Toby’s blog

Harvard Law School has a very active Immigration and Refugee Clinical Program, and we regularly bring speakers to campus to highlight related issues. Recently, I sat in on an interesting discussion on African asylum hosted by Dr. Wagacha Burton, the co-founder of Mapendo, a privately funded NGO that since 2005 has sought to identify, rescue and protect African refugees who have fallen through the cracks of traditional humanitarian efforts.

According to the 1951 Convention Relating to the Status of Refugees, a refugee is defined as “a person who has fled from and/or cannot return to their country due to a well-founded fear of persecution, including war or civil conflict.” Thus, for over half a century, the United Nations High Commissioner for Refugees (UNHCR) has sought to lead and coordinate action to protect refugees and resolve racial, religious, national, social and political conflicts worldwide.

“Today,” Dr. Burton began, “there are over 3 million total African refugees.” Among those he cited as vulnerable refugees are survivors of violence and torture; those individuals with serious threats to their lives in their country of refuge; and women at risk.

A case that has garnered particular attention over the last year is that of the urban refugees of Nairobi, Kenya where Mapendo operates the only healthcare clinic dedicated to the city’s urban refugee population of 185,000. According to Dr. Burton, “Nairobi’s refugees live unseen and forgotten. They are subjected to an abuse of human rights including lack of access to healthcare, increased risks of sexual and gender based violence, child abduction, forced marriage, and arbitrary arrest and detention.”

On the topic of solutions, Edmundson and Dr. Burton outlined the options for UNHCR. “Voluntary repatriation is the best outcome,” said Dr. Burton,” because it reestablishes ethnic communities.” Barring this option, Mapendo works in conjunction with UNHCR to attempt local integration and third country resettlement. Unfortunately, although the United States has implemented a resettlement regime that allows a quota for African refugees the quota is typically not met due to the inability of NGOs to properly mobilize the refugees. To rectify this, Mapendo refers qualified parties to the U.S. Embassies in Africa and has begun collaborating with local NGOs in East and Central Africa to research and identify at-risk populations.

Andrea Saenz, a 3L and board member of the Harvard Immigration Project, filled us on a recent event at which Jeanne Butterfield, Executive Director of the American Immigration Lawyers Association, spoke on the topic of immigration and national security.

“How does a HLS student interested in immigration find out exactly what’s going on in Washington? Like in so many other issue areas, by going straight to the source. Recently, Professor Debbie Anker’s immigration policy seminar hosted Jeanne Butterfield, executive director of the American Immigration Lawyers Association. Her visit was also sponsored by the Harvard Immigration Project, a student organization dedicated to immigration and asylum law. We invited Butterfield for her extensive experience working with the White House and Congress on immigration reform over the past few years, and she had plenty to say on the subject of immigration and security.

“There are several layers of national security that intersect with immigration, Butterfield explained, including visa security, the entry and inspection process, and monitoring immigrants while in the country. We definitely need good enforcement, she said, but ‘the political desire to ’secure the borders’ and the idea that we can do so before looking at our broken system is the heart of the contradiction Congress faces.’ She noted that she was part of a White House briefing in early September 2001, when President Bush was enthusiastic about immigration reform…before the terrorist attacks of 9/11 changed the focus to security alone.

“She also urged students to think not only in terms of national security and terrorism, but in terms of the economic security of America and its relationship with the low-paying work that millions of undocumented immigrants to. ‘To talk just about enforcement without talking about the economic factors that come into play is misleading,’ she said. Butterfield pointed out that spending on border enforcement quintupled between 1994 and 2004, but the number of undocumented people in the country doubled during that time. ‘We will be throwing money at the border until we’re old and gray and we still won’t be solving the problem,’ she said.

“Butterfield then took student questions on everything from whether a President McCain would be good for immigrants to the demise of last summer’s immigration bill to where to get good fact sheets to counteract misconceptions about immigrants (try the Immigration Policy Center, she recommended.)

“Only minutes after the class ended, someone with a very different take than Jeanne Butterfield was also speaking at the law school: Assistant Secretary Julie Myers, head of Immigration and Customs Enforcement. Armed with one point of view, a large group of us headed off to hear the other for ourselves – as always, straight from the source.”

Greta Gao, 3L and Program Chair of the American Constitution Society, wrote to us on a panel she recently helped organize entitled “The Shifting Borders of Immigration Regulation.”

