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John Harvard's Journal

“Crimmigration”

July-August 2018

Phil Torrey

Photograph courtesy of Phil Torrey


Phil Torrey

Photograph courtesy of Phil Torrey

“It often happens,” says Phil Torrey, managing attorney of the Harvard Immigration and Refugee Clinical Program (HIRC), “that I’ll get a phone call from criminal-defense counsel somewhere random in the country, like the one last week I got from Tennessee. The lawyer says, ‘Hey, I’m about to go into the courtroom, here’s the plea deal that’s on the table—and my client’s not a U.S. citizen. What’s gonna happen?’” Torrey is addressing the four law students in his “crimmigration” clinic, who are learning how to advocate for criminal defendants who are not American citizens. A complex tangle of state and federal offenses—from petty theft to murder and drug crimes—can lead to detention or deportation for non-citizen immigrants, even those with green cards who have lived in the country for many years. 

“Crimmigration”—the intersection of criminal and immigration law—is the newest policy area for HIRC, one of oldest clinical programs at Harvard Law School (HLS). In addition to its broader Immigration and Refugee Advocacy clinic, HIRC offers Torrey’s crimmigration clinic in the spring: an opportunity for students to gain direct experience working on and contributing to case law in this young field. When she co-founded HIRC in 1984, says clinical professor of law Deborah Anker, it “was at the bottom of the pile”; immigration issues were barely recognized as a subfield of law. But student interest has spiked since the 2016 election, and now, she says, the Immigration and Refugee Advocacy clinic has one of “the longest waiting lists among [HLS] clinics—about 100 students.” 

As Nancy Kelly, a clinical instructor and lecturer on law, puts it, Donald Trump “ran on a platform of immigrants being criminals, and now he’s doing his best to make that a reality.” Crimmigration reflects, on one hand, an increase in the number of crimes that can result in deportation, and on the other, a push among immigration opponents to create ever more crimes for which to prosecute immigrants. For example, entering the country without inspection is already a crime, but the recent Republican immigration bill, the Securing America’s Future Act, would have made it a federal crime to be in the United States without a valid immigration status, thereby criminalizing the estimated 11 million undocumented immigrants in the country.

 

The U.S. criminal and immigration systems used to be almost entirely separate: criminal violations didn’t have immigration consequences, and vice versa, so immigrants convicted of burglary were sentenced in the criminal-justice system, but didn’t face loss of immigration status and deportation. In the last few decades, though, Congress has created an ever-growing list of crimes that can get both legal and illegal immigrants kicked out of the country. Today, immigration-related cases make up the largest category of federal prosecutions (more than drug crimes, white-collar crimes, or violent crimes). 

During the Reagan administration, the Anti-Drug Abuse Act introduced the concept of “aggravated felony”—a crime that could get a non-citizen deported immediately. But a crime doesn’t need to be either aggravated or a felony to qualify: “aggravated felony” does cover brutal crimes like murder and rape, but has also been expanded over the years to include things like failing to appear in court, theft, or falsifying a tax form. Because aggravated felonies trigger deportation regardless of how long immigrants have been in the United States, mandates that the accused be detained, and makes them ineligible for asylum and certain procedural protections (like a hearing before an immigration judge), the category is considered especially severe. But Congress has also designated many other types of convictions that can subject immigrants to deportation, including “crimes involving moral turpitude.” 

