Few lawyers can claim their work directly prompted the U.S. Solicitor General’s Office to admit it misrepresented facts before the U.S. Supreme Court. Students in New York University School of Law’s Immigrant Rights Clinic, however, can lay claim to that boast.
After the clinic filed a Freedom of Information Act request and Southern District Judge Jed Rakoff ordered the release of key emails, the solicitor general’s office backed off its claim made in Nken v. Holder, 129 S.Ct. 1749 (2009), that the federal government “by policy and practice” helps facilitate the return of deported immigrants who win their appeal.
In an April 2012 letter to the clerk of the U.S. Supreme Court, the solicitor general’s office admitted it was “not confident” the process was as “consistently effective” as implied in its brief and said it was “appropriate both to correct its prior statement to this court and to take steps going forward to ensure that aliens who prevail on judicial review are able to timely return to the United States.”
The solicitor general’s concession and the clinic’s victory “could positively affect hundreds of deportees awaiting return to the United States, saving many from the distress of indefinite separation from loved ones,” Richard Revesz, dean of NYU Law, said in a letter nominating the clinic for a Law Journal award.
The clinic, formed in 1999, uses what Second Circuit Judge Robert Katzmann called “creative lawyering,” with students taking on both individual clients and advocacy projects to advance immigrant rights.
“What this clinic is trying to do is ensure that this generation of immigrants has the opportunity to thrive in this country and make this country even greater,” said Katzmann. The judge, who has worked to secure attorneys to represent the immigrant poor, added that the NYU clinic helps “prevent the system from failing” by ensuring that worthy claims have proper representation.
The clinic was founded in response to laws passed in 1996 that co-director Nancy Morawetz said eliminated much of the “discretionary power” judges had to let immigrants stay in the country. Many of the cases and advocacy projects students take on are designed to give that power back, added Morawetz, 58, a graduate of NYU Law who joined the faculty in 1987 after spending five years as a staff attorney with the civil appeals unit of the Legal Aid Society.
About 14 second- and third-year students participate in the year-long clinic, along with a number of third-years who return to work in the advanced clinic. Students are paired up, and each pair handles two matters—one individual case and one advocacy project.
They are supervised by Morawetz and Alina Das, 33, a 2005 graduate of NYU Law who worked in the clinic as a student, then as an attorney with the Immigrant Defense Project before joining the clinic as co-director in 2008.
In the last year, students have filed three amicus briefs to the U.S. Supreme Court. One was cited in a March ruling in Vartelas v. Holder, 132 S.Ct. 1479 (2012), which held that lawful permanent residents with convictions for minor crimes committed before 1996 can travel outside the U.S. and reenter without jeopardizing their immigration status.
Other advocacy projects include a successful campaign to pass the Domestic Workers’ Bill of Rights in 2010 and a March 2012 report documenting poor living conditions faced by immigrants in detention in Essex County, N.J.
After exposing complaints about poor nutrition, medical care and access to clean drinking water in the New Jersey facility, Das said the clinic is calling for more accountability and “meaningful changes in the lives and conditions facing people in detention.”
In addition to advocacy work, students, under supervision, represent clients in alien detainment and deportation hearings, attempting to prove a case should be terminated or that an individual is eligible for immigration relief. Students research and prepare briefs, handle negotiations and appear in immigration court.
“The cases that really get to the heart of what we do are the everyday cases in immigration court where students are basically helping an individual put on the fight of her life just to have a chance to stay here with her family,” said Das.
Morawetz noted that when a case or project gets busy, students may dedicate as many as 40 hours a week to their clinic work alone. Individual cases are particularly complicated, Morawetz added, because there often is no precedent and the area of law is constantly changing. Students must continuously research to stay abreast of new decisions and monitor how current litigation may impact their case.
“A lot of what we do teach students how to be lawyers in any setting,” said Morawetz. The clinic’s alumni have not only gone on to do immigration work, but also handle foreclosure, human rights or other social justice matters, working in legal services and public defender offices or at law firms.
Katzmann said the NYU clinic has provided a “model that is tried and true and tested.” Law schools at Stanford, City University of New York and the University of Texas at Austin have immigration clinics. The Kathryn Greenberg Immigration Justice Clinic at the Benjamin N. Cardozo School of Law is run by an alumni of the NYU clinic, Peter Markowitz.
Michael Wishnie, who founded the NYU clinic with Morawetz, now runs a similar clinic at Yale Law School. He said the success the NYU clinic has seen in recent years is a testament to the dedication and skill of Morawetz and Das. “They are brilliant litigators, fierce in their commitment to their clients, creative in their advocacy, careful in their preparation and writing, and have consistently won cases no other lawyer thought could be won,” said Wishnie. “In taking on hard cases and winning hard cases they have set an example for their students that this can be done.”
Morawetz, in addition to working with students, is coordinating the efforts of immigration attorneys around the country as chair of the Supreme Court Immigration Law Working Group.
The group, which meets monthly through conference calls, includes the country’s top immigration organizations, including the Immigrant Defense Project, the National Immigration Project and the American Civil Liberties Union. It keeps tabs on cases working their way through the legal system and provides support, advice and amicus briefs when a case reaches the Supreme Court.
“We as a bar need to be more deliberative and thoughtful in helping each other to identify the best cases possible,” said Beth Werlin, deputy director of the Legal Action Center at the American Immigration Council in Washington, D.C.
A member of the working group, Werlin said Morawetz’s leadership has been crucial in connecting immigration practitioners to each other and moving the immigration bar to “another level.”
While she acknowledges the benefits of collaboration, Morawetz also believes immigration is an area where “one person can make an enormous difference.”
“The issues involve the potential for permanent exile for a member of a family and that to me is extremely compelling and provides enormous motivation for working on cases.” Morawetz said.