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Tag: Crimmigration

U.S. Permanent Resident Almost Deported Until HLS Crimmigration Clinic Proved the Government Wrong

By: Alexis Farmer

Source: Pixabay

Raymond* lived as a legal permanent resident in Arizona for nearly 30 years before being apprehended by local law enforcement and charged with possession of narcotics with the intent to sell. Not long after serving time in prison for his offense, the father of three spent seven months in La Palma Detention Center.

This was Raymond’s first criminal offense, but one that almost got him deported. Immigrations and Customs Enforcement (ICE) argued that his prior criminal conviction was one of the disqualifying crimes that makes someone with legal status in the U.S. deportable. Although Raymond had paid his debt to society in prison, the government said his offense prompted a second and grave consequence: leaving the United States for good. The Crimmigration Clinic at Harvard Law School, which represented Raymond, challenged the government’s claim and eventually proved them wrong. An Arizona immigration judge ruled in Raymond’s favor, but ICE appealed the decision, arguing that Raymond’s conviction triggered a provision under federal immigration law that required his removal.

Criminalizing immigration status has been increasing over the past twenty-five years, according to Phil Torrey, the managing director of the Crimmigration Clinic at Harvard Law School. Crimmigration – the intersection of criminal law and immigration law – became a burgeoning field of law in the late 1980s and ‘90s when Congress passed a number of measures responding to concerns of unauthorized immigration. These policies made many more types of crimes by noncitizens deportable, emphasized border enforcement and increased the use of detention facilities.

Numerous studies have shown that immigrants are less likely to commit crime than native born U.S. citizens, and the numbers are even lower for immigrants like Raymond that are lawfully present. A 2018 report from the Department of Justice (DOJ) stated that almost 7 percent of the “known or suspected aliens” in DOJ custody were legally present and undergoing removal proceedings. According to a 2018 U.S. Sentencing Commission report, immigration offenses and minor drug related offenses are the most common crimes of noncitizens.

Source: Flickr

An expert in crimmigration law for over ten years, Torrey says, “there has been an exponential increase in prosecution of certain federal crimes and the use of criminal enforcement mechanisms in the immigration context.” Immigration infractions are one of the most federally prosecuted crimes, including drugs, firearms, and fraud according to a the Sentencing Commission’s recent report. Just over 200 private immigration detention facilities currently exist across the country housing close to 400,000 individuals. The Pew Research Institute found that “immigrants with past criminal convictions accounted for 74 percent” of all U.S. Immigration and Customs Enforcement (ICE) arrests in 2017. Many of these offenses, however, are minor and can be classified as non-violentdrug offenses or simply re-entering the U.S. without authorization.

“Deportation is an extreme consequence for many of the charges,” Torrey said, “but efforts to decouple criminal and immigration law from the federal government are unlikely to happen during this administration.” Torrey noted that many local and state jurisdictions like Philadelphia, Chicago, and Boston have established protections that block local resources from aiding civil immigration enforcement efforts ICE.

Source: Flickr

2020 Democratic presidential candidates have voiced ideas for decriminalizing immigration if elected. Presidential hopefuls Julian Castro and Elizabeth Warren supported repealing Section 1325 of the U.S. Code which makes entry into the U.S. a criminal offense. Torrey thinks that  “decriminalizing unlawful entry and re-entry would be a tremendous first step in ensuring an immigration system that remains civil rather than criminal and protects individuals with bona fide aslum claims.” Castro and former Vice President Joe Biden say that immigration enforcement should focus on individuals with “serious” or “major” criminal convictions – similar to what both President Obama and President Trump claimed to prioritize – but it is unclear whether there would be mitigating provisions for individuals with legal status like Raymond. It’s also unclear what would be considered a “serious” or “major” conviction.

While Raymond was detained, Immigration and Customs Enforcement (ICE) officials confiscated his green card, which isn’t supposed to happen, according to Torrey. Raymond’s time in the detention center was “very stressful.” “I suffered a lot when I was inside there being away from my family. They give you bad food, there is no attention, and they treat you very bad. I was hopeless.” He also said the facility was overcrowded, estimating that, “there were maybe 3,000 people in the center while I was there.”

When ICE appealed the immigration judge’s decision, the case moved up to the Board of Immigration Appeals, (BIA) the administrative appellate body responsible for immigration-appellate appeals. An HLS alumnus who monitors the BIA docket at the Catholic Legal Immigration Network, Inc. (CLINIC), a non-profit organization that provides legal services for immigrants, referred the case to the Crimmigration Clinic. Torrey and two Harvard Law School students, Joy Lee, J.D. ’19 and Harry Larson, J.D ’19 represented Raymond during the appeals process. Torrey and the students were based in Cambridge – some 2,500 miles away from Raymond who was detained in Arizona. Their only interaction was through the phone and mail. “I had a lot of confidence and patience. I trusted them,” Raymond said when reflecting on his experience with the students.

The clinical students argued that in Raymond’s case, the federal drug schedule – categories of drugs classified by the drug’s safety, the potential for abuse or dependency, and acceptable medical use – did not match Arizona’s drug schedule, and therefore did not qualify as the type of crime that should make Raymond deportable. The team was victorious in upholding the immigration judge’s ruling, allowing Raymond to stay in the country he knows as home. “The clinic helped me a lot. Thank God.”

Raymond was successfully released from the detention center in December 2018. In the time since, Raymond resumed his job in maintenance and construction and found an apartment for himself. “I have a different perspective on life,” he said and he was happy to be working again. He was released around the start of the government shutdown, which made it an administrative headache to try and retrieve his green card. Six months later, he’s still missing his green card, which means he can’t travel to Mexico to see his family. “It’s been 4 years since I’ve last seen my kids. What I need is help, for them to give me back my green card. If I don’t get it back, I don’t know what I’m going to do.”

