August 12, 2013
Last spring, Kellie MacDonald ’15 and four other students in the Harvard Immigration Project suddenly found themselves with two weeks to prepare for a very serious case: their client, an undocumented worker from Brazil, was picked up by U.S. Immigration and Customs Enforcement, placed in detention, and faced an impending deportation hearing because he’d pleaded guilty a few years earlier to drunken driving.
Like a growing number of immigrants, the man—a popular and hardworking employee in a local restaurant—found himself confronting the severe immigration consequences of a criminal record, a dilemma central to a legal area called “crimmigration.” The deportation hearing would determine whether he would be on his way back to Brazil or able to stay and petition for legal status in hopes of remaining in the U.S.
Over the 14-day period, each student put in over 20 hours on the case. They met numerous times with their client in a Boston jail and gathered court documents on his criminal case. They went to the restaurant and collected more than 25 letters of support from his coworkers and commendations he’d received numerous times as employee of the month. They prepared affidavits showing he’d shown up for all his criminal hearings, was contrite, and had complied with his sentence. One student was designated to present the oral argument before the immigration judge, and the others helped him frame and practice his argument. Their intensive efforts were successful—the judge released him on bond. It marked the third success last year by students in the Harvard Immigration Project Bond Hearing representation project.
“It was the best thing I did my entire 1L year,” says MacDonald, who’d worked as a paralegal at an immigration law firm after college and chose HLS in part because of the opportunities available through the Harvard Immigration and Refugee Clinic and the related the Harvard Immigration Project student practice organization. “It reminded me of why I came to law school, that I wanted to work with people on tackling problems that can produce tangible results.”
Crimmigration is a burgeoning legal area, and one that is of great interest to students, according to Phil Torrey, who supervises the Bond Hearing Representation project and this fall will be offering a new clinical course on the topic.
A criminal record involving even minor charges can have very serious immigration consequences for non-citizens. Torrey has seen noncitizens facing deportation over convictions for such things as trespassing in a park or jumping a turnstile on the T.
“These cases are challenging because the law around who is eligible for immigration relief when there is criminal activity in the past is really difficult to navigate, and the avenues for relief are really limited even for people who have very strong claims for immigration relief,” says Torrey, who worked on a number of crimmigration cases as a legal fellow at Greater Boston Legal Services before joining HLS. “It’s an area that’s continuing to grow and will continue to be an issue for a while, so educating our students—as lawyers of tomorrow—is really important.”
Once released on bond, the client still faces an uphill battle, Torrey explains: lawyers can try to get the underlying criminal conviction reversed or try to get it vacated on the grounds that the defense attorney didn’t inform the client of the potential immigration consequences of pleading guilty. In 2010, the U.S. Supreme Court ruled in Padilla v. Kentucky that criminal defense attorneys must inform their clients of the deportation risks of pleading guilty. But the requirement of such notification may only apply to pleas entered after Padilla was decided; for someone with an older criminal record, there is much less hope.
Under Torrey’s supervision, students in the crimmigration course will limit themselves to providing information to detainees, since the clinic doesn’t have the capacity for them to provide representation at this point. Students in HIP work only on the bond hearings, seeking to get their clients released from detention so they can seek lawful immigration status by petitioning for political asylum on other grounds.
Esther Mulder ’14, helped Torrey develop the crimmigration course, which will have three components: an historical look at crimmigration law, the study of blackletter crimmigration law, and policy analysis of whether the law works and other potential solutions to the problems it’s trying to address. “Lots of criminal defense attorneys don’t know about the immigration issues their clients face so I thought it would be one good area to become expert in,” says Mulder, who is working this summer for the Public Defender Service for the District of Columbia. As a member of the Harvard Legal Aid Bureau, she has had several clients with immigration issues, where she said her knowledge proved valuable.
“Crimmigration is a really important subset of immigration law that affects millions of people a year, so we at Harvard are really lucky to have an expert on that,” says Lily Axelrod '15, who is working as an intern at the immigration and refugee clinic this summer, and is enrolled in the crimmigration course for the fall. She, like MacDonald, chose HLS in part because of the immigration and refugee clinic’s reputation. “HLS is a leader in clinical education and teaching immigration-related courses, so I am definitely very excited.”
Read a Q&A with Phil Torrey on the blog of the HLS Office of Clinical and Pro Bono Programs.