Welcome back to “Student Voices”, a new series featuring the stories of clinical students at Harvard Law School. Today’s dispatch comes from Paige Austin, a joint-degree student at Harvard Law School and the Harvard Kennedy School. She spent her winter term at the Florence Immigrant and Refugee Rights Project in Florence, Arizona for an Independent Clinical.
Spending January term at the Florence Project in Arizona gave me a fascinating opportunity to learn a very painful lesson: however bad you think the US immigration system is, it is in fact much worse.
The Florence Project works in five adult detention centers that house immigration detainees in Arizona (if immigration were not technically a civil area of law, these facilities might more aptly be called “jails”). Over half of the men and women detained in these Arizona facilities have been transferred from California, but there are also a large number who hail from nearby Phoenix, the city that Department Of Justice’s (DOJ) Civil Rights Division recently called home to “the most egregious racial profiling in the United States“.
Because there is no right to a government-funded attorney in immigration proceedings, the vast majority of detainees will appear pro se (i.e. without a lawyer) in immigration court. The attorneys at the Florence Project try to help them do that by giving weekly “legal orientation” presentations at each facility, conducted in Spanish, and then meeting one-on-one with anyone who wants legal advice on his or her case. The detainees mostly fall into two categories: there are legal permanent residents who have been placed in deportation proceedings because of criminal conviction/s, and there are undocumented people who entered the US without inspection. Within a few days of arriving, I felt confident that I could handle legal intakes with people in the latter category because their options are so straightforward. Simply put, they almost always have none.
To take an example: one of the first detainees I met was a woman in her mid-20s who had lived in the US since age three. She had three US-citizen children; no criminal convictions; and no memory of Mexico. All in all, she is exactly the type of person I had thought US Immigration and Customs Enforcement (ICE) ceased trying to deport under the Obama administration. But instead, this woman had been picked up for an outstanding traffic ticket and placed in immigration detention, where she has so far spent three months.
What are her options? She is not eligible for cancellation of removal, because for undocumented people that requires ten years of continuous presence in the US and she was already sent to Mexico by immigration authorities once five years ago (she returned to Arizona in less than three days). Regardless, the other requirements for cancellation are so onerous that the Florence Project sees very few applications granted. The chances of a Mexican national receiving asylum before an Arizona immigration judge are slim to none, though there have apparently been successful applications on the basis of sexual orientation or gender identity.
This woman had suffered significant domestic abuse at the hands of her children’s US-citizen father — but because they were not married, she is not eligible for VAWA (a form of cancellation of removal created by the Violence Against Women Act of 2000). She had reported instances of domestic violence to the police, but in order to apply for a U-visa for victims of crime she would need the police or District Attorney office to certify her application — a process that is hard enough in immigrant-friendly parts of the country, and impossible in regions where these entities have little love for immigrants. Regardless, in one of the most surprising lessons I learned at the Florence Project, immigration judges can order a person deported even if they have a U-visa application pending at ICE’s national service center in Vermont (a process that can routinely take a year).
In short, there was almost nothing she could do. And hers was one of the most compelling cases that I worked on. For hundreds of other people with whom the Florence Project meets each week, the lack of options is even more galling.
Because of this, when my fellow intern Joel Edman and I were not visiting detention facilities, we spent most of our time in the office working on Ninth Circuit briefs on behalf of legal permanent residents facing deportation due to criminal convictions. In those cases, the government bears the burden of proving the person deportable by clear and convicting evidence — so there is at least a fighting chance against deportation. Among legal permanent residents, one Florence Project attorney estimated about half of people may ultimately retain their right to stay in the US. But among undocumented detainees, an estimate of three percent would be generous. And for the rest: they leave in their wake children, family, jobs, homes, a few overworked lawyers, and a growing archipelago of privately-run immigration “detention centers” that will happily fill the beds again soon.