separation, they were reunited after the mother was released on bond. Neither one was ever charged with a crime. Both suffered severe and lasting emotional harm as a result of the U.S. government’s inhumane treatment. The family is now pursuing asylum claims in the United States.

This case is one of several individual lawsuits brought under the Federal Tort Claims Act (FTCA) against the U.S. government for compensatory damages on behalf of separated families. The FTCA was enacted in 1946 and provides a means of compensating individuals who have suffered personal injury, death, or property loss or damage caused by the negligent or wrongful act or omission by an employee of the U.S government.

The Proskauer team is led by partner Manuel Cachán and associates Tim Burroughs, Hena Vora, and William Rose.

Addressing Race and Poverty in the NYS Family Court

As a board member of Legal Information for Families Today (LIFT), a non-profit organization that helps unrepresented litigants in New York City Family Court, I was proud to help organize a recent panel discussion addressing race and poverty in the New York State Family Court. Moderated by LIFT Executive Director Cathy Cramer, the panelists included the Honorable Edwina Mendelson, Deputy Chief Administrative Judge; former Secretary of Homeland Security Jeh Johnson; and Proskauer Pro Bono Partner, Bill Silverman. Secretary Johnson is responsible for a recent report on institutional racism in the New York State Court System, where he characterized certain courts, including the Family Court, as providing a “second class system of justice for people of color in New York State.” Bill Silverman co-authored a recent report on behalf of the New York City Bar Association and the Fund for Modern Courts which addressed the impact of COVID-19 on the New York City Family Court and how the crisis laid bare longstanding inequities. Judge Mendelson is responsible for the Court’s justice initiatives. Continue Reading

Proving the Good Moral Character of VAWA Self-Petitioners with Convictions Connected to their Status as Domestic Violence Survivors

The Violence Against Women Act (VAWA) allows immigrant survivors of domestic violence to self-petition for legal status in the United States without relying on their abusive U.S. citizen spouses to sponsor their adjustment of status (i.e., “green card”) applications. VAWA self-petitioners must prove that they are persons of “good moral character” to obtain approval of their petitions.

Proving good moral character can become challenging when the petitioner has criminal history.  Unfortunately, some VAWA petitioners end up with criminal records through no fault of their own because their abusive U.S. citizen spouses cause them to be arrested – a tactic that domestic violence perpetrators often use to assert power and control over their undocumented victims.

One of my undocumented pro bono clients found himself in this difficult situation when his U.S. citizen spouse caused the police to arrest him on false allegations. On another occasion, when my client tried to end his marriage, his husband physically attacked him and then falsely reported to the police that my client was the perpetrator because my client had tried to defend himself during the attack.

Because my client was in a same-sex relationship, he became a victim not only of his spouse’s violence, but also of common misconceptions about gay batterers and victims. When a domestic violence incident occurs within a same-sex relationship, the police frequently don’t know how to determine which party to arrest. They may mistakenly classify same-sex partners as “mutual combatants” and therefore arrest both parties or neither party, or they may misidentify and wrongly arrest the victim.

In my client’s case, the police arrested him on charges of disorderly conduct, assault, strangulation, robbery, and grand larceny because they failed to recognize that my client’s husband was the aggressor. His public defender was able to get the more serious charges dismissed, but my client was unfortunately convicted of disorderly conduct.

Even though we submitted certified certificates of disposition and an affidavit in which the client explained how these arrests, charges, and conviction were all the result of his husband’s false allegations and physical abuse, U.S. Citizenship & Immigration Services (USCIS) nevertheless sent us a Request for Evidence demanding copies of my client’s arrest records and alleging that he lacked good moral character because of his past arrests and disorderly conduct conviction.

While we argued that disorderly conduct is only a violation – not a crime – under New York Penal Law, and that disorderly conduct is not enumerated under Immigration & Nationality Act § 101(f) as a bar to good moral character, our most important argument was that USCIS cannot find that VAWA self-petitioners lack good moral character based on arrests or convictions that are connected to their status as a victim of domestic violence.

Indeed, Congress’s 2000 reauthorization of VAWA contained the Battered Immigrant Women Protection Act (BIWPA), through which Congress made clear that acts or convictions “connected to” the victim “having been battered or subjected to extreme cruelty” cannot bar an affirmative finding of good moral character. USCIS could not rely on my client’s disorderly conduct conviction to find that he lacks good moral character because the conviction resulted from his attempt to protect himself from his spouse’s battering. Denying his VAWA petition on that basis would directly contravene Congress’s purpose in enacting BIWPA and would – paradoxically – deny him a lawful status under VAWA because he is a victim of domestic violence.

