Via Harvard Law Bulletin, Spring 2017

They don’t all want to be immigration lawyers, but this year, hundreds of Harvard Law School students have made immigrant rights their business

Credit: Mark Ostow

It began with the stroke of a pen: President Donald Trump’s signature on a January executive order banned entry into the U.S. by people from seven predominantly Muslim countries. Travelers were detained at airports. Students were unable to return to their schools. Impending travel for an Iranian baby’s heart surgery in Oregon hung in the balance. With airports in chaos and little information about their loved ones, families separated by the executive order pleaded on camera for the opportunity to reunite, awaiting a resolution many of them were unsure would come.

Then the lawyers showed up. They arrived at Boston’s Logan Airport carrying their laptops, turning airport terminal tabletops into makeshift offices, handwriting a habeas corpus petition for each individual in need. Law students clustered around a power outlet to coordinate the effort. Within 24 hours, attorneys around the nation were questioning the legality of the president’s action.

In Cambridge, the Harvard Immigration and Refugee Clinical Program hummed with activity late into the night as students worked on amicus briefs and human rights abuse documentation for clients. Founded and directed by asylum scholar and Clinical Professor Deborah Anker LL.M. ’84, the Harvard Law program has involved students in the direct representation of asylum seekers and refugees for more than 30 years. In the wake of the November election, it mobilized to strengthen protections for that population.

More than 400 students enrolled at Harvard have now joined the HIRC-based immigration awareness effort, called the Immigration Response Initiative. Assignments range from local community outreach in the form of webinars and information sessions for undocumented people, to legal research, litigation support, and legislative advocacy. Some of the students involved in the initiative had never considered practicing immigration law. Others have been familiar with the realities of immigration since childhood. Here are some of their stories.

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Via Harvard Immigration and Refugee Clinical Program

Kim Quarantello, a member of HIRC’s Immigration Response Initiative, speaking at a Cambridge City Council meeting.

As a former Capitol Hill staffer, I was accustomed to drafting talking points. For nearly three years, I wrote “TPs” on foreign policy, defense, and veterans’ issues, including my boss’ favorite vocabulary words so that his voice would come through in press conferences and Senate hearings.

But I’d never written talking points to deliver myself until last month, when I stood up at a Cambridge City Council meeting and urged Massachusetts to end its partnership with Immigration and Customs Enforcement.

Since I became a graduate student at the Harvard Center for Middle Eastern Studies, I’ve been particularly involved in immigration issues. I started tutoring at the Harvard Bridge Program, which provides English language support to Harvard employees, most of whom are immigrants. I analyzed proposals to enhance resettlement processing and interagency cooperation for HIRC’s Syrian Resettlement Project. I also coordinated events that connected recently resettled Syrian refugees in Lowell with American students studying Arabic at Harvard.

But I never expected to put my legislative advocacy skills to work in academia until the presidential election, when immigration issues changed overnight. Along with more than 300 students at Harvard Law School, I joined the Immigration Response Initiative, volunteering to help HIRC and advocacy groups. Another former Capitol Hill staffer, Annika Lichtenbaum, and I decided to form the legislative advocacy team.

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Via Harvard Immigration and Refugee Clinic

By Jin Kim, J.D. ’18

From left: Malene Alleyne, LLM ’17, and Jin Kim, JD ’18.

When the Inter-American Commission on Human Rights began its emergency hearing yesterday, the room was packed. There were private citizens, state officials, journalists, and representatives from the civil society organizations, all there to discuss the effects of President Trump’s executive orders.

But one party was noticeably absent: the United States.

Although the IACHR invited the United States to participate in the hearing and answer questions on the effects of the executive orders, it declined to send any representative.

As members of the Harvard Immigration and Refugee Clinical Program, Malene Alleyne, LLM ’17, and I were there to testify specifically about the Safe Third Country Agreement (STCA), which allows Canada to turn away asylum seekers entering from the United States on the false premise that the United States is a “safe country of asylum.” We presented our testimony alongside five other civil society organizations, including the American Civil Liberties Union.

