Gov. Hochul Grants Clemency to Incarcerated Survivor Jacqueline Smalls

January 17, 2023February 13, 2023

Sanctuary for Families

A spotlight on Sanctuary Pro Bono Partner Latham & Watkins for their team’s outstanding work in assisting a domestic violence survivor in a successful clemency application.

Sanctuary for Families’ Pro Bono Project has the honor of working with hundreds of extremely dedicated and expert pro bono attorneys per year. As part of our new Pro Bono Spotlight, we’ll be highlighting some of the great work done by Sanctuary pro bono attorneys!

*Please note that this blog contains descriptions of physical and sexual abuse that could be triggering*

All-Women Latham Team Assists Domestic Violence Survivor in Successful Clemency Application

2022 didn’t end before delivering one last piece of outstanding, long-awaited news: after over 10 years of incarceration, domestic violence survivor Jacqueline Smalls had been granted clemency by Governor Kathy Hochul and would be heading home at last, along with twelve other incarcerated individuals.

During their two-year relationship, Jacqueline’s partner had subjected her to intense physical abuse—including strangulation, one of the highest lethality factors—and had been subsequently arrested several times. On the night of August 26, 2012, Jacqueline’s abuser entered her home in violation of two Orders of Protection she had obtained against him. During a domestic altercation, as her abuser moved to confront Jacqueline, she stabbed him once with a kitchen knife, killing him. Despite the obvious history of domestic violence, trauma, and clear danger to Jacqueline that evening, prosecutors from the Schenectady County District Attorney’s office refused to consider the history of domestic violence and charged her with second-degree murder. Jacqueline ultimately entered a guilty plea to a lesser charge of first-degree manslaughter and received a 15-year sentence.

Sanctuary attorneys first met Jacqueline in 2019 after she had already been incarcerated for several years. Sanctuary identified Jacqueline as an ideal candidate for the then-newly enacted Domestic Violence Survivors Justice Act (DVSJA) and turned to Latham & Watkins LLP, a longtime pro bono partner and champion of survivors of gender-based violence, to work with Jacqueline on a DVSJA re-sentencing motion to reduce her sentence, which would likely result in her release for time served under the more favorable DVSJA sentencing guidelines. Associates Brittany Ehardt, Jaclyn Newman, Melange Gavin, and Wendy Gu, with supervision and strategic guidance from partner Jamie Wine, began strategizing at once. Though Jacqueline was clearly eligible for resentencing under the DVSJA, the District Attorney’s office indicated that it would oppose such a resentencing motion, which would have resulted in forcing Jacqueline to participate in a difficult and re-traumatizing re-sentencing hearing. The team pivoted to clemency instead, knowing they could always return to a DVSJA strategy if they needed to.

On December 21, 2022 Governor Hochul granted clemency to 13 individuals, including Jacqueline, who will be released and reunited with her family on January 19, 2023.

“I recall doing Jacqueline’s intake in Bedford Hills and being immediately horrified by all the ways in which our system failed to protect her from her abuser, and then unduly and harshly punished her when she tried to protect herself. I was ecstatic when Latham agreed to represent her and I am forever grateful for their tireless work over the last couple of years to free Jacqueline.”

Nicole Fidler
Director, Sanctuary for Families’ Pro Bono Program

We are overjoyed at Jacqueline’s clemency grant. We also believe that so many other incarcerated individuals deserve the same consideration from Governor Hochul. Given Governor Hochul’s previous pledge to increase the rates of clemency grants, we are hopeful that more incarcerated survivors will be granted clemency soon.

We sat down with Jaclyn Newman, Melange Gavin, Wendy Gu, and Brittany Ehardt to hear firsthand about their experience working with Jacqueline.

Why did you agree to represent Jacqueline?

Jaclyn: We originally took on this case thinking it was going to be a DVSJA case. We felt passionately about Jacqueline’s case and wanted to serve justice for her in light of the domestic abuse she had suffered, and saw this new statute as a potential avenue for her.

What was it like to build and maintain your relationship with your client?

Brittany: In a case like this, when you’re dealing with sensitive and delicate topics, having the opportunity to meet in person was really helpful. After meeting with Jacqueline in person, it was about keeping the lines of communication open, with frequent contact, which helped build a positive and trusting relationship. It was important to not only discuss her legal challenges, but also focus on the human side of things.

