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Tag: Phil Torrey

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.

Phil Torrey wins 2019 HLS Student Government Teaching & Advising Award

Via the Harvard Immigration and Refugee Clinical Program 

We are proud to announce that our Managing Attorney, Phil Torrey, won a 2019 HLS Student Government Teaching & Advising Award. We are honored to have Phil as part of our team and we thank him for his tireless dedication to his students and to the Clinic. Congrats, Phil!

Here are some quotes from student nominators:

“Phil is responsive, considerate, and provides thorough feedback.”

“Phil has taught me more about lawyering and litigation than any other individual at HLS…The time and energy that he puts into mentoring and teaching is incredible; the behavior that he models as a lawyer is exceptional.”

“He is a tireless advocate for some of the most vulnerable clients.”

“I am truly lucky to have had the privilege to learn from Phil.”

“Phil is the best mentor I have ever had…[he] is able to find that rare balance of providing us with enough guidance and direction to maintain our confidence in and the high quality of our work, while allowing us, the students, to drive our cases and make substantive decisions about our cases.”

“Because of his teaching and guidance…I feel prepared for my summer job and for engaging in legal work upon graduation.”

“I mean it when I say that I wish all other faculty members were more like him.”

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 Submits Amicus Brief on Behalf of Immigration Law Scholars

Via the Harvard Immigration and Refugee Clinical Program

HIRC’s Crimmigration Clinic, directed by Philip Torrey, recently co-authored an amicus curiae brief with Professor Kari E. Hong of Boston College Law School on behalf of immigration law scholars. The brief was filed in the Ninth Circuit Court of Appeals in support of a petition asking the full court to reconsider its prior decision in a case that significantly expanded a specific crime-based deportation ground.

The amicus brief argues for a narrow interpretation of the “crime of child abuse” removal ground that is more in line with the ground’s purpose to target child predators for removal. In doing so, the brief illustrates the over-inclusive nature of the removal ground’s current interpretation by immigration authorities, which may sweep in relatively minor conduct, including “free-range” parenting and child endangerment statutes that Congress did not intend to result in the deportation. To be clear, child abuse has no place in our society, but the current broad interpretation of the statute may render the parent who allows an older child to walk a half-mile home from a park a child abuser and, therefore, subject to deportation and permanent separation from her family. The brief argues that Congress did not intend to target that type of conduct.

The full brief is available here.

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 files amicus brief on latest travel ban

Via the Harvard Immigration & Refugee Clinical Program

On March 30th, HIRC filed an amicus brief challenging President Trump’s latest immigration order. The brief argues that the travel ban violates federal immigration statutes and that this latest version, like its predecessors, is not based on any exigent situation involving diplomacy or military affairs. It replaces individualized determinations of risk with blanket prohibitions and thus reinstates a discriminatory system that Congress eliminated in 1965.

Dozens of immigration scholars from across the country signed on to the amicus brief, which was written in collaboration with Fatma Marouf (HLS ’02).

Read the brief here.

Phil Torrey’s article “Jennings v. Rodriguez and the Future of Immigration Detention” published in Harvard Latinx Law Review

Via Harvard Immigration and Refugee Clinical Program

Managing Attorney of the Harvard Immigration and Refugee Clinical Program, Philip L. Torrey, recently published an article, Jennings v. Rodriguez and the Future of Immigration Detention”, in the Harvard Latinx Law Review. The article explores the possible implications of the U.S. Supreme Court’s pending decision in the Jennings v. Rodriguez case.

Immigration detention will likely play a central role in the Trump administration’s efforts to increase deportations. Despite the President’s broad authority to detain, the U.S. Supreme Court will have an opportunity this term to limit that authority. In Jennings, the Court will consider both statutory and constitutional challenges to the government’s ability to detain certain individuals without providing them the opportunity to be released on bond. Not only does the Court’s decision in Jennings have the potential to restrict the government’s use of immigration detention, but it could simultaneously chip away at the plenary power doctrine, which traditionally accords Congress and the President broad authority to enact, administer, and enforce immigration law without judicial oversight.

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”

Immigration Law Experts Advise Undocumented Students

Via The Harvard Crimson

Staffers from Harvard Law School’s Immigration and Refugee Clinic clarified definitions of “sanctuary” spaces in an online seminar Wednesday, offering Harvard’s undocumented students individual legal consultation as President-elect Donald Trump prepares to take office.

Philip L. Torrey, a Law School lecturer who led the seminar, said the label “sanctuary” could mean a number of things in practice, ranging from the physical prevention of immigration enforcement officials from entering a space to the guarantee that those officials have valid warrants before entering.

“The term ‘sanctuary’ has no specific legal definition,” Torrey said.

