A Note from the Dean
Dear Alumni and Friends:
In the span of just a few years, the national discourse around immigration has gone from bad to worse. Few subjects now elicit such bitter politics, raw emotion, and heated rhetoric as the debate over who should be allowed to enter this country legally and who should be allowed to stay if they entered illegally or as the children of undocumented immigrants. The immigration system we are left with is quite literally broken, and prospects for fixing it appear far off. Meanwhile, a compromise on immigration reform in Congress appears as elusive as ever. This issue of the magazine reports upon several ways in which Cornell Law School has served as a beacon of hope on the topic of immigration law in spite of the gloomy outlook.
I’ve mentioned before in various settings that Cornell is committed to fostering an environment in which people from all backgrounds rightly consider themselves equal members of our community. As Cornell’s law school, we have an interest in ensuring that the legal rights of our students, faculty, and staff are fully respected. The second feature article of this issue details how Law School faculty have worked with and helped members of the Cornell University community whose security was thrown into doubt by recent changes in immigration law and policy.
The Law School is fortunate to have several clinical faculty with deep expertise in immigration law. Since early last year, these professors have been providing free legal assistance to Deferred Action for Childhood Arrivals (DACA) students at Cornell who need help renewing their DACA registrations or who are threatened with deportation. In addition, they have counseled dozens of individual students and offered numerous “know your rights” programs for the wider Cornell and Ithaca communities. This coming winter, a group of Cornell faculty and alumni will head down to the border in Texas to provide free legal assistance to asylum-seekers being detained there.
The third feature explores Cornell Law School’s new Migration and Human Rights Program, which includes the Asylum and Convention Against Torture Appellate Clinic and the Farmworker Legal Assistance Clinic. Professors and students in these clinics have worked tirelessly at the local and national level to help vulnerable immigrant children and those trying to escape persecution in their home countries. In the process, they have established multiple legal precedents that expand asylum protection and access to counsel.
More broadly, the Law School has been doing its part to encourage a more civil and collegial discussion of immigration by people with widely divergent points of view. This issue begins with a summary of “Dreamers and Beyond: Our Broken Immigration System,” the recent groundbreaking conference organized by Professors Stephen Yale-Loehr and Jaclyn Kelley-Widmer. Held in October at the New York City Bar Association, the conference provided a comprehensive overview of the past, present, and future of DACA. The event accomplished something quite rare in today’s polarized political environment. It brought together expert panelists—progressives and conservatives, Democrats and Republicans—with very different points of view about immigration and about DACA, who thoughtfully—and at times forcefully— discussed and debated these contentious issues.
Interspersed among the features in this Forum are short articles that tell the inspiring stories of three members of the Law School community who have been intimately involved in immigration law in various ways. To start, we have a Q&A with Stephen Yale-Loehr, one of the nation’s foremost experts on immigration law, who has appeared on nearly every major news media outlet to share his even-handed and measured commentary on immigration policy. Next, we profile alumnus Krsna Avila ’17, who grew up undocumented and now works as an immigration attorney and advocate in San Francisco. In the Faculty Essays section, Professor Angela Cornell discusses her pro bono work earlier this year helping detained immigrant children near the U.S.-Mexico border.
As the nation grapples with the thorny issues around immigration, it’s more important than ever that the entire Law School community reaffirms its commitment to the core values of inclusion and respectful engagement. As the first truly American university, Cornell is—like America itself—a university of immigrants, bound together by our ideals, by our love of knowledge, and by our commitment to its fearless pursuit. Thank you for everything that you do to help Cornell Law School carry on that tradition.
Eduardo M. Peñalver
Allan R. Tessler Dean and Professor of Law
The Law School's recent conference on DACA enabled a civil dialogue among leading experts from across the political spectrum about an urgent immigration issue.
Amid the raging storm that is this nation’s debate over immigration, Professors Stephen Yale-Loehr and Jaclyn Kelley-Widmer have been like stubborn ship captains, valiantly trying to steer the conversation through turbulent seas and back to a safer harbor. This fall, with the 2018 elections in full swing, the pair organized the Law School’s groundbreaking conference, “Dreamers and Beyond: Our Broken Immigration System.”
Held October 5 at the New York City Bar Association and sponsored by the Charles Koch Foundation, the one-day conference accomplished something increasingly rare: a civil dialogue about an urgent immigration issue—the Deferred Action for Childhood Arrivals (DACA) program—among leading experts from across the political spectrum.
Established by the Obama administration in 2012, the DACA program has allowed nearly 800,000 undocumented young migrants who arrived in the United States as children to obtain a temporary reprieve from deportation and a two-year work permit. However, the Trump administration rescinded the program in September 2017 and gave Congress six months to come up with a legislative solution. Following Congress’s failure to act and the filing of a number of lawsuits, the matter is now tied up in federal courts, which have so far blocked the program’s termination.
“The DACA program is on life support right now,” says Yale-Loehr. “The president wants to terminate it. The courts have said so far that existing DACA recipients have to be able to renew their status, but nobody really knows what is going to happen long-term.”
With the lives of so many young people in limbo, Yale-Loehr and Kelley-Widmer decided to convene a forum of experts to understand how we arrived at this point and to chart a course forward. The resulting Dreamer Conference attracted nearly 150 attendees and eleven speakers who had been involved with DACA at the very highest levels, including former congressional staff, executive branch officials, immigration policy advocates, and a member of the House of Representatives, Carlos Curbelo from Florida’s 26th District.
The conference kicked off with an introduction from Eduardo M. Peñalver, the Allan R. Tessler Dean and Professor of Law, who suggested we reframe the conversation about our immigration system.
“We must start with an acknowledgement that we Americans are—with the exception of the nation’s indigenous communities—all of us immigrants,” he said. “Americans are—and always have been—an impure mixture, defined as a people by our ideals and commitments, not by blood or soil.”
Peñalver also discussed how the Law School has taken a number of concrete steps to assist the members of the wider Cornell community whose security was thrown into doubt by recent changes in immigration law. In particular, he praised the school’s clinical faculty for committing to provide legal assistance—without charge—to Cornell DACA students who need help renewing their DACA registrations or who are threatened with deportation.
Later, during lunch, Peñalver introduced Representative Curbelo as the keynote speaker, noting that the congressman is the son of Cuban exiles and a leading Republican voice on behalf of DACA recipients and immigration reform.
Rep. Curbelo delivered an impassioned talk in which he argued that comprehensive immigration reform is essential for this country’s future. He began by pointing out that “it’s not advisable to leave your district” in the middle of a close reelection campaign as he was doing, but that this issue was too important for him to stay away.
“Any time there is a thoughtful group of Americans who want to come together to discuss how we can solve the immigration puzzle in our country, I’m motivated to participate,” he said, adding that “we need to solve immigration for reasons beyond the issue itself.”
“I truly believe that fixing immigration in our country in a holistic, comprehensive, meaningful way could be the first important step in truly beginning to heal our country’s politics,” said Curbelo, “something we desperately need to do. Otherwise, we will see our institutions continue to erode and our democracy will be more at risk.”
Curbelo recounted his experience and frustrations trying to get immigration reform legislation passed in the House during a time when the discourse over the issue was becoming more divisive and toxic. After he was unable to move forward the bill he wrote—the Recognizing America’s Children Act—he and a group of colleagues began pressuring the Republican leadership with various legislative tactics to move forward with immigration reform. Eventually, Curbelo said, this effort led to the Border Security and Immigration Reform Act, which garnered a record number of Republican votes, but ultimately because of what a colleague of his called the “mystery math of immigration.”
Curbelo blamed the bills’ failure on “the cowardice of a lot of Republicans, who are worried about having to go to their base to explain why they are embracing a commonsense, reasonable solution to immigration, and the selfishness of Democrats, who want to use this issue in election after election after election, and if you solve it that comes to an end.”
“So, did we accomplish anything?” asked Curbelo. “I think we did. We now have a majority of the majority on the record. Now we have cleared that hurdle and I am confident that will be very useful in the future.”
The conference featured two panelists—Gaby Pacheco and Julissa Arce—who grew up as undocumented immigrants and went on to become leading advocates for immigrant rights. Pacheco, considered one of the founders of the Dreamer movement, was deeply involved as an activist in pressuring the Obama administration to develop the DACA program. Arce is the author of the best-selling book My (Underground) American Dream: My True Story as an Undocumented Immigrant Who Became a Wall Street Executive.
