"You shall love the stranger, for you yourselves were once strangers in the land of Egypt."
By Judith Levine
It is late afternoon on a spring day in a corner conference room on the law school’s 11th floor. Judge Robert Katzmann of the US Court of Appeals for the Second Circuit is nibbling a cookie and listening to the six students in the new Immigration Justice Clinic discussing their work, their challenges, and their aspirations.
They speak of the clinic’s unique purview: the legally complex intersection of criminal and immigration law. They extol the opportunities the clinic offers to engage in individual defense and federal litigation, research, and policy advocacy. They praise the clinic director, Prof. Peter Markowitz, as knowledgeable, collaborative, perfectionist, and impassioned.
And they share his passion. "This is an area of extraordinary unmet need," serving "populations that are bearing the fiercest brunt of being low on the totem pole in society at this moment," says Markowitz. "What civil rights were to the twentieth century, immigration rights are to the twenty-first."
Jaya Vasandani ’09 puts it this way: "If you care about social justice and using the law to make change, then you can’t not care about immigration law."
It was Judge Katzmann who sparked the clinic’s creation; since 2007 he has been exhorting attorneys to volunteer to represent illegal immigrants. Now he’s eager to hear about its first coup: its revelation, in early February, gleaned from internal government directives obtained under the Freedom of Information Act (FOIA), that since 2006 Immigration and Customs Enforcement (ICE) agents had ceased focusing on immigrant criminals and terrorism suspects, as the law intended, and instead were pursuing easier targets. In a stepped-up program of home raids, "a vast majority of those arrested had no criminal record, and many had no deportation orders against them, either," said the New York Times. Yet these people were detained, often far from home, and sometimes deported. The memos helped substantiate a contemporaneous report by the Migration Policy Institute, as well as immigrants’ stories and advocates’ suspicions of Fourth Amendment violations in the raids.
The story was covered by dozens of major news organizations. Homeland Security Secretary Janet Napolitano, whose department oversees ICE, ordered a review of the operations. Speaking to Judge Katzmann, the students welled with excitement at the policy impact their work could have.
The FOIA suit was an auspicious debut for the year-old clinic at a critical time in US immigration history. Ten to 14 million foreigners reside illegally within US borders; six to eight percent of the country’s workforce is undocumented. The number of foreignborn residents of the US is at an all-time high-38.1 million in 2007, or 12.6 percent of the population, according to the Migration Policy Institute-and they continue to come, legally or not, and put down roots, raise children, work, and pay taxes, even if they will never reap the benefits.
George W. Bush campaigned with a promise to achieve comprehensive immigration reform, whose goal is to rationalize the system and open avenues to legal temporary or permanent residency, serving the needs of both immigrant families and US employers.
But that controversial aim turned politically untenable after September 11. Administration priorities were changed; the goal was now to secure the borders and remove as many illegal residents as possible.
Even before the terrorist attacks, immigration regulations and quotas stymied attempts by millions of immigrants to gain legal status through employment or family ties. Today, except for foreign workers with the highest credentials, waits for H-1B (temporary worker) visas can stretch for years, according to Lisa Eisenberg ’05, who specializes in employment- based immigration law; for potential employers, she says, "this category is effectively closed." Federal stimulus legislation bars employers from hiring foreign workers for many blue-collar jobs, and workers in low-paid jobs such as landscaping or food processing are often driven to obtain false documents if they want employment. Without guestworker programs, says Eisenberg, who practices at the firm of Lynn R. Newkofsky in New York, "American employers are pushed into hiring illegal workers."
In family-based immigration, the long-held US priority of family reunification is eroding, many say; quotas mean waits ranging from four years to more than two decades. And asylum cases are always pressing.
Stepped-up enforcement and more complicated and restrictive laws are causing what Judge Katzmann calls an "avalanche" of court cases. According to Assistant Chief Immigration Judge Sarah Burr ’80, judges at New York’s 26 Federal Plaza received 18,600 new cases in 2008, which were added to cases pending from previous years. Each of a diminishing number of judges handles 850 new cases a year. On the Second Circuit’s docket, immigration cases ballooned to 39 percent from 4 percent, which translates to 32 to 48 cases a week, Judge Katzmann said in 2007.