In the 2006 article that originated the idea of crimmigration, assigned in Torrey’s course, Juliet Stumpf of Lewis & Clark Law School argued that “Both criminal and immigration law are, at their core, systems of inclusion and exclusion….Viewed in that light, perhaps it is not surprising that these two areas of law have become entwined. When policymakers seek to raise the barriers for noncitizens to attain membership in this society, it is unremarkable that they would turn to an area of the law that similarly functions to exclude.” Both criminal and immigration law deem certain categories of people undeserving of rights belonging to everyone else: felons, for example, aren’t allowed to vote, and their movement is restricted. The Obama administration gambled that by embracing a strategy of deporting “felons, not families,” it could create a positive image of “good” immigrants in the public imagination—particularly the “Dreamers,” some 800,000 young people brought into the illegally country as children. But the flip side of DACA (Deferred Action for Childhood Arrivals) made it easier to create a class of immigrants—those with criminal records—who were deserving of deportation. The Trump campaign picked up on that narrative to further link immigrants with criminality, a link that’s been used, with the pending repeal of DACA, to pull the rug out from under the “good” immigrants, too. 

Crimmigration as a school of thought, a community of lawyers and scholars writing about the criminalization of immigrants, calls for decoupling crime from a person’s immigration status; deportation amounts to an additional punishment, they argue, exacted only on non-citizens. “I’m definitely of the mind-set that the criminal-law system and the immigration system should be completely divorced from one another,” Torrey says. Barring that, he says, the immigration-court system that determines whether a person can stay in the United States needs reform. “What the immigration system should take into account are things like the circumstances in which a felony was committed, how long ago it was committed, any rehabilitation—all those are important factors” that are not considered currently, he explains. Instead, the system is “sort of a rubber stamp.”

 

Torrey has been leading the crimmigration clinic each spring since 2013, in conjunction with a crimmigration law course (a prerequisite for the clinic) in the fall. In 2009, after a brief stint at Skadden, Arps, Slate, Meagher & Flom, his first job out of law school, he left for a fellowship at the nonprofit Greater Boston Legal Services, which offers free legal advice and direct representation to low-income residents. There, he says, “The cases that I was working on all had criminal issues enmeshed with them.” One client, charged with assault and battery with a dangerous weapon for beating another man with his shoe, was being held in immigration detention pending deportation proceedings. But he wasn’t guilty: the main witness recanted her false testimony; the client was allowed to remain in the country and now has his green card. “Seeing how the criminal-law system can be used against somebody in the immigration system, how unfair that can be,” Torrey says, “is what energized me to focus my practice in this particular area.” 

A large component of his clinic’s regular work involves so-called Padilla advisals. Some federal courts in recent years have begun to check the executive branch’s ability to deport convicted immigrants, and in 2010, in Padilla v. Kentucky, the Supreme Court ruled that criminal-defense counsel must advise their non-citizen clients about the potential risk of deportation following a conviction, to help them decide how to plead. (In that case, the attorney for a Honduran who’d lived legally in the United States for more than 40 years wrongly told him he wouldn’t face deportation after pleading guilty to trafficking marijuana.) 

Since that ruling, criminal defenders all over the country have relied on immigration attorneys like Torrey to prepare Padilla advisals for their clients—often in hasty circumstances, without enough time to conduct a proper analysis. To provide the advisals this past semester, his students partnered with students in the Criminal Justice Institute (HLS’s clinic for students training to become public defenders; see Criminal Injustice,” September-October 2017, page 44).

To draw up a Padilla advisal, students must engage with both the criminal and the immigration systems to combine information about a client’s immigration status with data about the particular crime at issue, and determine whether that crime meets federal grounds for deportation. Most convictions occur at the state level, and there are thousands of state statutes, many with no precedent for triggering deportation, so students must conduct a “categorical analysis” to determine whether a particular state criminal statute matches the generic, federal definition for a given crime, regardless of the particular circumstances of the defendant’s crime. A state statute that defines burglary as “entry” into a home with intent to commit a crime, for example, would be too broad to meet the federal definition: “an unlawful or unprivileged entry.” “You have different sovereigns, the federal and state governments—two bodies of law with different protections and procedures attached to them,” Torrey explains. “It can be very difficult to figure out when a state-level conviction would trigger something in the federal civil process.”