Pacheco described how in 2008, she and three other undocumented students walked for four months from Miami to Washington, D.C., to call attention to the plight of immigrant families under the threat of deportation. After campaigning for more than two years, she and other activists finally got the attention of the White House. But, Pacheco said, it wasn’t until the spring of 2012, when she learned that Senator Marco Rubio had started to work on legislation for Dreamers, that she started to think the political momentum might sway the White House to consider using deferred action as an administrative remedy for Dreamers.
“What I presented to the White House was, ‘There are two opportunities in our hand,’” said Pacheco. “We can go either way. But we do feel that you have the power to do this.”
Pacheco said she thinks that strong backing from within the Department of Homeland Security gave the White House the confidence it needed to create the DACA program. Even so, it still faced opposition from some administration officials.
“I remember in 2012, someone pulled me aside and spoke to me very harshly and told me, ‘You are going to be responsible for the first African American president losing his reelection campaign,’” said Pacheco. “I remember a torn feeling. Of course, I didn’t want Obama to lose, but at the same time, I said, ‘My first responsibility is not to the president. My responsibility is to my community and I need to do what is best for them.’”
The idea of being an advocate was something that didn’t seem possible for Arce until later in life. She recounted how, after working her way up to become a vice president at Goldman Sachs, she was inspired by Jose Antonio Vargas’s story about being undocumented.
“For the first time in my life, I felt like somebody else knew what it felt like to be me,” Arce said. “That’s really when I decided to leave Wall Street and share my story and hopefully make up for all of the advocacy that I never did when I was growing up.”
Arce and Pacheco were part of the first panel on “Politics, Passions, Parents: How the DREAMers Gained Momentum,” which traced the genesis of the Dreamer issue going back to 2001, when Senator Dick Durbin (D-IL) first introduced the Dream Act. Yale-Loehr moderated this panel, which also included Rebecca Tallent, who worked for Rep. Jim Colby, Senator John McCain, and House Speaker John Boehner, and has been involved with every major immigration bill in the last fifteen years.
Several other panelists also had extensive experience either developing immigration reform legislation or crafting the DACA program in the Obama administration. Enrique Gonzalez served as Senator Marco Rubio’s principal adviser and negotiator on a comprehensive immigration reform bill passed by the Senate in 2013. Tyler Moran, who has twenty years of experience with immigration policy, managed the development and implementation of the DACA program in the Obama White House. And Esther Olavarria, who was senior counselor to Director Jeh Johnson at the Department of Homeland Security, also helped develop and implement the DACA program from within DHS.
Tallent and Gonzalez agreed that the opportunity for comprehensive immigration reform has come and gone.
“I think the days of taking a 2,000-page piece of legislation to the floor of the House of Representatives are over,” said Tallent. “I think if you are going to get a bill through the House, John Boehner had the right idea: small fix bills through the House being sent over to the Senate as one larger package.”
Gonzalez noted that the current political environment rules out the type of negotiations he was working on in the Senate in 2012 and 2013. “There was give and take, there was compromise,” Gonzalez said. “Something that doesn’t exist anymore. There was willingness to be able to reach an agreement.”
During the conference’s second panel on “DACA: Administrative Attempts, Litigation Limbo,” moderated by Kelley-Widmer, Moran and Olavarria discussed the Obama administration’s administrative solutions to the Dreamer problem. Olavarria recalled that there were discussions within DHS as early as 2010 about administrative options, even as Congress tried to find legislative solutions.
Olavarria said that initially one of the biggest questions was, “Why aren’t we doing this through regulation instead of through administrative action?” The answer, she said, was that “the regulatory system at DHS was completely broken. It would have taken years. We wouldn’t have seen it in our lifetime.”
A fellow panelist, Josh Blackman, associate professor at the South Texas College of Law Houston, took issue with how DHS and the White House crafted DACA.
“I’m in a weird spot,” Blackman said. “I think that DACA is good policy. I don’t think the president had the authority to enact it and I don’t think it was enacted in a lawful manner. . . . They did not go through the proper administrative process and I also think it runs afoul of the president’s duty to take care that the laws of the United States are faithfully executed.”
The third panel, titled “No Way Forward, Yet No Way Back: Dreamers as Part of a Comprehensive Immigration Reform Solution,” provided an overview of the precarious nature of immigration quasi-status and discussed where policymakers may go from here. Muzaffar Chishti, director of the Migration Policy Institute office at the NYU School of Law, moderated the panel, which included Miriam Feldblum, executive director of the Presidents’ Alliance on Higher Education and Immigration; Marshall Fitz, immigration policy specialist and legislative advocate at the Emerson Collective; and Mark Krikorian, executive director of the Center for Immigration Studies.
Fitz began the discussion by arguing that we shouldn’t look at DACA and other policies in isolation.
“I think we have to look at them through the prism of this raging, national identity debate that we are having right now,” he said. “There are fundamental questions we have to answer as a country: Are immigrants good for the country? Are we stronger as an inclusive society or as a walled-off nation? Is diversity an as- set or a threat?”
Feldblum explained how her organization was launched by college and university presidents in December 2017 in response to the rescission of DACA.
“These [college and university] presidents are looking at the urgency of the moment and the moral imperative, and coming from the position that diversity drives excellence, that inclusion spurs innovation, that immigrant students and immigration are good for the country,” she said.
Mark Krikorian discussed the rationale behind his organization’s “pro immigrant, low immigration” stance. “Our take on the issue is that mass immigration is different today than it was a century or two ago, not because the immigrants are different, but because we’re different,” he said. “There was no welfare state one hundred years ago. There wasn’t as much of a gap between workers and immigrant workers one hundred years ago.”
Yale-Loehr and Kelley-Widmer agreed that the conference was a success. “We didn’t solve the DACA dilemma,” said Yale-Loehr. “The issue is too complex to do that in one day. But we got key players on both sides of the debate to talk with each other. In this polarized political environment, that is a huge first step.” Kelley-Widmer added, “This conference was a unique and valuable opportunity to explore the legal and political underpinnings of the DACA program from all angles. Everyone came away with a refined understanding of this critical issue.”
A Q&A with Immigration Law Expert Stephen Yale-Loehr
Cornell Law School Professor of Practice Stephen Yale-Loehr is widely regarded as one of the nation’s preeminent experts on immigration law. He has over thirty-five years of experience as a scholar, attorney, and writer. In addition to his private practice at Miller Mayer in Ithaca, he is a nonresident fellow at the Migration Policy Institute and co-author of Immigration Law and Procedure, the leading multivolume treatise on immigration law. Here we talk with Yale-Loehr about his career, his teaching at the Law School, and current immigration issues.
How did you get into immigration law?
When I went to Cornell Law School, I was interested in international law—there was no immigration law class offered.... I started learning immigration law on the job at a big D.C. law firm. I got to like it more and more because it dealt with people and helping them achieve their American dreams. Eventually, I began to specialize. After four years at the firm, I left to become an editor at an immigration weekly newsletter.
For much of your career you’ve balanced a private practice with teaching. How did that come about?
During my time in D.C., I started teaching immigration law as an adjunct at Georgetown Law School. A few years later my wife and I decided to move back to Ithaca. Once I was here, I asked the dean whether I could teach at the Law School and he said “Sure, let’s take a chance and offer this.” I started teaching immigration law at Cornell Law School in the spring of 1991 and have taught it ever since. Around the same time, I also started an immigration practice at a local law firm called Miller Mayer. Practicing has helped my teaching, and vice versa. I can provide case examples to my law students, and thinking about new cases I teach at the Law School allows me to better represent our firm’s immigration clients.
How has the immigration law program changed since you started teaching in 1991?
For many years, I was the only person teaching immigration law at the Law School. Now there’s a strong cohort of people with immigration as one of their teaching responsibilities. And we’ve done some innovative things over the years. For example, in addition to teaching my regular immigration class each fall, Professor Estelle McKee and I started an immigration appeals clinic fifteen years ago. The clinic helps people who have lost their asylum case appeal to the Board of Immigration Appeals or the federal courts. I also started a clinic a year ago in which law students write software applications to help immigrants who otherwise would not have access to a lawyer navigate our complicated immigration system.
Why did you start an asylum appeals clinic?
It was a confluence of events. There were a number of other immigration clinics, but a lot of them were representing individuals in immigration courts at the trial level. We were fortunate because the Catholic Legal Immigration Network had just started a pro bono appeals project. They helped us out by identifying meritorious cases at the Board of Immigration Appeals. We were able to work with them to get interesting cases at the beginning of the semester and file the briefs by the end of the semester. So, it worked out pedagogically and timewise for us to be able to do it in a one-semester clinic.