*Names changed for the client’s confidentiality.

Learning Key Litigation Skills in the Crimmigration Clinic

Lyla Wasz-Piper ’20 and Kaela Athay ’19

By: Lyla Wasz-Piper, J.D. ’20 and Kaela Athay, J.D. ’19

The law school environment can, at times, feel insular and abstract. But supporting a person’s right to stay in the country with his wife and children transforms the theoretical into the practical. Similarly, the law school’s call to act is a lofty goal, but through clinics—and particularly the Crimmigration Clinic—students like us have the ability to take the law out of the classroom and apply our learning to some of our nation’s most pressing issues.

This semester, the Crimmigration Clinic and the Immigrant Defense Project (“IDP”)—an immigrant rights organization focusing on the interplay between criminal and immigration law—co-counseled an amicus brief on behalf of other immigrant rights organizations in support of a petition for rehearing in the Ninth Circuit. The case involved a longtime lawful permanent resident who came to the United States when he was only ten days old, but is now facing deportation because of a minor criminal conviction that is more than ten years old.

As Crimmigration Clinic students we were charged with drafting the amicus brief. We both found drafting the brief an incredibly valuable experience. Although we plan to pursue different legal careers upon graduation, we both learned important litigation skills that we will take with us whether we’re practicing appellate advocacy or providing direct client services.

The legal arguments in the Crimmigration Clinic’s amicus brief were complex but largely focused on the fundamental unfairness of applying a new law to a guilty plea that was entered into while relying on the old law. In this case, at the time of the client’s plea, he had to make a decision: proceed to trial, or craft a plea agreement with the help of his defense and immigration counsel to preserve his legal immigration status in the United States. For many noncitizens, preserving the right to remain in the country is often a paramount concern. At the time of the plea the law seemed clear that the offense would not trigger his removal. Five years later, the immigration appellate court abruptly departed from well-established practice and found that the offense to which the petitioner had pleaded guilty was, in fact, a deportable offense. Applying that change in law retroactively, the petitioner was then placed in removal proceedings where he was ultimately ordered removed.

The petitioner then appealed the removal order up to the Ninth Circuit where a divided panel upheld the lower court’s removal order and reasoned that the retroactive application of the new law was permissible. One judge on the panel penned a strong dissent demonstrating that the panel’s decision misapplied the Ninth Circuit’s own retroactivity law. In support of the petitioner’s request to have the Ninth Circuit reconsider its decision, the Crimmigration Clinic and IDP submitted its amicus brief.

As Crimmigration Clinic students, we worked closely with our supervisor, Phil Torrey, and co-counsel at IDP to develop three main arguments advanced in our brief. First, we argued that it would be virtually impossible for criminal defense attorneys to advise their noncitizen clients about future immigration consequences of guilty pleas if immigration laws could be altered by immigration officials in the future and then applied retroactively. Second, we argued that the Ninth Circuit improperly applied its own retroactivity analysis. Finally, the brief explained that if the test was properly applied, it would weigh in favor of the petitioner and the new law would not retroactively apply to his prior guilty plea.

Researching and writing this amicus brief has been the most challenging and rewarding experience of our law school careers thus far. Participating in a clinic provides a unique opportunity for faculty engagement and independent work: the complexity of the legal work means that you’re constantly learning new skills while working closely with the supervising attorney. The Crimmigration Clinic has allowed us to develop strong mentor relationships, work with a community of students and faculty similarly dedicated to immigration reform, and gain real experience practicing law at such a critical time in our legal and political climate.

Crimmigration Clinic Wins BIA Case

Via the Harvard Immigration and Refugee Clinic 

Crimmigration Clinic Instructor Phil Torrey with students Joy Lee ’19 and Harry Larson ’19

The Crimmigration Clinic won a case before the Board of Immigration Appeals (BIA) on behalf of a lawful permanent resident that immigration officials were trying to deport. The client, who has lived in the United States for nearly 30 years, will now be released from detention where he has been held for more than a year and he will be allowed to remain in the United States with his family.

The Crimmigration Clinic took on the case in September while it was pending at the BIA, which is the administrative appellate body responsible for immigration-related appeals. Crimmigration Clinic students Harry Larson ’19 and Joy Lee ’19 worked tirelessly over the last two months to draft a brief incorporating a range of legal arguments they developed on the client’s behalf.

Students who participate in the Crimmigration Clinic have the opportunity to represent individuals facing removal because of a criminal record. The Clinic’s Managing Attorney, Philip Torrey, noted that “these cases are incredibly complex and require students to develop strong legal research and writing skills to effectively represent individuals who would otherwise be trying to navigate the deportation system alone.”

The client was facing deportation because of an old Arizona drug-related conviction that Immigration and Customs Enforcement (ICE) argued triggered a provision under federal immigration law that required his removal. The immigration judge who initially reviewed the case disagreed with ICE and terminated the client’s removal proceedings; however, the case was appealed to the BIA where ICE argued that the immigration statute had been misinterpreted by the immigration judge. The brief filed by Larson and Lee argued that the statute had been applied correctly based on precedent from the Supreme Court and other jurisdictions.

“In class, you read cases that seem to lay out certain clear legal rules. What this case taught me is that those rules, in the abstract, don’t necessarily compel compliance: that you need advocacy all the way down to keep government within the bounds of the law,” said Larson.

Lee added that she was “grateful for the opportunity to directly apply the skills and case law that we learned in class to protect our client from deportation.”