“Recently, three of Harvard’s immigration law experts, including Professors Ayelet Shachar, Gerald Neuman, and Debbie Anker, gathered on a panel to discuss the shifting borders in immigration regulation based on a recent paper by Visiting Professor Shachar. In her paper, she argued that governments of high-volume immigration countries have often redefined the point at which ‘entry’ into the country is recognized by law, in order to make inspection and possible removal of the new visitors easier. Essentially, these governments are redrawing the ‘legal border’ of the country.

“Professor Shachar spoke about the traditional significance of border-crossing for non-citizens. Within the border, she said, noncitizens are entitled to more processes and rights than people who were never admitted into the country. Therefore, by redefining the legal ‘border’ not at the territorial border but sometimes far outside or far within, governments are able to restrict the set of rights traditionally available for noncitizens within the boundaries of a country. In the United States, for example, noncitizens are traditionally subjected to expedited removal without judicial review before they entered the country. New legislation, however, has extended the zone of expedited removal to within 100 miles of the border, effectively shrinking the border to 100 miles within the United States.

“While Professor Neuman largely agreed with Professor Shachar’s characterization of ‘boundary-redrawing,’ he looked at the issue from a historical angle and argued that governments, especially the U.S. government, have always manipulated the definition of a legal ‘border’ in immigration law. Thus, even though methods such as expedited removal procedures are new ‘tools’ in the government’s ‘toolbox’ for controlling immigration, the ‘toolbox’ itself is a very old one. For example, ‘parole status’ essentially allows noncitizens to enter the country but still be legally recognized as ‘standing at the border,’ thus without the protection or rights of those deemed to have entered the country. Professor Neuman cited a case from the 1920s, where a girl from Poland was refused entry to the U.S. but then ‘paroled’ into the country because World War I had broken out and she could not return to her country safely. She spent 10 years in the U.S., and her parents naturalized. She argued that she, too, should have been considered naturalized based on immigration law that existed at the time. Justice Holmes rejected her arguments, saying that as a parolee, she was deemed to have never entered the country, and the statutes in question therefore did not apply to her. This was a rather extreme example of the legal fiction of ‘the border’ being radically redrawn and then rigidly applied.

“Professor Anker, the director of the Harvard immigration and refugee clinic, drew on her work at the clinic and talked about a concrete example of the reshaping of the legal borders-the hardening of borders between the U.S. and Canada with respect to refugees. The U.S. was long considered a ‘safe third country’ for Canada to send its refugees, but recently, the Federal Court of Canada ruled that the U.S. should no longer be considered as such because refugees sent here face an unacceptable risk of being deported back to their home countries. The finding of the Court was based in part on the work done by Professor Anker and the Harvard Immigration Law Clinic.”

Starting with the incoming Class of 2011 (starting this fall), HLS students can get their 3rd year of law school tuition paid by us in return for a 5-year commitment to public service. The official announcement is here on the home page.

Here are the details on the Student Financial Services website.

It is also being covered in the New York Times and Wall Street Journal Law Blog.

We’re very excited to be the first law school in the country to do this!

The Iraqi refugee crisis looms ever larger. With 2.5 million external refugees currently living in large numbers in Jordan and Syria and another 2 million internally displaced peoples, the international response just seems inadequate to many. Refugee Program Director for Amnesty International Sarnata Reynolds and documentary filmmaker Kalyanee Mam visited HLS recently to discuss the humanitarian emergency and to screen an excerpt from her documentary “Between Earth and Sky.”

At the close of the final scene in which an Iraqi claimed to have “lost himself since the beginning of the War,” Mam insisted tearfully that more interest in the refugees has to be mobilized. “Everyone I talked to, all their stories had a common thread: their national identity has been lost… they never imagined that things, as bad as they were before the war, would be so dire now,” she said. “For Jordan and Syria, those countries harboring refugees, we desperately need more humanitarian and bilateral assistance.”

For Amnesty International, the problem is clinical. Reynolds, who also chairs the Iraqi Refugee Working Group, is working with that coalition and with Amnesty International on efforts to allow more refugees into the United States, to support refugees and asylum seekers already in the system, and most importantly, she said, to reopen Iraq’s borders.

With millions of Iraqis trapped inside the country and millions more living without adequate healthcare and education in Jordan, Syria, and several other countries, the plight is enormous. “Detention is on the rise,” said Reynolds, “and eviction is becoming more hostile as countries are fed up with the ‘protracted guest’ situation.” Furthermore, Syria, Jordan and Lebanon are not signatories to the 1951 Refugee Convention, giving refugees very little legal protection, are banned from working, and subject to changing requirements for entry and stay.