What do students gain from participating in these clinics?
Many of the them say the asylum appeals clinic is one of the most transformative classes of their law school career because you aren’t just learning about the law, you’re actually practicing it. And it’s actually helping to save people’s lives because otherwise they could be sent back to possible torture or death. I’ve been impressed by the quality of Cornell Law students and their commitment to immigration law, both in the classroom and in the clinics. After they graduate, many of them continue to take pro bono asylum cases through their law firms.
How did Miller Mayer, based out of Ithaca, become a leading global immigration practice?
Immigration law is federal law, so you can practice it anywhere. Cornell has many international students and scholars. So, we were able to basically grow the practice, first from Cornell, but then from word of mouth from satisfied clients. Then we started getting a lot of clients in China. So, we opened up an office in Shanghai. We currently have ten immigration attorneys and fifteen immigration paralegals in our group. It’s nice to be able to practice cutting-edge law in a small upstate city.
What has it been like to work in this field since Trump became president?
President Trump has thrust immigration into the national spotlight. It’s been his signature issue as a way to appeal to his base. Even though the president has not yet built a physical wall along the U.S.-Mexico border, the Trump administration has effectively enacted an invisible wall to make it harder for people to come to the United States—whether they’re refugees or legal immigrants. The administration has also made it easier to arrest and deport immigrants. So, it’s been very challenging for immigration lawyers, immigration law professors, and clients because the old rules have effectively changed without any legislative changes, which makes it very confusing.
What are the prospects for immigration reform?
I doubt we will have immigration reform in the short term. Congress is generally dysfunctional these days. I predict we won’t see comprehensive immigration reform until after the 2020 election. Congress enacted the last major immigration reform twenty-eight years ago. The world has changed significantly since then, but our immigration system has not. The failure to enact comprehensive immigration reform is hurting the United States in a variety of ways.
Since early last year, professors from the Law School’s clinical programs have been helping members of the Cornell University community whose security was thrown into doubt by changes in immigration law and policy.
Election year 2016 was lumbering to a close. Immigration was at the center of the national conversation. And deep in Central New York, a handful of immigration law professors were preparing for change.
“The minute the election results came in, we knew there was going to be an impact on many members of the Cornell community,” remembered Beth Lyon, clinical professor of law and assistant director for Clinical, Advocacy, and Skills Programs at Cornell Law School. “And not just students, but also staff and faculty. Nearly every cohort of our community includes people who are directly affected, or families who are affected. And so we began meeting as a group at the Law School.”
Over the following two years, those meetings blossomed into a multipronged effort to protect undocumented immigrants, students with Deferred Action for Childhood Arrivals status, and international students and faculty at Cornell who are impacted by the new administration’s immigration policies. People from across the Cornell community have stepped up to protect community members from the threat of deportation. However, the formidable legal resources brought to bear by Lyon and her colleagues—including Jaclyn Kelley-Widmer, assistant clinical professor of law; Estelle M. McKee, clinical professor of law; and Stephen W. Yale-Loehr, professor of immigration law practice—are a potent reminder of the advantages of having a collection of prominent immigration law scholars on campus.
In consultation with the university administration, student activists, and professors from the Cornell’s School of Industrial and Labor Relations and the university’s Latina/o Studies Program, Law School faculty have successfully pushed for a number of policy changes to make the campus a more welcoming place for vulnerable immigrants and international students. One of the most visible changes came in January 2018, when the university’s Office of the Dean of Students hired Kevin Graham as Cornell’s first assistant director for undocumented/DACA student support. Besides acting as a central contact point for students seeking advice regarding their immigration status, Graham can refer them to Law School professors when they would benefit from legal assistance. “There’s this flow and exchange of both knowledge bases and skill sets,” Graham said. “When the Law School faculty meets with students who have a student life issue, they refer them to me. And when I meet with a student who has a legal issue, I take it to them. So we have this nice system, almost an equilibrium.”
“The students feel incredibly supported in my conversations with them, knowing that they have access to lawyers who are experts on immigration law,” Graham added. “That has been one of the biggest and most tangible resources that has come out of my office, because many of the conversations circle around, ‘Am I able to do this given that I have this status?’”
Besides looking for immigration information for themselves, students frequently come in seeking advice about their families; indeed, many students with legal status are asking about their undocumented relatives. “A lot of questions we get are about students’ family, like when the families want to come up to visit, or the student wants to travel home for Christmas. ‘Is it safe? Is it possible that ICE [Immigration and Customs Enforcement] could detain me?’” said McKee. “We can tell students, ‘If you’re going to do this, don’t fly through this airport, or don’t take a bus near the Canadian border.’”
Cornell’s large population of international students has also taken advantage of the information provided by the Law School. “They’re worried about it taking longer than usual to get a visa, or they’re worried that if they travel overseas, will they be able to return?” said Yale-Loehr.
The Cornell Law School team doesn’t just save advice for office visits, though. As a response to the travel ban on people from seven mostly Muslim nations instituted days after Trump took office in January 2017, the law professors set up a dedicated e-mail address that vulnerable community members could contact for legal advice if they ran into trouble with U.S. authorities while trying to enter the country. “Anybody from a country on the administration’s list, any of our Muslim community members, they are very nervous about making that transit through the border protection checkpoint, usually at an airport,” Lyon said. “So we offer our services to be on call. We give them our card, we give them our cell number, and we’re just alert and watching our phones until they text us and let us know they’re in.”
Amid the heightened interest in immigration concerns, practitioners at the Law School have also given a number of know-your-rights talks for immigrants at Cornell and their allies. “Whenever there’s a big change in the air that students are concerned about, we’ll typically ramp up and do a number of outreach presentations,” said Lyon.
Zachary L. Baum ’17, now an associate at Cleary Gottlieb, participated in Cornell Law’s efforts early in the Trump administration when he was working full-time as part of the Pro Bono Scholars Program with the Farmworker Legal Assistance Clinic. “We would prepare basic trainings on Fourth Amendment rights, on search and seizure, and practical things like, if you’re driving someone and you know that your friend is undocumented and you get pulled over by the police, what should you do?” Baum recalled. “We just tried to give real-world advice in various factual scenarios that could very well come up on a college campus.” And not just on Cornell’s campus, either—Baum, Lyon, and Mary Jo Dudley of the Cornell Farmworker Program also went over to South Hill to brief Ithaca College students on their rights regarding law enforcement. The Law School’s Briana Beltran, clinical teaching fellow, and Sital Kalantry, clinical professor of law, as well as volunteers from Yale-Loehr’s law firm of Miller Mayer, all stepped up and assisted the team with the effort.
Immigration authorities’ access to campus and their relationship to the Cornell University Police Department have been a particular flashpoint. Much of the public discussion has focused on whether to declare Cornell a “sanctuary campus,” a designation that would symbolize the university’s determination to protect immigrants, but would have little practical effect. Behind the scenes, though, faculty have worked with the administration and the CUPD to clarify how Cornell Police responds to immigration requests from federal law enforcement.
Widespread rumors that an ICE agent was on campus back in May 2017 turned out to be unfounded. This past spring, however, a misunderstanding involving a package of documents sent by a clinic client brought immigration authorities to the Law School.
In the wake of that unannounced visit, Cornell Law School professors met with Cornell University Police Chief Kathy Zoner to figure out how to handle future incidents, and ended up working out a new policy regarding access to the clinical spaces.
“We have now established lines of communication so we can reach each other quickly and there’s an infrastructure there that there wasn’t before,” said McKee, who has generally served as the immigration law team’s go-to for university policy issues.
Perhaps the Trump administration’s most controversial step on immigration was its attempt to shutter DACA, the Obama-era program that allowed people who had been brought into the United States illegally as children to apply for a status that protects them from deportation. The change in DACA policy plunged students at campuses around the country, including Cornell, into a state of uncertainty and fear. Would they face deportation once their protections, which have to be renewed every two years, expired?
Kelley-Widmer came to Cornell in the summer of 2017 fresh from representing immigrants applying for DACA in California. It soon became apparent her arrival in Ithaca couldn’t have come at a better time—the fall term had barely started when Attorney General Jeff Sessions announced in September 2017 that the administration was bringing DACA to an end.
Court rulings have since paused the Trump administration’s plans to shutter DACA, and although the program is closed to new applicants, current status holders are allowed to apply for renewal as litigation proceeds. Thanks to her experience with DACA, Kelley-Widmer has taken the lead in advising Cornell students who have questions about their deferred action status, and helping them fill out and file their paperwork to renew their status. A grant program through the Office of Financial Aid and Student Employment can cover the $495 filing fee, helping students clear another significant logistical hurdle.
