Seeking Asylum

Jonathan Montag—his shirtsleeves rolled up and wearing no tie during this slow, casual morning between Christmas and New Year’s Eve—ambles by the waiting room at Montag & Nadalin, which is filled with posters of far-flung, exotic locales: Paris, Venice, Egypt. A colleague stops him in the hallway to confer about an immigration visa for a client who desperately wants to remain in San Diego. Montag answers his colleague’s questions and settles into the chair in his cluttered office, which continues the international theme with a collection of Coca-Cola bottles from around the world.

And then he begins talking about the movie Sophie’s Choice.

“Sophie was forced by Nazis to make a horrible decision—which of her two children she would save, and which she would allow to die,” Montag says. “No one would dare argue the children weren’t being persecuted. Imagine, though, if someone said, ‘Sophie herself isn’t being persecuted, because she ended up living in Brooklyn and is doing fine.’”

He sighs and shakes his head in exasperation, thinking not about Sophie, but about his own client, Evgueni Tchoukhrov, a 16year-old disabled Russian boy. Tchoukhrov was born with cerebral palsy and immediately institutionalized against his parents’ wishes. He was denied medical care and beaten and tormented until his family fled to California. In the ensuing legal chess game that has gone all the way to the Supreme Court, the U.S. government argued that, while the child suffered from persecution and qualified for asylum, his parents did not and would have to return to Russia, leaving their young son in America alone. “The government decided the kid could stay, but the family couldn’t,” Montag says. “That notion didn’t seem to offend the government.”

Last year, Montag’s work on Tchoukhrova v. Gonzales earned him California Lawyer Magazine’s CLAY award, which honors lawyers who make a significant impact. Montag says he doesn’t understand why he won the award or why the Tchoukhrova case aroused so much international attention.

“I thought it was very straightforward,” says Montag. “I’ve had many cases I thought were much bigger deals in terms of their impact on policy. The Tchoukhrova case was like Sophie’s Choice, so common sense I don’t know why the government insisted on bringing it to the Supreme Court.”

The CIA Says, “No, Thanks”

Montag earned a degree in Near Eastern studies and international relations from the University of Pennsylvania in Philadelphia. His studies took him to the American University in Cairo and the University of Uppsala, Sweden, home to the woman who became his wife. Upon graduation, he applied for a job with the CIA, but was turned down.

“I went into an Army recruiting center to see if they could give me any insight [into] why I was rejected,” he says. “The feeling was it stemmed from some kind of point system where the combination of a foreign-born wife and all my international travels made me a suspicious character.”

And so he joined the Army, where he spent a lot of time picking up cigarette butts before becoming a media relations specialist in Japan. “Because I’ve lived abroad in Egypt and Sweden, I’m empathetic to the situation of a foreigner,” he notes. “My time in the Army helped me to understand what it’s like to deal with large, impersonal bureaucracies.”

In his 30s and already a husband and father, Montag decided to become a lawyer. He earned his law degree from the University of San Diego, and found a summer clerking position with an immigration attorney. “If I had gotten a clerking job with a divorce lawyer, I’d be a divorce lawyer today,” he says. “I like how it turned out. Immigration law isn’t about chasing money. It’s about helping people, helping get them into the country or keeping them in the country.”

Those people have included a Bahrain princess who risked her life by coming to the United States and marrying a Marine rifleman. Montag helped the princess get a green card.

Montag also represented an Egyptian man who was ordered to be deported after he drove up to the gates of Camp Pendleton, saying he had taken a wrong turn and needed directions. This was in the aftermath of 9/11, and the man, a housepainter, was placed in detention for 10 months and deported, even though federal law officials agreed he represented no threat.

Thrown Away

Montag’s background in immigration issues led to the referral of the Tchoukhrova case. The saga resonates with Dickensian horror. Evgueni Tchoukhrov was born in 1991 in Vladivostok, Russia, with infantile cerebral paralysis. Hospital staffers broke the baby’s neck by forcibly extracting him with forceps. Immediately, they discarded him in a container filled with medical waste because, according to court records, “they didn’t see a reason to let him live.”