Despite the glaring absence of the U.S. government officials, we civil society organizations had productive conversations with the Commission. Malene and I testified that the executive orders greatly curtail asylum seekers’ ability to meaningfully pursue their claims for protection and increase the risk of deportation to countries where they face persecution or torture.

When asked for specific examples, we spoke about the climate of fear pervading the lives of our asylum clients. In some cases, our clients have even been afraid to leave their houses or report crimes to the police for fear that they will be taken into custody and deported.

The Commission was visibly moved by our collective testimony, and asked us to continue to provide information regarding the impact of the executive orders. In the meantime, until our clients feel safe, it’s our responsibility to come together as a community to stand up for those who have been targeted.

Via Harvard Immigration and Refugee Clinic

From left: Jin Kim, JD ’18, Sabi Ardalan, Assistant Director, HIRC, and Mana Azarmi, JD ’17

The Harvard Immigration and Refugee Clinical Program (HIRC) filed on Thursday an amicus curiae brief in support of a lawsuit that seeks, among other things, to prevent the Trump administration from lowering the number of refugees that can be allowed into the country.

The lawsuit, filed by the American Civil Liberties Union (ACLU) and the International Refugee Assistance Project (IRAP), challenges President Trump’s January 27 Executive Order, which halved the number of refugees allowed into the country during this fiscal year, from 110,000 to 50,000.

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Via Harvard Immigration and Refugee Clinic

Earlier this week, the Harvard Immigration and Refugee Clinical Program (HIRC) took the issue of Donald Trump’s executive orders to the Inter-American Commission on Human Rights (Commission), calling for an emergency hearing to discuss the impact of the orders on the Safe Third Country Agreement between Canada and the United States.

Under the agreement, Canada refuses to hear claims by asylum seekers entering the country from the United States on the premise that the United States is a safe third country. But as HIRC made clear in its letter to the Commission on Wednesday, “the United States is not a safe country of asylum for persons fleeing persecution and violence.”

A recent HIRC report shows how provisions of the executive orders undermine human rights and other standards governing the treatment of asylum seekers. Of particular concern are provisions calling for an expanded system of mass incarceration; expansion of expedited removal proceedings without due process; a heightened credible fear standard; an increase in the number of agents with immigration functions; and aggressive prosecution of unauthorized entry.

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By Nathan Mackenzie, J.D. ’17

Nathan Mackenzie, J.D. ’17

While most immigration cases drag on for months, my most challenging and rewarding case in the Harvard Immigration & Refugee Clinic lasted only one frantic week.

It started with a desperate phone call from one of the clinic’s former clients. Her younger sister, “Sarah”, had been detained at the border while trying to enter the U.S. She was due to be “removed” back to El Salvador within the week (“removed” is the term used in place of “deported” for people who have not been lawfully admitted into the U.S.). The former client told my supervising attorney, Maggie Morgan, that Sarah was running from MS13, one of the violent street gangs that has been terrorizing El Salvador. The gang had threatened Sarah before she fled and she feared that they would kill her if she went back. Maggie said she would do what she could. I signed on to assist.

Sarah had been in the U.S. for fewer than 2 weeks and was caught near the border, which made her subject to what is known as Expedited Removal. That meant that she could be removed without a formal hearing unless she passed a Credible Fear Screening. These brief, preliminary screenings are designed to ensure that the U.S. does not deport people who may have a viable asylum claim, as doing so would violate both international (the 1951 Refugee Convention) and domestic (the Immigration and Naturalization Act) refugee law. Unfortunately, Sarah had already had her Credible Fear interview and she had failed.

Sarah’s failure did not make sense to us. She has family members in the U.S. who have received asylum based on very similar harms. These claims involved persecution for membership in her family, for being a woman in El Salvador without male relatives to protect her, and for political opinions expressed against gangs. Despite all of terrible circumstances she had fled, the government determined that Sarah’s fear was not sufficient to form the basis of a potential asylum claim.