For the first time since the current round of DACA aid got off the ground, Kelley-Widmer is being assisted by a Law School student, Amanda Wong ’19. Wong had been working as an Honors Fellow in the first-year Lawyering Program last year, and the Trump administration’s immigration actions inspired her to ask Kelley-Widmer about getting involved in more immigration work. “I figured I might as well use some of the things I’ve been learning, and my privilege and status as a law student, to help people,” Wong said. Starting this past August, she’s been advising DACA students and handling their renewal paperwork.
“It’s been a really emotional experience to see how members of my community have been affected by actions taken by this administration,” Wong said. “We work with a lot of undergrad students. I think of myself when I was their age, and I can’t imagine how I would have dealt with any of the stresses.”
The new danger facing immigrants at Cornell, and the resulting efforts to help them, have had the unexpected side effect of increasing their visibility, at least to each other. “At my first know-your-rights presentation here, I thought it would be full of DACA recipients. I had just moved here from San Francisco, and any time I offered a presentation there, it was packed to the brim. And it’s just different here,” said Kelley-Widmer. “There isn’t this ‘out-and-proud’ undocumented contingent. And so I’ve had students be tearful when they found out that they have a community here.”
It’s unclear just how many students at Cornell are faced with precarious immigration status. The person best positioned to know is probably Graham, but when asked whether he has a head count, he bluntly said, “I do, but it’s not accurate.” As you might expect, trying to count people who have good reason to be wary of the authorities is difficult. “I think it would be fair to say that we know of dozens who are undocumented or ‘DACAmented,’” Graham said. Most of those are undergraduates; immigration practitioners said they don’t know of any students with those statuses who are enrolled at the Law School, although there are some law students who lacked legal status in the past.
Students who are immigrants obviously benefit from Cornell’s legal resources, but programs at the Law School also get the chance to pay it forward. Lyon, who also directs the Farmworker Legal Assistance Clinic, has taken to recruiting undocumented Cornell undergraduates and students with DACA to play a mentorship role with undocumented children that the clinic often takes on as clients. Those kids are frightened, Lyon noted. They’re facing removal while living and working on farms in rural New York, they’ve often endured horrific journeys from their home countries, they’re sending back money to support their families and pay huge smuggling debts, and some don’t even speak Spanish, let alone English.
The undergraduates enlisted by the clinic can serve as a bridge between those children and the law students trying to help them—for instance by interpreting and by providing written translation services for law students who don’t speak Spanish. However, they also serve as what Lyon refers to as “cultural brokers,” giving teenage clients someone familiar and unintimidating to set them at ease. “A lot of times they’ll be a kind of buffer,” Lyon says. “The kid will just feel safer texting with an eighteen- or twenty-year-old first-generation immigrant instead of a twenty-five-year-old law student who may or may not have as much similar life experience.”
Besides the immediately practical benefits, Lyon hopes that introducing immigrant volunteers from the Cornell community to these children might have a longer-term payoff. “It’s great when we’re able to bring in a volunteer who is an undocumented or DACA undergrad, because that’s the person that we really want our client to become,” Lyon said. “We want our students to say, ‘Yes, two years ago I took the SAT, and here’s how you can do it. I made it to Cornell, and you can do it too.’”
Krsna Avila ’17 Provides an Immigrant’s Perspective to Immigration Law
At Cornell Law School, Krsna Avila ’17 felt welcome—a sharp contrast to what it was like growing up as an undocumented immigrant in California. For much of his life, Avila had felt like an outsider, denied the full benefits of citizenship despite having lived in the United States since he was four months old.
In an essay he posted on the web platform “Things I’ll Never Say,” Avila vividly recounts the moment he opened the official notice granting him lawful permanent residency. The first sentence of the letter stated “Welcome to the United States of America.”
“I stared at those words,” he wrote, and asked himself, “Am I finally welcome after twenty-three years of being in this country? Did they just take notice of me now?”
In spite of his newfound status, Avila wrote that the “thrill of freedom was nowhere to be found.” All those years of being labeled undocumented—the pain, embarrassment, and difficulty it caused—could not be easily erased with one letter. As he went to sleep that night, he thought of all the years he had spent advocating for the rights of DREAMers like himself, and of the friends and family still struggling with undocumented status. It was then, he says, that “I knew that my commitment to seek justice for all of us would never disappear.”
It’s around this point in Avila’s story that Cornell Law School enters the picture. Having already received his undergraduate degree at the University of California, Davis, Avila was working at Immigrants Rising in San Francisco, providing support to undocumented youth throughout the country.
“I was always set on working in the immigration law field. I was involved in organizing work before law school, but I slowly realized that I needed to learn more, especially how to navigate our immigration legal system, to be more effective.”
And now, with permanent residency granted, Avila could pursue his dream of attending law school. Previously, he would have been unable to apply for financial aid and his ability to practice law as an undocumented attorney would have been uncertain.
For Avila, attending Cornell Law School to study immigration law was an easy choice. “I think I’m one of the few people who decided, ‘I’m doing this’ from the very beginning,” he says.
Plus, before he even decided to apply to law school, Avila had met Cornell Law Professor Stephen Yale-Loehr, a true luminary in immigration law. “I was immediately struck by not only his expertise, but also how nice and welcoming he is. He introduced me to all of the research available, the clinics, and professors doing similar work. I was sold.”
Once at Cornell, Avila felt he was part of a close-knit, supportive community. And, although his classes were very challenging, he came away grateful for the experience because it helped him grow in so many ways. “In addition to all of the skills I gained and the connections I made with colleagues and professors, I think I learned most of all how to be resilient by going to Cornell Law.”
One of Avila’s most rewarding experiences was the Asylum and Convention Against Torture Appellate Clinic he took with Professor Yale-Loehr.
“We took on an asylum case that had been denied by the lower immigration court,” says Avila. “I learned so much. Like how to interact with a client. He was from West Africa and working with him was eye-opening, very different from my experience as an immigrant. We were able to remand that case to the immigration judge to get a second chance and then he ultimately won his asylum case. The first time he went in he didn’t have an attorney. It showed us the power of having someone represent you, how much of a difference that makes.”
Following graduation, Avila returned to California to become the inaugural Andy Groves Immigrants’ Rights Fellow at the Immigrant Legal Resource Center in San Francisco. There, he balances a mix of policy advocacy, technical assistance, and community organizing.
The work can be exciting and rewarding says Avila, but also “very challenging, especially given the atmosphere at the federal level, which is unlike anything I’ve ever seen. At the same time, I do find it very fulfilling, especially in my first year after graduating law school, since I have so much energy to give.”
Looking back on his path to becoming an immigration attorney, Avila says it gives him a special perspective and empathy he might not otherwise have had.
“For me, it feels like I’m fighting side-by-side with them and not so much representing them. I want to know ‘How do these laws affect you? How do they affect the entire community?’ It has helped me to be an immigrant myself because now I can give back to my own community.”
The Migration and Human Rights Program
Professors and students in the clinics that compose the Migration and Human Rights Program have worked tirelessly at the local and national levels to help vulnerable immigrant children and those trying to escape persecution.
Operating at the nexus of practice and research, the Migration and Human Rights Program at Cornell Law School engages scholars across multiple disciplines in projects that directly affect some of society’s most vulnerable populations. Through the program’s clinical courses and volunteer opportunities, Cornell Law School faculty and students provide free legal assistance to immigrants locally and around the country. Their work has established multiple legal precedents expanding asylum protection and access to counsel.
Farmworker Legal Assistance Clinic
In 2015, the Law School launched an ambitious new program to serve the legal needs of farmworkers, the vast majority of whom are immigrants. The Farmworker Legal Assistance Clinic is one of the only programs in the country to provide legal assistance to farmworkers and one of the first to serve rural immigrant communities. Working with local, national, and international community partners, students tackle litigation on behalf of farmworkers in the region. They also hold brief advice and referral outreach sessions with clients locally and around the country through alternative break trips, and they undertake research and writing projects with civil rights, environmental protection, and farmworker rights organizations.
Each year, thousands of children fleeing gang violence, life-threatening poverty, and child abuse in their home countries make a dangerous journey to the United States. The Trump administration, like the Obama administration before it, has designated these children as a top deportation priority. Many of the children and youth fortunate enough to be released from detention during the pendency of their deportation proceedings come to live with family or family friends in upstate New York’s rural, farm-working communities.
