Outside the Classroom

Safe Harbor

Winning asylum for refugees from persecution

By Elaine McArdle


Tsar Fedorsky

Professor Deborah Anker LL.M. ’84, HIRC director, with Gianna Borroto ’11, Defne Ozgediz ’11 and Sabrineh Ardalan, clinical instructor. Students in Harvard’s Immigration and Refugee Clinic take on about 50 asylum cases per year, as well as appellate work, including in the Supreme Court.

After countless hours of interviewing their client, digging through documents and working with experts to prepare for two court hearings, students in the Harvard Immigration and Refugee Clinic got what they were after: a grant of asylum.

Their client was a 25-year-old from the Democratic Republic of Congo—a man not much older than they are—who had been violently beaten by youths in his neighborhood in Congo, because he is gay and dared to think that gay people should be treated equally. When the decision from the judge came in the mail—asylum granted—the young man was ecstatic. That would have been reward enough for Lauren Kuley ’10 and Connor Kuratek ’10.

Then came a note from the young man’s mother, who now lives in Kenya. “[T]hank you so much for the great work successfully done in your efforts towards granting my child permanent stay documents in the USA,” she wrote. “May God Almighty bless you forever.”

Under the direction of Clinical Professor Deborah Anker LL.M. ’84, students at the Harvard Immigration and Refugee Clinic work on about 50 asylum cases a year, as well as other cases such as family reunification, visas for people who’ve cooperated with American law enforcement, special immigrant juvenile cases, and appellate work, including in the U.S. Supreme Court. For the past 25 years, the clinic has been a leader in developing the law of refugee status in the U.S., through client representation, federal court litigation, international and domestic advocacy, and training of students and adjudicators. Students represent clients from around the world fleeing life-threatening situations.

Immigration law has developed enormously over the past decade, with HLS students deeply involved in that evolution. “Many issues related to persecuted groups, like women, children and members of the LGT community, are surrounded by ambiguity still, and we are deeply involved in developing a rule of law culture in the administrative and judicial arenas,” says Anker, author of the forthcoming major treatise “Law of Asylum in the United States.”

“That clinical was the most valuable learning experience I had at Harvard,” says Kuratek, who is now an associate at Davis Polk in New York City, where he also does pro bono asylum work. “We had responsibility to decide the course of this individual’s life. It made me see the human side of the law, and how powerful we can be as students.” Kuratek says of receiving the letter from the client’s mother: “That’s when it really hit me what it meant to him and his family—and to future asylees who are in his situation.”

Kuley and Kuratek worked on the case last year under the supervision of clinical instructor and lead attorney Sabrineh Ardalan. They interviewed the man extensively to prepare his affidavit, as well as his mother, by telephone in Kenya. They also found and interviewed experts who submitted affidavits supporting their assertion that homosexuality is severely punished in the DRC and Kenya. “The affidavit was a significant part of our work since that is the foundation of the client’s case and the centerpiece for his testimony. It has to develop into a legal theory while remaining true to the client’s voice and to the details he’ll be able to recall on the stand,” Kuley explains.

HIRC had filed for asylum for the man based on his membership in a particular social group—based on his sexual identity—and because of his political beliefs that gays should be treated equally by the DRC government. For almost two decades, U.S. law has granted asylum because of persecution related to sexual identity, but there have been challenges related to proof and country conditions, Anker notes. “Refugees rarely flee with corroborative evidence, and such evidence is hard to produce,” she says. The DRC case was particularly difficult because there is little documentation from the U.S. State Department supporting the contention that gays are persecuted there; indeed, the judge in the Boston immigration court seemed skeptical of the man’s claim.

The students stayed in Cambridge last December, long after the fall semester ended and their friends had flown home for the holidays, to represent their client at a Dec. 23 hearing. The witnesses had to be lined up and prepared for testimony (some by telephone). Kuley and Kuratek also conducted the direct examination of the client.

In April, the man’s mother flew to Boston to testify that her son was persecuted because he was gay; she described taking him to the hospital after one assault, because he was in such severe pain. Kuley delivered the closing argument. But for months, they had no answer from the court. Finally, in September, they learned that their client was granted asylum.

Says Kuley, who is now clerking for Judge Karen Nelson Moore ’73 on the 6th Circuit Court of Appeals, “I witnessed how important to the case it is to develop a good rapport with the client. I think our client was better able to tell us his story, both in preparing for court and in front of the judge, because he knew us and trusted us. Sabi and Debbie did a really great job showing us how to develop that kind of respectful and congenial relationship with him.”

And, she adds: “It was also a lesson in the value of persistence.” After the December hearing, the students were worried about the outcome. But after a pep talk from Anker, Kuley recalls, “we came back even more prepared the next time. In immigration cases especially, preparation makes a big difference—I think it communicates credibility and sincerity to the judge—as does trying lots of different angles and legal theories since the immigration judge has so much discretion.”

Students working in the Harvard Immigration and Refugee Clinic landed another victory in June 2010 when a young woman from Guatemala, who escaped with her two young children from a man who had repeatedly tortured all three of them, was granted asylum. Under the supervision of Ardalan, clinical students Defne Ozgediz ’11 and Gianna Borroto ’11 spent last spring developing her case. The woman sought asylum in the United States on the basis of gender and beliefs—her partner brutally attacked her because she believed in equal rights for women and because she insisted on her right to independence: to run her own business and not to submit to his sexual and physical abuse and control. She feared she and her children would be killed if forced to return to Guatemala.

The case touched on an issue of significance to HIRC and, in particular, to Anker, who has been a prime mover in urging legislative and regulatory reform. Since 1986, due in significant part to the work of the clinic under Anker’s direction, the federal government has recognized that violence against women is persecution—a serious human rights violation—that can be the basis for an asylum petition. In 1995, the clinic drafted historic federal asylum law guidelines, which served as international precedent. But these guidelines still are not consistently applied at the local level, and the clinic, in conjunction with its partners at Greater Boston Legal Services, has continued to push for their uniform application, filing amicus briefs, training asylum officers and working with congressional staffers.

The students met with the woman weekly to learn the details of her life in Guatemala, which they presented in an affidavit along with her petition for asylum. Borroto served as interpreter for the client, who speaks mainly Spanish, including at meetings with a therapist to discuss the abuse she and her children had endured. The students also researched cultural and political conditions in Guatemala, gathering news stories on domestic violence, machismo and “femicide.” They worked with Ardalan to develop the theory of the case, prepared the client to testify at an interview before an asylum officer and represented her at the interview, under the supervision of Anker and Ardalan. Two months later, in June, their client received the news she’d dreamed of: asylum status in the U.S. for herself and her children.

“The moment I realized our client would never have to go back to Guatemala, and that she and her kids were going to have a good life here, was one of the most moving moments I’ve had while in law school,” says Ozgediz.

“I had the chance to develop my legal writing skills by working on the client’s affidavit, while at the same time getting client contact with our weekly interviews,” says Borroto, who is considering going into immigration work after graduation, perhaps with a focus on policy. “It was difficult to ask her about these experiences, but through the interview process we formed a relationship … and she began to feel more comfortable sharing these details with us.”

Adds Ozgediz, “The clinic gave us an opportunity to take on a great deal of responsibility in a case where our client and her kids had their whole lives at stake. Classroom courses teach us about different areas of the law, but this let us see what it is like to be an immigration lawyer and serve a client in a way that a classroom education can’t.”


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