We also argued that false allegations are a common form of legal systems abuse, in which perpetrators use the criminal justice system to coerce and punish their victims, and that arrests founded upon such fabricated allegations have no probative value as to the victim’s character. We refused to provide the requested arrest reports on the basis that such reports are inherently unreliable, prejudicial, and irrelevant – particularly where the charges were ultimately dismissed. USCIS should not infer bad moral character from arrests that never resulted in convictions. It is not within USCIS’s authority to convict an immigrant of crimes for which the criminal court did not find him guilty.   

In addition, we submitted an expert report from a psychologist who explained why the client had been particularly susceptible to repeated acts of legal systems abuse that led to multiple arrests, and why those arrests were a reflection not of his moral character but of the perpetrator’s ability to identify and exploit his vulnerabilities. The expert also explained why the client was at greatest risk of domestic violence upon trying to end his marriage, and the unique barriers gay men face when trying to leave an abusive relationship – including a dearth of programs that specialize in assisting gay survivors and widespread ignorance about same-sex domestic violence that impedes both victims and services providers from recognizing and responding to domestic violence in gay relationships.

Lastly, we submitted voluminous evidence of the client’s good moral character, including letters of recommendation from employers, letters of support from friends and family, proof of the client’s participation in local community and religious organizations, and proof of the client’s pursuit of educational and job training opportunities. We also submitted an advocacy letter from the client’s domestic violence counselor documenting his continued participation in therapy sessions.

USCIS ultimately granted my client’s VAWA petition, but issued yet another Request for Evidence alleging lack of good moral character – based on the exact same arrests and conviction – when adjudicating the client’s adjustment of status application. We resubmitted the same evidence in response to this second request, and fortunately USCIS approved the client’s I-485 application. The entire process took more than four years to complete, but the client has finally achieved lawful permanent residency and, with it, the peace of mind in knowing he is no longer beholden to an abusive spouse in continuing his journey to U.S. citizenship.

Lawsuit Challenges New York’s Host Homes Program for Putting Children at Risk

Last week, Proskauer filed an Article 78 petition on behalf of The Legal Aid Society, Lawyers For Children, and the Legal Aid Bureau of Buffalo — three organizations that represent children in foster care proceedings — against the New York State Office of Children and Family Services (OCFS) over its regulations establishing a Host Homes program.  The petition charges that the program unlawfully creates a shadow foster care system that strips away core protections for children and parents under current law.

New York State has long had a statutory framework with comprehensive procedural safeguards for children and families when parents or guardians feel unable to care for their own children.  At issue here are regulations promulgated by OCFS that create, without statutory authority, a parallel, extrajudicial system of voluntary placement of children into “Host Homes” without mandated safeguards.  Indeed, under this program, children separated from their families — who otherwise would be represented by petitioners or comparable organizations — would have no means to express themselves or any legal recourse whatsoever.  As a result, children and families will suffer avoidable separation and trauma.

This past December, in announcing the adoption of the regulations at issue here, OCFS touted a “bold, new initiative” that it claimed “will support families without involving the child welfare system.”  But instead, the regulations establish a shadow foster care system and detail the requirements necessary for agencies to be authorized by OCFS to place children in “Host Homes.” The regulations also explain how those homes are selected and the duties and responsibilities of both the agencies and the Host Homes, including the treatment of children, record keeping, and the procedures and consequences for revocation of a Host Home.  This shadow system, which is overseen by OCFS, includes monthly contacts by the agencies to check on the children.

Despite the great similarity to foster care, the Host Homes program lacks the core protections for children and parents under the current statutory framework governing voluntary placement.  These protections hold OCFS and authorized private agencies accountable for the decision to take a child into placement, the care/treatment of the child while in placement, and the services provided to help the family reunify as quickly as possible.  But unlike existing law, the Host Homes program does not require the agency to provide supportive or preventive services to parents to avert placing children out of their homes or otherwise make efforts to reunify families.  There is no requirement that the agency first attempt to place children with kin before placing them with strangers.  There is no required court approval or court oversight of the placement and no appointment of counsel.  As a result, it is possible that children will languish in their Host Homes placement indefinitely.  Children even may be sent to live out of state without any of the vetting or oversight of the child’s placement that is required by the Interstate Compact on the Placement of Children when a child in foster care is placed outside of New York.

Moreover, using the Designation of a Person in Parental Relation under Title 15-A of the General Obligations Law as the mechanism for parents to transfer authority for the care of their children to strangers under the oversight of an authorized agency is a gross misapplication of the law as it was created and intended to be used by the Legislature.

Here, OCFS has acted without legislative authority or guidance; it wrote on a “clean slate” and substituted its own policy judgments for that of the Legislature; and the regulations are out of harmony and indeed in conflict with an existing statutory scheme.  Accordingly, the petition seeks an order annulling the Host Homes regulations in their entirety as an abuse of discretion, as unlawful, and as arbitrary and capricious.