“Despite the enormous stakes at play in a deportation proceeding, the nationally and internationally recognized legal standard of serving ‘the best interest of the child’ has been explicitly excluded as a rule in immigration law,” observes Beth Lyon, clinical professor of law and founder of the Farmworker Legal Assistance Clinic. “The Buffalo Immigration Court recently stated that at least 50 percent of all the unaccompanied minors who appear in the court go through deportation hearings without a lawyer by their side, despite the fact that a child with a lawyer is five times more likely to succeed in winning relief from deportation.”
Working to gain Special Immigrant Juvenile Status for their clients, clinic students have filed family court petitions in seven counties in upstate New York while also appearing numerous times before Department of Justice immigration courts both in Buffalo and at the U.S.-Mexico border and filing visa petitions with the Department of Homeland Security. As a result of the clinic’s work, six children are already on the path to permanent immigration status, one has obtained temporary status, and five have cases pending in court.
Students have also conducted dozens of intake interviews and placed numerous additional cases with pro bono attorneys to extend the clinic’s support as far as possible. In 2016, a team of clinic students submitted a statement on behalf of community partner Justice in Motion to the United Nations as it prepared to draft an advisory opinion on the rights of child migrants. The statement, issued in 2017, reflected the clinic’s input.
Jordan Manalastas ’15, a legal fellow with the clinic, is building a network of upstate New York law school clinics and service providers to coordinate legal assistance for these vulnerable young people. He and volunteer student Esthefania Rodriguez ‘20 recently traveled to Brownsville, Texas, to represent child detainees, and they continue to litigate for release of one of the children, who was separated from his family upon arrival at the border.
One of the cases Mario Roque ’17 worked on with the clinic was an asylum claim in the Buffalo Immigration Court involving a recent Guatemalan immigrant and her son. His team worked with a partner organization to gather documents from a remote Guatemalan village and presented social-science research to make the case that their client had experienced persecution. Thanks to these efforts, their client and her son were granted asylum.
“I think one of the most important things I learned [from the clinic] is the role of lawyers as storytellers,” says Roque. “During the whole process, it became clear that our work is not the focus but that the issues the client has are. I also (re)learned to adapt. Not everything is as straightforward as we would like it to be. A lot of the time, we are reacting to situations and making decisions based on incomplete information. Adapting to the situation and making the best of a bad one is still a crucial skill for me now.”
In addition to its work on behalf of farmworker children and youth, the clinic supports farmworkers in their role as employees and taxpayers, handling matters including wage theft, visas for victims of workplace abuse, workers’ compensation, and employment discrimination. In 2016, three students traveled to Guatemala under the supervision of Clinical Teaching Fellow Briana Beltran to meet with defrauded guestworkers; the clinic subsequently filed a lawsuit against the U.S. employer who charged these workers unlawful recruitment fees.
The Farmworker Legal Assistance Clinic is also reaching out to improve conditions for farmworkers abroad. According to Professor Lyon, “However politically vulnerable and underfunded it may be, this country’s network of farmworker law advocates is something of which the United States can be proud. In most other countries, there is virtually no legal support available to these highly vulnerable workers.” Last year, the clinic launched a project on the rights of farmworkers in Asia. Working with partner NGOs, students are conducting research on immigrant workers in Japan, Malaysia, and Taiwan. With funding through the Berger International and Comparative Legal Studies Summer Fellowship, Yu-Jhong Huang, LL.M. ’18 is working with Pranoto Iskandar, LL.M. ’18 to develop a cross-national legal network for Indonesian migrants working in the Taiwanese fishing industry.
Asylum and Convention Against Torture Appellate Clinic
Cornell Law School is one of the only law schools in the country to have a clinic that focuses exclusively on appellate immigration cases. Under the supervision of Directors Stephen Yale-Loehr, professor of immigration law practice, and Estelle McKee, clinical professor of law, clinic students represent immigrants in their appeals before the Board of Immigration Appeals (BIA) and federal courts as they seek to stay in the United States to escape persecution and torture in their home countries.
“The aims of this clinic are to provide excellent legal representation to individuals seeking asylum and similar relief, while at the same time teaching practical legal skills, including cross-cultural communication, client interviewing, advanced legal research, international fact-gathering, and advanced persuasive legal writing skills,” note Yale-Loehr and McKee.
Since the clinic’s founding in 2003, almost 100 law students have helped immigrants navigate the United States’ daunting immigration system. Clients of the clinic have included domestic violence victims, transgender individuals, child soldiers, political activists, and mentally challenged detainees.
Clinic students work intensely during the spring semester, reviewing transcripts of hearings before an immigration judge, interviewing their clients (often with help from other students acting as interpreters), unearthing new facts about the client’s case, researching domestic and international law and country conditions, developing a theory of the appeal, filing administrative motions and petitions, and writing appellate briefs. In doing so, they develop a deep understanding of the complex law governing immigration relief. Many students continue to practice immigration law after graduation, either in NGOs or by taking asylum cases on a pro bono basis while working in private firms.
“Immigration law is one of the most complex areas of law, because it balances a potent mix of emotional, intuitive, economic, and other political factors,” says Justin Lin ’19, who participated in the clinic during the 2018 spring term. He and partner Aaron Smith ’18 worked with an asylum seeker who had fled Niger. Their client, who had converted to Christianity from Islam, received death threats from others in his village, culminating in an attempted poisoning. When he reached the United States, he was detained by immigration authorities.
Lin and Smith sought asylum for their client on the grounds that he was persecuted on the basis of religion, a protected category in U.S. asylum law, and that he could not safely return to Niger because of widespread anti-Christian sentiment. Though the BIA denied the asylum application crafted by Lin and Smith, their client will be able to make an appeal using the strong foundation of their work.
The clinic has achieved a number of significant victories over the past few years. In 2016, Jamie Long ’17 and Melvin Wu ’17 won remand for their client, a man from Somalia who had suffered a kidnapping, beatings, and the murder of family members by members of a local clan. Meanwhile,Krsna Narayana Avila ‘17 and Yanet Yuritzy Cordero ‘17 represented a client from Benin who had been persecuted by his former Voudon congregation after converting to Christianity. Presenting research that Voudon curses can cause real, physical pain to those who believe in their power, the students won remand for their client.
In 2017 Alla Khodykina ’18 and Gavin Bosch ’18 also won remand for their client, a transgender woman who faced deportation nearly twenty years after fleeing to the United States from Mexico to escape persistent transphobic violence inflicted by her family, neighbors, and local police. In the United States, she struggled with illness, mental health issues, and drug addiction, which led to multiple arrests and the threat of deportation. Her first petition for asylum, made without representation, was denied. Taking on her case, Khodykina and Bosch argued that the BIA should grant their client humanitarian asylum in recognition of the complex trauma she suffered in Mexico and the likelihood that, as a member of a marginalized group, burdened with mental and physical health complications, and with no system of support, she would likely suffer additional harm should she return. The BIA responded by remanding the case to immigration court, giving the woman a second chance to fight for asylum.
In the spring of 2018, advanced clinic student Karen Smeda ’18 served as second chair on a case in one of the toughest federal circuits in the country, representing a Quiché-Mayan woman who had fled Guatemala after an assassination attempt by her Ladino sisters-in-law. Carefully prepared by the team of Smeda and Taylor Levy of Annunciation House, the woman coped with intense questioning from the immigration judge and won asylum. Says Smeda, “I am proud that my partner and I were able to bring hope to our client as well as others in the immigration community. We accomplished what felt impossible at the time: winning in a jurisdiction with all odds against us.”
For more information visit:
This past year, the Law School added three alumni to the ranks of the federal judiciary, bringing its total number of article III active or senior federal judges to thirteen.
At Cornell Law School, none of them dreamed of becoming a federal judge. They graduated and became associates or law clerks, and eventually a state district judge in Texas, attorney general for the state of Hawaii, and senior counsel for a major health-care company.
And then the call came—either out of the blue or after a groundswell of support grew for nomination to the federal bench.
Judge Karen Gren Scholer ’82, who had been considered for a federal judgeship for a decade, was contacted by the chief counsel for Senators John Cornyn and Ted Cruz in April 2017, informing her that the senators would be submitting her name, again, for nomination as a district judge for the Northern District of Texas.
Judge Mark J. Bennett ’79, the former Hawaii attorney general, was contacted unexpectedly by staff from his home state’s two U.S. senators on the same day in August 2017 and asked if he was interested in serving as a U.S. circuit judge on the U.S. Court of Appeals for the Ninth Circuit.