The boy did live, and was taken to a state-run facility, where officials prevented his mother from seeing him for the first two months of his life. The Human Rights Watch Report notes that Russian state policy denies humane treatment to the handicapped, and the boy was spat on and attacked in public, suffering a broken arm and head injuries that required two months of hospitalization. The police refused to take a report on the incident, deeming the abuse “insignificant.”

Tchoukhrov’s parents managed to bring him to the United States in 2000, applying for asylum for all of them. His mother, Victoria Tchoukhrova, argued she had suffered persecution on account of her membership in a particular social group, specifically parents of children born with severe disabilities.

“Harm to the child is harm to the mother, as this case so dramatically illustrates,” wrote Deborah Anker, director of the Immigration and Refugee Clinic at Harvard Law School. Anker cited a long list of the mother’s persecutions, including having her disabled child disposed of as waste; being denied the right to see her disabled child after he was born; and “being effectively forced to hide her child in her home.”

The immigration judge denied the mother asylum. The Department of Justice’s Board of Immigration Appeals affirmed that decision. At this point, Montag took the case and won a reversal from Judge Stephen Roy Reinhardt of the 9th Circuit Court of Appeals.

In his blog on 9th Circuit and California appellate cases, Shaun Martin, a law professor at the University of San Diego School of Law, notes, “Judge Reinhardt’s opinion begins with a powerful emphasis on the facts that both touches the reader’s soul and provides a concrete setting in which the subsequent legal analysis that he performs is to be applied.”

The solicitor general disagreed, and appealed the ruling to the Supreme Court. “I think the reason they took it to the Supreme Court was because of the government’s ongoing war against the 9th Circuit, which they regard as too activist,” Montag says. “Judge Reinhardt’s decision about immigrants, families and people with handicaps was passionate, and the solicitor general probably thought he was too passionate.”

Once the case went to the Supreme Court, all manner of lawyers who specialize in handicap and immigration issues contacted Montag to express their desire to join his team. Included in this group was Stephen Knight, deputy director of the Center for Gender and Refugee Studies at the University of California, Hastings College of the Law.

“The big question was how to organize the team,” Montag says. “I decided I would write the initial brief and let them caress it any way they wanted.”

In Montag’s draft, many of the citations were from the 9th Circuit. He was shocked when the other lawyers said those would be unpersuasive, and replaced them with citations from other circuits. “They were the experts, so I took them at their word,” he says. “It is a sad commentary on the 9th Circuit and the low credibility it has, according to these people.”

Knight was impressed by Montag’s willingness to consult with others and take advice. “That’s a rare skill that a lot of lawyers don’t have,” he says. “Frequently, they’re attention-and-media hogs and very concerned about ownership and having their fingerprints on a case. To the great benefit of his client, Jonathan was generous and open about getting the kind of assistance and top-level advice that played an important role in keeping his clients in the country.”

The Supreme Court vacated the 9th Circuit’s decision and remanded the case for further analysis, indicating that the 9th Circuit erred by reaching issues that the Board of Immigration Appeals had not ruled on in the first instance.

“To the average person, it would seem we lost because the decision was vacated, but we were happy,” Montag says. “Our experts said that was the best decision we could have hoped for and, in the rarefied world of Supreme Court jurisprudence, that’s considered a victory.” The case is now in mediation.

The complexity of the case, and this area of law, is revealed by Knight’s assessment of it. In an interview, he at first called this “a landmark case” but then later noted, “It’s hard to say how significant it is because this area of law is such a chess game, with a lot of pieces in the game of the national legal policy battle. The government handed us an uncontested grant specifically because they didn’t want to risk giving us a big legal victory.”

For Montag, the volatility and politics of immigration law are a regular occurrence. “Court cases come down every day that can change the whole topography,” he says. “The state doesn’t dramatically change the slip-and-fall law, but politicians are always tweaking immigration law, and the court takes years to define it. We still don’t have all the answers to the 1997 changes in the Immigration Act.”

The foundation of immigration law, he notes, “is a surfboard. There’s definitely an intellectual challenge that makes it rewarding, but at the same time it would be nice to be Perry Mason on occasion. You never saw him having to figure out what was legal and illegal. But in immigration law, the procedure for, say, how to get a certain kind of visa, or the criteria for what constitutes a removable offense, can change in a day.”