Reynolds also debunked the return of refugees to Iraq as a harbinger of better security. “The government paid each refugee $800 to return…people ran out of options and money elsewhere.” According to Reynolds, the Iraqi government has preyed on their peoples’ desperation only to welcome them back to a country in which the borders of 11 out of 18 governorates are closed. “The protection space has narrowed, and humanitarian organizations are barred due to security concerns.” Reynolds insisted that the U.S. has an obligation to spearhead the international response and begin to offer thousands more Iraqis asylum. “It’s hard for Iraqis to have hope, but they really do try… we need to honor their trust.”

One of the newer journals at HLS attracting attention, the Harvard Latino Law Review provides a forum for the scholarly discussion of legal issues affecting Latinos and Latinas in the United States. Recent articles have addressed issues including racial profiling, the English-only movement, the paradox of the alien-citizen, and the future of Latino legal scholarship.

Staffer Julia Foresman sat down recently with Editors-in-Chief Erin Archerd and Ellen Weis, both 3Ls, to learn more about the issues and the article selection process.

Erin Archerd & Ellen Weis: (8:39)

Upon taking the podium at a recent event sponsored by the Human Rights Program, Soviet Jewish historian Joshua Rubenstein took particular care in framing his discussion. “This is grim material, folks… it doesn’t get more serious and bewildering than looking at mass atrocities.” Rubenstein was referring to the release of his latest book entitled The Unknown Black Book: The Holocaust in the German-Occupied Soviet Territories, a compilation of testimonies from Jews who survived atrocities inflicted by the Germans in occupied Soviet territory during World War II.

Collected through the efforts of renowned Jewish Soviet journalists Vasily Grossman and Ilya Ehrenburg, the testimonies are firsthand accounts by survivors of the work camps and ghettos across Eastern Europe. “This book deals with the enormous scale of destruction often overlooked by Western accounts,” explained Rubenstein. Indeed, between the time of the Soviet-Nazi Nonaggression Pact of 1939 and the expulsion of the Nazis by the Red Army in 1944, it is estimated that 2.5 million Jews were liquidated in Soviet Territory. Contrary to prevailing Western belief that the Soviets denied the presence of the Holocaust in their territory, Soviet Jewish journalists began documenting survival accounts before the end of the war. “It was difficult for Stalin and the Soviets… they did not want to accept that individual collaborators were turning their Jewish neighbors over to the Germans,” said Rubenstein, “Stalin understood he needed to repair ties with the West to overcome the Nazis.”

To reinforce this relationship and to sever his relationship with Hitler, Stalin created a Jewish Anti-Fascist Committee whose mission included manufacturing propaganda aimed at bolstering the Western/Soviet alliance. Jews in the United States got behind the Soviet effort and enabled Ehrenburg to publish his Black Book. Destroyed by Soviet censors, the Book itself was not officially published until 1980. “The remarkable thing about these testimonies is that you have the account of people interviewed directly after Liberation,” explained Rubenstein, “Most other accounts are informed by events that transpired years later.”

The folks in the WilmerHale Legal Services Center just sent me a new video they did showcasing student involvement in the Center. The LSC is the home of many of our clinical programs. Take a look (you’ll need the Real Player).

I asked some of the students returning from summers in public interest to tell me about their experiences. Molly Thomas-Jensen replied with a story about the unusual things that can happen to a lawyer when she leaves the office…:

“I had a lovely summer working for the Immigrant Justice Project of the Southern Poverty Law Center. The Center has a rich tradition of pursuing civil rights for society’s most vulnerable members — and in 2004, the Center launched IJP — an impact litigation program aimed at promoting labor and employment rights for low-wage immigrant workers. IJP has done notable work throughout the Southeast — especially in the forestry industry and in post-Katrina reconstruction along the Gulf Coast. I did a variety of work relating to the Project’s ongoing litigation. The attorneys did a wonderful job of integrating interns into the life and work of the Center. We had numerous opportunities to meet local luminaries, hang out with attorneys and others after work, and to really become a part of the well-oiled litigation machine that is the IJP.