Judge Amy J. St. Eve ’90, who was already a U.S. district court judge in the Northern District of Illinois, received a surprise call from the Office of the White House Counsel in June 2017 to determine if she wanted to be interviewed for a vacancy on the U.S. Court of Appeals for the Seventh Circuit.
In 2018, all three Cornell Law School alumni were approved by the Senate with overwhelming bipartisan support to serve on the federal bench. After taking the oath of office, they joined a group of thirteen Law School alumni who are article III active or senior federal judges—those confirmed by the Senate and appointed for life—extending Cornell’s representation on the federal judiciary from Texas to Alaska.
“These are powerful and influential positions,” says Eduardo M. Peñalver, the Allan R. Tessler Dean and Professor of Law. “I think it’s important for our alumni community that our graduates are filling these positions. It enriches the conversation that we can have among our alumni about the direction of the law.”
That conversation continued on campus this year as Judge St. Eve and Judge Scholer returned to the Law School to evaluate students in moot court competitions. “I like to give back to the Law School—it did a lot for me in terms of preparing me,” says Judge St. Eve, who is chair of the Cornell Law School Advisory Council.
Judge Scholer’s Ten-Year Journey to U.S. District Court
When Judge Scholer became a U.S. district court judge in March 2018, she broke through a historic barrier: she was the first Asian American federal district judge to be appointed in the Fifth Circuit, which includes Texas, Louisiana, and Mississippi.
Judge Scholer, who was born in Tokyo, also joined the federal bench with another distinction: she had been nominated by two presidents from two different parties for two separate districts. Her first nomination by President Obama in 2016 for the Eastern District of Texas never reached a Senate floor vote. But when President Trump nominated her for the Northern District of Texas in the fall of 2017, she was approved by the Senate six months later.
For Judge Scholer, being nominated by both a Democratic and a Republican president was a dream come true. “It is an incredible honor to have the president of the United States call upon you to serve in a lifetime position,” she says, “and to have it happen twice!” As Senator Cruz later told her, being a Trump and an Obama nominee was “unique” and an accomplishment very few can claim.
After serving as a state court judge for eight years, Judge Scholer retired from the bench in 2008 and joined the Dallas office of a global law firm, just before Obama’s election brought a wave of Democrats to win every judicial seat in Dallas County. Though she enjoyed a return to private practice, she knew her ultimate calling was to serve as a federal judge.
“A state court judge is a very high calling, but I think most people would agree that the federal court bench is an even higher calling because it is a lifetime position,” said Scholer, whose district court nomination was supported by civic and bar leaders, local judges, and elected officials, on both sides of the aisle. As the first federal judge appointed to the Northern District of Texas in Dallas in more than a decade, Judge Scholer received nearly 300 case transfers, some within twenty-four hours of taking her oath. The district has been declared a judicial emergency because of the number of filings and the length of time judicial vacancies have been unfilled.
Despite the workload, she is overjoyed to finally join the federal bench. “I’ve spent my whole life getting to this point, but it’s still a surreal moment,” she says. “Because the stars had to align just perfectly to make it happen—it’s still hard to believe.”
A First Judicial Appointment for Judge Bennett
Until Judge Bennett was contacted by staff members from Hawaii’s two U.S. senators, he says that serving as a federal judge “wasn’t really something that was on my radar.” Yet his nomination to the U.S. Court of Appeals for the Ninth Circuit wasn’t entirely unexpected because he was a well-known litigator in the state and had served as Hawaii’s attorney general for eight years.
What was considered unusual was Judge Bennett’s age—at sixty-four, he was the oldest of all of Trump’s appellate nominees, who are typically in their forties and fifties, according to The Vetting Room, a nonpartisan legal blog.
“Because it is a lifetime appointment, they typically want a person who can serve for longer than someone who is my age,” he says. “But I was just very honored that neither the senators nor the White House saw my age as an obstacle.”
Formerly active in state Republican politics, Judge Bennett was recommended and supported by the state’s two Democratic senators, who praised his qualifications for serving on the appellate court. “Mark is recognized as one of the best-qualified lawyers in the State of Hawaii,” Senator Mazie K. Hirono said in a statement after his confirmation.
Judge Bennett viewed the position as an intellectual challenge because of the scope of issues that come before the Ninth Circuit, the largest in the country, with nine states stretching from Hawaii to Alaska. While maintaining chambers at the federal courthouse in Honolulu, he sits on three-judge panels for the Ninth Circuit in San Francisco, Pasadena, and Seattle.
“Being a judge on the Ninth Circuit, you just see so many important, interesting legal issues, constitutional issues, and very complex cases,” he says. “It is a great challenge, but I thought it was an important way to continue my public service.”
Holding the Hawaii seat on the Ninth Circuit was also a perfect scenario for Judge Bennett, who grew up in Binghamton and moved to Honolulu to clerk for a federal district court judge after law school. “The people are wonderful, and it’s just a stunning place to live,” he says.
Judge St. Eve Moves Up to the Court of Appeals
Judge St. Eve had served on the federal district court in Chicago for fifteen years when she received a call in 2017 from the Office of the White House Counsel asking if she wanted to be considered for a vacancy on the U.S. Court of Appeals for the Seventh Circuit.
The question was completely unanticipated. Yet eleven months later, Judge St. Eve was unanimously confirmed by the Senate and joined the court of appeals in May 2018.
While she welcomed the opportunity to serve on the circuit court, she enjoyed everything about working as a district court judge. “I loved being a district court judge,” she says. “I loved trying cases and being in the courtroom. And I loved being able to help people and interacting with the lawyers.”
Judge St. Eve brought a wealth of experience to the federal bench, including serving as senior counsel at Abbott Laboratories outside Chicago and working as an associate independent counsel for Kenneth Starr and successfully prosecuting former Arkansas governor Jim Guy Tucker and two partners involved in the Whitewater land deal for fraud.
In her tenure on the district court, Judge St. Eve presided over more than 125 trials and adjudicated 5,000 civil and 500 criminal cases. At the federal courthouse in Chicago, she oversaw several high-profile trials, including one of the first terrorism cases to go to trial after 9/11 and the fraud case of a real-estate developer and former fundraiser for Barack Obama.
Ironically, Judge St. Eve also presided over a trial involving the man who nominated her, President Trump, who had been sued by an eighty-seven-year-old woman over a breach of contract claim regarding her purchase of two Trump Tower condos. The Chicago Tribune reported that Judge St. Eve gave Trump a “magnificent tongue-lashing” when she told him to stick to the questions he was being asked during testimony at the 2013 trial.
“The lawyer questioned him, things got a little heated, and I took a break, like I would do and have done in any other trial,” says Judge St. Eve, who, like the jury, ruled in favor of Trump at the trial.
Now that she’s on the U.S. Court of Appeals, Judge St. Eve is no longer trying cases but instead spends her days reviewing briefs and records from district court trials. The judicial panels for the Seventh Circuit hear cases in the same courthouse in downtown Chicago where she has worked since 2002.
An active supporter of Cornell since graduating, Judge St. Eve hired two Law School graduates—Mike Zuckerman ’09 and Zoe Jones ’15—as part of her first cohort of law clerks at the appellate court. “I always give a hard look to the Cornell Law School graduates who apply,” she says. “They are well prepared, and they are hard workers.”
Professor Beth Lyon and Teaching Fellow Briana Beltran examine the role of low-wage, foreign guestworkers in the U.S. economy and how they fit into the larger debate over immigration.
Behind the tragic stories about family separation, unnecessary border deaths, and detention of immigrant children is the rarely discussed struggle over the number one driver of illegal migration: low-wage work. Labor migration is an inextricable part of human history, perhaps one of the earliest and most fundamental forms of globalization. A recent estimate puts the number of over-age-fifteen migrant workers at 150 million worldwide. If migrant workers had their own territory, they would constitute the ninth largest country in the world. Unemployment has dropped in the Global North, but has increased or remained at a high level in most of the Global South, a signal that labor migration will only expand. Meanwhile, low-wage labor migration takes place in a highly unregulated environment, marked by low-wage visa scarcity, lesser-regulated labor conditions, and toleration of long-term undocumented workforces. Intermittent refugee movements mask low-wage labor migration and provoke further enforcement. The result is persistent large numbers of undocumented and poorly regulated temporary foreign worker (“guestworker”) jobs in numerous economies around the world. In the United States, for example, according to the most recent available data, 9 percent of America’s low-wage workforce is undocumented, and currently there are about 8 million undocumented workers in the overall workforce, owing to laws and enforcement priorities that punish immigrants but rarely sanction employers. Undocumented workers often encounter one or more predictable harms, including demonization; violence; waste of entrepreneurial spirit; loss of life and injury at dangerous borders; sexual assault; interrupted educations; familial disintegration; child labor; trauma; exploitation; disproportionately poor workplace outcomes; toxic stress; criminality associated with smuggling, trafficking, and purchased working papers; detention; criminalization and overpolicing; and loss of national pride. This situation fuels an industry-wide race to the bottom in which high-road employers who wish to better support their workers are disadvantaged in the marketplace. Moreover, the current policy focus on enforcement in immigration sharply increases human misery and fails to address or acknowledge the underlying labor dynamic that caused the migration in the first place.
