law

Gone in the Night

A student-run clinic helps bring justice to immigrants unfairly detained

by John Bringardner / GSAS ’03

It was 4:30 am, hours before the sun would rise, but the buzzer kept buzzing and the intercom was broken, so Clara hit the button that unlocked the apartment building’s front door. It must be an emergency, she thought.

Clara stepped onto the landing in her pajamas. A team of six armed Immigration and Customs Enforcement (ICE) officers marched up the stairs and flashed a warrant for her sister, Maria. Clara, a lawful permanent resident originally from Guatemala, didn’t think she could prevent the officers’ entry, even though Maria wasn’t there. Shining their flashlights around the darkened apartment, the officers found several members of Clara’s extended family, including her brother, Erick. When they couldn’t produce documents showing that they were legally in the United States, the officers handcuffed and herded them into a van. They drove Clara’s family around Englewood, New Jersey, as the officers made another raid, and then another, before taking them to a detention center.

That March 2007 arrest triggered a Fourth Amendment legal battle over Erick’s potential deportation. But the case saw a major turning point in September 2012, more than five years after the raid, when Nikki Reisch (LAW ’12) and a team from the NYU School of Law Immigrant Rights Clinic won a precedential ruling from the Third Circuit Court of Appeals. The ICE officers—and “Operation Return to Sender,” the wide-reaching sweep of illegal immigrants they were carrying out—had crossed a line. The decision helped clarify for the first time when ICE officials’ conduct may constitute the kind of “egregious violations” that would prevent them from detaining and deporting individuals they picked up in mass dragnets, a panel of Circuit Court judges said.

Erick’s is one of dozens of high-profile cases taken up in recent years by the immigration clinic, which has gained a reputation for digging in on particularly challenging legal questions. NYU professor Nancy Morawetz (LAW ’81) and Michael Wishnie, now co-director of Yale Law School’s Worker and Immigrant Rights Advocacy Clinic, founded the clinic following a 1996 immigration reform bill that drastically altered the legal framework for immigrants in the United States, both legal and undocumented. The bill’s most significant change was to lower the bar on fairness hearings, Morawetz says. Previously, almost all deportations had to be approved in a fairness hearing, at which an immigration judge would review the individual case and any potential mitigating factors. The reform, she says, turned it into a “one strike and you’re out” system.

In just his first three years in office, President Obama deported more people than President Bush did during his entire tenure.

The law clinic fights back on two fronts, assigning its two dozen students both individual legal cases and larger advocacy issues over the course of the year. Rather than simply partner with pro bono attorneys, or handle only discrete pieces of a case, the students are the main drivers, and their journeys through the system can lead from immigration courts all the way to the Supreme Court—where an amicus brief they drafted recently helped convince a majority of justices that lawful permanent residents with minor convictions in their past could leave and reenter the United States without risking their immigration status. “Just the sheer difficulty of the cases and having the students understand what it means to represent a client is important,” says Alina Das (LAW ’05), who co-directs the clinic with Morawetz.

Das says one of the most common issues they see is a marijuana conviction that results in the threat of deportation. The “Secure Communities” initiative, launched under George W. Bush in 2008 but greatly expanded under President Obama, was described to the public as targeting serious convicted felons for deportation. It’s the kind of policy that may sound like common sense. But in practice, the initiative unfairly preys on a broad swath of people with low-level offenses, Morawetz says. Stop-and-frisk policies that target communities of color often net young people who have no idea that, when they plead out of a low-level possession offense, they are being treated as drug traffickers—and risk being kicked out of the country for something that would otherwise warrant little more than a slap on the wrist for a citizen. “The law in practice is totally different from what it sounds like as a sound bite,” Morawetz says. “The simplest conviction can put a person’s entire life in jeopardy.”

In 2012, the United States deported a record number of people and spent nearly $18 billion on immigration enforcement, more than was spent on the FBI, DEA, and ATF combined. Following 9/11, enforcement became a major government funding priority, but in just his first three years in office, President Obama deported more people than President Bush did during his entire tenure. Das says that the Obama administration appears to be pushing current laws to an extreme as a way to show anti-immigration hard-liners that he’s tough on enforcement, in order to create a political opening for reform.

Several “generations” of students have represented Clara’s brother, Erick, since his initial immigration hearings—all the way through ICE’s decision not to pursue removal proceedings and to seek closure of his case, which occurred in August. It’s a reminder of the patience required in these efforts. In fact, during Das’s first week teaching at the clinic, in 2008, a case that she first worked on as a student was finally resolved, the end of an eight-year battle. “It was incredibly rewarding for the students and our client,” she says, “but you have to fight so long and so hard for it.”