In early February, the Harvard Immigration and Refugee Clinical Program (HIRCP) issued a new report, documenting the more than 14,000 times that immigration detention facilities had placed migrants into solitary confinement in the last five years. “‘Endless Nightmare’: Torture and Inhuman Treatment in Solitary Confinement in U.S. Immigration Detention,” coauthored by Arevik Avedian, Harvard Law School (HLS) Lecturer on Law and director of Empirical Research Services, and partners at Harvard Medical School and Physicians for Human Rights, draws attention to the inhumane conditions many immigrants face in detention, in particular the misuse and overuse of solitary confinement many are subjected to when seeking asylum in, and entering the immigration systems of, the United States. Collecting this sort of data on immigrant experiences is but one method instructors in the immigration clinics at Harvard use to push for change.
How does one teach students to become immigration lawyers, especially in a system that is bogged down in bureaucratic capriciousness, overload, and often, inhumane practices?
Deborah Anker, a leading scholar and advocate on refugee law and its intersection with gender-based violence, founded the Harvard Immigration and Refugee Clinic (HIRC) more than 35 years ago in order to provide representation to individuals seeking asylum and other humanitarian protection. Since that time, the clinic has transformed into a wide-ranging program (HIRCP) and developed a fruitful partnership with Greater Boston Legal Services (GBLS). Both the program and clinic are now directed by Clinical Professor of Law Sabrineh Ardalan. In 2013, Assistant Clinical Professor of Law Philip Torrey founded the Crimmigration Clinic, the first of its kind, recognizing the increased need for services at the intersection of criminal law and immigration. HIRCP also houses a student practice organization, the Harvard Law School Immigration Project (HIP), where students work on immigration-related projects and policy advocacy, as well as the Harvard Representation Initiative (HRI), which provides representation services to individuals within the Harvard community facing threats to their immigration status. The scale and scope of the program and the interrelated organizations under its umbrella reflect just how complex immigration law is, and why training new immigration lawyers is so critical to meeting the growing crisis.
How does one teach students to become immigration lawyers, especially in a system that is bogged down in bureaucratic capriciousness, overload, and often, inhumane practices? In this article, we talk to some of the faculty and student leaders training the next generation of immigration lawyers to understand what’s at stake.
In the clinics
Ardalan always planned on entering human rights law. Her family had claimed asylum in the United States in the 1980s after the Iranian Revolution. When she arrived at HLS, she enrolled in HIRC, the clinic that she now directs. Despite her early aspiration to enter the field, Ardalan admits, she had a tough time finding the perfect job. It took six years before she landed a clinical teaching fellowship with HIRC. Ardalan’s interest in working in immigration—but her inability to find the perfect role—points to a larger problem for the profession: despite robust community need, there simply isn’t enough funding—and thus positions—to employ all the students who might want to focus on immigration work.
Torrey came to immigration work through law school. A clinic opened his eyes to what it meant to be a partner helping someone through their asylum process. After a brief stint with a law firm, he returned to community legal services and then eventually joined HIRC. “When I was at Greater Boston Legal Services, most of my clients had some issue with the criminal law system in addition to immigration troubles,” he says. Torrey ended up specializing in this intersection, eventually creating a track within the immigration clinic before starting an entirely new clinic under HIRCP.
Our cases are frequently not straightforward. They’re at the fault lines.
Phil Torrey, director, Harvard Crimmigration Clinc
For over a decade now, both Ardalan and Torrey have taught hundreds of students immigration law in a clinical setting. For both of them, there’s a clean break in the type and nature of the work they do, and therein the student experience and training: before and after Donald Trump’s presidency.
Before Trump became president, most of their work constituted direct representation. Individual cases offered students the opportunity to work closely with clients and learn how to navigate the often complicated immigration process with supervisors. After Trump, this work grew substantially. Torrey says, “We jumped into all different types of advocacy,” simply out of necessity. “Our cases are frequently not straightforward,” says Torrey. “They’re at the fault lines.” Lawyers in the clinics are often “trying to push the law forward” in situations where the law itself is unjust or simply not expansive enough. This means “teaching students how to work around precedent, how to challenge precedent, and how to push back against different laws that others may be less or more reticent to push against,” says Torrey.
