Rifqa's entire legal strategy hinged on obtaining for her Special Immigration Juvenile Status (SIJS). This was the objective, the end run. If they could keep Rifqa out of her dangerous home environment and secure immigration status, then it didn't matter how they did it, as long as the goal was achieved.
But. What was not understood was the nature of the threat and the enemy Rifqa faced. They were playing by a set of rules that were inapplicable to the challenge they faced. By pretending that sharia was not the 800 lb. elephant in the room, they were out-strategized.
I remember back last September when I spoke to John Stemberger on the phone and asked him why apostasy was not being introduced. It defined the threat to her life. Without the motive, there was no threat. He insisted that it wasn't necessary. He said there was no way she would be sent back to Ohio. "No way," he said. In order to send her back to Ohio the parents would have to open a court case, and in order to do that they would have to admit to some kind of abuse. And Stemberger said they would never do that. My point is, no matter how sure a thing is, there's no such thing as a sure thing.
Fast forward to Ohio, February 2010.
Rifqa's legal strategy has been reactive, not pro-active. They are kept so busy responding to CAIR-appointed attorney motions. Rifqa's lawyers agreed to have Rifqa plead guilty to "unruliness" to secure dependency, but "reunification" is still the goal. The guilty plea continues to have ramifications for those who love and helped her. Criminal investigations are proceeding and charges are pending against Brian Williams and the Lorenzes.
Among the concerns for "unruly" Rifqa that are related to SIJS:
.....that each case be scrutinized carefully because the filing of an application for SIJS will alert the U.S. Citizenship and Immigration Service (US CIS) of a child’s unlawful presence in the U.S. If the child has ever been arrested or convicted of any crime, an expert in the complex area of the intersection between immigration law and criminal law should be consulted immediately. Many crimes that are not deemed serious under state law have dire immigration consequences. The Immigrant Defense Project is an excellent resource for this purpose. www.immigrantdefenseproject.org
More on the SIJS and how the Stemberger strategy was out played by CAIR. Why hasn't Rifqa's legal team demanded an investigation by child services into the abuse and death threats in the home to Rifqa? SIJS demands it:
Eligibility for Special Immigrant Juvenile Status[...]
In order to demonstrate eligibility for SIJS status, one must be an immigrant present in the United States:
- Who is under age 21 at the time the SIJ petition is filed;14
- Who is unmarried;
- Who has been declared dependent on a Juvenile Court located in the United States (in New York State this is family court); or whom a Juvenile Court has legally committed to or placed under the custody of, an agency or department of a state, or an individual or entity appointed by a state or Juvenile Court located in the United States 15, and whose reunification with one or both16 of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law 17
- For whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence.18
Atlas readers, remember in the stipulation to dependency, both Tarazi and Lloyd were at pains to put on the record before the court the fact that the stipulation was not based upon abuse or neglect. Until that issue is addressed, I don't think that Rifqa can make the showing before the INS, to establish that her status as a dependent was as a result of abuse, neglect or abandonment. I don't think that she can make the application for SIJS because abuse or neglect has been established as a matter of law, not to be the cause of the dependency. I don't think the judge will issue the i-360 verification required to make the application.
Applying for Special Immigrant Juvenile Status
Among the items required for the I-360 petition is the court order from the Juvenile Court judge. The court order must establish the child’s dependency on the Juvenile Court or his or her being committed or placed under the custody of, an agency or department of a state, or an individual or entity appointed by a state or Juvenile Court.27 It is preferable though not essential for the order to also establish the requirements that (a) it would not be in the child’s best interest to be returned to his or her (or parent’s) previous country of nationality or country of last habitual residence and that (b) reunification one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law.28 The US CIS has a strong preference that the Juvenile Court incorporate a finding regarding return to the child’s home country into the order, but it does recognize that the requirement can be satisfied through a determination made by an administrative proceeding.29
Now read what Stemberger wrote. Try to avoid the sophomoric rantings and look at what he contends is Rifqa's strategy, a failed strategy.