Challenging Immigration Law’s Conviction Definition

Via the Harvard Civil Rights-Civil Liberties Law Review

Source: Pexels

By: Philliip Torrey

The “conviction” definition is one of the most misunderstood and odious provisions in our country’s immigration statute. The “conviction” term is a misnomer because it includes criminal dispositions that are often not considered convictions at all. Despite its perplexing definition, “convictions” are frequently used as markers for removal. For example, in FY2017, Immigration and Customs Enforcement (“ICE”) apprehended 143,470 individuals within the interior of the United States and ninety-two percent of those individuals had a criminal conviction, arrest, or an outstanding removal order. In FY2016, ICE’s apprehension totals likewise showed that ninety-two percent of individuals arrested by ICE had a criminal conviction. The purpose of this short article is to explain immigration law’s enigmatic “conviction” definition, its nefarious history, and current efforts to challenge the definition’s interpretation. In so doing, the article draws on my prior scholarship, which — along with a seminal article by immigration scholar Jason Cade — became the blueprint for challenging the “conviction” definition in federal court.

In 1996, the “conviction” definition was codified in our country’s primary immigration statute known as the Immigration and Nationality Act (“INA”). The INA’s “conviction” definition includes two distinct prongs. If either prong is satisfied, then the state criminal disposition at issue is rendered a conviction for immigration purposes regardless of how the state categorizes the disposition. The definition’s first prong is straightforward. It simply requires a final judgment of guilt entered by a court. The second prong, however, turns any guilty plea, no contest plea, or admission to “sufficient facts to warrant a guilty finding” plea into a conviction for immigration as long as some punishment, penalty or restraint on liberty is imposed — even if that plea is held in abeyance or later vacated. The second prong, as currently interpreted, morphs many deferred adjudications and expungements into convictions for immigration purposes even though most states would not consider dispositions from those types of ameliorative programs convictions for state law purposes.

Sweeping ameliorative programs into the “conviction” definition was no mistake. The definition was codified in the Illegal Immigration and Immigrant Responsibility Act of 1996 (“IIRAIRA”), which was passed during an election year when Congress was eager to demonstrate that it was tough on crime and determined to secure our borders — both of which were considered winning campaign slogans. Although IIRAIRA has a dearth of legislative history, the following quote from a conference report is illustrative:

[A]liens who have clearly been guilty of criminal behavior and whom Congress intended to be considered “convicted” have escaped the immigration consequences normally attendant upon a conviction. . . .  [E]ven in cases where adjudication is “deferred,” the original finding or confession of guilt is sufficient to establish a “conviction” for purposes of the immigration laws.[1]

But in the age of the plea deal where “innocence is irrelevant” and mass incarceration and racial discrimination have become synonymous with criminal justice, the assumption that individuals who pursue an ameliorative program are “clearly . . . guilty of criminal behavior” is baseless at best and overtly vindictive at worst.

In fact, all states offer ameliorative programs that were designed to respond to rising incarceration rates and the devastating effects of the War on Drugs on communities of color. For example, Missouri has a suspended sentencing program that does not result in a conviction for state law purposes and therefore allows certain criminal offenders the opportunity to avoid the societal disenfranchisement that typically comes with a criminal conviction. Describing that ameliorative program, the Supreme Court of Missouri noted that “[t]he obvious legislative purpose of [the program] is to allow a defendant to avoid the stigma of a lifetime conviction and the punitive collateral consequences that follow.”[2] The Court further recognized that the deferral program was an important “tool” for criminal sentencing courts to allow certain offenders “a chance to clear their records by demonstrating their value to society through compliance with conditions of probation under the guidance of the court.”[3] When the INA’s “conviction” definition attaches immigrations consequences such as detention and deportation to these ameliorative programs, it frustrates the state’s desire to facilitate the rehabilitation and reintegration of individuals in those programs.

A California expungement law is now at the center of litigation because of the inherent federalism tension created by immigration law’s “conviction” definition. The California expungement statute allows a defendant to withdraw a guilty plea when subsequently imposed conditions of probation are met. A final plea of not guilty is then entered by the court, which effectively vacates the prior guilty plea. The purpose of the law is to “help further reduce recidivism, building upon statewide efforts to assist those who have served their time and proven their willingness to be productive, contributing, law-abiding members of society.”[4] California’s expungement law is a legitimate exercise of its reserved powers to regulate the health and safety of its residents because it designed to encourage “rehabilitated individuals to obtain a decent paying job, qualify for secure and safe housing, or pursue their educational goals.”[5] The purpose of that law is thus undermined when individuals with expunged convictions are detained and deported by the immigration enforcement system.

The obvious federalism tension between the INA’s “conviction” definition and California’s expungement law is at issue in a lawsuit currently pending before an en banc Ninth Circuit. In that case, I recently co-counseled an amicus brief on behalf of immigration professors arguing that a California expungement should not be categorized as a conviction for immigration purposes. The brief argued that the expungement law was a valid exercise of a state’s reserved police powers and that the INA’s “conviction” definition must be interpreted to avoid purposefully obstructing a state’s ability to exercise that power. In other words, the federalism principles upon which our government is founded do not grant Congress the unfettered authority to undermine a state law duly enacted pursuant to a state’s constitutional authority.

At a time when the current Administration invokes the “rule of law” to justify the reprehensible use of detention and deportation to tear families apart, it is more important than ever to confront nefarious parts of our immigration law that have gone overlooked for decades. The “conviction” definition is one such feature of our immigration law that advocates should continue to challenge.

[1]  See H.R. Conf. Rep. No. 828, 104th Cong. (1996), reprinted in 142 Cong. Rec. H10899 (daily ed. Sept. 24, 1996).