Sarah’s failure highlights a major issue with Credible Fear Screenings. They are brief and completed under less-than-ideal conditions. Often the questions asked do not elicit the right information from the applicant. Applicants rarely understand the contours of U.S. asylum law and almost none speak with an attorney before their interview. As a result, many applicants only tell the interviewing officer about the most pressing reason they fled. For many, those reasons are gang threats and violence, but some officials are very reluctant to approve gang claims. Asylum requires that a person fear persecution on account of their race, religion, nationality, political opinion, or membership in a particular social group. Many officials do not recognize gang claims as fitting within this definition, even though a lot of these claims are eventually successful in immigration court once they have been further developed. Additionally, these same applicants may also face other threats in their home countries that, though less concerning to them at the moment of their interviews, greatly increase the strength of their asylum claim. Without proper counsel, applicants often fail to raise these claims.

Unfortunately, Sarah encountered all of these issues in her original screening. It happened quickly and she did not have the opportunity to speak with a lawyer beforehand. She told the officer about the most pressing fear: the threats the gangs had made against her. Since these gang-related claims are not well understood, denials are common. The interviewing official did not find that the threats were connected to a protected ground. However, we had additional information, both from our own discussion with her and from speaking with her sisters, and we felt we could make a good argument for asylum based on her trouble with the gang. Additionally, we knew she had several other potential claims relating to other circumstances she faced back in El Salvador. As such, we decided to request a second Credible Fear Screening and file additional information to explain the dangers Sarah would face if she were removed back to her home country.

It was a solid plan, but we were fighting against the clock. The government could have removed Sarah at any moment. We needed more time to prepare the case, but Sarah could be removed at any moment, so Maggie called the local asylum office near the detention center where Sarah was being held. After hearing the details of the case, an asylum officer agreed to speak with Immigration and Customs Enforcement (ICE) and request that they delay Sarah’s removal until we had the chance to file our request for a second Credible Fear Screening.

Next, I met with two of Sarah’s sisters to get background and context for their family’s situation in El Salvador. They provided amplifying information on the threats Sarah faced and highlighted details that went back to before Sarah was born. I used this information to draft an affidavit that the sisters signed and that we included with our request to the asylum office. The other pieces of the request included a legal letter detailing Sarah’s several potential claims, signed forms authorizing Maggie to represent her, proof of her sisters’ grants of asylum, and other documents that supported her claims.

Finally, we needed to make sure Sarah fully understood all of requirements for asylum and the background information we had collected on her case. Even if the asylum office granted our request, Sarah would still need to assert her potential asylum claims in the second interview. To give Sarah the best chance of success, we got her on the phone along with her sisters. I outlined the requirements for asylum and the potential claims we saw in her case. Her sisters then discussed the family situation and other background information with her, stressing the importance of telling the interviewing officer everything. It was a difficult conversation, detailing all of the worst things that had happened in this woman’s life. Her sisters who had been through it before, comforted her and kept stressing the need for her to be strong so she could stay in the U.S.

This whole process happened over the course of just a few days. It had been quite hectic, consuming a lot of hours in our already busy schedules, but the seriousness of the consequences kept us motivated and we pushed through. I am so glad we did. A few days after we sent our request, Maggie received word back that the asylum office had re-interviewed Sarah. They found that she had a credible fear of persecution on account of a protected ground and agreed not to remove her before she could make a full asylum claim in front of an immigration judge. She would not be removed and would likely be released from detention to live with her sisters in Boston while she prepared her asylum claim.

This case highlights why applicants need access to legal representation prior to and during Credible Fear Screenings. Attorneys and law students can help properly frame an applicant’s case by aligning the facts with current asylum law to create a solid argument for relief. Without an attorney, Sarah’s original interviewing officer had dismissed her case without seeing the underlying political context. Had the Harvard Immigration & Refugee Clinic not intervened, the government would have removed Sarah back to El Salvador. Her case highlights that Credible Fear Screenings can mean the difference between life and death for the applicant. Sarah was lucky to have family here in the U.S. who helped her get legal aid, but many others are not so fortunate. Providing legal representation during Credible Fear Screenings would help ensure that eligible applicants receive this life saving relief as a matter of law, not as a matter of luck.