By John Stemberger February 1, 2010
It is highly unfortunate, but there are a handful of people who claim to be leading Rifqa advocates are spreading inaccurate, highly sensational and outright false information about matters surrounding Rifqa Bary, her attorneys and Rifqa's legal case. It is necessary to respond to these statements because the amount of ignorance, misinformation, and slander being spread is causing disunity and confusion among those people who really do truly love and support Rifqa and are looking for accurate information.
Highly unfortunate, indeed. But not for the reasons Stemberger describes.
1) RIFQA’S DOES NOT NEED NEW LAWYERS AND SHE HAS SOME OF THE FINEST LAWYERS IN THE STATE OF OHIO REPRESENTING HER. Representing Rifqa are two legal experts, one in the area of dependency (which most lawyers have never even heard of) and one in criminal law. Kort Gatterdam is a board certified criminal defense lawyer who is well respected in the greater Columbus, Ohio Bar, partner in a major Ohio law firm and he has tried hundreds of cases before juries and judges. Angie Lloyd is a clinical law professor at Ohio State University with a long history as a child advocate and is one the state’s leading experts in the area of dependency and child immigration. The legal strategy and plan agreed to by all lawyers involved in both Florida and Ohio from the beginning has been to get Rifqa declared a “Dependent” by the state and therefore in a situation where she would never have to be forced to return to her parents or her homeland Sri Lanka unless she wanted to. The dependency status also allows her to apply for a status where she would never be forced back to Sri Lanka where she would surely be killed in time by the Muslim extremists in that country. [...]
If Rifqa's lawyers demanded a child services investigation of the threat in the home, apostasy and sharia law would have to be introduced.
3) RIFQA DOES NOT NEED TO GO THROUGH AN ASYLUM PROCESS. Dependency is a highly specialized area of the law that most persons have never heard of and that even most lawyers have no idea about. No lawyer who understands dependency law agrees that seeking political Asylum in the US makes any sense. Those that have advocated for Asylum are either not lawyers and have no idea what the law says, or are simply ignorant about the dependency process. It is stunning to hear the arm chair commentators talk about what they think should happen legally when they are completely ignorant about what the law says or how courts, evidence or trials work. Rifqa's immigration status can be resolved as a Dependent of the State of Ohio without any Asylum claims.
I disagree. Apostasy asylum should have been Rifqa's safety. They should be applying now. Yesterday.
6) THE RECENT MOTION FILED BY RIFQA’S PARENTS LAWYERS TO REVERSE THE DEPENDENCY AGREEMENT IS TOTALLY FRIVIOLOUS AND NOT A MAJOR THREAT. The motion filed last week by the Bary parents lawyer and “Islamic Scholar” Omar Tarazi to undo the Dependency agreement previously made in Court is a complete sham and is likely not to have any effect at all on the court. The ridiculous motion also seeks to try and fire all of Rifqa’s lawyers and her Guardian. The court is likely to dismiss it at the hearing without even serious consideration and there is a 95% chance this dismissal will occur. In the highly unlikely event the court grants the parents motion there is a chance a trial could take place but an even greater chance a settlement agreement would take place again because the Bary parents lawyers appears to be completely inexperienced and has never tried a case.
No, what Tarazi is doing is running out the clock so that Rifqa is without immigration status when she turns 18. Will they deport her? Who can say, but CAIR and the Muslim Brotherhood have infiltrated senior levels at the State Department so deeply, it is likely. Certainly that new Muslim Outreach to the Ummah department at State that reports directly to Clinton might deem it "helpful" to send her back. I think that's what CAIR and the Barys want -- for the whole family to go back to Sri Lanka, which was the plan after members of the NOOR mosque spied on Rifqa and told her parents of the conversion. The bags were packed.