[2]  Yale v. City of Independence, 846 S.W.2d 193,195 (1993).

[3]  Id.

[4]  A.B. 1115, Comm. on Pub. Safety, 2017-18 Sess., at 2 (Cal. 2017).

[5]  A.B. 1115, Third Reading Bill Analysis, 2017-18 Sess., at 5 (Cal. 2017).

Crimmigration Clinic Issues Resources for Advocates Defending the Rights of Immigrants

Via Harvard Law Today

The Harvard Immigration and Refugee Clinical Program’s Crimmigration Clinic and the Immigrant Defense Project issued two new resources for advocates and attorneys defending the rights of immigrants fighting removal to countries where they will be persecuted.

A report,“United States Failure to Comply with the Refugee Convention: Misapplication of the Particularly Serious Crime Bar to Deny Refugees Protection from Removal to Countries Where Their Life or Freedom is Threatened,” examines how U.S. implementation and interpretation of the “particularly serious crime” bar to withholding of removal and asylum in the U.S. fails to comply with the Refugee Convention. It also looks at how the U.S. diverges from the standards and practices of the international community and other countries.

Another resource,“Particularly Serious Crime” Bars on Asylum and Withholding of Removal: Legal Standards and Sample Case Determinations,” is designed to aid in the legal representation of immigrants in criminal and removal proceedings. Specifically, this chart is designed to help attorneys evaluate whether a criminal conviction constitutes a “particularly serious crime” barring asylum or withholding of removal.

Harvard Law School Lecturer on Law Phil Torrey, HIRC managing attorney and supervisor of the Crimmigration Clinic, helped create these resources, along with Clarissa Lehne ’18 and Collin Poirot ’18.

While a student at the Crimmigration Clinic at HLS, Lehne successfully argued before the Board of Immigration Appeals that her client’s conviction should not result in his detention and deportation. Poirot is current a Public Service Venture Fund Fellow working on immigrant rights at Project South.

Crimmigration—the intersection of criminal and immigration law—is the newest policy area for HIRC, one of oldest clinical programs at Harvard Law School. In addition to its broader Immigration and Refugee Advocacy clinic, HIRC offers Torrey’s crimmigration clinic in the spring: an opportunity for students to gain direct experience working on and contributing to case law in this field. Learn more about the clinic and read an interview with Phil Torrey at Harvard Magazine.

HIRC & IDP Release “Particularly Serious Crime” Bars Report and Chart

Via the Harvard Immigration and Refugee Clinical Program

Source: Pixabay

On September 20, the Harvard Immigration and Refugee Clinical Program’s Crimmigration Clinic and the Immigrant Defense Project (IDP) issued two new resources for advocates and attorneys defending the rights of immigrant fighting removal to countries where they will be persecuted:

Phil Torrey, HIRC Managing Attorney and supervisor of the Crimmigration Clinic, helped create these resources, along with HLS law students Clarissa Lehne and Colin Poirot.

Crimmigration Clinic Wins Case at the Board of Immigration Appeals

Via Harvard Immigration and Refugee Clinical Program

Working under the direction of HIRC’s Managing Attorney Phil Torrey, Crimmigration Clinic students Clarissa Lehne ’18 and Mike Ewart ’18 successfully argued before the Board of Immigration Appeals that their client’s conviction should not result in his detention and deportation.

“It was incredibly rewarding to see a tangible result of the work that we put in at the clinic,” said Lehne.  Echoing her sentiment, Ewart further noted that “so much of law school is theoretical, the opportunity to apply the knowledge we learned in Phil’s Crimmigration class to an actual case was invaluable—and easier said than done.”

The client is a longtime lawful permanent resident who was convicted under a statute that criminalizes a broad range of conduct, including relatively minor conduct.  The Department of Homeland Security argued on appeal at the Board that the immigration judge’s initial determination that the conviction did not trigger removal was wrong.  The Crimmigration Clinic’s response brief demonstrated why the conviction did not categorically match a ground of removal in the immigration statute.

“For me this case underscores the importance of access to counsel in the immigration context (where there is no equivalent to the public defender system). Here, our client had a winning argument, but it was one that would have been extremely difficult to make without legal training and the resources we had at our disposal,” noted Ewart.

After the Board terminated the client’s removal proceedings he was released from immigration detention so that he could be reunited with his family.

In Crimmigration Clinic victory, Supreme Judicial Court rules state law enforcement lacks ‘detainer’ authority

Via Harvard Law Today

Credit: Emmanuel Huybrechts via Wikimedia Commons

Credit: Emmanuel Huybrechts via Wikimedia Commons

Last week, in a victory for the Harvard Immigration and Refugee Clinical Program’s Crimmigration Clinic, the Supreme Judicial Court of Massachusetts issued a significant ruling on the question of whether Massachusetts police can detain and arrest someone for a U.S. immigration violation.

The court ruled in the case of Lunn v. Commonwealth that the Commonwealth’s law enforcement officers do not have the authority to arrest and detain an individual solely pursuant to a Detainer–a request from federal immigration authorities that a person placed under arrest by local authorities be further detained if Immigration and Customs Enforcement (ICE) believes the person may be deportable. The court arrived at the ruling based on the fact that there is no state statutory law or common law authorizing such an arrest.

In March, HIRC’s Crimmigration Clinic filed an amicus brief in Lunn v. Commonwealththat discussed the lack of legislative authorization for Massachusetts law enforcement officers and courts to arrest and detain an individual solely pursuant to an ICE Detainer. Specifically, the brief analyzed other civil arrest and detention authority under Massachusetts law and noted that procedural protections in those instances are absent when someone is held pursuant to an ICE detainer.