Melange: Especially when an individual is incarcerated, it’s easy to see them as just a name or a number. Once we started speaking regularly on the phone with Jacqueline and met her in person, it helped to develop our relationship with her. We all care for her on an individual and personal level.

How did you and Jacqueline cope with the inherent uncertainty of a clemency case? Did this create any unusual obstacles?

Jaclyn: It was a rollercoaster! We were faced with the difficult choice of taking a risk with the uncertainty surrounding a clemency application, or continuing with a DVSJA resentencing application. In many ways, the DVSJA re-sentencing application seemed to be the safer and more predictable option, because we knew Jacqueline had a strong case under the DVSJA and deserved to be resentenced and released. But when we learned that the DA wouldn’t oppose a clemency application, but would oppose a DVSJA application, we decided to pursue clemency first, given that the lack of opposition from the DA’s office provided us with a stronger clemency application. Additionally, we hoped to avoid re-traumatizing Jacqueline on the stand during her DVSJA hearing. We also knew that if clemency didn’t work out, we would go back to the DVSJA application as an alternative path to Jacqueline’s release.

Wendy: Throughout this process, Jacqueline kept such an open mind, and had faith in herself and us. It was a really strong motivator for the team, I think. She kept her head up and maintained hope and that kept the entire team going.

Did anything surprise you during this case?

Brittany: This case made me recognize that a lot of individuals lack a baseline understanding of domestic violence and trauma. Societally, with the way people think about these cases, we have a long way to go. While it was challenging to educate individuals about the impact of domestic violence while conducting the case, it was also positive to see that the education made a difference in the outcome for our client.

What is one of the biggest things you learned from working with Jacqueline?

Melange: This was the most one-on-one contact with an individual client that I’ve had. The client-facing experience is very different with an incarcerated client. Getting to know Jacqueline, I found myself connecting with her on a deeper level. And of course, when it’s someone’s life on the line, it makes the stakes so much higher.

What did you find most gratifying about the experience?

Jaclyn: I think for me it was when Jacqueline’s family members started crying tears of happiness on the phone when they heard the news about her clemency grant.

Brittany: Also, as Jacqueline plans her reentry, it’s gratifying to think about what her life can be like now as she rejoins her community and her family. When we started working with her this possibility seemed so distant, so knowing that it’s within reach now is incredible.

Anything else we should have asked you but didn’t? Anything you want to add?

Brittany: It takes a village. Of course, we’re proud of the work we put into this case, but it took several groups coming together. Partnering with Sanctuary and having resources and guidance available to us was so helpful. I think it’s a good lesson to anyone, no matter what you’re doing – it’s OK to ask for help from people who have experience in a certain field. It can only make the situation better.

Congratulations to Jacqueline, Melange, Brittany, Jaclyn, and Wendy!

Join the team from Latham & Watkins in standing with our clients. Your gift supports Sanctuary’s life-saving work with survivors of gender violence.

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Sullivan & Cromwell: Sanctuary Pro Bono Partner Spotlight

December 14, 2022December 15, 2022

Sanctuary for Families

A spotlight on Sanctuary Pro Bono Partner Sullivan & Cromwell for their team’s outstanding work in securing T-Nonimmigrant Status for a Guatemalan survivor of sex trafficking at the hands of a Customs and Border Patrol agent.

Sanctuary for Families’ Pro Bono Project has the honor of working with hundreds of extremely dedicated and expert pro bono attorneys annually. As part of our new Pro Bono Spotlight, we’ll highlight some of the great work done by Sanctuary pro bono attorneys!

*Please note that this blog contains descriptions of physical and sexual abuse that could be triggering*

Assisting a Survivor Fleeing Domestic Violence and Trafficking

Beginning in 2020, Sanctuary for Families partnered with Sullivan & Cromwell (“S&C”) on an appeal on behalf of a survivor of trafficking at the hands of a Customs and Border Patrol (CBP) agent who grossly abused his position of power over Ms. Aura Hernandez and her young nephew. In 2021, we learned that the appeal was successful and in 2022, Ms. Hernandez was granted T Nonimmigrant Status, which has put her on a pathway to citizenship. This was the culmination of over 15 years of struggle and courage on the part of Ms. Hernandez to ensure safety and security for herself and her family. Sanctuary is honored to have been able to support Ms. Hernandez on that journey, and forever grateful for the outstanding, creative lawyering of the S&C team who represented Ms. Hernandez on her challenging appeal.

