Give me your tired, your poor… and your convicted? Teaching “Justice” to Law Students by Defending Criminal Immigrants in Removal Proceedings
University of Maryland Law Review of Race, Religion, Gender, and Class
"Why do you want to participate in the immigration clinic?" I asked the student, the fifth of twelve interviews I was conducting that spring day, as my teaching fellow and I sought to choose the incoming class of eight students for the next academic year. "I am just totally committed to human rights," she replied. Her earnestness did not leave any margin of doubt for any of us in the room. "The last two years in law school I have been looking forward to this and I am sure I am going to be a professional advocate for human rights once I graduate next year." We talked for a few minutes about her experiences abroad, her familiarity with the asylum application process and her interest in representing victims of persecution. "Well, how would you feel if I told you that one of your three clients next year is a non-citizen in danger of being deported because of multiple criminal convictions?" I asked. If she was surprised, she did not show it. Her intense, yet upbeat expression did not change. She paused thoughtfully for a moment. "Well, everyone has rights. I am sure they do, too." The "criminal immigrant" question was a regular part of my interviews. Sometimes I asked it a little bit differently, perhaps less directly, so the students would be less likely to know that I was not going to budge from assigning them a criminal immigrant client. We would then likely have some discussion about why I like them to represent this type of case. I always considered this portion of the interview to be a bit of "truth in advertising" and that it was better for the students to be sure of what type of work they would be committing to if they worked with the clinic (and were rewarded with twelve law school credits) during their final year in school. Our clinic offers a range of services to our clients. Our docket is evenly balanced with asylum applicants, immigrant victims of domestic violence and other crimes, and deportable immigrants with criminal convictions. Before I became director of the clinic, criminal cases were a less significant component of the caseload, which is why I stress the range of cases during the interview. Our law students usually have gained a bit of interview experience by the time they are wrapping up their second years. They also know that we always have a few too many applicants for our Immigration Clinic, so the interviews are part of a somewhat competitive selection process. Like candidates for any job, they are trying to get an offer. They need to earn our invitation, and then they can mull over whether the clinic is a good fit for them and accept or decline their seat. If they decline, I move on to the waiting list. It happens sometimes that the "criminal" question seems to be a turning point in the interview. Each of the last three years an applicant declined a spot in the clinic. Two of those three I predicted, based largely on their negative reactions to the prospect of having a convicted criminal on their roster of clients.
For weeks after the interviews, I had recurring thoughts of my interaction with the student who was committed to "human rights." The semester ended and with it the cyclical pressure of teaching, supervising, meeting, planning, filing, and advocating. The school year has a life of its own. I have a finite amount of time to pass on a large amount of skills and information and to prepare and supervise the students in their initial forays into litigation. The students have a large caseload, but with the pressure of court deadlines and our high expectations, they are almost always able to close out their cases or meet their expected progress by the end of the year. Entering the summer, I can decompress from the final flurry of activity and stress, discuss teaching points with peers at professional conferences, and prepare for the next go-around with the new students in the clinic.
This year, somehow, felt different to me. I sensed that I needed to better give voice to my reasons for committing my students' limited time and my clinic's limited resources to the representation of criminal immigrants. I do have reasons for this choice. I personally find the cases and clients interesting. The students regularly have very meaningful relationships with the criminal clients, if not initially, then certainly once they fully engage in the cases. I admit that I enjoy the tension of teaching in a setting where students represent innocent victims-of foreign persecution or domestic violence-and also represent perpetrators of wrongdoing. Ultimately, I thought I needed to develop a better answer for my pedagogical choices for developing capable lawyers and consider the goals of the clinic in serving our community. I needed to consider my methodology, goals, and identifiable ulterior motives. I hoped I could see some truth or at least bestow myself with some transparency about why I emphasize the need for students to defend both innocent victims and convicted criminal immigrants.
Teaching immigration defense to clinical law students is usually a very fact-intensive experience, and it is easy to get caught up in details, rather than dedicate time to considering our motivations for undertaking the work. The details can be overwhelming: students must understand, appreciate, and comply with various evidentiary requirements that differ depending on the nature of the relief sought. Each academic year brings a new group of students needing to master the legal framework and tackle the evidentiary challenges of their cases. Asylum applicants must meet strict corroboration requirements, and the cases turn on the issue of credibility.' Victims of domestic violence have similar criteria for showing the good faith nature of the abusive marriage. This is interesting and gratifying work, but the legal issues of discretionary standards and asylum eligibility are largely settled, so there is less of an opportunity for clinical students to present novel legal arguments. Advocacy for non-citizens with criminal convictions turns on issues of facts supporting a favorable exercise of discretion by the immigration judge. Standards for properly gauging the potential for discretion have been pronounced in precedent decisions from the Board of Immigration Appeals. I am interested in challenging criminal grounds of deportability and thus widening the scope of clients who are eligible for immigration relief. As a result, the immigration clinic I supervise litigates cases challenging whether the underlying convictions properly support charges in removal proceedings. This paper addresses the experiences of clinical students pursuing these tasks. Students confront unique legal challenges and also unearth ethical dilemmas when participating in the clinic. Playing off the themes of the article Can You Be a Good Person and a Good Prosecutor?, by Professor Abbe Smith, incorporating examples from recent clinical experience, and providing commentary from the Critical Race Theory movement, I address my role as a clinical teacher training advocates whose clients may be socially vulnerable, but whose cases are, on the surface, less attractive than clients in a clinic that only serves refugees and other immigrant clients who are more readily identifiable as victims. I further seek to establish pedagogical and social merits that are distinct to criminal immigration work and reflect on my own assumptions about the importance of teaching this work to students in a clinical setting. Finally, in my writing process, if not my words, I will try to objectively confront whether my attitude and approach is indicative of the "liberalism" allegedly embodied in clinical programs or if other theoretical or philosophical labels serve as more accurate monikers for our advocacy.
Michael S. Vastine, Give Me Your Tired, Your Poor and Your Convicted - Teaching Justice to Law Students by Defending Criminal Immigrants in Removal Proceedings, 10 U. MD. L.J. RACE, RELIGION, GENDER & Class 341 (2010).