A significant normative gap allows this situation to persist without international sanction. International law explicitly allows countries wide latitude to determine their own low-wage foreign visa regimes, including whether to offer regularization of status to undocumented workers. At the same time, countries of employment strongly resist development of multilateral low-wage migration or migrant rights standards. As a result of this continuing limited international cooperation around migration, international law explicitly excludes from scrutiny two of the key determinants of the low-wage migrant worker experience: the availability of visas, and control over regularization. As to the first item, there are very few visas available for low-wage workers. Moreover, a commonly held belief is that undocumented immigrants are not only lawbreakers, but also line jumpers: they could have had legal status, had they only waited their turn. In truth, legal pathways are extremely rare, burdensome to the degree of near impossibility, and do not meet demand. In response, many scholars and politicians advocate for an expansion of temporary foreign worker programs as the answer to ending undocumented and trafficked labor. However, 60 percent of undocumented workers have been in this country for ten years or longer. They have built workplace roles and lives here that would be disrupted by being funneled into a cycle of temporary visas requiring return to their home countries. Instead, the best solution for the vast majority of these workers is regularization of their immigration status.
No Way to Treat a “Guest”
The most recent available data shows that guestworkers make up 0.3 percent of the low-wage U.S. workforce. The U.S. Congress is considering, as it has in the past, numerous bills that would greatly expand the numbers of industries and workers involved in guestworker programs, while at the same time weakening the already limited worker protections that characterize them. In their present form, U.S. guestworker programs are already marked by frequent legal violations and exploitation of workers. These trends have been documented by everyone from legal services organizations to academic scholars to investigative journalists to sitting members of Congress: in 2007, Congressman Charles Rangel called U.S. guestworker programs “the closest thing I’ve ever seen to slavery.”
These problems can be traced back to a defining feature of these programs: guestworkers lack “visa portability,” or the ability to freely change jobs and employers if workers experience legal violations. Typically, guestworkers are “imported” to the United States by employers who petition the government to bring in workers in the first place, asserting that there are not enough able and willing U.S. workers to fill such jobs. Guestworkers are then permitted to work only for the employer who has imported them—the moment workers quit or are fired, they no longer have legal status and can be deported. The employer, therefore, totally controls not only the conditions of a guestworker’s employment but also the worker’s immigration status in the United States.
As a result of this dynamic, workers face a significant disincentive to complain about legal violations. Why risk complaining about low pay, unlawful recruitment fees, or dangerous housing, or reporting a workplace injury or sexual harassment by a supervisor, when the employer—and recruiters on the ground in sending countries—can send a worker home at a moment’s notice or choose to bring in other, more compliant workers next year instead? Pair that with the fact that most guestworkers live in isolated settings, often in employer-controlled housing, and it is no surprise that mistreatment of workers is common.
To complicate the situation even further, it is extraordinarily difficult for guestworkers to access legal help. Government enforcement is weak or all but nonexistent across all guestworker programs. In the case of the “cultural exchange” J-1 visa program, oversight rests with the State Department, not the Department of Labor, and certain abusive practices, such as charging recruitment fees, are not regulated. Most private attorneys would be reluctant to take cases of low-wage, often non-English-speaking workers who will return to their home countries in a matter of weeks or months. Even federally funded legal services offices face significant restrictions on the types of guestworkers they can represent—only agricultural workers on H-2A visas and H-2B visa forestry workers—and the types of cases they can bring—for example, they cannot file class actions and are prohibited from engaging in organizing. As a result, rampant exploitation goes unchecked. In many ways, the latter is a feature of these programs, not a bug.
“We Asked for Workers. We Got People Instead.”
Although immigration is a constant topic of national discussion, the debate tends to leave out an important reality: we live in an economy that actively maintains and promotes a large pool of both undocumented jobs and precarious jobs filled by temporary workers. The binary positions “They come here and take our jobs” (anger) and “They do jobs nobody else wants” (gratitude) are rarely leavened with introspection: “What does it say about our nation that so many jobs exist that nobody else wants?” The current situation says a great deal about us all, as consumers, as citizens, as policy makers, and as business owners. Whether we play one or many of these roles, we in countries that rely heavily on immigrant labor are all perpetrators and bystanders in the harm these jobs represent.
The world has not yet seen a rational low-wage foreign worker scheme, because every nation fails to recognize the human side of labor migration. By contrast, advocates and scholars propose a variety of alternatives that could move us toward a sustainable regime. First is a large number of permanent worker visas for low-wage jobs. Visa holders would have the option of bringing their families with them and the opportunity to build a noncontinuous record of satisfactory employment to obtain permanent status, changing jobs and returning to their countries of origin at their own discretion. As a result, workers for whom a temporary stint is the best path would have that option, while others could perfect long-term workplace relationships and community ties with longer stays or permanent residence. All of these visa holders would have the same employment rights and protections as other workers. In addition to having a better regulated low-wage workforce and safer border, our society would be far more prepared to intelligently absorb temporarily expanded flows of refugees, such as those we are currently seeing from Guatemala, Honduras, and El Salvador. For example, in this scenario, many of the children who were separated from their parents at the border in the spring and summer of 2018 might have instead arrived with a parent entering the country on a permanent-path worker visa.
In such a scenario, where low-wage foreign workers are on a more equal footing with other workers, why would U.S. employers choose to hire foreign nationals? Under this scheme, some of America’s millions of undocumented and low-wage temporary foreign worker jobs would disappear, some would automate, and some would improve enough to attract U.S. nationals. Many of these jobs, however, would continue to populate with low-wage foreign workers because these courageous individuals will always bring to the American workplace their zeal and willingness to accept difficult work and to perform it well. We do not have to separate these workers from their families, drive them into the underground, or keep them in extreme poverty in order for their presence to benefit the American economy. By shaping rational and humane low-wage foreign labor rules, we would recommit to the rule of law and ethics, thereby returning a sense of dignity not just to low-wage workers who sustain our economy, but to American society as a whole.
Professor Jaclyn Kelley-Widmer explores the cases for and against the Deferred Action for Childhood Arrivals program that are currently tied up in different federal appeals courts.
Here, the egg has been scrambled. To try to put it back in the shell with only a preliminary injunction record, and perhaps at great risk to many, does not make sense nor serve the best interests of this country.” So stated Judge Andrew Hanen of the Southern District of Texas in his August 31, 2018, decision declining to grant a preliminary injunction halting the Deferred Action for Childhood Arrivals (DACA) program.
Judge Hanen’s comment on the scrambled egg that is DACA came at the end of a lengthy opinion detailing the various cases currently in litigation around the DACA program. These cases are proceeding along two “tracks.” On one track are several cases filed on behalf of DACA recipients to contest the Trump administration’s September 2017 memorandum to rescind DACA. On another is the case before Judge Hanen filed by Texas, seven other states, and two governors challenging the legality of the DACA program.
To understand how the DACA litigation developed along two parallel tracks, it is helpful to have some background on the DACA program. DACA was designed to protect young people who came to the United States as children, but who do not have lawful immigration status—that is, they are undocumented. They may have arrived with a valid visa, which expired after they entered the United States, or they may have entered without any visa at all.
As an immigration lawyer, I have had DACA clients who entered the United States as babies, a year old or less. Others can vividly recall the journey on foot, holding an uncle’s hand as they forged their way to “el norte” as a ten-year-old to reunite with parents. Now, they have built their lives in the United States, but live in constant fear of deportation even as they are integrated into their communities here.