I am proud to lead the Proskauer team which includes associates Michael Guggenheim and Dixie Morrison as well as senior paralegal Anna Brodskaya.

Ukraine Refugee Crisis: An Interview with a Ukrainian-American Pro Bono Client

More than 10 million people have fled their homes in Ukraine because of the Russian invasion. Yet we are still awaiting the designation of Ukraine for Temporary Protected Status to take effect upon the publication of a forthcoming Federal Register, and relevant U.S. agencies have not yet produced the logistical and operational plans necessary to carry out the government’s commitment to resettle in the United States up to 100,000 refugees from Ukraine.

In the meanwhile, I had the privilege of representing a Ukrainian-American pro bono client in filing a family-based petition for his mother, who fled Ukraine to a neighboring country just days before her home was destroyed by Russian air strikes.

U.S. Citizenship & Immigration Services granted our request for expedited processing and granted the I-130 petition this week. We hope that the National Visa Center and consular processing will be completed soon because each day that passes is another day in which our client’s mother lives at risk of danger in the midst of a humanitarian crisis.

In this interview, our client shares his story.

Erin: Your immigration journey began in 2014, when we filed your application for asylum. Why did you come to the United States?

Andriy*: I fled to the United States because I suffered anti-gay violence due to my sexual orientation. It was not safe to be out as a gay man in Ukraine. There were underground gay clubs in Kyiv, but homophobic people would find out about them and wait outside to attack gay men leaving the club at night. I tried to hide my relationships and my gay identity, but after being outed and attacked, I had to escape.

Erin: You recently became a U.S. citizen. What was it like to navigate the U.S. immigration system?

Andriy: The journey took seven years! I was fortunate to have found Immigration Equality at the beginning, and they connected me to you for pro bono legal assistance with my asylum case. Applying for asylum was emotionally difficult because it required me to talk about traumatic experiences from my past. Winning asylum was bittersweet because it saved my life, but it also meant that I would not be able to see my mother and grandmother again for many years because for legal and safety reasons asylees cannot return to the countries in which they were persecuted.

After I won asylum, Immigration Equality and Proskauer assisted me in becoming a Legal Permanent Resident and, several years later, a U.S. citizen. The first time I held my U.S. passport in my hands, I cried tears of joy. It’s still hard to believe it’s real.

Erin: As a U.S. citizen, you were able to file a Form I-130 petition for your mother, and USCIS has just approved this petition. Why is it so important that the consular processing be completed as soon as possible?

Andriy: I am very worried about my mother’s safety. In February, she was in Ukraine with my grandmother, who had contracted COVID-19 and was hospitalized. The hospital sent my grandmother home because it was overcrowded with COVID-19 patients and there were frightening rumors that Russia was going to launch an attack on Ukraine. My grandmother passed away from COVID, but there was no time for my mother to arrange a proper funeral for her – my mother had to escape Ukraine.

Three days after my grandmother passed away, my mother fled to a neighboring country. Three days after my mother fled Ukraine, Russia invaded. Soon after that, we found out that Russia had dropped bombs on residential areas in my mother’s hometown, and there were dozens of civilian casualties.

The death of my grandma combined with the destruction of our family home in Ukraine has been emotionally devastating for my mother and me, but I know we are tremendously blessed because my mother made it out alive. I hope my mother will receive an immigrant visa interview soon because her situation is still dangerous and unstable. If we can be reunited in the United States, my mother will be safe and I can help her as she heals from her tremendous grief and loss.

I am grateful to Proskauer, and to you and Kosta Karamanakis, especially, for supporting my mother and me in this process and for obtaining approval of my I-130 petition so quickly. It has given us a reason to be hopeful even in very sad times.


*Client’s name has been changed.

Class Action Lawsuit Seeking Relief for D.C. Tenants Facing Egregious and Unlawful Living Conditions

Earlier this week, Proskauer and the Washington Lawyers’ Committee filed a class action lawsuit on behalf of tenants of the Meridian Heights apartment building (“Meridian Heights” or the “Property”), against the owner and associated property managers for their failure to maintain the Property in habitable condition.  Meridian Heights is home to a mostly Spanish-speaking community of working-class tenants located in the Columbia Heights neighborhood of the District of Columbia.