The number of immigrants in detention has tripled in a decade-to 32,000 in January 2009, according to ICE data- and detainees may be held for years without judicial review. Studies show that immigrants with legal representation are three to four times more likely to win their cases than those without-yet indigent immigrants do not enjoy the Constitutional guarantee of free representation that US criminaldefendants do, and nationwide, only a little more than a
third have lawyers. Unlicensed "notarios" prey on poor, terrified, non-English-speaking newcomers, taking their scarce dollars in exchange for advice that can erase all chances of winning legal status. The consequences of a legal misstep can lead to deportation, broken families, destitution, and in some cases imprisonment or torture.
The system is broken, say observers of all political stripes. But to Judge Katzmann, what is at stake is more than financial or legal resources; it is the bedrock principle of equal protection under the law. "Justice should not depend on the income level of immigrants," he has told many audiences.
It was this exhortation-delivered in a 2007 Marden Lecture at the New York City Bar Association-that inspired Cardozo Dean David Rudenstine to start the Immigration Justice Clinic. "Immediately, I recognized a meaningful educational experience for students" that could provide "a critically needed service to the circuit court" at a time when "immigration has moved to the front of the national agenda," Rudenstine says.
This was not the first time Cardozo students had engaged in hands-on immigration law. Prof. Leon Wildes, an eminence grise in the field and a founder and senior partner of Wildes Weinberg, has been teaching a course in immigration law since 1979, "when there wasn’t even a casebook," he says. For about half those years, he’s overseen an Immigration Law Externship that puts students under the supervision of skilled agency lawyers handling individual applications for political asylum. Wildes enthusiastically endorsed the creation of the new clinic.
Studies show that immigrants with legal representation are three to four times more likely to win their cases than those without.
Within four months of green-lighting it, Rudenstine had raised the funds to sustain the clinic, whose current annual budget is about $200,000. A substantial boost came from Cardozo Board Chair Kathryn Greenberg ’82 and her husband, Alan.
Interviewing prospective directors allowed Rudenstine and Prof. Toby Golick, director of clinical legal education, to hone the clinic’s purpose. Surfeited with outstanding candidates, the two chose Markowitz, a former acting assistant professor at New York University School of Law and supervisor of its Immigrant Rights Clinic, as well as the former director of the Immigrant Defense Clinic at Hofstra School of Law. Markowitz started his career as a staff attorney at Bronx Defenders and maintains contact with many grassroots immigrants’ organizations.
Markowitz’s idea for the clinic was broader than the dean’s original concept, which hewed close to individual defense. "The primary mission," says the director, "has to be an exceptional legal education-not just in the substance of the law, but also in the skills." One "perpetually undertaught" skill he imparts: the use of a "lawyer’s toolbox that is not limited to litigation, or even to alternate dispute resolution, such as arbitration or negotiation. They can use things like legislative advocacy, administrative advocacy, media strategies, or fact-finding and reports," as in the FOIA suit. These tools require careful selection. "I want the students to come away understanding that every decision a lawyer makes is a strategic decision, with long-term implications- from the words they choose in a meeting to the battles they take or pass on."
Each clinic participant handles a "small case" (the defense of an individual client) and a "big case" in federal litigation. Because immigration law is civil law, even when the immigrant has committed a crime, there is no plea bargaining, so the vast majority of cases go to trial-a great opportunity for students. The "big cases" are chosen for their larger social impact. For instance, immigrants held at Rikers Island-a New York City jail that holds pretrial defendants who cannot make bail-are routinely inter-
viewed by immigration agents who fail to honor their requests to have their lawyers present.The students are helping a community-based organization document what it believes is the agents’ illegal conduct and to negotiate a solution with immigration and local authorities that does not violate detainees’ rights.
Students also go regularly to the Varick Street detention facility, where along with New York Legal Aid lawyers they interview detainees to determine whether they are eligible for bond. A person out of detention is much more likely to retain a lawyer, and thus resolve his or her case positively.
The passion so evident in Markowitz and his students is shared by Cardozo alumni who practice immigration law. It is a field, most agree, whose professional and personal challenges are exceeded only by its rewards.
Immigration law is complex-as complex as the tax code, and more rapidly mutating; rules and policies can change weekly, requiring quick adaptation of cases in progress. Many lawyers complain that the trend is toward rigidity, especially since 9/11. "Our system is stacked more than ever before against the alien," comments Leon Wildes. "I must tell clients more and more that there is no remedy for them." Still, a lawyer’s hands aren’t entirely tied: "You become highly adept at using the small technical rules."