These individuals, like other undocumented immigrants, are
ineligible for most forms of immigration relief. For example, they cannot receive a green card through marriage to a U.S. citizen (unless they meet one of several limited exceptions). They typically cannot apply for a student visa or a visa through a family member without returning to their home countries to get it. By leaving the United States, however, most undocumented immigrants face a ten-year bar to return, so such options are practically closed. Further, immigrants cannot receive a work permit unless there is an underlying form of relief available to them. Our immigration regime simply does not provide a way for most undocumented immigrants to gain lawful status.
In response to this issue, in 2001, members of Congress introduced the Development, Relief, and Education for Alien Minors Act, also known as the “DREAM Act.” The bipartisan bill would have allowed certain undocumented youth to legalize their status. This community, which began a grassroots political movement, took the name “Dreamers” from the title of that bill.
The first hearing on the bill was scheduled for September 12, 2001, but was derailed by the September 11 terrorist attacks. After that event, previously strong support for the bill began to wane as a general fear of outsiders mounted. Since then, there have been several attempts to pass the DREAM Act, but none has been successful. Nevertheless, a political movement was born, as Dreamers began to unite and advocate for legislative solutions.
What Congress could not accomplish legislatively, President Obama tried to achieve administratively. President Obama announced the DACA program in June 2012. It is available to applicants who were under the age of thirty at the time of the announcement. Applicants must have entered the United States before turning sixteen years old and have been continuously residing in the United States since June 2007. Further, they must meet certain educational or military service requirements and must have no significant criminal history.
The main benefit of DACA is that anyone who receives DACA
is assured that they will not be deported for a two-year period, lifting an incredible burden for a community living under that threat. Further, DACA recipients receive a work permit and a Social Security number, allowing them official entry into the U.S. economy and giving them the ability to use the skills and education they have gained while living and studying in the United States. Every two years, DACA recipients must file to renew their DACA grant.
According to U.S. Citizenship and Immigration Services, approximately 822,000 individuals have received DACA since 2012. A 2018 survey of DACA recipients by the Center for American Progress and political science professor Tom K. Wong of the University of California, San Diego showed that currently 89 percent of respondents are employed and 40 percent are enrolled in school. After receiving DACA, 54 percent reported moving to a job with better pay, and 75 percent reported that the increased earnings allowed them to help their family financially. And of course, there are benefits that statistics cannot capture. For example, because he had been granted DACA relief, my former client Alejandro was able to work at a prestigious biotechnology lab while completing his undergraduate degree in biology. His work experience was not only higher paying, but substantively prepared him for his future study of medicine.
When the DACA program started, no states filed legal challenges to the program. DACA proceeded as planned, and hundreds of thousands of young people registered.
In 2014, the Obama administration announced an even broader program called DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents), for parents of citizen or resident children. The same announcement also expanded DACA, including provisions to lift the age cap and open the door to children who arrived between 2007 and 2010. In response to DAPA and expanded DACA, Texas and twenty-five other states sued, challenging the legality of the 2014 programs. In June 2015, the Supreme Court upheld injunctions against the DAPA and expanded DACA programs. The original DACA program, however, continued.
In September 2017, the Trump administration announced that it would “wind down” DACA, nudging Congress to enact a legislative solution. Immediately, the first track of lawsuits began, which alleged that the DACA rescission memo was unlawful. Starting in January 2018, district courts in California, New York, and Washington, D.C., issued decisions in separate cases that all reached the same conclusion: the September 2017 decision by the Trump administration to rescind DACA was unlawful under the Administrative Procedure Act because it was “arbitrary and capricious.” These court decisions require the administration to continue adjudicating renewal applications for those already granted DACA. The D.C. district court explicitly noted that while the government likely has the authority to rescind DACA, it must do so with a lawful and reasoned explanation, not a “hodgepodge of illogical or post hoc policy assertions.” The D.C. decision would also require the government to reopen DACA applications for new applicants, though this part of the decision is currently on hold.
The effect of these decisions has been twofold: they have lifted the pressure from Congress, which has yet to act on DACA; and they have spurred legal action on the part of anti-DACA states.
The courts in California, New York, and D.C. decided thosecases on the premise that the DACA program was legal. In May 2018, apparently in response to these cases, Texas and seven other states filed a suit challenging the original DACA program. Oddly, the states had not challenged the initial program in the six years it had been running. Perhaps this was because in 2012 the political dynamic was different, and the DACA program was largely seen as welcome protection for a class of people that Congress had been attempting to protect for many years.
Thus, the second track of DACA cases involves Texas and other states’ efforts to end the DACA program. Judge Hanen did not enjoin the DACA program in his recent decision, reasoning that doing so could cause
irreparable harm to DACA recipients. However, he strongly suggested that Texas is likely to prevail on the merits. If he eventually decides to end the program, the twenty-two DACA recipients who intervened as defendants in the case will certainly appeal.
Ultimately, the two tracks of cases around DACA will likely lead to a circuit conflict, given the likelihood of appeals. Several circuits will have decided that the 2017 DACA rescission memo was unlawful, while the Fifth Circuit will have decided that the 2012 issuance of DACA was unlawful. The Supreme Court may act to resolve this issue as early as 2019, setting significant precedent on the permissible scope of executive actions. In the meantime, the lives of over 800,000 DACA holders hang in the balance.
Very few outsiders have been allowed to visit Casa Padre, the nation’s largest facility for holding migrant children, located in Brownsville, Texas, about six miles from the U.S.-Mexico border. Fewer people still have been allowed to even speak with the boys, ages ten to seventeen , who have been housed in the former Wal-Mart Supercenter for months at a time after being detained at the border.
Most of the children at Casa Padre are unaccompanied minors who arrived at the border alone, but some of the children arrived with their families, then were forcibly separated from their parents under the Trump administration’s “zero-tolerance” policy.
In July, Professor Angela Cornell became one of the few people from outside the Casa Padre facility to speak with the children being housed inside. Cornell, director of the Labor Law Clinic, was part of a select group of volunteer lawyers, doctors, and other professionals that was granted permission to inspect the facility and interview some of the boys under the terms of a decades-old settlement. What follows are her thoughts on the current immigration policies regarding migrant children colored by the July 12–13 visit.
The Trump administration policy that separated migrant parents from their children at the border has elicited widespread condemnation and will surely go down in history as one of the most unconscionable government initiatives. Thousands of volunteers have come forward to help these vulnerable children.
In July, I responded to a widely distributed request for legal assistance at the border and had the privilege of traveling with a group of volunteer lawyers, interpreters, doctors, and mental health professionals to Brownsville, Texas, to interview and take the declarations of migrant children detained at the border. It was a heart-wrenching experience to see these young people who had been warehoused for months on end.
The trip was arranged by the Flores v. Sessions legal team, which is making its way to all the facilities that detain migrant children to evaluate compliance with the legal settlement reached in 1997. The nationwide class-action litigation has challenged the conditions under which children have been held and the duration of their detention. When the request for assistance was sent out, 6,000 volunteers responded. About thirty-five of us were ultimately invited to participate in this site visit to the Casa Padre facility, which is the largest facility in the United States and holds approximately 1,500. This facility houses children who entered the country alone, as well as those who had been separated from their families at the border.
The Flores legal settlement set minimum standards for the treatment and processing of accompanied and unaccompanied minors in the custody of the Department of Homeland Security and requires their release without unnecessary delay to a parent, legal guardian, or qualified adult custodian. The settlement supports family unity and requires that children be released from detention as promptly as possible, generally no more than five days or twenty days for family detention. The declarations obtained at the different facilities have been used to challenge the government’s lack of compliance with the legal settlement. There is ongoing litigation on these issues.
Here at the Law School, we are fortunate to have such deep expertise in the area of immigration law. One of two programs to primarily focus on this area is the Farmworker Legal Assistance Clinic, which has agreed to represent a couple of children that requested legal representation at Casa Padre. Clinical Professor Beth Lyon and a fellow in her clinic, Jordan Manalastas ‘15, have been working to move those cases along. Jordan recently returned from Brownsville, where he was able to meet with these clients and represent one of them at a hearing in immigration court.
Serious issues concerning the prolonged detention and conditions under which these children are housed remain. On July 27, federal judge Dolly Gee announced that she will appoint a special monitor to oversee the treatment of minors by the Immigration Customs Enforcement and Border Patrol at the facilities located near the border and compliance with the settlement. Six weeks later, the Department of Homeland Security and the Department of Health and Human Services proposed a new rule that would terminate parts of the Flores Agreement, which the government has asserted is one of the primary pull factors for illegal immigration. Although the government discontinued the policy of separating families in June, reunification is far from complete, and thousands of children remain in detention facilities. The Law School remains committed to offering legal support and some representation to these vulnerable young people.