On any given day, Ardalan, Torrey, and their clinical students are engaging in direct representation in administrative proceedings, district court, and on appeal to the circuit courts. In this post-Trump era, they are also increasingly engaging in affirmative litigation, including class action lawsuits and Freedom of Information Act litigation, as well as policy advocacy—helping to research and write the report on the inhumane use of solitary confinement being a prime example. Ardalan is also meeting with a team of students who have put together a pro se asylum application clinic in partnership with a community center in Roslindale for new arrivals from Guinea. Torrey is meeting with a participatory defense organization to talk about a student project on building a tool kit about removal proceedings and working with a student on a habeas petition.
Our work requires clients to share really vulnerable subjects, so we also teach students how to navigate those emotional spaces.
Sabrineh Ardalan, director, Harvard Immigration and Refugee Clinical Program
Seminars go hand in hand with clinical work. First-time students in each clinic must take a class in addition to their casework. In Ardalan’s immigration seminar, for instance, she teaches the law students what they need to know to work with clients—humanitarian protection, including under the Refugee Convention and the Convention Against Torture—as well as the skills and processes they need to perform the work. In one class, for example, she invites the clinic’s social worker to guest-teach trauma-sensitive interviewing, which in turn is used to inform affidavit writing—“a style more like storytelling than a traditional legal brief,” she says. “Our work requires clients to share really vulnerable subjects, so we also teach students how to navigate those emotional spaces.” Torrey’s crimmigration seminar is “pretty doctrine-heavy,” he says.
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Out of Trump’s immigration policy, of course, arose a new need: a strategic litigation and immigration advocacy class, which Ardalan and Torrey coteach, where students learn about all the different forums for advocacy and movements in the immigrant rights space. The class “really came out of all the stuff that we did in the Trump administration,” Torrey says. He continues:
During Trump, when everything was imploding, we were writing reports, we were working on different tool kits for different organizations, we were doing all kinds of different types of litigation, injunctive relief and habeas petitions, and we took on more appeals because we were also losing cases. We had to learn a whole new tool kit in terms of the kinds of things we could leverage in the immigrants’ rights space. And we realized there aren’t really law school classes that talk about that and how these different modes of advocacy can complement one another or even how they can undermine one another and what to be aware of.
Over the course of the semester, students hear from experts across the space—legal and nonlegal alike—who complement and add to Ardalan’s and Torrey’s expertise. HLS Professor or Practice Alan Jenkins, who founded the legal communications advocacy nonprofit the Opportunity Agenda, speaks to students about “leveraging strategic communications in advocacy,” Ardalan says. They also have lawyers and policymakers from the Boston Mayor’s Office and the Boston City Council’s office to explore the government policy lens; they bring in community organizers and social workers whom lawyers often work alongside to respond to community needs, recognizing that immigration advocacy requires a vast net of resources and substantive knowledge bases.
During Trump, we had to learn a whole new tool kit in terms of the kinds of things we could leverage in the immigrants’ rights space.
Phil Torrey
Indeed, teaching students to collaborate—with legal and nonlegal organizations—is an essential part of the clinical experience. HIRCP’s recent report on the use of solitary confinement, for instance, “builds on our interdisciplinary approach to advocacy,” says Ardalan. “Solitary confinement is an issue that cuts across health and law, and sometimes when you write a report, the odds of it gathering dust on the shelf are huge, so it’s important to collaborate with organizations like Physicians for Human Rights that know how to engage in advocacy to get traction,” she adds. Both clinics also often refer cases to law firms and partner with them in affirmative litigation; they also work with nongovernmental organizations, government, small firms, and more. “I think it’s important to work with organizations that understand and occupy different spaces. We’re obviously sitting here at Harvard, which is very different from an organization that is based in an immigrant community. So we try to take our direction from those organizations when we come onto a project in order to figure out what our role in this space should be,” says Torrey.