As detailed in the complaint, the property owner and managers have repeatedly and systematically refused to make necessary repairs to the apartments and common spaces of the Property, despite repeated requests from tenants. As a result, the Property is riddled with deficiencies, including

  • significant infestations of rodents, cockroaches, and bedbugs;
  • excessive mold on the walls and ceilings caused by, among other things, interior dampness and inadequate ventilation in apartment units;
  • lack of heat in winter months and air conditioning in summer months;
  • no hot water for significant periods of time;
  • persistent plumbing problems and leaks;
  • improperly sealed doors and windows that allow water, cold air in the winter, hot air in the summer, and insects to enter the apartment;
  • significant structural issues, including holes in walls, doors that will not properly close and broken floor boards;
  • broken and unusable major appliances;
  • broken and dangerous electrical outlets; and
  • an accumulation of garbage that aggravates many of the issues set out above and allows a stench to permeate the Property.

The harms that tenants of Meridian Heights have experienced as a result of these conditions were only exacerbated by the COVID-19 global pandemic, which forced tenants and their children to spend the majority of the day in their apartments.

Moreover, as detailed in the complaint, the property owner and managers have also interfered with the tenants’ ability to address the conditions at Meridian Heights through the tenant association, including calling the police when tenants acted collectively to protest the dire conditions at Meridian Heights.

The complaint alleges that the conduct of the property owner and managers violate tenants’ lease agreements, implied warranties of habitability and quiet enjoyment, the D.C. housing code, the D.C. Consumer Procedures Protection Act, and the D.C. Right of Tenants to Organize Act of 2006.

The complaint seeks damages and injunctive and declaratory relief, requesting, among other things, immediate repairs so that tenants can reside in their homes without jeopardizing their health, safety, and welfare, as well as that of their minor children.  Landlords and property owners must be held accountable for their conduct, and their continuous dismissal of tenants’ concerns and complaints and blatant violations of D.C. laws.

The Proskauer team includes Ann Ashton, Wilderness Castillo-Dobson, Benjamin Eisenberg, Amy Gordon, Shannon McGowan, Corey Rogoff, Raven Wells-Scott, Allison Witt, and Jessica Cohen.

Class Action Lawsuit Filed Against New York State for Failure to Provide Legally Required Mental Health Services to Medicaid-Eligible Children

Proskauer, in conjunction with attorneys from Children’s Rights, Disability Rights New York, and the National Health Law Program, have filed a class action lawsuit against New York officials in response to the mental health crisis arising from New York’s failure to provide, in sufficient quantity, frequency, and duration, home and community-based mental health services that are medically necessary to permit children with mental health issues to remain safely at home in their communities.

The complaint is brought on behalf of Medicaid-eligible children under the age of 21 with mental health conditions for whom intensive home and community-based mental and behavioral health services are medically necessary. In New York, more than two million children and adolescents are enrolled in Medicaid, with thousands of children requiring home and community-based mental health services.

As detailed in the complaint, the mental health treatment needs of New York’s Medicaid-eligible youth have long been at crisis levels, with more than 1 in 10 teenagers suffering a major depressive episode, surges of youth visiting emergency rooms due to mental health crises, and suicide being a leading cause of death for youth aged 5-19.

There are tens of thousands of Medicaid-eligible children in New York who require intensive home and community-based services, but only a fraction actually receive the services they need.  And for the few children who do receive these medically necessary services, they often have to wait weeks or months before being seen by a mental health professional in violation of applicable law.

Without these services, families often have to rely on hospital emergency rooms to provide short-term care that fails to address children’s underlying conditions. Too often, police officers are the only available emergency responders to children in mental distress.

The complaint asserts that New York’s failure to provide such mental health services violates the Medicaid Act, Title II of the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act, and, as a result, Medicaid-eligible children are unnecessarily segregated or placed at serious risk of institutionalization, which significantly disrupts their lives and harms their mental health, education, families and relationships.

The class representatives are New York children who have suffered the consequences of inadequate access to intensive home and community-based mental health services, and, consequently, have cycled in an out of institutions, hospitals and residential facilities as an inadequate alternative to address their ongoing mental health issues.

The complaint seeks permanent injunctive relief requiring New York to establish and implement policies and practices to ensure the timely provision of intensive home and community-based mental health services for children for whom such services are medically necessary; to promptly make available such services to Medicaid-eligible children; and that New York provide the class members with such medically necessary services in the most integrated setting appropriate to their needs.

As reflected in the complaint, the benefits of home and community-based mental health services have been borne out by expert medical opinion and court decisions across the country. Such services result in the best long-term outcomes for children, including significant improvement in their quality of life, improved school attendance and performance, increases in emotional and behavioral strength, more stable living situations, reduced suicide attempts, and fewer contacts with law enforcement.

The Proskauer team, which is led by Steven H. Holinstat, Co-Head of the Fiduciary Litigation Group, includes Antonieta P. Lefebvre, Shiva Pedram, and Jacob E. Wonn.


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