“It wasn’t until a crisis struck, though, that I realized just how lucky I’d been in finding an internship at the SPLC. In mid-July, I went on an outreach trip to rural East Georgia with two attorneys and another intern. Our hope was to conduct outreach and to lay the groundwork for return trips to the area. The towns that we visited had a significant permanent presence of low-wage immigrant workers but they also hosted many migrant workers throughout the growing season. We were, in particular, interested in speaking with women about experiences on the job that mostly affect women — sexual harassment, assault, pregnancy discrimination, and pay discrimination. One night, we went out to a trailer park outside of Lyons, Georgia where we knew that many low-wage workers lived. The four of us split up, so that we could speak to the most number of people. About a half an hour into the outreach, I stopped at a trailer where two children were home alone. After speaking to them briefly and leaving some pamphlets for them to pass on to their mother, I headed back to the road. As I walked towards the road, I heard barking and turned around just as a German Shepherd tackled and bit me. The children rushed out of the house — one went to tie the dog up. I was bleeding pretty badly and in a lot of pain. After the other intern found me, she ran and got the attorneys and we rushed to the hospital. I was lucky enough — only one bite and I had previously had a post-bite rabies vaccine, so I only needed a booster. I knew I was in good hands — the attorneys and the other intern had been able to make me laugh and kept me from thinking too much about the bite.

“The next morning, we set out to return to Montgomery. I needed to see a doctor for follow-up care, so it wasn’t until late that evening that I made it back to my apartment. When I arrived at my apartment, the other interns were there, waiting — they had cooked dinner for me, brought me flowers, and made a card. Over the next few days, they checked in frequently and made sure that I had everything that I needed. Attorneys and others who work at the Center called and emailed frequently — so frequently that at one point I had to turn off my cell phone so that I could get some work done. The experience made me realize what an amazing community the Center is and how much warmth and caring there is amongst the employees.”

1L Abbye Atkinson was very involved in putting together a recent conference. I’ll let her tell you about it:

“This past weekend, the Charles Hamilton Houston Institute for Race and Justice hosted a conference to commemorate the 150 anniversary of the Supreme Court’s ruling of Dred Scott v. Sandford. The name Dred Scott may evoke memories of high school U.S. History class where you might recall a brief reference to this landmark case as being one of the causes of the American Civil War. Indeed, the Dred Scott decision (in which the Supreme Court, in an opinion written by Chief Justice Roger Taney, held that African Americans, slave and free, could never be citizens of the US and ‘had no rights that the white man [was] bound to respect’) was a catalyst for the conflict which engulfed this country for four long and bloody years. However, Dred Scott is much more than a blip on our historical radar. It is a case rich with issues integral to how we have defined, do define and will define ourselves as Americans.

“Accordingly, the CHHIRJ, led by Executive Director, Professor Charles J. Ogletree, summoned some of the most engaging and brilliant minds (think Stephen Breyer, Cass Sunstein, Ahkil Amar, John Payton, etc.) across a range of disciplines and over one hundred elementary and secondary school teachers to gather in Austin Hall and to discuss not only the events which led to the Scott decision, but also to consider how the decision has profoundly shaped American jurisprudence and our current understanding of citizenship with its attendant rights and privileges.

“The most engaging part of the conference was its finale, a moot court re-argument of Scott v. Sandford. Before Supreme Court Justice Stephen Breyer and a panel of highly esteemed Federal Circuit Court judges, including Judge Harry T. Edwards of the DC Circuit Court of Appeals, a group of current legal scholars and lawyers presented various points of view on Dred Scott, and from varying legal, political and social perspectives, considered whether the decision was inevitable.

“One might imagine that such a re-evaluation of the issues within a 150 year old case would offer nothing more than an opportunity for reminiscence. However, 150 years on, the Dred Scott decision remains as fresh and as relevant as ever, encompassing (among other elements) constitutional issues of citizenship, jurisdiction, congressional power, and the role of international precedent and practice in American legal matters. In one particularly interesting panel, visiting HLS Professor Sarah Cleveland posited the notion that the Dred Scott decision is relevant to the current debate as to whether detainees in Guantanamo Bay are or should be entitled to seek legal redress within the US federal court system, and to what extent any subsequent privileges and remedies are or should be made available. Do we classify them as Chief Justice Taney did Dred Scott and African Americans generally, as having no rights that the United States is bound to respect? Or are we willing to extend rights guaranteed to US citizens to those who find themselves under the authority of the US government? What of immigration? How do we decide who may become a citizen and who may not? Dred Scott has much to say about this issue as well.

“Indeed, these are among several difficult problems whose correct answers remain elusive and yet to which the Dred Scott decision may be highly informative. Maybe more important than finding concrete solutions to these issues is our willingness to engage in discussions like those that this Dred Scott conference has facilitated and will continue to foster. Hopefully, those hundred or so teachers will carry this experience with them to their home schools, and will use the Dred Scott decision as a platform for educating and encouraging the next generation to think critically and creatively about solutions which will dignify and improve our nation and our world. Alas… another day at Harvard Law School!”