The most fraught part of this process, though, is making a judgment about U.S. Immigration and Customs Enforcement (ICE) deportation priorities: how likely the agency is to target the client for deportation. The students’ main frustration involves the difficulty of communicating the relative risk of deportation to a terrified client. The Trump administration “is trying to stretch every removal ground,” third-year student Paulina Arnold points out: revised priorities for deportations target not just immigrants convicted of crimes, but also those who have been charged with crimes, or have committed acts that could be charged as crimes. That raises the stakes for advisals, and makes it even harder to communicate deportation risks. A few years ago, she says, she would have been comfortable telling a client that deportation was unlikely. “Now, if there’s any possible chance [the client] could fit under any removal ground, you want to flag it.”

 

After the 2016 election, Deborah Anker remembers, HIRC was overwhelmed by a spike in interest in its work among law students and the wider Harvard community. President Trump had promised to immediately rescind DACA, a group including about 65 Harvard undergraduates. The clinic hired a staff attorney, Jason Corral, in January 2017 to represent members of the University community; soon after, a number of additional Trump administration executive orders affected various Harvard students and staff members: the ban on travel from seven majority-Muslim countries (HIRC wrote an amicus brief challenging that order), the repeal of DACA (now under challenge in courts), and the revocation of Temporary Protected Status (TPS) for 400,000 immigrants from El Salvador, Haiti, Nicaragua, Nepal, and, most recently, Honduras (see harvardmag.com/daca-tps-18). Corral declines to say how many Harvard affiliates will be affected by the repeal, because the University has no way of knowing precisely, but adds, “TPS is a huge issue here.”

If the repeal proceeds without challenge, Corral says, HIRC may consider building asylum arguments for TPS holders. To qualify for asylum, refugees must show that they have been persecuted based on race, religion, nationality, political opinion, or membership in a “particular social group.” (HIRC is widely known for Anker’s work in helping establish women fleeing domestic violence as a “particular social group” eligible for asylum.) “What about the fact that someone has lived in the U.S. for 20 years?” Corral asks. “The way that they talk now, or their perceived wealth or culture or politics that they developed while living in the U.S.—that can create a particular social group such that they’re likely to be targeted in their country of citizenship.” 

At the same time, many more law students are interested in practicing and expanding the bounds of immigration law. Arnold, who came to HLS specifically to study and work on crimmigration, was a second-year student during the election. As a co-president of the Harvard Immigration Project (HIP), a student group providing legal representation to immigrants, she helped form the Immigration Responsive Initiative, which quickly signed up more than 400 students (one-fifth of the student body) to contribute to post-election refugee and immigrant advocacy. Approaching large corporate firms for funding has suddenly become easier, too. Before the election, she says, firms recoiled from funding things like deportation defense “because Obama had created this criminal-alien narrative…people thought, ‘You’re just helping criminals.’ But now, increasingly, they’re willing to help out on bond, they’re willing to help out on Board of Immigration Appeals stuff that we do for people with criminal convictions. I think the narrative around that is really changing.”

Arnold will spend the next two years clerking in New York and Washington, D.C.; she thinks about becoming an immigration-law professor as a longer-term goal. “I’m really interested in what immigration status means,” she explains. The answer isn’t obvious. What are citizenship and immigration status, after all, but a way of allocating resources based on where people are born? “Citizenship exists sort of in the ether—there’s no formal document that makes you a citizen,” she continues. “People can be citizens and not know it. And things like DACA are creating whole new, liminal areas of immigration status.

“There’s a massive disconnect between the kinds of rights that we aggressively protect for folks” as part of the criminal-justice process—like the right to an attorney—versus what happens in immigration, she continues. “I worked for a public defender last summer…the kind of process that even the broken criminal-justice system gives to defendants is so divorced from what you get as a non-citizen in immigration hearings. You’re arrested, you’re put in jail in a jumpsuit, you get maybe one hearing, and you can be detained for months and months and deported—and yet you get essentially no process. Conceptually, what that means about what we think about the status of being a non-citizen is really horrible. And interesting.” 

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