7) IT IS MORE IMPORTANT TO TAKE LEGAL ACTIONS THAT WILL ENSURE RIFQA’S SAFETY THAN IT IS TO TAKE ACTIONS WHICH EXPOSE RADICAL ISLAM. There are many people who want to see Rifqa undergo the risk involved with a full blown trial with the sole motive to expose radical Islam rather than to secure agreements which would guarantee that Rifqa will be safe. I am totally against radical Islam and want to see them exposed and want the power of Rifqa’s story to be heard. But not at the expense of risking Rifqa’s safety [...]
8) IN ANY LEGAL CASE, A SETTLEMENT WITH THE SAME RESULT IS ALWAYS BETTER THAN BEARING THE RISK OF A TRIAL WHERE THE ULTIMATE RESULT IS NOT IN YOUR HANDS BUT THE HANDS OF A JUDGE. An agreement properly recognized by the Court and which gives you the same result you would seek at a trial, is always a better option than a full blown trial. In a trial, the judge (no jury trial in this type case) would make the final decision. In a settlement agreement the parties have control over the terms. If for whatever reason the judge ruled against Rifqa at trial, or the delay caused Rifqa to age out of the Ohio foster care system at age18 without being declared a Dependent, she could be immediately sent back to Sri Lanka. This is a risk that her legal counsel does not appear willing to take, but one which some other “friends” of Rifqa are foolishly advocating for because they do not understand the process.
Yes, this has been Stemberger's position all along. He is investing everything in this. He put all of Rifqa's eggs in one basket. But Rifqa is still not eligible for Special Immigration Juvenile Status, and the clock is ticking.
Here is Jamal Jivanjee's careful opinion (Stemberger has banned Rifqa from talking to Jamal -- effective last week):
RIFQA BARY’S DEFENSE- EMERGENCY ACTION NEEDED IN 3 AREAS: Dear friends and supporters of Rifqa Bary,After my article last week regarding Rifqa Bary’s hearing in Columbus on March 2’nd and some of the troubling news that came out of those proceedings, I have discovered more alarming information, some of which requires what I would consider immediate emergency action. I do not wish this article to be an evaluation of Rifqa’s attorneys as much as I whish this article to be a call to action to her attorneys, and others, regarding urgent matters in relation to Rifqa’s defense that have been neglected and are in need of immediate action. I urge you to take a few minutes and read thoroughly. Some of these specifics are legal matters, but please read the entire article. This is of the utmost importance. I have been deeply concerned about Rifqa’s defense for some time now. Because of these ongoing concerns, I hoped that Rifqa would be able to consult with some other well qualified attorneys to hear their assessments of the case because there have been many attorneys who have also been very concerned about how this case has been handled thus far. So far, Rifqa has not been able to consult with any other attorneys other than the ones who have been involved in the case thus far. After last week’s developments both in and out of court, I have become even more alarmed about what is happening regarding her case. As a result, I have consulted with a couple of well qualified attorneys who gave me their honest assessment of what has been occurring. Let me remind you, these attorneys are not attorneys seeking to represent Rifqa in any way, but are well qualified attorneys who are Christian, and who have been following her case with great concern and prayer. Based on the assessment that I received, there are a couple of issues that need to be addressed immediately without delay. Let me list them here:
I. There needs to be an immediate Child Protective Services (CPS, or Ohio’s equivalent agency) investigation into Rifqa’s family and home life.
There have been some serious allegations made against Rifqa’s family and the nature of her family life at home. This is in addition to the serious threats that she faced as a result of her conversion from Islam to Christianity. Rifqa has suffered abuse by her family in the past. This abuse is very serious. These allegations have been made, but since this case has started, there has yet to be any investigation of her parents and subsequent past home life. This is an absolute outrage concerning the nature of the allegations made and the circumstances surrounding the case. When Ohio says that they found no evidence that her life was in danger, keep in mind that there was no investigation done regarding the allegations of abuse that Rifqa has alleged, nor were her parents investigated in any way. Ohio’s division of Child Protective Services has an obligation to look into these things. Since Child Protective Services in Ohio has not done their job, it is incumbent upon Rifqa’s attorneys as her legal advocates to demand that such an investigation be done. The attorney that I spoke with told me that this should be done immediately and without delay. Keep in mind that such an investigation by Child Protective Services of the parents and home life is standard procedure when allegations as serious as Rifqa’s are made. Rifqa has been back in Ohio for almost 5 months and her attorneys have demanded no such action. The fact that her attorneys have not filed a motion, nor have they successfully persuaded authorities that such an investigation be done is unconscionable and an outrage.