Crimmigration Clinic Supervisor and Lecturer on Law Phil Torrey, who is also HIRC’s managing attorney, and supervising attorney for the Harvard Immigration Project, filed the brief with Mark C. Fleming ’97, a partner at WilmerHale and vice-chair of the firm’s appellate and Supreme Court litigation practice.

Following the court’s decision, Torrey said, “In this landmark decision, the Massachusetts Supreme Judicial Court has recognized what advocates have been saying for years — there is no legal authority for Massachusetts law enforcement officer to detain someone solely pursuant to an ICE detainer. It is unlawful.”

Five HLS students helped write the brief: Tess Hellgren ’18, Emma Rekart ’17, Madelyn Finucane ’19, Harleen Gambhir ’19, and Alexander Milvae ’19. Hellgren and Rekart described the case and the brief, from which parts of the decision were drawn, on the HLS Clinical and Pro Bono Programs blog.

The decision, is the first ruling by a state’s high court on the question of whether state or local authorities can detain individuals based solely on a request by federal immigration authorities.

For additional coverage, visit

The New York Times: Court Officers Can’t Hold People Solely Under ICE Detainers, Massachusetts Justices Rule

WBUR“Mass. High Court Rules Local Authorities Can’t Detain People Solely On ICE Detainers”

Mana Azarmi wins CLEA’s Outstanding Clinical Student Award

Via Harvard Law Today

Photo courtesy of Mana Azarmi Mana Azarmi spent time in London working on an independent clinical project during her time at HLS.

Photo courtesy of Mana Azarmi
Mana Azarmi spent time in London working on an independent clinical project during her time at HLS.

Mana Azarmi ’17 is the winner of the Outstanding Clinical Student Award from the Clinical Legal Education Association (CLEA). The award is presented annually to one student from each law school for his/her outstanding clinical coursework and contributions to the clinical community.

Azarmi participated in the Harvard Immigration and Refugee Clinical Program (HIRC) for two semesters. Over the course of her three years at Harvard Law, Azarmi logged more than 1,000 pro bono hours in service to the community through the Harvard Immigration Project, the International Human Rights Clinic, the Crimmigration Clinic, and two independent clinical projects which she designed on her own — one in London working with Article 36, a UK nonprofit, and the other in San Francisco working with the Center for Justice and Accountability.

In addition to advocating for HIRC clients, Azarmi spent a substantial amount of time working on crimmigration and Immigration Response Initiative-related projects. She wrote answers to frequently asked questions related to the travel ban, researched legal arguments to oppose a Muslim special registration system, drafted questions for Attorney General Jeff Session’s confirmation hearings on the Muslim ban, and wrote an amicus brief for the American Civil Liberties Union.

In their nomination, Azarmi’s nominators noted her passion for public service work and her commitment to human rights, immigration, and privacy issues, saying her background and considerable skills made her an outstanding candidate for this award.

“Mana is [also] a fantastic manager and motivator of others” they wrote. “For an extensive report on Syrian Refugee Resettlement that the Clinic is writing, Mana rallied a team of over 10 students to help with research and cite-checking. Without Mana’s fantastic research, writing, and advocacy skills, the Clinic could not have taken on all the projects we have been involved with over the past four months since the election.”

Harvard Crimmigration Clinic files amicus brief in Massachusetts Supreme Judicial Court case challenging validity of ICE detainers

Via Harvard Immigration and Refugee Clinical Program

By Tess Hellgren, J.D. ’18, and Emma Rekart, J.D. ’17

The Crimmigration Clinic at the Harvard Immigration and Refugee Clinical Program recently filed an amicus curiae brief in support of a lawsuit arguing that it is unlawful for state law enforcement agencies to arrest and detain an individual in Massachusetts solely for immigration enforcement purposes.

The appellant, Sreynuon Lunn, is represented by the Committee for Public Counsel Services and the National Immigrant Justice Center.  Mr. Lunn argues that compliance with a request to arrest and detain an individual for immigration purposes violates both Massachusetts and federal law because these “ICE detainer requests” lack sufficient due process protections.

In its brief, the Crimmigration Clinic argues that Massachusetts law enforcement officials are not authorized to arrest and detain individuals pursuant to an ICE Detainer request because the Massachusetts legislature has not granted such authority.  Unlike several other civil arrest statutes in Massachusetts, ICE Detainer Requests fail to provide even basic due process protections, such as notice, findings of particularized facts, and oversight by a judge or neutral arbiter.

Crimmigration Clinic 2016

Via Harvard Immigration and Refugee Clinical Program

Students enrolled in the Crimmigration Clinic at Harvard Law School engaged in cutting-edge research and immersed themselves in legal proceedings at the intersection of criminal and immigration law. The four students enrolled in this Clinic were constantly occupied in this evolving field, partaking in mock arguments of appellate court cases and going to immigration court to observe hearings. The Clinic worked on four main projects this past year, all of which made innovative contributions to the field of Crimmigration.

First, the Crimmigration Clinic worked with criminal defense attorneys in Harvard Law School’s Criminal Justice Institute  and throughout the country who represent noncitizens in criminal defense proceedings. Since 2010, these attorneys have a constitutional duty to advise their noncitizen clients about the immigration consequences of criminal charges. Crimmigration is a constantly evolving and complex field of law and often criminal defense attorneys need help deciphering immigration consequences. Thus, the Crimmigration Clinic has helped meet that need by working with criminal defense attorneys to ensure their clients receive proper advice.