On the plus side, such a large and complex body of law allows attorneys to specialize in areas that are close to their hearts. Lavi Soloway ’92, a gay Canadian immigrant, wanted to serve a "doubly disenfranchised group:" gay, lesbian, and transgendered immigrants. Before joining the practice of Noemi Masliah ’79-now Masliah & Soloway-he interned at Lamda Legal Defense and later started a walk-in legal clinic at the Gay Community Center in New York. Sexual minorities living in repressive cultures or under theocratic governments face marginalization, persecution, and violence at home, Soloway says, but because they lack marriage rights and sometimes are HIV-positive, they have few options for legal status. They can apply for asylum, but cultural and personal factors get in the way: "Since their sexuality was so forbidden in their countries, it is unimaginable to them that it could be a basis for lawful status"-and unthinkable to reveal their sexuality to a government official. In the last 16 years, Soloway has practiced in every aspect of immigration law, including family, citizenship, naturalization, and more, but a third to half of his clients are LGBT people from all over the world.
Michael Wildes ’89 joined his father’s firm, where he was recently made managing partner, from the "other side." A former federal prosecutor with the US Attorney’s Office in Brooklyn, he has developed an international reputation for representing defectors who have provided hard-to-obtain national security information. These include Mohammed Al-Khilewi, a Saudi Arabian diplomat who defected, carrying incriminating evidence of international terrorism and espionage, and Hani Al-Sayegh, an accused Saudi terrorist allegedly implicated in the Khobar Towers bombing in Saudi Arabia, in which 19 US servicemen were killed. Wildes also prevented the deportation of Kwame James, the Trinidadian basketball player who helped the crew of American Airlines Flight 63 subdue Richard Reid, the "shoe bomber," saving 197 lives.
In an area of the law whose practitioners sometimes view the government’s reaction to terrorist threats as exaggerated,
"I want the students to come away understanding that every decision a lawyer makes is a strategic decision, with long-term implications— from the words they choose in a meeting to the battles they take or pass on."
—PROF. PETER MARKOWITZ, DIRECTOR, IMMIGRATION JUSTICE CLINIC
Wildes has testified on Capitol Hill for stronger antiterrorism legislation. Although he thinks "the pendulum has swung too far the other way"-toward overzealous enforcement- since 9/11, he sees no contradiction between strong national security and a humane immigration policy. "We can protect our borders and reunify families and vitalize our economy all at once," says Wildes, who also serves as mayor of Englewood, New Jersey.
Susan Cohen ’85 says she fell into immigration law-and into a specialty in employment-based law-during her first year at the Boston office of the large international law firm Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, PC. She was assigned the case of a Japanese potter, a Harvard artist in residence, who belonged to the seventh generation in his family to practice a rare form of ceramics. Winning him "extraordinary ability" permanent residence status, Cohen saw a significant business opportunity for her firm. She went on to found and run its full-service immigration department- now one of the nation’s top practices-supervising 10 attorneys and 15 immigration specialists and assistants.
But it was political asylum cases that won Cohen’s heart and to which she now devotes her pro bono energy. In 1990, Cohen brought a case into the firm from a newly formed organization called the Political Asylum/Immigration Representation project, or PAIR. The client was a Somalian who would have been killed had he been sent home. "He came with a few dollars," she recalls, "learned the system, applied to Harvard B-school, got an MBA, and is now a successful CEO. He and I are part of each other’s family." Representing this man was "such a moving experience" that Cohen began working with PAIR. The organization vets the bona fides and financial needs of immigrants seeking political asylum and links them with Boston-area lawyers to represent them at no cost-with "virtually 100 percent success," she says. Cohen, who serves on PAIR’s board, received the 2005 Adams Pro Bono Publico Award from the Massachusetts Supreme Judicial Court for her asylum work. A singer-songwriter, she is donating the proceeds from her first CD to PAIR.
Elaine Witty ’91 had a long, distinguished career in immigration- related work in New York City government before moving to Memphis to join Siskind Susser, PC, as senior counsel in 2007. She has developed a subspecialty in religiousworker visas, securing legal residency for rabbis, ministers, clerics, and seminarians to meet the needs of US congrega-
tions that cannot find native-born clergy. Her choice is not surprising. Witty grew up in Boro Park, Brooklyn, the daughter of an Orthodox rabbi in a family of Hungarian Jewish immigrants. "People who come to their spiritual leader have problems, from domestic violence to hunger to immigration," explains Witty. Her mother and father took them in and gave them succor-and supper. "My parents modeled community outreach, crisis management, and social work," she says. "I don’t know any other way but to get involved."