This is important because Juvenile courts are always inclined to reunify families unless there are reasons known to the court why it would not be safe to reunify the family. Since Rifqa has not had a trial for dependency, in which the nature of the threats that she was facing as a result of her conversion to Christianity from Islam would have come out, this CPS investigation would be very important. This investigation would also slow the push for reunification that the Franklin County Children’s services case plan explicitly calls for. Because there has been no investigation of Rifqa’s parents, Rifqa has been made to look as the one who has done something wrong which makes following the case plan that, Rifqa’s attorneys and her parent’s attorneys have signed on to, the only logical conclusion. I was told that it did not help Rifqa in any way to plead guilty to the ‘unruly child’ charge, and was extremely bad advice from her attorneys. This furthers the false impression that she is the one who did something wrong, and it further ignores the real issues in this case. While no one expects that the case plan leading to reunification can be completed in 5 months, there are other reasons why the case plan should not be followed at all, and should not have been agreed to by her attorneys. This has everything to do with her immigration status which leads me to the second and most serious step of action that needs to be taken immediately.
II. Rifqa’s Immigration and Naturalization Case needs action taken immediately.
As you may know by now, Rifqa is not in this country legally. In order for Rifqa to be able to stay in this nation, Rifqa has at least two options available to her. The first option is a special dependency proceeding that minors are eligible for called Special Immigrant Juvenile Status (SIJS), which will allow Rifqa legal permanent residency in the U.S. This Second option is pursuing an Asylum process.
Rifqa’s attorneys have decided to base their entire legal strategy on the first option called SIJS. They have decided to put all their eggs in this one basket, so to speak, and not seek Asylum concurrently with SIJS. This has been a HUGE mistake for the following reasons:
The likelihood of SIJS succeeding is looking very unstable now. If Rifqa is denied SIJS, there is nothing left to fall back on as a result of her attorneys’ decision to not apply for Asylum for Rifqa as well. A leading organization which acts as an advocate for human rights had this to say about the SIJS process:
“ If the juvenile applies for this status and is successful, s/he may remain in the U.S., work legally, qualify for in-state tuition at college, and in five years apply for U.S. citizenship. However, if the application is denied, the child might be deported.”
Because of this risk, I was told that prudent attorneys always cover their bases which is why the asylum process should be pursued concurrently with SIJS in case there is a problem with SIJS. Based on what occurred in last week’s hearing, we now know that there is a major problem with Rifqa’s attorney pursuing SIJS. Consider the following statement from the above mentioned Human Rights organization regarding SIJS:
In order to qualify for SIJS, a juvenile court in the U.S. must have declared the child a court dependent, or have legally committed the child to a state agency or department. The court must have found the child "eligible for long-term foster care" (which in this context means that parental reunification is not possible), and that it is not in the child's best interest to be returned to the home country. The child should have proceeded to long-term foster care, adoption, or guardianship and the court must have made its findings based on the abuse, neglect or abandonment of the child.