Fleeing severe domestic violence in her home country of Guatemala in 2005, Ms. Hernandez and her nine-year-old nephew embarked upon a dangerous two-week journey to Texas that ended within the walls of a detention facility. Already traumatized and terrified, Ms. Hernandez was met with an abusive CBP agent who threatened deportation or family separation of her and her nephew if she did not comply with his forceful demands for sexual acts. In a small room at the detention facility, the CBP agent sexually assaulted Ms. Hernandez, and then failed to timely release her and her nephew. Despite this, Ms. Hernandez and her nephew were ultimately able to continue their journey to New York and she began to settle into a new life. Then, under the Trump administration, a new threat emerged: Ms. Hernandez was informed that she was to be deported back to Guatemala, regardless of the risk this posed to her life.

With this backdrop of fear, in 2018, Ms. Hernandez and her infant daughter moved into a Manhattan church for sanctuary. As she fought to remain in the United States, Ms. Hernandez’s case drew national attention, including coverage by The New York Times and other publications. She redirected that spotlight, becoming an incredible advocate for women and immigrants, speaking out about the inhumane conditions of ICE detention centers and the sexual violence that was rampant within their walls, as well as against the barriers that prevented her and her family from experiencing true safety. “I don’t intend to stand here with my arms crossed and do nothing,” she told The New York Times. “I have to stand up and raise my voice because an injustice is being committed to me and to us. I think I’m here for a reason.”

It was around this time that Sanctuary began working with Ms. Hernandez, helping her file for T Nonimmigrant Status. Sanctuary argued that she was a victim of trafficking at the hands of the CBP agent and that she had, as required to obtain a T-Visa, cooperated with the investigation into the sexual assault (though it had not resulted in any disciplinary action against the agent). However, the visa was denied, throwing Sanctuary into high gear, as notices of appeal and briefs in support must be filed within 90 days of the denial. Sullivan and Cromwell attorneys Olivia G. Chalos, Regina M. Roediger and Sharon Cohen Levin, a longtime Sanctuary pro bono partner and anti-trafficking advocate, jumped in to co-counsel with Sanctuary on the appeal and immediately set to work proving Ms. Hernandez’s eligibility.

Sanctuary Senior Staff Attorney Ines Chennoufi, who worked with the team, explained that the case was “particularly difficult because U.S. Citizenship and Immigration Services (USCIS) argued that Ms. Hernandez did not meet any of the eligibility requirements for a trafficking visa. Typically, at the appeal stage of a case, we only have to argue one discrete area of law or facts. Here, the Sullivan & Cromwell team had to argue that Ms. Hernandez satisfied all of the eligibility requirements for T Nonimmigrant Status.” One of the critical elements that the team had to prove was that Ms. Hernandez was a victim of a severe form of trafficking.

“In order to be eligible for a T-Visa, an applicant must establish that they were a victim of a severe form of trafficking, which includes a ‘commercial sex act.’ USCIS denied Ms. Hernandez’s application in part because it found that the sexual abuse perpetrated at the border was not ‘commercial.”

Ines Chennoufi
Senior Staff Attorney, Sanctuary for Families

The Sullivan & Cromwell team demonstrated incredibly creative and pragmatic lawyering to establish that the sexual act here was coerced in direct exchange for something of immense non-monetary value—freedom from the detention center for Ms. Hernandez and her nephew, and a safer life in the U.S. The team used the decisions in the Harvey Weinstein prosecutions to establish that the definition of a commercial sex act is broad and encompasses more than just monetary gain or something of economic value. They pointed out that in one of the Weinstein decisions, the court found that value can include “promises of career advancement” or the opportunity to meet a world-renowned film producer. These arguments were clearly persuasive–the decision issued by the Administrative Appeals Office (AAO) found that Ms. Hernandez’s safety and liberty, her fear of deportation and her nephew, all constitute things of “value” to her and the CBP agent used them against her to force and coerce her into providing a nonconsensual sexual act.

In the winter of 2021, Ms. Hernandez was informed by the AAO that she had successfully demonstrated she was the victim of a severe form of trafficking and her application was remanded to USCIS. In July 2022, she received the approval notice, granting Ms. Hernandez T Nonimmigrant Status for a period of four years. In three years, she will be eligible to apply for Lawful Permanent Residence (a green card) and eventually for citizenship.