Like many of her fellow alumni in this area, Witty is active in the immigration bar beyond the demands of her job. Before moving to Tennessee, she served as chair of the New York chapter of the American Immigration Lawyers Association (AILA), was on the City Bar Association’s Immigration and Nationality Committee, and was honored with the Brooklyn Bar Association Volunteer Lawyers Pro Bono Award. Cohen has also chaired and co-chaired a wide range of national AILA committees. Leon Wildes was AILA’s national president for 30 years. His son, Michael, recently chaired the New Jersey State League of Municipalities Immigration Task Force.
Other Cardozo graduates have done their part in policy development. Soloway has been working with advocates for the Uniting American Families Act, pending since 2000, which would extend eligibility for immigration sponsorship to any "permanent partner"-someone who is over 18 and is in a committed, financially interdependent relationship with the immigrant but who is legally barred from marrying that person. Cohen has contributed to numerous signal pieces of legislation and regulations. "The law doesn’t keep up with the reality on the ground in the country in terms of the needs of immigrants and employers," says Cohen. "Anyone who can spare the time to work on advocacy to change the law to make it more appropriate and beneficial to serve the purposes it was intended to should do so. Especially if you have any influence, you can make a big difference."
The high level of engagement among these attorneys is motivated by more than professional ambition. After all, immigration-especially when the client is indigent-is not the most lucrative area of the law. Time and emotional investments can be great. "Working through the system often takes years," says Witty. "These clients become as important as your family. Their cases can be life and death. And you are typically their only moral support in time of crisis."
Those who stay in the field thrive on its emotional intensity, especially the elation of victory. But the commitment goes deeper; immigration law puts profoundly held political, ethical, and religious beliefs to work.
These attorneys see in immigration law the potential to express one of the highest American ideals: to welcome
newcomers and value the contributions they bring. That is not just an American ethic, it is a Jewish one, important to many Cardozo alumni in this field. "You shall love the stranger, for you yourselves were once strangers in the land of Egypt," reads Deuteronomy. That stranger, says Michael Wildes, could be anyone "from Britney Spears’ lighting director to a domestic worker."
Immigration experts believe the stars are aligned to return US policy to these ideals. Although nativist fears and jingoism endure (and can be inflamed during economic downturns), changing demographics are altering Americans’ views of immigrants. In many cities, "minorities" now outnumber the native-born. Almost every American knows an immigrant. And immigrants, especially Latinos, are showing their political muscle.
President Obama, himself a global citizen, recently reconfirmed his campaign pledge to create an orderly system to legalize illegal immigrants already working in the US. "I know people get really riled up politically about this," he said in a speech. Nevertheless, "we have to have some mechanism to get [these workers] out of the shadows." Advocates are also encouraged by his appointment of former Arizona Governor Napolitano, whom they see as nonideological and sympathetic to the plight of immigrants.
While comprehensive immigration reform won’t happen right away, partial reform seems likely. The Development, Relief, and Education for Alien Minors-or DREAM-Act, for instance, was introduced in both houses of Congress in late March.That law would give temporary legal status to foreignborn children of illegal immigrants-who have lived here for years but can gain citizenship only through their parents- so they can attend college or join the military and at the same time become eligible for legal permanent status. Soloway thinks passage of the Uniting American Families Act is also closer than ever before.
Cardozo’s alumni immigration lawyers say they are thrilled about the potential of the Immigration Justice Clinic to improve the situation for immigrants now and contribute to better policy in the future. "It’s very heartening to all of us," says Soloway, citing the "staggering" numbers of unrepresented immigrants.
In the work taken on by the clinic, Dean Rudenstine sees more opportunities for students to experience the contributions that are possible through good lawyering. "Lawyers are almost unique in their authority in our system to bring about change," he says. "The students study that all the time in their casebooks. But when you are part of the actual case where you get the federal or state officials to do something that they never wanted to do, but agree to only because they are under compulsion of a court, that is a lesson in authority, responsibility, and power that leaves a permanent mark on our students. If they feel any engagement in public policy, and they want themselves to be vehicles for change, the experience in the clinic of this power is indelible."