In December, University President Drew G. Faust said she would not adopt the “sanctuary” term for Harvard’s campus, adding that she thought creating a “sanctuary campus” would further endanger undocumented students. Two weeks later, Pusey Minister in the Memorial Church Jonathan L. Walton designated the Church a “sanctuary” space.

Torrey and fellow Law School lecturer Sabrineh Ardalan also briefed attendees on how to navigate immigration issues as Trump transitions to the White House. The political outsider drew ire throughout his presidential campaign, which many say stirred anti-immigrant sentiment throughout the country.

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Phil Torrey Presents to the Immigration and Nationality Law Review

Via Harvard Immigration and Refugee Clinical Program

This past April, Phil Torrey, HIRC Clinical Instructor and Lecturer on Law,  traveled to Ohio to speak to the Immigration and Nationality Law Review at Cincinnati Law. In his presentation, Phil discussed how the Immigration and Nationality Act’s definition of conviction seemingly violates the core principles of federalism upon which our nation is built. You can find the speech below:

An article outlining the topics discussed will be published sometime this summer.

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.

Limitations on the undocumented

Via HLS News

Supreme-Court_istock (hi res)

A deadlocked Supreme Court dealt a major blow to President Obama’s executive actions to grant relief from deportation to nearly 5 million undocumented immigrants living in the United States. The 4-4 tie in U.S. v. Texas, a challenge by that state and 25 others against Obama’s executive actions, leaves in place an injunction by a lower court that blocked the government from implementing two programs that would protect both children and their parents from deportation.

“I’m disappointed,” said Deborah Anker, clinical professor of law and director of theHarvard Immigration and Refugee Clinical Program at Harvard Law School. “What this means is that it puts hundreds of thousands of people at risk of deportation, including parents of U.S. citizens or legal residents.”

What it means legally is that after the court’s one-sentence decision, which mentioned “an equally divided court,” it is up to the presiding judge in Brownsville, Texas, to decide whether or not to go forward with a trial.

“The decision on the merits of the case are still going to be litigated,” she said. “The decision by the Supreme Court is not an affirmation of either position.”

Phil Torrey, lecturer on law with the Harvard Immigration and Refugee Clinical Program and the supervising attorney for the Harvard Immigration Project, hopes the ruling will help galvanize the movement for immigration reform.

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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.

HIRC plays key role in landmark decision recognizing domestic violence as grounds for asylum

HLSVia HLS News

The Board of Immigration Appeals (BIA) issued a ground-breaking decision yesterday that recognized domestic violence as a basis for asylum. The court’s decision in Matter of A-R-C-G- reflects years of work by the Harvard Immigration and Refugee Clinical Program (HIRC) and other advocates around the country who have pushed for the recognition of gender-based asylum claims. HIRC authored a critical amicus curiae brief in the case, on behalf of the American Immigration Lawyers Association, the preeminent immigration bar association.

The court’s decision will have a profound impact on future asylum cases involving women fleeing not only violence in the home, but also other types of violence when that harm is related to their gender, said Deborah Anker, Clinical Professor at Harvard Law School and Director of HIRC. “We have won many cases of women fleeing domestic violence at the immigration court and asylum office and changed the institutional culture at that level, but yesterday’s decision from the BIA finally establishes these principles as formal binding precedent,” she said.

According to Anker, yesterday’s decision is critical in recognizing that under U.S. law gender violence and gender-based persecution can form the basis of an asylum claim as the BIA first laid the foundation for 25 years ago; in its seminal case Matter of Acosta the Board held that gender is an immutable characteristic that fits within the “membership in a particular social group” ground of the “refugee” definition in U.S. and international law. Anker emphasized that gender broadly should permeate interpretations of all aspects of the refugee definition.

The landmark case was brought by a Guatemalan woman (represented by Roy Petty, a prominent Chicago-based immigration lawyer) who suffered years of abuse at the hands of her husband, compounded by the failure and unwillingness of the police in her home country to intervene. The Board reversed a lower court’s ruling that the harm endured by the asylum applicant was the result of random criminal acts and therefore unrelated to a required protected ground.

“Domestic violence is a form of gender-based persecution often perpetrated by men on women that they view as their ‘property’” said John Willshire Carrera, HIRC’s Co-directing Attorney at Greater Boston Legal Services.

Yesterday’s decision demonstrates the success of HIRC’s “bottom-up” approach to legal change. Nearly twenty years ago, HIRC co-authored the U.S. Gender Guidelines, which formally recognized gender-based harm in the asylum context and even recognized domestic violence as a basis of asylum, setting the stage for yesterday’s decision. But it was a long road, and many advocates contributed along the way, said Anker.