“We are thrilled with this outcome for Ms. Hernandez, and proud to have partnered with Sanctuary’s incredibly talented lawyers on this challenging case.”

Sharon Cohen Levin
Pro Bono Partner, Sullivan & Cromwell

Sanctuary is profoundly grateful to the Sullivan & Cromwell team for being a critical partner in Ms. Hernandez’s fight for safety and security in the U.S. and for all their work on behalf of survivors of trafficking.

Join the team from Sullivan & Cromwell in standing with our clients. Your gift supports Sanctuary’s life-saving work with survivors of gender violence.

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Epstein Becker Team Assists Survivor in Eviction Proceeding

October 1, 2022October 31, 2022

Colleen O'Brien

At this year’s Above & Beyond, Sanctuary will honor an Epstein Becker team for their representation of Sanctuary client “Jane” in a challenging landlord-tenant dispute and application for relief under the Emergency Rental Assistance Program.

At this year’s Above & Beyond Awards, Sanctuary for Families will be honoring Epstein Becker attorneys Tamara Bock, Jennifer O’Connor, and Anastasia Regne for their dedicated, creative and successful representation of Sanctuary client “Jane” in a challenging landlord-tenant dispute and application for relief under the Emergency Rental Assistance Program.

In 2018, Sanctuary for Families and Epstein Becker & Green, P.C. teamed up to work on an eviction proceeding that had been ongoing for a year. Although the client, Jane, had been diligent in making payments to her landlord since the beginning of the case up until the pandemic hit, there were accrued arrears based on the fact that the monthly rent had increased to an untenable level – nearly double what it should have been as a rent stabilized unit. And while she was happy to stay in the apartment with her college-student daughter after divorcing her abusive husband, the rent had become too high for Jane to manage on her own. Although Jane had good legal arguments to support her side of the case, proving them in court would be an uphill battle.

In came Epstein Becker. Jennifer and Anastasia, with tremendous support from Tamara and other attorneys and staff at the firm, got to work. Collaborating with former Sanctuary attorneys Dana Kaufman and Sandra Takami, the team concluded that the way to push the case forward would be to retain an expert who could speak to the adequacy of the landlord’s arguments for why the building was allegedly no longer subject to rent regulation. The Epstein Becker team moved for expert discovery and ultimately won the landlord’s consent, premised on the landlord’s intention to submit his own expert report.

Epstein Becker then retained an expert at their own expense – a cost that would be prohibitive for most individual tenants – and worked with the expert to conduct a thorough inspection of Jane’s unit and key areas in the apartment building. The expert completed his review and subsequently prepared a report that debunked the landlord’s theory underlying its case and supposed justification for charging a market rent. Although the landlord claimed they wanted to submit their own expert report, they did not produce one timely. After several extensions to the deadline passed, the landlord ultimately filed an order to show cause in which they sought permission to submit a report after the deadline, but to no avail. The Epstein Becker team skillfully opposed the order to show cause, and the court denied the landlord’s request.

That was the turning point. The landlord, apparently realizing what a strong case Jane had, began to engage in settlement discussions. Unfortunately, by that point, the COVID-19 pandemic was at its peak, and it had become even harder for Jane to make rent and utility payments. Her arrears, as claimed by the landlord, had reached nearly $70,000.

Undaunted by the challenge, Anastasia did the painstaking work of filing an application on Jane’s behalf for relief under the Emergency Rental Assistance Program (“ERAP”), an economic relief program that permitted eligible households in New York State to request assistance for rental and utility arrears accumulated during the COVID-19 crisis. The application process was not without its challenges, however (including all-too-familiar crashes on the application website, which required Anastasia to start from scratch on more than one occasion), but ultimately it worked. Jane was granted relief in the form of $22,500, which was paid directly to her landlord.

Between the strength of Jane’s legal case, particularly with the benefit of the impactful expert report, and the show of good faith evident in the team’s efforts to get ERAP relief while negotiations were ongoing, Jane and the landlord were able to come to a favorable resolution. And best of all for Jane, her daughter was able to stay in the apartment until she earned her design degree last May, which she had been working towards throughout the stressful ordeal.

Reflecting on the case, Anastasia noted how meaningful the matter was for Jane and how satisfying it was to work on the case. “Public interest work can be very challenging,” she said, “but this felt like a very good result.”

