As we bid farewell to our graduating Class of 2019 Fellows, we’re delighted to share this terrific news from one of our graduates, John Peng, who’ll be staying on with Prisoner’s Legal Services of New York as a Federal Litigation and Appellate staff attorney. We’re thrilled John is continuing the work he began during his fellowship to increase access to justice for at-risk immigrants.
In July 2021, John Peng, a second year Immigrant Justice Corps (IJC) Justice Fellow assigned to Prisoner’s Legal Services of New York in Albany, New York, won a landmark case in New York’s Second Circuit Federal Court of Appeals that will impact thousands of immigrants who may no longer be subject to deportation, or may qualify for relief where previously they had no hope.
In Braithwaite v. Garland, the Second Circuit overturned a Board of Immigration Appeals (BIA) decision that imposed an unfair presumption of finality on late-filed criminal immigration appeals. Before this ruling, non-citizen criminal defendants were at risk of having removal proceedings initiated against them and deported from the country while they were in the process of challenging the underlying convictions that rendered them deportable.
Peng’s client, Aldwin Braithwaite, a citizen of Trinidad and Tobago, has resided in the U.S. as a Lawful Permanent Resident for 42 years.
In June 2019, an immigration judge ordered Mr. Braithwaite’s removal from the United States. The BIA affirmed the decision even though Mr. Brathwaite’s appeal of his criminal conviction, the basis of the removal proceedings, was pending in New York state court and his conviction was not final.
In its unanimous ruling, the three-judge panel of the appeals court wrote that the “BIA’s burden shifting scheme and its accompanying evidentiary requirement amounts to an unreasonable and arbitrary interpretation” of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Writing for the three-judge panel, Judge Guido Calabresi emphasized that the BIA’s standard was particularly unreasonable because it placed a burden upon noncitizens that is “frequently impossible” to meet.
This decision will protect non-citizen criminal defendants from having removal proceedings started against them prior to resolution of their criminal appeals. It also stands as a clear and forceful statement on the importance of criminal appeal rights, a right that New York State has recognized as being essential to its judicial system.
A week after the Second Circuit announced its decision, Peng negotiated with counsel for the government to secure Mr. Brathwaite’s release from immigration detention while his case gets returned to the BIA for ultimate resolution. Mr. Brathwaite was released after having been detained for over twenty-five months in ICE detention. He traveled back to his home in Brooklyn, New York, where he reunited with his children and grandchildren.
“We congratulate John on this momentous victory,” said Jojo Annobil, Executive Director of Immigrant Justice Corps. “Legal counsel dramatically reduces the risk of deportation and the cascade of harms that follow. IJC Fellows make a difference for their clients, for countless other immigrants, and for the immigration adjudication system by improving the quality of the immigration bar.”