According to Nancy Kelly, HIRC’s Co-directing Attorney at Greater Boston Legal Services, it is advocacy on the ground level that provided the major catalyst for the court’s historic decision. “Through persistent and effective direct representation of asylum-seekers, we and others who do this kind of hands-on litigation and advocacy have been able to change the institutional culture, which made this kind of change in the formal law virtually imperative,” said Kelly.

“It’s an honor to use our new legal skills…”

By: Lily Axelrod, J.D.’15

Thirty-three professors from Massachusetts law schools have signed on to an important legal opinion drafted by Harvard Law students in support of the Massachusetts Trust Act. The bill seeks to restore the immigrant community’s trust in local law enforcement by limiting the role of local police authorities in the deportation process.

Comprehensive immigration reform has stalled in Congress while the Department of Homeland Security (DHS) continues to deport large numbers of noncitizens. But states and cities are stepping up to protect immigrant communities by resisting federal deportation programs such as Secure Communities.

One such pro-immigrant initiative is the Massachusetts Trust Act. If the bill passes, Massachusetts will join California, Connecticut, and cities like New York, Chicago, Washington D.C. and New Orleans in exercising discretion about when to honor immigration detainer requests. DHS issues these requests to “hold” a noncitizen in jail even after she should be released, for example, if she is not charged with a crime or has completed her sentence.

In 2013, the Harvard Immigration Project (HIP), a student practice organization, joined a coalition of statewide immigrant community groups and national civil rights organizations devoted to passing the Massachusetts Trust Act. Students learned that in other jurisdictions, similar legal opinions were helpful in clarifying legal issues and gaining support from legislators and law enforcement officials. With support from HIP Supervising Attorney and Lecturer on Law Phil Torrey and Harvard Immigration and Refugee Clinic Director and Clinical Professor of Law, Professor Deborah Anker, the students researched complex issues from constitutional law to statutory interpretation, and drafted the letter which was circulated to local law professors seeking their support.

“It’s an honor to use our new legal skills to support a community-led effort to improve the climate for our immigrant neighbors,” said HIP Policy Committee member Lily Axelrod, JD’15.

The legal opinion clarifies that immigration detainers are not mandatory, and explains the constitutional problems arising out of enforcement of these detainers. It also emphasizes the growing nationwide consensus that de-coupling immigration enforcement from state and local criminal enforcement is both legal and crucial to ensuring public safety.

The opinion was drafted by the HIP Policy Committee, including Eva Bitran JD’14, Lily Axelrod JD’15, Melanie Berdecia JD’15, Antonia Domingo JD’15, Sarah Adkins JD’15, and Julina Guo JD’15.

The Massachusetts Trust Act Coalition will announce the opinion at a press conference on Wednesday, February 12 at 10:30 am at the Unitarian Universalist Association, adjacent to the State House. They will then deliver it to the chairs of the Judiciary Committee and the Committee on Public Safety and Homeland Security, and to the office of the Attorney General.

HIP is a student-led organization committed to providing direct legal services and policy advocacy. Law student members represent detained noncitizens in immigration bond hearings, assist with green card applications for refugees, and advocate for policies which respect human rights for immigrants.

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

 

A Canadian intern reflects on her work at HIRC

L-R: Lily Axelrod, HLS ’15 and Isabelle Sauriol, HIRC Summer Interns 2013

By Isabelle Sauriol, a 2013 L.L.B. graduate of the University of Montreal

The Harvard Immigration and Refugee Clinic (HIRC) is an intern’s dream come true. While the place is unique in and of itself – filled with natural light, welcoming photos and captivating artwork – it’s the people occupying it that make the Clinic so special. One immediately feels at home in the friendly work environment of HIRC, where laughter, opinions (and candy consumption!) are encouraged.

Working with refugees can be challenging at times, given the constant need to adapt oneself to the cultural and religious backgrounds and often tremendously difficult pasts of each client. But as HIRC Fellow Emily Leung puts it, it is first and foremost an “incredibly rewarding experience.” Professor Deborah Anker and her team have made it their mission to help out this vulnerable population by extending the limits of the law by way of amicus briefs and conferences on topics such as gender-based asylum claims and gang-related asylum, as well as by exploring creative interpretations of asylum law.

Interning at the HIRC provided me with the opportunity to gain hands-on experience with various immigration processes such as asylum, Deferred Action for Childhood Arrivals (DACA) and protection under the Violence Against Women Act (VAWA), under the supervision of two amazing lawyers, the Clinic’s own Phil Torrey and Sabrineh Ardalan. Together, we conducted interviews with asylum seekers and gathered evidence to corroborate our clients’ cases through country conditions research, medical expertise and psychological reports.  I also had the privilege of exploring some of the fascinating course material offered to HLS students, such as Crimmigration: The Intersection of Criminal Law and Immigration Law and a reading group on Trauma, Human Rights and Refugee 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.