Thanks to the tireless advocacy and empathy offered by Jennifer and Anastasia, Jane and her daughter received the support they needed in their legal battle.

“The wholistic aspect of Sanctuary’s work covers every aspect of the clients’ needs, to ensure that they continue to succeed in their lives even after the legal case has been resolved.”

Anastasia Regne
Associate, Epstein Becker

Join us at our Above & Beyond Awards Ceremony on November 2, 2022, as we honor the Epstein Becker team’s outstanding pro bono work.

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If you can’t join us, but would like to support Sanctuary’s work, please consider making an Above & Beyond donation here.

Colleen O’Brien is a member of the Sanctuary for Families Pro Bono Council. She is a Managing Director and Senior Counsel at Goldman Sachs.

Akin Gump Assists Survivor in Prosecution of Her Trafficker and Immigration Process

October 1, 2022October 31, 2022

Nicole Vescova

At this year’s Above & Beyond Awards, Sanctuary for Families will be honoring a team from Akin Gump for their compassionate and devoted pro bono representation of “Amy”, a survivor of sex trafficking.

At this year’s Above & Beyond Awards, Sanctuary for Families will be honoring a team from Akin Gump for their compassionate and devoted pro bono representation of “Amy” during the prosecution of her trafficker and in securing T-Nonimmigrant status. The team consists of partner Estela Diaz and counsel Kate Powers.

Amy was a young teenager living in Mexico when she met “Mario.” Mario told Amy that he had a big debt that he needed to repay, and asked her to help him. Specifically, Mario told Amy she had to prostitute to pay off his debts. When Amy refused, Mario became violent, imprisoned her, and forced her into prostitution. A few years later, Mario smuggled Amy into the U.S., and continued to traffic her throughout the tri-state area. Amy was able to eventually escape Mario, but was afraid to ever reveal what had happened to her, fearing for her family in her home country.

In April 2016, Amy was approached by special agents working for the Department of Homeland Security (“DHS”), which was investigating her trafficker. Once identified as a trafficking survivor, Amy was connected with Sanctuary for Families, who in turn contacted Akin Gump, seeking assistance on an expedited basis.

Akin Gump formed a team to help Amy prepare to meet with federal prosecutors and agents from DHS. The team jumped in immediately to educate Amy on the process of the investigation and the potential prosecution of her trafficker, and to represent her at the meeting with law enforcement. Understandably, Amy was nervous to participate in this ordeal; however, the Akin team ensured that Amy, a non-English speaker, fully understood what she was getting involved with and remained sensitive to the severe trauma she had experienced as they worked to prepare her and advocate on her behalf.

After the initial meeting with the prosecutors in 2016, Akin assisted Amy in preparing a declaration in support of her trafficker’s extradition. Thereafter, Amy bravely agreed to testify at her trafficker’s trial, though her trafficker ultimately pleaded guilty. As the process progressed, the Akin group watched Amy gain confidence and courage. In fact, Amy (with the Akin team beside her) chose to attend her trafficker’s sentencing so she could look him in the eyes when he was sentenced to more than a decade in prison.

Over the past 6 years, while the trafficker’s prosecution was ongoing, the Akin team was also assisting Amy in preparing a visa application so she could remain in the U.S. The process took a long time because her application was tied to her trafficker’s prosecution, and Amy could not obtain the necessary statement from law enforcement to support her application until the criminal proceedings were resolved. Eventually, Akin submitted an application which was over 120 pages long, and in April 2022, Amy was granted T-Nonimmigrant status.

Estela Diaz describes this representation as one of the “most satisfying matters” she has ever had the privilege to work on. Speaking on behalf of the team, Estela noted that Amy was so “deserving of relief” and watching her “evolve throughout the representation” was such a “great” experience.

“The Akin Gump team exemplifies what we as attorneys strive for in representing survivors of gender based violence. Not only did they achieve excellent results, but they provided a space for the client to feel respected, dignified and empowered throughout the legal process.”

Jessica-Wind Abolafia
Director of SFF’s Anti-Trafficking Initiative

Sanctuary is thrilled to honor Estela and Kate for their tremendous legal abilities and dedication to their client.

Join us at our Above & Beyond Awards Ceremony on November 2, 2022, as we honor Akin Gump’s outstanding pro bono work.