The second Crimmigration Clinic project was spurred by a 2015 Supreme Court ruling which determined that non-citizens can not be deported if they are convicted of possessing a drug that is on a state drug schedule but not the federal drug schedule. Last year, clinical students mapped out the federal drug schedule since its inception – the first comprehensive list of this kind. This year, the Massachusetts drug schedules were mapped out by the Clinic. This information can now be applied in retrospect to prevent the deportation of noncitizens when a mismatch between state and federal drug schedules is evident.

The third project entailed conducting a survey of federal cases that interpreted the “particularly serious crime” bar to asylum and withholding of removal in the United States. This survey divided offenses by different categories (property, drug, violence, etc.) and will hopefully provide a more consistent framework for Crimmigration rulings in the future.

The Crimmigration Clinic also works with vulnerable populations in immigration detention facilities to ensure they receive appropriate protections. For example, a recent study found that at any given time there are 75 transgender women in immigration detention facilities, and many of them will experience some form of sexual assault. This year, Clinical students drafted a memorandum outlining the myriad of claims an individual could potentially bring against the federal government to seek recourse for abusive practices at a detention facility.

Crimmigration Clinical students have the unique ability to contribute to an emerging field while helping individuals who find themselves subject to both criminal law and immigration law. By working with local and national practitioners and nonprofit organizations, students make a lasting and crucial impact in this field.

Cravath fellows travel globally to experience international and comparative law

Via HLS News

Thirteen Harvard Law School students were selected as the 2016 Cravath International Fellows. The fellows traveled to 12 countries for winter term clinical placements or independent research with an international, transnational, or comparative law focus. Below are accounts of the experiences of four of the new fellows.

Crystal Nwaneri ’17

Crystal Nwaneri ’17 spent winter term in Singapore, conducting research on the legal and technological implications of a court ruling permitting a third party to retransmit over-the-air television without permission of the broadcasters. For Nwaneri, this was a chance to further explore her long-standing interest in the legal challenges brought about by rapidly advancing technology.

As an undergraduate, Nwaneri examined public policy and how legislators and private organizations shape and regulate the technology industry. Prior to law school, she worked at Dell’s government relations office in Washington, D.C., briefing their executives on the internet technology issues discussed at Congressional hearings.

Upon entering Harvard Law, she enrolled in a reading group with Professor of Practice Urs Gasser about the future of online privacy, joined the Women’s Law Association and the Harvard Black Law Students Association, and began working as an editor at the Journal of Law and Technology. As a 2L, she is focusing on the legal infrastructures that support technology innovation, which may affect access for underserved communities. She also supports clients in the Cyberlaw Clinic and is a research assistant with the Student Privacy Initiative at the Berkman Center.

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A reflection on the Crimmigration Clinic

By Anna Byers, J.D. ’16 

For me, the Crimmigration Clinic was a question of whether I believed that the fundamental guarantees of our constitution applied to everyone no matter where they were born. As a law student, it was anathema to me that someone could be imprisoned without a hearing, separated from their family, or penalized twice for the same crime. Yet these are all situations which immigrants who are convicted of crimes find themselves in daily.

Under the leadership of Phil Torrey, we spent a semester in the Crimmigration Clinic writing amicus briefs, providing plea consults, and working to construct a database of controlled substances. Particularly moving for me was the work we did on an amicus for the First Circuit. The petitioner, an immigrant who had fled her country, was at risk of removal despite her very real fear of being killed in her country. She had committed a fraudulent crime as a result of desperation, but to the courts she was just another “criminal alien.” Writing for her, we got to know her story as well as the intricacies of international law and help her triumph in her case before the Court.

It was my first experience writing for a court and collaborating on a case with so many moving parts. I got to hear experienced lawyers talk about case strategy and figure out how our contribution fit into a larger campaign. It was a privilege to work on a case with possible long lasting implications. Hopefully women like our client won’t have to go through this process again. Instead, they will be guaranteed the process and safety that all people deserve.

Crimmigration Clinic: “A unique and fascinating capstone to my law school career”

By Hanne Sandison, J.D. ’16

Hanne Sandison, J.D. '16

Hanne Sandison, J.D. ’16

I knew I wanted to be involved in the clinical programs before I came to Harvard my 1L year. One of the main things that drew me to the school was its plethora of clinical programs, allowing me to gain real world experience and figure out who I wanted to be as lawyer. Participating in various clinics – the International Human Rights Clinic, the Harvard Immigration and Refugee Clinic, the Crimmigration Clinic, and two independent clinicals during J-Term – have helped me find my strengths and passion while surrounding me with mentors and colleagues I respect, admire, and enjoy.

Working in the Crimmigration Clinic this semester has been a unique and fascinating capstone to my law school career. Crimmigration (the intersection of criminal law and immigration law) is a relatively new and constantly evolving legal discipline. The law is always changing, and advocates are constantly trying to find creative solutions to new problems. In the Crimmigration Clinic we have the unique opportunity to interact with both criminal defense and immigration legal spheres, as criminal laws affect clients in immigration proceedings, and a client’s immigration status affects their priorities in criminal court.

This semester, I was fortunate to work with Philip Torrey and Sabrina Lee, J.D. ’17 on three distinct projects. We worked with the Orleans Public Defenders (OPD) on a toolkit to help their defense attorneys avoid criminal convictions that would carry additional immigration consequences (such as deportation). Drastic budget cuts in criminal representation have left OPD underfunded and without immigration specialists, putting their immigrant clients in a precarious legal position. To help fill this gap, OPD sent us a list of commonly-charged misdemeanors in New Orleans, and we put together a manual to help their defense attorneys understand the immigration consequences of certain convictions – specifically whether such a conviction would lead to deportation.

My colleagues and I also worked on a project to map out the Massachusetts drug schedules – a tool that will help immigration advocates know how best to advocate for clients with drug convictions on their records.

