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Public Interest Law: A Life-or-Death Difference

by Michele R. Pistone

Summer 2002, Vol. 65, No. 2

As any school child can tell you, William Penn founded Pennsylvania as a refuge for Quakers who were fleeing religious persecution in Europe. Soon thereafter, Pennsylvania's reputation as a refuge for religious and political refugees grew. Successive groups of religious minorities-including Mennonites, Moravians, Schwenkfelders, Inspirationalists and Amish-also sought refuge in Pennsylvania.

Asylum Seekers in Custody
Refugees fleeing religious, political and other forms of persecution still come to Pennsylvania. But their treatment upon arrival is radically different from what it was in Pennsylvania's early days. Today, many asylum seekers who are taken into Immigration and Naturalization Service (INS) custody are detained in county jails across Pennsylvania, which rent bed space to the INS.

Presently the York and Berks county jail systems are among the ten largest county jail facilities used across the United States by the INS. Pursuant to INS direction, more than 1,000 immigrants are detained in jails located in those two counties alone. The INS also rents bed space in other county jails across Pennsylvania, including facilities in Snyder, Pike, Carbon and Montgomery counties.

According to a recent report by the Pennsylvania Institutional Law Project, more than 1,900 non-citizens are in custody in county jails in our state. Between seventy and eighty percent of detained immigrants do not obtain legal help with their cases. Because they are detained, immigrants are often invisible to the legal bar. This invisibility is costly for the detainees; studies show that the likelihood of success in immigration proceedings increases by five times when the individual is represented by counsel.

The lack of success by unrepresented immigrants is understandable given that asylum seekers often do not speak English and lack knowledge of our legal standards and culture. In addition to the stress of being held in detention, their problems are compounded by the fact that refugees often suffer from trauma-related illnesses that make it difficult for them to represent themselves.

For example, one case recently heard in Immigration Court in York County involved a woman from Africa who was repeatedly raped and beaten by a rival political faction while her children looked on. These traumatic events were difficult for her to even talk about, much less fit into a coherent legal theory. As with many survivors of extreme trauma, she wanted to avoid memories of the trauma and had little ability to concentrate. Without legal representation, she almost certainly would not have prevailed at her asylum hearing. Her lawyers likely saved her life.

In the case of asylum seekers and others fleeing persecution in their home countries, the consequences of failing to prevail are often this stark; a lack of legal representation can mean the difference between life in the United States and death, torture or other forms of persecution upon return to the home country.

What Is Asylum Protection?
Asylum is an immigration status that the U.S. government confers on people who have fled persecution or have a well-founded fear of persecution in their home countries because of who they are (their race or nationality), what they believe (their religion or political opinion), or the social group to which they belong. By definition, asylum seekers are fleeing government oppression, so they usually arrive without proper documentation that would permit them to enter legally. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, when immigrants arrive at an airport or the border without proper documentation, the INS is required to take them into custody. Asylum applicants without documentation are usually held in detention pending the adjudication of their asylum claim before an administrative law judge in Immigration Court. Under this system, asylum seekers can spend months in Pennsylvania county jails awaiting their hearings. The existence of these detainees, however, is largely invisible to the local community and bar.

At Villanova University School of Law, we are reaching out to that otherwise invisible community. I direct a legal clinic in which Villanova law students obtain course credit while representing non-citizens detained in York and Berks county jails. The law students travel weekly to the jails to interview their clients, and at the end of the semester they present their clients' cases at hearings before the Immigration Court in York County. The students report that it is one of the most rewarding experiences at law school.

Opportunity for Lawyers
As it is with students, the pro bono representation of an asylum seeker can also be one of the most rewarding endeavors for lawyers. Without legal representation, asylum seekers face substantial obstacles to establishing eligibility for protection. Representation of an asylum seeker is therefore one of those occasions in which a lawyer's presence in a case can truly save someone's life.