The Harvard Immigration Project
Jesus Carreon always knew he wanted to go into immigration law. He had migrated from Mexico when he was seven and grew up in California in a largely immigrant community. Now as a 2L at Harvard Law School, Carreon is copresident of the Harvard Immigration Project (HIP), which students can join their first year on campus. For Carreon, who also worked as an immigration paralegal between undergrad and law school, HIP has been particularly meaningful, helping him and others “stay connected to why they came to law school” amid all the required doctrinal courses. Indeed, sharing his “why” has been particularly powerful for Carreon. He says:
Part of my decision to immerse myself in this field as early as 1L year extends further than being surrounded by a large immigrant community in California. I, too, was impacted by immigration policies in my upbringing. I am currently a DACA [Deferred Action for Childhood Arrivals] recipient, and it feels imperative to be able to impact someone in the same way I have been impacted. HIP allows me to stay grounded and truthful to my passion for immigration law, because I know all too well about the inherent struggles an immigrant faces.
While the student organization has a supervising attorney, HIP is also a great forum for peer-to-peer learning. Since Carreon came to law school with a longer exposure to immigration law, both personally and professionally, it’s been energizing and important for him to share his expertise and passion. Indeed, he says, being open about DACA is critical for him as he hopes to be a “better advocate in this space.”
In his first year with HIP, Carreon worked on the HLS chapter of the International Refugee Assistance Project, focusing on “expanding the reach of a policy that allowed Central American children to migrate.” In this, the students were concentrating on strategic communications—a necessary part of doing immigration work that does not always involve the law. Others in HIP work on projects around policy or community engagement. The group also supports robust programming, bringing speakers to campus—such as Lucas Guttentag, founder of the ACLU Immigrants’ Rights Project—so that students might learn about different impactful work in the arena.
Carreon is now also in his second semester with HIRC, where he is both learning substantive immigration law and practicing the skills that will be necessary to be an immigration attorney. Last semester, he learned how to process asylum claims while representing clients directly; this semester, he is representing individuals in bond hearings. Still, he says, “HIRC teaches you a lot of things that aren’t necessarily about legal standards.” He marks his growth as a student and future immigration advocate by asking questions like, “How can you be more empathetic to people?” or “How can you have really, really sensitive conversations about probably some of the most traumatic events in someone’s life and do so in a way in which you’re not probing into their trauma, but also you’re getting the things that you need in order to make sure that they get the relief that they deserve?”
Throughout the clinical experience, both Torrey and Ardalan have to balance the robust representation of their clients with teaching students. Legal work—much less immigration legal work—often does not fit into the usual confines of the semester. This is the situation for one such case Torrey and his Crimmigration students have been working on for years, Sharma v. Garland, in which the clinic is arguing their client should have “derived citizenship” given his mother’s naturalization. Two students worked on a cert petition arguing that the Supreme Court should hear the case, focusing on statutory arguments and gaining the experience of writing for the highest court of the land, while previous students were able to learn about presenting oral arguments in the First Circuit.
In choosing their projects Torrey and Ardalan have to think broadly about community need alongside their expertise. “What’s our added value in this?” Ardalan will ask. For instance, Ardalan is working with students on a habeas application for an individual with severe mental illness. They first became involved with the individual after working on his appeal to the Board of Immigration Appeals “because that was an area that we had some expertise in, and now we’re trying to get him released from detention in part for those same reasons,” she says. But, again, the timeline didn’t fit a school schedule. “Immigration proceedings are so unpredictable,” she says, “but when we took this project on, it was a fall semester project and it just continued on into the spring.” Each semester, Ardalan and Torrey may have some returning students, but an entirely new team may jump into the work. To decide what to work on, Torrey asks, “Is it something that we can use to teach students how to do this work?” alongside “Are we adding value in a space that needs filling?”
[We hope students remember to] remain persistent in the face of systems that seem so oppressive.
Sabrineh Ardalan
Regardless, when HIRC or Crimmigration do decide to take a case or project, they often require “creative lawyering,” says Torrey. For Ardalan, that means “making arguments where there’s just a dearth of law—there is no actual precedent.” What do you do? “You have to draw on all the persuasive things you can from international law or other jurisdictions or agency guidance,” she says.
When students finish their semester or year and graduate and go on to great things, the takeaways from immigration lawyering have nothing to do with the law. It’s about remaining “persistent in the face of systems that seem so oppressive,” says Ardalan, “and more important, sitting with clients, hearing them, and treating them as humans,” with empathy and compassion, in a system that can be incredibly dehumanizing.
“Our clients deserve zealous and creative and hard advocacy in the immigration proceedings that they’re in,” says Torrey. “I really try to teach our students we’re all in a community and we all deserve to be treated with dignity and respect.”