Finally, I was able to partner with the Criminal Justice Institute and work with one student attorney on a case involving a non-citizen client. Here I was able to see where the rubber hits the road, and how criminal convictions can impact the ability of non-citizens to stay in this country. Working with CJI put a face and a story to the many statutes and cases we had read and digested throughout the semester.

While I find the most joy in working directly with and advocating for clients, my experience in the Crimmigration Clinic showed me how imperative it is to have capable and passionate people working at all levels and doing all types of legal work. Policy work, impact litigation, advising, and direct client services all work in harmony to create a more just and equitable system for those most vulnerable to abuse and neglect. I am excited to continue to be a part of this talented and inspiring community of lawyers, and I feel honored to have learned from and with them.

Crimmigration Clinic Bridging the Gap between Criminal Law and Immigration Law

dscn0371Via Harvard Immigration and Refugee Clinical Program

Philip Torrey, Lecturer on Law and Clinical Instructor with the Harvard Immigration and Refugee Clinical Program (HIRC), has carved out a space in the Harvard Immigration and Refugee Clinic for a unique and evolving area of law called crimmigration.

“Crimmigration is a dynamic and growing field of law that concerns the intersection of criminal law and immigration law,” explained Torrey. “It concerns the immigration consequences of criminal activity and the use of the state criminal law machinery (local law enforcement, detention, secure communities, etc.) for the purpose of immigration enforcement as well as the use of the deportation system as a method of crime control.”

In addition to teaching a seminar on this subject, Torrey began a Crimmigration Clinic two years ago for students to gain hands-on experience. Students work on policy projects and impact litigation, and they provide consultation to criminal defense attorneys with noncitizen clients.

“It’s a really complicated area of law–combining state, federal, and administrative–so the day to day work is intellectually interesting,” said crimmigration clinical student Emma Scott. “It’s also an exciting area because it’s still evolving–you can probably find something in the news related to crimmigration every day.”

Last semester, the Crimmigration Clinic worked closely with the Harvard Criminal Justice Institute (CJI) to assist immigrant clients in obtaining the best results from the criminal law system. This collaboration ensured the presentation of plea deals that would not have unfortunate immigration consequences. Both HIRC and CJI are eager to continue this partnership in the future.

“Collaborating with Phil Torrey and the Crimmigration Clinic students has been one of the highlights of our year at CJI,” said Dehlia Umunna, Deputy Director of CJI. “Our CJI clients are the beneficiaries of exceptional and incomparable expertise provided by Phil and his students.  Phil has assisted us with identifying some of the most effective new approaches in advocating for clients facing immigration consequences, including crafting alternate dispositions that allow clients to avoid deportation and preserve eligibility to pursue available immigration relief. Our students and staff find Phil easy to work with; readily available, knowledgeable and extremely patient! It continues to be an honor to work with Phil and the Crimmigration Clinic, and we look forward to many more years of joint partnership as we emphasize a holistic approach to advocacy.”

Torrey and his students also worked with other groups from the Boston area, including Black Lives Matter activists, and they filed amicus briefs in the First and Second Circuit Courts of Appeals concerning criminal bars to asylum. The Clinic will take on similar projects next semester, once again working closely with CJI. It will also expand litigation and policy projects both to advance individual client cases and to impact the criminal justice system as a whole.

Student finds motivation in her clinical work

Ashley Lewis, J.D. '15

Ashley Lewis, J.D. ’15

By Ashley Lewis, J.D. ’15 

The most memorable moments of law school have been walking out of a courtroom with my client after a favorable decision. In that moment I am smiling, my client is smiling, and we both are ecstatic to have obtained a victory. After weeks or months of preparation the issue is resolved. My client can put the issue behind them and move on.

These are my most memorable moments, because it’s a privilege to be able to help someone successfully navigate the legal system. Fortunately I have had the opportunity to do such work since the first semester of my 1L year.

The moments I described above have all come from victories in criminal proceedings. Since fall of my 1L year I have been a member of Harvard Defenders, advocating for individuals accused of committing a criminal offense in show cause hearings. At this stage of the criminal process an offense is not on the client’s record and the clerk-magistrate is only determining whether probable cause exists. The hearing provides the unique opportunity to help clients avoid a criminal charge and collateral consequences completely.

This year, I had the opportunity to represent clients who have been officially charged with a crime through the Criminal Justice Institute (CJI). To have the opportunity to stand in court beside an individual, to make sure their voice is heard, that their rights are protected, and ensure that they aren’t lost in the criminal justice system is an experience beyond rewarding.

However, all of my cherished moments in law school haven’t come in a courtroom. Through the Veterans Law and Disability Benefits Clinic, I was able to help veterans obtain the benefits owed to them from Massachusetts and the federal government. In the Crimmigraiton Clinic, I answered letters of immigration detainees seeking legal assistance. In both clinics, I had the opportunity to help individuals that didn’t have a right to counsel navigate a complicated system.

These experiences, in conjunction with my experiences in CJI and Defenders, are the memories I will cherish the most after graduation. I came to law school to prepare for a career in public service. These experiences not only helped me prepare for a career, they were also a constant reminder of my goals and motivator for accomplishing them.

