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In more than 20 years of practice, Don P. Foster has represented insurance companies, software manufacturers, nursing homes, beverage distributors, real estate developers and even an owner of thoroughbred racehorses. But none of those experiences could have prepared the Pepper Hamilton partner to represent one of his newest clients, a 17-year-old Chinese boy being held at an Immigration and Naturalization Service detention center in Berks County, Pa. Along with first-year associate Jeffrey C. Wong, Foster is representing the youth, who arrived illegally in the country late last year but fears persecution should he be forced to return to his native China. “His family ran afoul of the one-child policy in China,” Foster explained. “There was a forced sterilization that did not go very well and left his mother very ill. He wrote a paper in school expressing his disagreement with the one-child rule, and the next thing you know the police are at the door. “We’re very hopeful that he’ll be able to stay in the country. He can reasonably expect further persecution if he returns to China.” Foster and Wong, both commercial litigators, are making their first foray into immigration law under the auspices of a year-old commitment by Pepper Hamilton to represent on a pro bono basis children detained in INS centers. The project grew out of discussions early last year between Pepper Hamilton and the Pennsylvania Immigration Resource Center, a two-attorney Harrisburg, Pa.-based public-interest organization. Through a grant from the Emma Lazarus Partnership, PIRC worked with Pepper Hamilton immigration attorney Helena Hadeed Astolfi to train attorneys how to argue asylum cases. Since last summer, the firm has taken on about one new client a month, winning every case it has argued at the trial level. “It’s great,” Astolfi said. “It’s not just great because you’re winning, but you should see the effect on these lawyers. It changes your whole perspective on the law.” UNLIKELY ORIGINS At first, Jasmine Majid wouldn’t even take Pepper Hamilton partner Stephen G. Harvey’s phone calls. “He kept calling, and I kept blowing him off, to be perfectly honest,” said Majid, who was executive director of PIRC until the beginning of this year. “I didn’t have time to train an attorney.” But Harvey, a litigator by trade, kept calling. He had heard about how asylum seekers were stymied in their bids for freedom by lack of adequate counsel from Michele R. Pistone, an immigration law attorney and the director of clinical programs at Villanova University School of Law. And he wanted to help. “We are always looking for good pro bono opportunities,” he said. “Areas where we can make a difference.” Harvey’s persistence paid off. Soon, he orchestrated a meeting with Majid, Astolfi and Janet G. Perry, special counsel at Pepper Hamilton and the firm’s director of professionalism. Over the course of two meetings — held during the height of the Elian Gonzalez saga — they decided to narrow the focus of the project to children, who because of their age have the greatest need for help in making their case for political asylum. They also decided to focus on Chinese children, who because of language and cultural barriers and physical distance from their families, often have a dire need for legal help. About 50 children are detained by the INS at any time in the agency’s Berks County facility, a growing number of them from China. “Pepper pretty much promised to do a cradle-to-grave representation for these kids,” Majid said. “They said, ‘That’s where your greatest need is, so why don’t we do that for you?’ “ Majid and Astolfi collaborated on a four-hour training program for Pepper Hamilton attorneys, which was held last summer. They also prepared a manual to help instruct the firm’s attorneys on the finer points of immigration law. Since Pepper Hamilton lawyers began taking cases last summer, they have compiled their research and briefs into a small library that makes it easier for others to get quickly up to speed. “It’s like tax law; either you know it or you don’t touch it,” Astolfi said. Now, “all of a sudden, taking on a pro bono assignment isn’t so daunting when you’re faced with your billable requirement because a lot of the legwork has been done for you. … It’s an efficient way to use your lawyers and get them to do pro bono because you’re not reinventing the wheel every time. You’re not isolated.” WELCOME TO AMERICA The same cannot be said, however, of Pepper Hamilton’s young clients. Many Chinese children are smuggled into this country for a fee, unknowingly destined for a life of indentured servitude on these shores. Otherwise, they come to the United States to live with family members who have already settled here, more often than not making the journey alone. Once picked up by the INS, however, they are usually transported to inland facilities, away from their handlers or relatives. Many illegal immigrants wind up in county prisons, where local officials rent out empty beds to the INS in exchange for monetary reimbursements. Because the INS is a federal agency, placement in these facilities is not linked to an immigrant’s port of origin, and those in the Philadelphia area — there are 800 adults in York County, Pa., alone — come from up and down the Eastern Seaboard. And the children in Berks County, critics say, are kept in prison-like conditions without adequate support services. “Many of these children have suffered real trauma,” said Metty Vithayathil, current executive director of PIRC. “They’re sitting in these facilities in the middle of nowhere, culturally and linguistically isolated.” Vithayathil said that one part of her advocacy on behalf of these children comprises efforts to secure better facilities. She said she would like INS policy changed so that no children are placed in secure facilities and that those who are relocated to shelters quickly move into foster care. Heather Bendit of the Philadelphia Bar Foundation said there have been discussions among lawyers interested in immigration issues about bringing impact litigation. Innocent children, she said, should not be clothed in prison clothing, fed with prison food or be made subject to prison scrutiny. “I think there’s something really compelling about these children,” she said. “It really feels like the Gestapo or something. It provokes a visceral reaction.” HELPING HANDS The bulk of the legal work, however, is focused directly on enabling these children to stay in the country permanently. It is a practice area, however, where the demand almost always exceeds the supply. “We’re such a small organization and with such a small budget. … I don’t know if we’re making a dent,” PIRC’s Vithayathil said. “Sometimes I feel like we’re just scratching the surface.” For private immigration attorneys like Pepper Hamilton’s Astolfi, who spend most of their time advising corporate clients, pro bono work is a fact of life. “You can’t get around pro bono work when you do immigration cases,” she said. “The need, when it arises, is so humanitarian-based that you have to help.” Still, this does not always fill the need for legal assistance. Even at a large firm like Pepper Hamilton, only two of the more than 200 attorneys in the Philadelphia office practice immigration law. While INS detainees have a right to legal representation, the state has no obligation to provide counsel. Absent the intervention of a pro bono attorney, an asylum-seeker might go before a judge accompanied only by an INS lawyer at his or her side. The mere presence of an attorney from Pepper Hamilton, then, represents a huge leap for most detainees. Further, Vithayathil said, Pepper Hamilton brings resources to the table — expert witnesses, interpreters, psychological evaluations, research and support services — that PIRC could never provide on its own. Those resources have been crucial to Foster and Wong as they try to win asylum for their 17-year-old client. They hired a translator, who helped them build rapport with the boy, a native of the Fujian Province in southeastern China who speaks no English and is unsure of his surroundings. They’ve interviewed the boy’s family members, both in the United States — he has an aunt in Washington, D.C. — and in China. They’ve secured expert testimony from a professor in the Asian and Middle Eastern Studies Department at the University of Pennsylvania to support their contention that the boy would face serious harm if returned to China. The attorneys from Pepper Hamilton say they are ready for the fight. Foster, who came to Pepper last year after Mesirov Gelman Jaffe Cramer & Jamieson merged with Schnader Harrison Segal & Lewis in part because of Pepper’s pro bono work, said he is thrilled with the opportunity to work on asylum cases. “It’s my first, and it definitely won’t be my last,” he said. “It’s a great learning experience.” Wong, for his part, is reflective: “You work at a large law firm and you get these faceless clients. To get these kids with these real stories about their journey over here really makes it.”

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