According to this statement, only children who are in “long term foster care” are eligible for SIJS. This means that the court must have declared that reunification is not possible. What we found out from last week’s hearing, however, is that Rifqa is currently forced to follow the case plan which on paper calls for the eventual reunification with her parents! That is why Angela Lloyd, Rifqa’s attorney, is not yet able to move forward with SIJS for Rifqa. The judge in the case is mandating that the case plan be followed for now and this makes Rifqa currently ineligible for SIJS because the court has not yet found that reunification is out of the question! (This means that the March 02 hearing was NOT good news for Rifqa)Because there has been no Child Protective Services investigation into Rifqa’s family life as mentioned above, the court has not been able to rule out reunification based on “abuse, neglect or abandonment of the child.” Basically speaking, there has been no progress on SIJS and there cannot be until the court rules that reunification is not possible. Now, time becomes Rifqa’s biggest enemy because Rifqa turns 18 in 5 months. This might not seem like an issue because minors can apply for SIJS until they are 21, but there is another factor that weighs heavy in all of this. When applying for SIJS, two applications are required. One of these applications is called an I-360 (petition to be qualified as a Special Immigrant Juvenile). In order for an I-360 to be filed, it will require an order from the juvenile court judge stating that the child is a dependant of the state due to reunification being impossible. The judge overseeing Rifqa’s case will not give the order, however, until the case plan is tried for a period of time that satisfies her and she determines that reunification is not possible. The court loses jurisdiction of Rifqa when she turns 18 in 5 months, which means that if she does not get the court order by then, she cannot apply for SIJS at all. In addition to this, I was told that it is highly recommended that the juvenile court judge include in the court order for the I-360 an explanation as to why the child returning to their native country (Sri-Lanka for Rifqa) would not be desirable, or why returning to their parent’s custody is not possible. Since the threat that Rifqa has faced due to her conversion from Islam to Christianity has not been introduced to the court, it is impossible for the court to have a grasp about the nature of the danger that Rifqa would face in Sri-Lanka. Also, since Rifqa’s attorneys have not demanded a Child Protective Services investigation of her parents and home life, it is impossible for the court to determine that she cannot be reunified with her parents based on abuse, neglect, etc… As you can see, this information is very important for SIJS and adequate work on Rifqa’s behalf has simply not been done. It is an outrage!
The entire strategy of depending on SIJS in this case has been ‘misguided’ to say the least. For the last seven months that Rifqa’s case has been in court, there has been absolutely no progress on her immigration status! An Asylum process should have started 7 months ago in addition to the pursuit of SIJS and things would not be in the situation they are currently in. Now that we know these things, an Asylum process should be started immediately! Not one more day should be wasted.
We need to remember that there is much at stake here. This case is about the rescue and redemption of Rifqa, and I believe millions of others as well. We must not allow pride or professional reputations to get in the way of the truth. This is not a political campaign in which the truth can be spun. In order for situations to be corrected, they at least have to be acknowledged and defined. I am convinced that it is for such a time as this that Rifqa and this case has been elevated to the national stage. In light of this, I would like to ask you to contact Rifqa’s attorneys and implore them to take these emergency steps immediately.
Please contact Kort Gatterdam (614)-365-4100 or firstname.lastname@example.org
Please contact Angela Lloyd: Lloyd.email@example.com
Please contact Judge Elizabeth Gill (614)-462- 4445 and (firmly and respectfully ) request that a Child Protective Services investigation be launched into Rifqa’s abusive past home life.
In conclusion, the immigration statute requires a finding that the dependency order is based upon the court having ruled that the dependency judgment was based upon factual finding of "abuse, neglect or abandonment."
When Tarazi and Lloyd and Chris Julian said upon the record of the proceeding that this was not "... an abuse ... " case, then the judge's finding of dependency could not have been made on a finding of "abuse, neglect or abandonment."
You cannot made a finding of law about something, e.g., "abuse, neglect or abandonment," unless it is supported by a sufficient and necessary finding of real facts that support the legal finding. When the parties stipulated that it was not factually an abuse case, they stipulated that legally it was not an abuse case. Apostasy and the sharia punishment would have supported that finding. Contrary to Stemberger's denunciation, I did not want to put Islam on trial for the hell of it. I wanted to spare Rifqa.
I don't think Rifqa meets the statutory requirement for SIJS finding before the federal courts. Nor do I believe that the state court judge will issue the necessary I-360 document to support her application before the immigration courts, based upon a finding of law, and an adjudication, not based upon abuse or neglect or abandonment.
It appears that the SIJS procedure is not available to her.
Her only shot now is apostasy asylum, and that they better get off their asses and start applying for it. My opinion is that they should go hat in hand to the Pepperdine clinic, and see if they can get help.