All Ford Fellows Participated in Clinical Education

Last month, three graduating students, Samuel Weiss ’14, Catherine B. Cooper ’14, and David Baake ’14, received Ford Foundation Law School Public Interest Fellowships. The fellowship is designed to identify and help develop new leaders in social justice. All three students participated in the Clinical and Pro Bono Programs. Here is what they had to say about their experiences:

Catherine B. Cooper ’14

Catherine B. Cooper ’14

“My clinical experience at HLS was instrumental in preparing me to be a Ford Fellow at the Center for Reproductive Rights. Through the International Human Rights Clinic, I gained skills in litigation, documentation, and human rights advocacy that are essential for both my fellowship and long-term career.  But I am particularly grateful for the incredible people I have had the opportunity to work with.  Through the International Human Rights Clinic, the Harvard Immigration and Refugee Clinic, and Harvard Immigration Project, I found brilliant mentors who were both inspiring and challenging and a community of public interest students who were mutually supportive and extremely dedicated to clinical work.”

Catherine will serve as a legal fellow at the Center for Reproductive Rights. She will be advocating for reproductive freedom both domestically and globally.

David Baake ’14

David Baake ’14

David Baake, who participated in the Emmett Environmental Law and Policy Clinic said “My experience… was one of the highlights of my time in law school. I was able to work on a variety of interesting and important projects, including a memorandum for a Massachusetts state representative, a Supreme Court amicus brief, and a white paper on offshore drilling. These experiences allowed me to develop practical skills that were not emphasized in other aspects of the law school curriculum. They also allowed me to develop a relationship with Professor Jacobs, who has been an excellent teacher and mentor.”

David will be working as a legal fellow in the Natural Resources Defense Council’s Climate Center in Washington, D.C. He will be supporting the Obama Administration’s Climate Action Plan through advocacy and litigation.

Samuel Weiss ’14

Samuel Weiss ’14

Samuel participated in the Capital Punishment Clinic and the Crimmigration Clinic. “While the idea of focusing immigration enforcement on folks with criminal convictions has intuitive appeal, in the Crimmigration Clinic we got to see how often good people faced devastating consequences for trivial crimes,” he said. “The statutes most relevant to crimmigration are extremely punitive, especially to people with drug convictions, and often suck discretion out of the system so that immigration judges are left to rubber stamp removal orders. The poor drafting of these statutes makes them confusing but also means that there is room for advocates to be creative in trying to win their clients’ relief. The fact that immigrants facing deportation have no right to counsel creates a huge opportunity for students to help folks navigate an incredibly complex and punitive system. As an experienced practitioner in exactly these types of cases, Phil Torrey was able to closely mentor us as we tried to help folks find some avenue for relief.”

Samuel will work as a legal fellow at the American Civil Liberties Union’s Center for Justice, in Washington, D.C. During his fellowship he will seek to end the use of prolonged solitary confinement through class-action litigation and policy advocacy.

Please read more about the students in the HLS News article Three from HLS named Ford Fellows; Harris is keynote speaker

 

The Intersection of Immigration and Criminal Law

Phil Torrey, Clinical Instructor

Clinical Instructor Phil Torrey and the Harvard Immigration and Refugee Clinic are featured on the HLS website.

Read more: Clinical Opportunities and a new class at the intersection of immigration and criminal law

 

Q&A with Immigration Clinic’s Phil Torrey

Lecturer on Law and Clinical Instructor Phil Torrey

We recently sat down with Harvard Immigration and Refugee Clinic (HIRC) Lecturer on Law and Clinical Instructor Phil Torrey to discuss the intersection of criminal law and immigration, the new course he is teaching this fall, and how he became interested in immigration law. (Please note that responses have been edited for length.)

What is “crimmigration” and what will students learn in the new course and clinical placement?
Crimmigration is the intersection of criminal law and immigration. It can refer to the immigration consequences of criminal activity but it also encompasses the general criminalization of immigration status. Because it’s so difficult to obtain immigration protection for non-citizens who have been accused of engaging in criminal activity, this group is often the most in need of help.

The clinical seminar will include discussion of doctrinal topics as well as policy issues. Students in the clinic will be divided into teams and complete at least one crimmigration-related project. The goal of the course and clinical work is to give students the tools necessary to spot and evaluate the immigration consequences of criminal activity.

How did you become interested in the topic of crimmigration?
When I was volunteering at Greater Boston Legal Services (GBLS), I worked with clients who had criminal convictions in their past. These cases were extremely challenging, but incredibly important as many of the clients had been advised by their criminal defense attorneys to plead guilty to avoid jail time without understanding the effect that had on their immigration status. I quickly became interested in learning more about the complex area of criminal law and immigration law. The issue has been growing in importance on a national level since 2010, when the Supreme Court decided that defense attorneys must advise clients about the immigration consequences of pleading guilty to a crime (Padilla v. Kentucky). Clinic Director Debbie Anker was a big proponent of doing more crimmigration work at HIRC and I was excited to help develop the new course and clinic with her.

What other immigration issues do you work on?
I’m the supervising attorney for the Harvard Immigration Project (HIP), a student practice organization affiliated with our clinic. Among other projects and activities, HIP students represent clients in immigration detention at their bond hearings. Most of our clients in the bond hearing project have some type of criminal activity in their past, so HIP’s work complements the crimmigraton clinic nicely.

Other projects that HIP students are working on include helping refugees navigate the application process for securing green cards. They also handle family reunification petitions when someone is granted asylum and looking to bring their family to the United States. In fact, most of the petitioners are former clients of HIRC.

How did you find yourself at HLS?
I took a circuitous route. In law school, I took an immigration and asylum clinic, which I really enjoyed. After law school, while working at a large corporate firm, I took advantage of their leave policy to work as a fellow at GBLS, and I became familiar with the HIRC team. During this time, I became attached to my clients and to the work but I had to return to my firm after my fellowship ended. After staying at the firm for about another nine months, saving money, and getting the blessing of my very supportive partner, I quit and returned to GBLS as a volunteer. Eventually, I applied for this position at HIRC when it opened up and the rest is history.