As an added benefit, the cases are exciting and offer opportunities for lawyers to hone interviewing, drafting, research and litigation skills. Interviewing a political activist or other refugee from a foreign country involves learning the client's life story, learning about his or her beliefs and how the client fought for those beliefs, and what made him or her leave family, friends and livelihood to seek safety in the United States. After learning the story, the lawyer then assists the client in preparing a written statement detailing the facts that support the grant of asylum protection and prepares an asylum application. The application involves telling the client's story in a way that supports the grounds for protection and presenting the legal theory to the court in the form of a brief or memorandum of law.

The lawyer also collects background information about relevant human rights conditions in the client's home country to submit to the court as corroboration of the client's claim and, if available, information corroborating the particular facts of a case. There are also opportunities to work with expert witnesses, such as political scientists, who can be asked to testify about the country conditions. Similarly, physicians or mental health experts can testify about mental and physical signs of abuse or trauma that the client exhibits. Finally, at the hearing in Immigration Court, the lawyer can hone trial skills such as direct and cross-examination, preparation of opening and closing statements and the introduction of documentary evidence.

Asylum cases can require substantial creativity. For example, asylum cases based on domestic abuse traditionally have been disfavored, as they have been perceived as not fitting neatly into the five statutory grounds of persecution based on race, religion, nationality, membership in a particular social group or political opinion. My students recently faced this problem in a case involving a woman from East Africa who was fleeing from her politically influential husband after she suffered from domestic violence for nearly twenty years. Two students from the clinic worked on her case. They successfully gained asylum for their client based on a creative religious persecution argument. The students noted that the client and her husband had differing opinions of the Koran. While the woman liberally interpreted several key verses of the Koran, her husband maintained strict, orthodox beliefs and based his mistreatment of her on those beliefs. Now, five months after she was granted asylum, the client has settled in a small town near Lancaster, Pennsylvania. She is in the process of finding a job and applying for her children to join her in the United States.

Through grants by local county bar foundations and the American Bar Association, three nonprofit organizations-Hebrew Immigrant Aid Society (HIAS), Nationalities Service Center, and Pennsylvania Immigration Resource Center (PIRC)-collaborate to provide legal resources and representation to detained asylum seekers. But they do not have sufficient staff or resources to assist everyone who needs help. That is where pro bono lawyers can help. Members of the Philadelphia bar can volunteer their time to these organizations to assist in representing detained asylum seekers and other immigrants.

After helping our clients gain asylum protection in the United States this fall, I told my law students that the asylum process represents America at its best. After the September 11, 2001, attack on the United States and its values, it is particularly rewarding to play a role in obtaining protection for someone who has fled to the United States precisely to secure for himself religious and/or political freedom, values that most would say lie at the heart of our democracy.

Information for Volunteers

If you are an attorney or law student interested in assisting asylum seekers, contact any of the following organizations:

Catholic Social Services
227 N. 18th Street
Philadelphia, PA 19103
Phone: (215) 854-7010

HIAS and Council Migration Service of Philadelphia
2100 Arch Street, Third Floor
Philadelphia, PA 19013
Phone: (215) 832-0900, Ext. 0906

Lutheran Children & Family Services of Eastern Pennsylvania
231 N. 63rd Street
Philadelphia, PA 19139
Phone: (215) 747-7500, Ext. 209

Nationalities Service Center
1300 Spruce Street
Philadelphia, PA 19107
Phone: (215) 893-8400

Pennsylvania Immigration Resource Center (PIRC)
3214 East Market Street, No. 5
York, PA 17402
Phone: (717) 600-8099

Philadelphia Volunteers for the Indigent Program
42 South 15th Street, 4th floor
Philadelphia, PA 19102
Phone: (215) 523-9550

PRIME-Ecumenical Commitment to Refugees
360 N. Oak Avenue, Suite B
Clifton Heights, PA 19018
Phone: (610) 259-4500